Mark Ekepa, Pala Teya, Yesu Kulina, Anga Atalu and The Other 22 Landowners Negotiating Committee (LNC) Agents and Porgera Landowners Association v William Gaupe and Job Mark Kutato, Perok Puli, Nelson Akiko and Karapus Yuwi (2004) N2694

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2004) N2694
• Date: 13 October 2004
• Year: 2004

Full Title: Mark Ekepa, Pala Teya, Yesu Kulina, Anga Atalu and The Other 22 Landowners Negotiating Committee (LNC) Agents and Porgera Landowners Association v William Gaupe and Job Mark Kutato, Perok Puli, Nelson Akiko and Karapus Yuwi (2004) N2694

National Court: Cannings J

Judgment Delivered: 13 October 2004

1 Injunctions—interim orders—application to set aside—National Court's jurisdiction—inherent constitutional power of Court—National Court Rules, O12, r8—res judicata and issue estoppel—whether capable of providing complete defence to claim that interim injunction should be set aside—considerations to take into account when determining application to set aside interim orders—application of considerations—orders.

2 Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen's Union (1982) N393, Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278, Isidore Kaseng v Rabbie Namaliu and The Independent State of Papua New Guinea (No 1) [1995] PNGLR 481, Titi Christian v Rabbie Namaliu unreported, OS No 2 of 1995, 18.07.96, Menapo Tulia v Eke Lama (1998) N1824, Re Calling of Meetings of the Parliament [1999] PNGLR 285, Tin Siew Tan v Thomas John Pelis [1999] PNGLR 31, Gobe Hongu Ltd v The National Executive Council (1999) N1920, NHC v Yama Security Services Pty Ltd [2000] PNGLR 69, Porgera Landowners Association Inc and William Gaupe v Ekepa and Others and Porgera Development Authority unreported, OS No 431 of 2000, 07.11.2000, SCR No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru [2002] PNGLR 567, SCR 3 of 2000; Re Sitting Days of Parliament and Regulatory Powers of Parliament (2002) SC722, Golobadana No 35 Ltd v Bank of South Pacific Ltd (2002) N2309, SCR 8 of 2003; Application by Anderson Agiru (2003) SC704, Mainland Holdings Ltd v Paul Robert Stobbs (2003) N2522, American Cyanamid Company v Ethicon Ltd [1975] 1 All ER 504 referred to

Ruling on Motion

___________________________

Cannings J:

INTRODUCTION

This is an application to set aside two interim orders made by Manuhu AJ in the National Court at Mt Hagen on 16 and 18 June 2004. The case is about management and control of the Porgera Landowners Association Incorporated (the Association). A power struggle has been continuing for several years.

BACKGROUND

Meeting of 8 June 2004

On 8 June 2004 a meeting of the Association was convened at Porgera station in Enga Province. The defendants were elected as office–bearers. Mr William Gaupe, who is the first defendant, was elected as chairman. The other defendants were elected to various other positions. Mr Mark Ekepa, who is the principal plaintiff, was deposed as the chairman. Other plaintiffs, including Messrs Pala Teya, Yesu Kulina and Anga Atalu, were also deposed as office–bearers of the Association.

The plaintiffs claim that that meeting was unlawful. They say it was not held in accordance with the constitution of the Association. They say that the defendants' purported election should be declared null and void. The plaintiffs claim that they have been the lawful office–bearers of the Association since 1995. They say that they remain the lawful office–bearers. They were removed from office unlawfully.

The defendants, on the other hand, say that the meeting was conducted lawfully in accordance with the registered constitution of the Association. They claim that this was the first annual general meeting of the Association since the Association was incorporated in 1992. Their election was lawful. They say the election was conducted under the auspices of the Electoral Commission.

Originating summons filed: 16 June 2004

Eight days after the meeting, on 16 June 2004, the plaintiffs filed an originating summons in the National Court. They seek the following orders:

1. A declaration that the purported Annual General meeting of the Second Plaintiff held at Porgera Station organized by the Defendants on 8 June 2004 was invalid, null and void and of no effect as it was not consistent with the Constitution of the Second Plaintiff.

2. A declaration that the purported election of the Defendants as Executives of the Second Plaintiff replacing the First Plaintiffs is invalid, null and void and of no effect as it was not consistent with the Constitution of the Second Plaintiff.

3. A declaration that the First Plaintiffs remain as the Executives of the Second Plaintiff.

4. An Order that the Defendants, their servants or agents or whosoever acting on their behalf be restrained from interfering with the business activities and affairs of the Second Plaintiff.

5. An Order that the Defendants, their servants or agents or associates be restrained from conducting, holding or convening of the business affairs of the Second Plaintiff.

6. An Order that the Defendants pay the costs of the Plaintiffs.

7. Such further or other Orders as the Court deems fit and proper under the circumstances.

Undertakings as to damages: 16 June 2004

On the same day that the originating summons was filed, 16 June 2004, three of the plaintiffs filed an undertaking as to damages, in the following terms:

In the event this Honourable Court finds for the defendants, the plaintiffs undertake to abide by any order this honourable Court makes or awards as to any proven damages the defendant shall have suffered by reason of any order of this Court.

The three plaintiffs who signed the undertaking were Mark Ekepa, Yesu Kulina and Anga Atalu.

Interim order: 16 June 2004

On the same day that the originating summons was filed, 16 June 2004, the plaintiffs filed a motion seeking interim orders to restrain the defendants from holding meetings of the Association and conducting the Association's affairs, until their substantive claim was addressed.

On 16 June 2004 that motion was heard by Manuhu AJ. It was dealt with ex parte. That is Mr Gaupe and the other defendants (the office–bearers elected on 8 June 2004) were not present. A number of affidavits were filed in support of the motion. In those affidavits the plaintiffs deposed that the procedures for calling of meetings of the Association and election of office–bearers had not been followed.

Manuhu AJ upheld the motion and made the following order:

1. The requirements for service of this Notice of Motion and its supporting Affidavits be dispensed with by the Court pursuant to O4, r38(2)(d) of the National Court Rules.

2. Until further orders, the Defendants, their agents or associates be restrained from conducting, holding, convening or transacting any business activity concerning of or in relation to the affairs of the Second Plaintiff.

3. Until further Orders the First Plaintiffs continue to perform their respective roles, duties and functions in relation to concerning the management, affairs or interest of the Second Plaintiff.

4. Until further Orders to the contrary, the Branch Manager of Bank of South Pacific Limited, Mount Hagen lift the temporary stop on the accounts of the Second Plaintiff being Account Numbers 1000875314 and 1000874150 and allow the First Plaintiffs to access the funds to perform their duties in the furtherance of the objectives and the purposes of the Second Plaintiff.

5. The Plaintiffs serve the sealed copies of all relevant documents in respect of these proceedings including these interim Orders on the Defendants forthwith.

6. That the costs of this application be in the cause.

7. The time for entry of these Orders is abridged to the date of settlement by the Assistance Registrar which shall take place forthwith.

8. That the present proceeding and the interim Orders are returnable with fourteen (14) days from the date of the granting of these Orders for a full hearing of the substantive issues in this proceeding.

Further order: 18 June 2004

Two days later, on 18 June 2004, the defendants filed a notice of motion seeking to vary the order of 16 June 2004. They wanted an order to stop Mr Ekepa and the other plaintiffs from running the Association. They also wanted a freeze put on two accounts at Bank South Pacific, Mt Hagen, that are operated by the Association.

That motion was heard by Manuhu AJ on the same day it was filed, 18 June 2004. It was dealt with inter partes. That is, all parties were represented. Mr Mawa, of Mawa Lawyers, who represent Mr Ekepa and the other...