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Bafinu v Momondi [2023] PGNC 487; N10612 (11 December 2023)

N10612

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 319 OF 2023

BETWEEN:
HON.MARTIN TIM BAFINU
-Plaintiff-

AND
HON. LAWRENCE MOMONDI
-First Defendant-

AND
BUDS BOTIKE
-Second Defendant-

AND
NAWAEB DISTRICT DEVELOPMENT AUTHORITY
-Third Defendant-

AND
MOROBE PROVINCIAL GOVERNMENT
-Fourth Defendant-

Lae: Dowa J
2023: 24^th November & 11^th December

PRACTICE AND PROCEDURE – Notice of Motion – Plaintiff seeking interim injunctive orders pending determination of substantive matter-decision remains discretion of court- principles applicable -need to show arguable case- whether damages inadequate remedy-balance of convenience -and interest of justice-plaintiff failing to meet requirements-application refused.

Case Cited:
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Robson vs. National Airlines Corp. [1983] PNGLR 476
Wamena Trading Ltd vs. Civil Aviation Authority [2006] PGNC 57; N3058
Employers Federation vs. PNG Waterside Workers (1982) N393
Mondio vs. Moses (2018) N7563
Wingti v Rawali and others (2008) N3568
Pato v Ipatas (1998) SC622
Nui v Tanda (2003) N2765
Kambanei v NEC (2006) N3064
Lupari v Somare (2008) N3476

Counsel:
B. Tomake, for the Plaintiff
L. Momondi, first Defendant in person

RULING

11^th December 2023

1. DOWA J. This is a ruling on the Plaintiff’s Notice Motion seeking the following orders:
   
   • (1) that the election of the first Defendant as president of Nabak Local Level Government through a motion of no confidence against the Plaintiff on 6^th November 2023 be stayed pending the hearing of the substantive application.
     
   • (2) the decisions and transactions and dealings made by the first Defendant following his election be stayed pending the determination of the substantive proceedings.
     
   • (3) the Defendants be restrained from interfering with the Plaintiff from performing his responsibilities, duties, and functions of the office as president of Nabak local level Government pending the determination of the substantive matter.
     

Background Facts

2. The Plaintiff was the president of the Nabak Local Level Government until 6^th November 2023 when he was replaced by the first Defendant through a motion of no confidence brought against him. The Plaintiff disputes the election of the first defendant and instituted the current proceedings challenging the results of the motion of no confidence brought against him.
   
3. In the substantive proceedings, the Plaintiff seeks the following orders:
   
   1. The election of the first Defendant be declared null and void for not complying with section 12 of the Local Level Government Administrative Act.
   2. All decisions, transactions and dealings made by the first defendant following his election as president of Nabak LLG be declared null and void ab initio.
   3. A declaration that the Plaintiff remains the president of Nabak LLG.
   4. Other injunctive and consequential orders.
      

Documents before the Court

4. The Plaintiff relies on the following documents:
   
   1. Notice of Motion filed 16^th November 2023
   2. Affidavit of Martin Tim Bafinu filed 16^th November 2023
   100. Affidavit of Adolf Buni filed 16^th November 2023
   4. Affidavit of Serah Nomayong filed 16^th November 2023
   5. Affidavit of David Leo filed 16^th November 2023
      6. Affidavit of Malcom Livi filed 16^th November 2023
   7. Affidavit of Ronnie Gilingfiled 16^th November 2023
      
5. The defendants oppose the application and rely on the Affidavit of Lawrence Momondi sworn and filed 22^nd November 2023.
   

Submissions of Counsel

6. The Plaintiff submits that he has good prospects of success in the substantive proceedings and therefore to maintain the status quo, he be granted the interim injunctive orders sought. The defendants on the other hand submit that due process was followed leading up to the election of the first Defendant and the status quo has changed since and it will become disruptive if the Court were to reverse the current status quo.
   

ISSUES

7. The issue for consideration is whether the Court should stay the election results of 6^th November 2023 and the subsequent decisions and actions of the first Defendant and other restraining orders against the Defendants.
   

LAW

8. The law on interim injunctive orders is settled in this jurisdiction led by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. Other relevant cases are Robson vs. National Airlines Corp. (1983) PNGLR 476, Wamena Trading Ltd vs. Civil Aviation Authority ( 2006) PGNC 57; N3058, Employers Federation vs. PNG Waterside Workers (1982) N393 and Mondio vs. Moses (2018 N7563, and Wingti v Rawali and others (2008) N3568.
   
9. In Robson vs. National Airlines Corp (1983) PNGLR 476, at page 480 of the judgment, the Court said:
   

“The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action “where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo”, per Frost C.J in Mt. Hagen Airport Hotel Pty Ltd vs. Gibbs and Anor [1976] PNGLR 316. No real principles can be laid down as to when they should or should not be granted except they are granted when “just or convenient” and what falls within that description must differ substantially from case to case. As Lord Denning M.R. said in Hubbard vs. Vosper [ 1972] EWCA Civ 9; [1972] 2 W.L.R. 389 at 396 “In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead...The remedy by interlocutory injunction is so useful that is should be kept flexible and discretionary. It must not be made the subject of strict rules.”

10. In Wingti v Rawali his Honour Cannings J when dealing with a stay application for a recount in an election petition set out the relevant considerations. At paragraph 12 of the judgment, his Honour said:

“It is incumbent on the applicant for a stay order to show that:

1. there are serious questions to be tried and that an arguable case exists.
2. an undertaking as to damages has been given.

100. damages would not be an adequate remedy if a stay is not granted.

4. the balance of convenience favours the granting of a stay; and
5. the interests of justice require that there be a stay.”
   

11. I will apply the above principles in the present case.
    

Are there serious questions to be tried and does the Plaintiff have an arguable case?

12. The Plaintiff alleges that the Defendants failed to follow the mandatory procedures under sections 12 (3) and (4) of the Local Level Government Administration Act and therefore the election of the first Defendant is illegal. Section 12 provides for notice to be given 14 days prior to conducting a motion of no confidence against the head of the Local-Level Government. The Plaintiff claims 14 days’ notice was not given and that he was only advised on the morning of the meeting. Secondly, the Plaintiff submits that the first defendant did not score the two-thirds majority to be declared president. Of the 16 members, he scored 6 whilst the first Defendant scored 10 falling short of the required two-thirds majority.

13. In response, the Defendants submit that the required notice was given on 2^nd November 2023, complying with the notice period. In respect of the second ground, the Defendants submit that the procedures for conducting a motion for no confidence are prescribed by the Standing Orders. Section 10 of the Standing Orders provides that the candidate with the largest number shall be declared as head of the LLG and the first Defendant collected the largest number to be declared winner.

14. Clearly, the Plaintiff has an arguable case to be properly determined in the substantive proceedings.

If a stay is not granted, would damages be inadequate remedy?

15. The decision sought to be reviewed is that of the members of the Nabak Local-Level Government and the District Administrator who facilitated and conducted the meeting. The Nawaeb District Development Authority and the Morobe Provincial Government are made parties to the proceedings. It is safe to say the answer to the question is “no”. If a stay is not granted, damages would still be an adequate remedy in the event of a successful outcome in favour of the Plaintiff.

Does the balance of convenience favour the granting of a stay?

16. The Plaintiff’s position as the president of Nabak Local Level Government has ended on 6^th November 2023. He was elected out by the majority of the members present. The first Defendant has been elected the head of Nabak LLG. He has commenced his duties and has made several decisions including the revocation of members of the LLG. The status quo has changed. A stay is likely to disrupt the smooth and good administration of the Nabak LLG. The short answer to this question is this. No, the balance of convenience does not favour the granting of a stay.

Do the interests of justice require that there be a stay?

17. There is undisputed evidence that 10 of the 16 members of the Nabak LLG have voted in a democratic process that the first Defendant be the president of the LLG replacing the Plaintiff. The challenge to the legality of the election of the first Defendant is an issue before the Court. Until such time the issue is properly heard and determined, the first Defendant has the right to occupy the office and perform the mandated duties as head of Nabak LLG. A stay order is likely to undermine the decision of the members of the LLG, a member of the three-tier government system in PNG and frustrate the work of the Defendants especially the second Defendant.

18. There is a plethora of judicial pronouncements in this jurisdiction that stand for the proposition that the Courts must be cautious in dealing with applications where it attempts to interfere with or disrupt administrative duties where continuity of service is of utmost importance. Refer: Pato v Ipatas (1998) SC622, Nui v Tanda (2003) N2765, Kambanei v NEC (2006) N3064 and Lupari v Somare (2008) N3476.

19. In the circumstances, it is not in the interest of justice to grant a stay of the decision of 6^th November 2023 and other injunctive orders sought in the Notice of Motion.

CONCLUSION

20. For the reasons given above, the orders sought in the Notice of Motion are refused with costs to the Defendants.

ORDERS

21. The Court orders that:

1. The Plaintiff’s application for stay and other orders sought in the Notice of Motion is refused.
   
2. The Defendants’ cost of this application be paid by the Plaintiff.
   
3. The matter is fixed for directions hearing on 2^nd February 2024
   
4. Time be abridged.

_______________________________________________________________

Jaku Lawyers: Lawyers for the Plaintiff

Lawrence Momondi: The First Defendant in Person