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Kavare v Kaupa [2011] PGNC 61; N4297 (26 May 2011)

N4297

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 271 OF 2011

BETWEEN

HONOURABLE BENJAMIN KAVARE
Applicant

AND

GEORGE MAREWA KAUPA
First Respondent

AND

BEVEN MAIMA, ALFRED ARIVI, SAMUEL AWONO, GIDEON RINOGO, GERO ISAC, ALFRED RIMBUYUFA & JOHN MAKAFUTI – each and Severally as Ward Councillors of Siane Local Level Government
Second Respondent

AND

JOHN B. MAUA
In his capacity as District Administrator
Second Respondent

AND

CHUAVE DISTRICT ADMINISTRATION
Fourth Respondent

AND

PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS
– Simbu Provincial Administration
Fifth Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Goroka: Ipang AJ
2011: 26 May

CIVIL MOTION – Urgent application seeking ex parte orders restraining Second, Third and Fourth Respondents from facilitating swearing in of First Respondent as President of Siane LLG pending determination of substantive trial – Order 4 Rules 38(2) and (3) National Court Rules, Chapter 38.

MOTION – Motions (Amendment) Rules 2005 Rule 5 (ii)(d) and (e) applied – Orders 1, 2, 3&4 sought in the motion granted.

Cases Cited

Mt Hagen Airport Hotel v Gibbs [1976] PNGLR 316
Employers Federation v PNG Waterside Workers (1982) N393
Craftworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572

Counsel

Ms. M. Irai, for the Applicant
Nil Appearance, for the Respondents

DECISION

27 May, 2011

1. IPANG, AJ: The applicant Benjamin Kavare, the President of Siane Local Level Government within Chuave District of Chimbu Province moved this urgent application by way of motion dated 20th May, 2011 seeking the following orders:

1. That leave be granted to him to dispense with the requirements of the three (3) clear days service of the application and supporting documents pursuant to Order 1 Rule 7 and Order 4 Rules 38(2) and (3) of the National Court Rules, Chapter 38;
   
2. That this Court grants an Interim Injunctive Order restraining the Second, Third, Fourth, Fifth and Sixth Respondents from swearing in to the office, the First Respondent as President elect of the Siane Local Level Government pursuant to Order 14 Rule 9 of the National Court Rules, Chapter 38;
   
3. That the interim orders be made returnable on the next motion date which is 10 June, 2011.
   
4. That the plaintiff serves on the respondents a copy of the order with all the documents pertaining to this application within seven (7) days from the granting of this orders.
   

2. In support of his motion, the applicant filed an affidavit dated 23 May, 2011 and sworn on the 20 May, 2011. He deposes the following facts in his affidavit and I will re-state some of these facts:

1. He said he is the current President elect of Siane Local Level Government and that the Second Respondents are all Ward Councilors of the same Local Level Government Council.
   
2. He stated that there are twenty-nine (29) Council Wards in the Siane Local Level Government and that he was the duly elected president of Siane Local Level Government Council.
   
3. The applicant continued on and said the First and Second Respondents have since March 2011 attempted to remove him as the president through a Vote of No Confidence.
   
4. He said on the 22 March, 2011 at around 5.43pm he was served a copy of the Notice of Vote of No Confidence. Despite numerous advices not to conduct Vote of No Confidence from various officers, i.e. Provincial Administrator – Simbu Province, Legal Officer for Simbu Provincial Administration etc, the applicant said the District Administrator for Chuave District and the First Respondent proceeded with the No Confidence Motion on the 19 April, 2011. Furthermore, despite being informed the swearing of new Presidents is illegal, he said he believe the swearing in will take place tomorrow Friday 27 May, 2011.
   

3. Ms. M. Irai of Counsel for the applicant further submitted that there is urgency of the matter in that the First Respondent will be sworn in to office as President of Siane Local Level Government tomorrow Friday 27 May, 2011 following questionable Vote of No Confidence. Counsel further submitted that if the orders sought in the motion are not granted the applicant will stand to lose a lot of things i.e. the applicant through Joint District Budget Priority Committee (JDBPC) had drawn up the budget for Siane LLG and the Siane LLG grants had been released and is currently held at Kundiawa Treasury. If the First Respondent is sworn as the President there is possibility of grants being re-directed and proposed projects and programs budgeted for will not be implemented.

4. Ms. Irai also submitted that some projects are undergoing construction and there is possibility these projects could be stalled if the First Respondent is sworn in. Given these scenario, she said her client, the applicant seeks urgent ex-parte orders.

5. The law in relation to interlocutory application is clear in that it is to preserve the status quo until the hearing of the main action. Frost CJ, in Mt Hagen Airport Hotel v Gibbs [1976] PNGLR 316 stated:
   

"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."

6. There are also case laws in this jurisdiction regarding the requirements that need to be considered in an application for an interlocutory order and they are found in the case of Employers Federation v PNG Waterside Workers (1982) N393 and adopted by the Supreme Court in Craftsworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572. Basically what applicant Benjamin Kavare must prove is that he has a serious and not just a speculative case. The case must have a real possibility of ultimate success and that he (Kavare) has property or other interests which may be jeopardized if no interlocutory injunction were granted.
   
7. Having read what the applicant has deposed in his affidavit sworn on the 20 May, 2011 and filed on the 23 May, 2011 and having heard the submission by Ms. M. Irai of counsel for the applicant, I am satisfied the applicant has made out his case for the urgent interim orders to be granted. This is to say that the applicant has proven that he has a serious and not a speculative case which has a real possibility of ultimate success and has demonstrated his interest, i.e. the Siane LLG grants, the projects under constructions and the projects yet to be undertaken under this year's budget which may be jeopardized if no interlocutory injunction were to be granted.
   
8. I do grant the following orders sought in the motion in the following manners:
   
   1. That leave is now granted to the applicant to dispense with the requirements of three (3) clear days service of the application and the supporting documents pursuant to Order 1 Rule 7 and Order 4 Rules 38(2) and (3) of the National Court Rules, Chapter 38;
      
   2. That an interim injunctive order is now granted in that the Second, Third, Fourth and Fifth Respondents are restrained from swearing in to the office, the First Respondent as President elect for Siane Local Level Government pursuant to Order 14 Rule 9 of the National Court Rules, Chapter 38;
      
   3. That these interim orders granted are returnable on the next motion date which is 9 June, 2011 at 9.30 am; and
      
   4. That the applicant shall serve a copy of the interim order with all documents pertaining to this application to the Respondents within seven (7) days from granting of this order.
      

_______________________________

Warner Shand Lawyers: Lawyer for the Applicant

Lawyer for the Respondents: Nil Appearance