Pastor Johnson Pyawa for and on behalf of Simakin Tribesmen v CR Andake Nunwa for and on behalf of Kisan Tribesmen and CR Pole Yaluma for and on behalf of Kisan Lai Tribesmen and CR Tapu Yaka for and on behalf of Lambe Kayagon Lai Tribesmen and CR Kaiwa Wambi for and on behalf of Kale Tribesmen and CR Imbu Wape for and on behalf of Andaluni Tribesmen and CR Lai for and on behalf of Kolo Taika Tribesmen and CR Lali for and on behalf of Kolo Kungu Tribesmen (2010) N4143

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 11 October 2010
• Court: National Court
• Citation: (2010) N4143
• Docket Number: OS NO 543 OF 2010
• Year: 2010
• Judgement Number: N4143

Full Title: OS NO 543 OF 2010; Pastor Johnson Pyawa for and on behalf of Simakin Tribesmen v CR Andake Nunwa for and on behalf of Kisan Tribesmen and CR Pole Yaluma for and on behalf of Kisan Lai Tribesmen and CR Tapu Yaka for and on behalf of Lambe Kayagon Lai Tribesmen and CR Kaiwa Wambi for and on behalf of Kale Tribesmen and CR Imbu Wape for and on behalf of Andaluni Tribesmen and CR Lai for and on behalf of Kolo Taika Tribesmen and CR Lali for and on behalf of Kolo Kungu Tribesmen (2010) N4143

National Court: Makail, J

Judgment Delivered: 11 October 2010

N4143

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 543 OF 2010

BETWEEN

PASTOR JOHNSON PYAWA for and on behalf of Simakin Tribesmen

Plaintiff

AND

CR ANDAKE NUNWA for and on behalf of Kisan Tribesmen

First Defendant

AND

CR POLE YALUMA for and on behalf of Kisan Lai Tribesmen

Second Defendant

AND

CR TAPU YAKA for and on behalf of Lambe Kayagon Lai Tribesmen

Third Defendant

AND

CR KAIWA WAMBI for and on behalf of Kale Tribesmen

Fourth Defendant

AND

CR IMBU WAPE for and on behalf of Andaluni Tribesmen

Fifth Defendant

AND

CR LAI for and on behalf of Kolo Taika Tribesmen

Sixth Defendant

AND

CR LALI for and on behalf of Kolo Kungu Tribesmen

Seventh Defendant

Mount Hagen: Makail, J

2010: 08th & 11th October

PRACTICE & PROCEDURE - Injunctions - Quia timet injunctions - Principles of - Purpose of - Preservation of status quo - Tribal fight - Imminent danger to lives and property - Evidence of - Sufficiency of - Circumstances where quia timet injunctions may lie discussed - Application refused.

Cases cited:

Papua New Guinea cases:

Robinson -v- National Airlines Commission [1983] PNGLR 476

Overseas cases:

Hubbard -v- Vosper [1972] 2 WLR 389

Other references & texts:

FH Lawson, Remedies of English Law, Butterworths (2nd ed 1980)

Counsel:

Plaintiff in person

No appearance for Defendants

INTERLOCUTORY RULING

11th October, 2010

1. MAKAIL, J: This is an ex-parte application by the plaintiff who represents himself and members of the Simakin Tribe of Lumusa in the border of Western Highlands and Enga provinces seeking inter-alia, orders to restrain the defendants who are councilors of six wards in that area and their respective tribesmen from entering the Simakin tribe’s customary land and provoking, threatening, intimidating or declaring war on his tribe until further order. He also seeks to restrain his own tribesmen from getting involved or joining the tribal fight until further order.

2. I heard his submissions on 8th October, 2010. I have also perused the documents he has filed in support of the application. They were:

1. Originating summons filed on 22nd September, 2010;

2. His affidavit in support sworn and filed on 22nd September, 2010;

3. Undertaking as to Damages filed on 22nd September, 2010; and

4. Authority to Act filed on 22nd September, 2010.

3. First, I accept that this is a representative action and he has authority from his tribesmen by virtue of the Authority to Act (supra) to represent them as the principal plaintiff in this action. Secondly, I accept that he has given an undertaking to pay any damages if the Court grants the interlocutory injunction and the action ultimately fails and the interlocutory injunction is discharged. Thirdly, I am satisfied based on his affidavit in support that there is some urgency in relation to the hearing of the application. This is because there is a tribal fight in that area and it poses potential danger to lives and property of the plaintiff’s tribe. I grant leave to him to move the application ex-parte.

4. In his affidavit in support (supra) he deposes that he is a Pastor of the Baptist Church and a community leader in the Simakin tribe. The defendants are warring tribes. Presently, there is intensive tribal war involving these defendants. High powered guns and arms of mass destructions are being used in the tribal fight. The tribal fight has been going on for months and it is very difficult for the police to intervene and stop it. His tribe is not involved but is on the verge of getting involved or joining the tribal war.

5. This is because lately, the defendants threatened his tribe. They declared war on them. A week ago, a young man from his tribe was killed by the defendants. This has provoked his tribe to get involved. As a result, he and other tribal leaders of his tribe have urged their members to refrain from joining the tribal fight. They are to remain neutral and maintain peace and harmony in their village. They have signed a peace agreement resolving to refrain from participating in the tribal fight and declaring peace in their community. They have done that to protect their members’ lives and properties including Government and Church run services in the area such as schools, health centre and stores.

6. During the hearing, I enquired if he had reported the alleged tribal fight to the police and he said no. He gave the reason that there was no point in reporting it to the police because police were powerless. He said there was an early tribal fight and the police were called in to stop it but they did nothing. This was why he did not report the latest one to the police.

7. A grant of an interlocutory injunction is discretionary. Its purpose is to prevent an act or event from occurring or from continuing. It is to maintain the status quo until the determination of the substantive dispute. In Robinson -v- National Airlines Commission [1983] PNGLR 476, Andrew, J observed that interlocutory injunctions are discretionary, and there are no real principles that can be laid down as to when they should or should not be granted except that they are granted in circumstances where it is “just or convenient” and what is “just and convenient” is dependent on the facts of each case. His Honour quoted a passage from Lord Denning MR in Hubbard -v- Vosper [1972] 2 WLR 389 at 396 which I find relevant here and respectfully quote:

“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 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 it should be kept flexible and discretionary. It must not be made the subject of strict rules.”

8. In this case, it is noted that the plaintiff’s main concern is about a tribal fight in the area where his tribe is located. The tribal fight has the potential of spilling over to his tribe because of the close proximity between his tribe’s village and the villages of the defendants. Also, there is likelihood that his tribe would get involved in the tribal fight because the defendants had allegedly killed a young man from his tribe. These facts suggest that the plaintiff is indeed seeking a quia timet injunction. A quia timet injunction is granted to stop an act or event from happening in future and the Courts have been extremely reluctant to grant injunctions of this nature because no-one knows when the act or event will happen. The Courts require very strong evidence to show that it will occur if they do not act.

9. In the book by F H Lawson: Remedies of English Law, Butterworths (2nd ed 1980), p 189, the learned author discusses the circumstances upon which quia timet injunctions may be granted:

“As Lord Dunedin said (A-G for Dominion of Canada -v- Ritchie Contracting and Supplying Co Ltd [1919] AC 999 at 1005), ‘no one can obtain a quia timet order by merely saying “Timeo”’. Certainly a court will not act upon a mere indication that the defendant is in a position to commit a tort against the plaintiff or what he is doing may end up in causing damage to him. As James LJ said (Salvin -v- North Brancepeth (1874) 9 Ch App 705 at 709), ‘The court has, in dealing with questions of this kind, no right to take into account contingent, prospective or remote damage.’ The court will assume that the defendant will not act unlawfully and will take all necessary precautions to avoid damage. This is all the more so if he assures the plaintiff of his good intentions. In Lord Eldon LC’s words (Coffin-v- Coffin (1821) Jac 70 at 72 ‘The court never grants injunctions on the principle that they will do no harm to the defendant, if he does not intent to commit the act in question; but if there be no ground for the injunction, it will not support it’.”

10. The learned author went on to discuss at p 189:

“The difficulty in satisfying the court will obviously be greatest where the prospective causing of damage is the ground of the application. There must then, it has been said ‘be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable.’ It is also said that the violation of the plaintiff’s right will be inevitable, which is interpreted as meaning ‘a very great probability’. If, on the other hand, the defendant is clearly preparing or threatens to do something that is itself a violation of a right of the plaintiff, the plaintiff need not wait...