Pastor James Molu v Dokta Pena (2009) N3817

• Jurisdiction: Papua New Guinea
• Date: 21 December 2009
• Citation: (2009) N3817
• Docket Number: WS NO 832 OF 2008
• Court: National Court
• Year: 2009

Full Title: WS NO 832 OF 2008; Pastor James Molu v Dokta Pena (2009) N3817

National Court: Makail, J

Judgment Delivered: 21 December 2009

INJUNCTIONS - Ex-parte interim injunction - Equitable relief - Application to set aside - Impounding of PMV bus - No issue as to ownership - Claim for recovery of cost of repairs - No serious issues - Inconvenient to impound PMV bus - Damages adequate remedy - Constitution - Schedule 2.2 - National Court Rules - O12, r8.

PRACTICE & PROCEDURE - Undertaking as to damages - Enforcement of - Discretionary - Principles of.

Cases cited:

Papua New Guinean cases

Peter Pagi v Wilfred Mindili(2009) N3753; White Corner Investments Ltd v Regina Waim Harro(2006) N3089; East Arowe Timbers Resources Ltd v Cakara Alam (PNG) Ltd(2008) N3270; Wei Xiang Cheng v Agmark Ltd(2008) N3338

Overseas cases

Cheltenham Gloucester Building Society v Ricketts & Ors [1993] 1 WLR 1545

21st December, 2009

INTERLOCUTORY RULING

1. MAKAIL, J: The defendant applies pursuant to an amended notice of motion filed on 4th December 2009 to first, set aside an ex-parte interim injunction of 10th October 2008, secondly, the return of a motor vehicle described as a Toyota Hiace bus, bearing registration no, P-708R (“bus”), presently held at Mt Hagen police station and finally, enforcement of the plaintiff’s undertaking as to damages filed on 08th September 2008 against the plaintiff. The defendant invokes the Court’s power under O12, r8 of the National Court Rules.

2. In support of the application, the defendant relies on his affidavit sworn in 6th July 2009 and filed on 7th July 2009 and also the affidavit of his lawyer, Mr Danny Gonol sworn on 18th November 2009 and filed on 4th December 2009. The plaintiff relies on his affidavit sworn and filed on 8th September 2008.

3. The brief facts of the case are these: the defendant is from Gia village in Tambul District of the Western Highlands Province and is a community health worker and has been living and working in Birop village, Upper Mendi of the Southern Highlands Province since the early 80’s. In 2003, he brought his bus to Mt Hagen and registered it as a public motor vehicle (“PMV”) to carry passengers and make money. It was used in Mt Hagen and travels occasionally to Mendi. Sometimes in 2006, it had a mechanical problem and he brought it to one of his brothers who lived in Walum village in the Imbongu District of the Southern Highlands Province to keep. He returned to Mendi.

4. Unknown to him, his brother sold it to a man from Walum village by the name of Tom Richard for K5,000.00. When he found out about this, he came to Mt Hagen and lodged a complaint with the Mt Hagen police. Acting on the complaint, the police located the bus but it was in the possession of the plaintiff. They recovered it and also arrested him. The plaintiff was charged for being in possession of the bus suspected of being stolen pursuant to section 16 of the Summary Offences Act. The charge was heard before the Mt Hagen District Court and was dismissed on 20th June 2008. The District Court also ordered the return of the bus to the defendant as Tom Richard did not have good title to sell it to the plaintiff. Based on the decision of the District Court, the defendant took possession of it and took it to his village in Tambul and left it there.

5. In...