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
• Judge: Cannings J
• Judgment Date: 13 October 2004
• Court: National Court
• Citation: (2004) N2694
• Year: 2004
• Judgement Number: N2694

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 PNG v PNG Waterside Workers and Seamen's Union and Others (1982) N393, Bauf and Nodai v Poliamba Pty Ltd [1990] PNGLR 278, Kaseng v Namaliu and the State [1995] PNGLR 481, Titi Christian v Rabbie Namaliu unreported, OS No 2 of 1995, 18.07.96, Tulia and Others v Lama and Others (1998) N1824, Supreme Court Reference No 3 of 1999: Special Reference under s19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628, Tan v Pelis and Pelton Investments Ltd (1999) N1804, Gobe Hongu Ltd v National Executive Council and Others (1999) N1920 National Housing Corporation v Yama Security Services Pty Ltd (2000) N1985, Porgera Landowners Association Inc and William Gaupe v Ekepa and Others and Porgera Development Authority unreported, OS No 431 of 2000, 07.11.00, Supreme Court Review No 13 of 2002: Application by Anderson Agiru (2002) SC686, Supreme Court Reference No 3 of 2000: Special Reference under s19 of the Constitution by the Governor–General re Sitting Days of the National Parliament (2002) SC722, Golobadana No 35 Ltd v Bank South Pacific Ltd (2002) N2309, Supreme Court Review No 8 of 2003: Application by Anderson Agiru (2003) SC704, Mainland Holdings Ltd and Others v Stobbs and Others OS 418 of 2003, unreported, 29.10.03, American Cyanamid Company v Ethicon Ltd (1975) 1 All ER 504 referred to

Ruling on Motion

___________________________

N2694

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 316 OF 2004

MARK EKEPA, PALA TEYA, YESU KULINA, ANGA ATALU AND THE OTHER 22 LANDOWNERS NEGOTIATING COMMITTEE (LNC) AGENTS

First plaintiffs

AND

PORGERA LANDOWNERS ASSOCIATION

Second Plaintiff

V

WILLIAM GAUPE

First Defendant

AND

JOB MARK KUTATO, PEROK PULI, NELSON AKIKO AND KARAPUS YUWI

Second Defendants

MT HAGEN : CANNINGS J

6, 7, 13 OCTOBER 2004

RULING ON MOTION

Injunctions – interim orders – application to set aside – National Court’s jurisdiction – inherent constitutional power of Court – National Court Rules, Order 12, Rule 8 – 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.

Cases cited

Employers Federation of PNG v PNG Waterside Workers and Seamen’s Union and Others (1982) N393

Bauf and Nodai v Poliamba Pty Ltd [1990] PNGLR 278

Kaseng v Namaliu and the State [1995] PNGLR 481

Titi Christian v Rabbie Namaliu unreported, OS No 2 of 1995, 18.07.96

Tulia and Others v Lama and Others (1998) N1824

Supreme Court Reference No 3 of 1999: Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628

Tan v Pelis and Pelton Investments Ltd (1999) N1804

Gobe Hongu Ltd v National Executive Council and Others (1999) N1920 National Housing Corporation v Yama Security Services Pty Ltd (2000) N1985

Porgera Landowners Association Inc and William Gaupe v Ekepa and Others and Porgera Development Authority unreported, OS No 431 of 2000, 07.11.00

Supreme Court Review No 13 of 2002: Application by Anderson Agiru (2002) SC686.

Supreme Court Reference No 3 of 2000: Special Reference under Section 19 of the Constitution by the Governor-General re Sitting Days of the National Parliament (2002) SC722

Golobadana No 35 Ltd v Bank South Pacific Ltd (2002) N2309

Supreme Court Review No 8 of 2003: Application by Anderson Agiru (2003) SC704

Mainland Holdings Ltd and Others v Stobbs and Others OS 418 of 2003, unreported, 29.10.03

American Cyanide Company v Ethicon Ltd (1975) 1 All ER 504

Mr P Mawa for the plaintiffs

Mr A Manase for the defendants

CANNINGS J:

INTRODUCTION

This is an application to set aside two interim orders made by
Acting Justice Manuhu 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 08th 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...