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Keils v Inno Vest Ltd [2013] PGNC 268; N5371 (18 September 2013)

N5371

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 493 OF 2013

BETWEEN

HENDRY KEIIS, JACK MAIANG, MOSES
KARU, JOHN MARO, ANTON SALAIN, JOE
SELA, JOHN AKAMA, and LUCAS SINGAN in
their respective capacities as Directors and
Members of the Board of Aria - Vanu Timber
Company Limited
First Plaintiffs

AND:

ARIA - VANU TIMBER COMPANY LIMITED
Second Plaintiff

AND:

INNO VEST LIMITED
First Defendant

AND:

WALTER LUNGA, VINCENT DAVU, JAMES ROBIN, CHRIS MANGAEA, STEVEN PANDI & other members of their LUNGA CLAN of NUTANAVUA Village
Second Defendants

Kimbe: Geita AJ
2013: 18th September

PRACTICE & PROCEDURE – Motion – Urgent application – Procedures seeking urgent interim relief – Rule 5 Motions (Amendment) Rules 2005.
PRACTICE & PROCEDURE – Interim Stay Orders – Order 14 Rule 9 (a) National Court Rules – Case considered urgent – Motion granted.

Case cited:
Mt.Hagen Airport Hotel v Gibbs [1976] PNGLR 316)

Counsel:
Mr. Jimmy Bokomi, for the Plaintiff

REASONS FOR DECISION
18th September, 2013

1. GEITA AJ: Around 3pm this afternoon the applicant upon leave moved by a notice of motion seeking amongst other orders, the following orders citing its urgent nature:

2. That the requirement for service pursuant to Order 1 Rule 7; Order 4 Rule 38 (2) (a) of the National Court Rules be dispensed with;

3. That the following orders be made pursuant to Section 155 (4) Constitution:

1) That the First Defendant, its servants and /or agents are restrained from conduction any logging or timber harvesting and marketing operations including building, upgrading and/or reconstructing any or all logging roads as well as carrying out any forest inventory survey to aid preparation of all logging and forest working and set-up plans, and negotiation with resource owners for release of set-ups for the purpose of ensuring logging or timber harvesting operations to commence within, at, from, and out of the Aria Vanu Block 1 Local Forest Area pending the eventual determination of their proceedings by, or until further order (s) of this Honourable Court.

2) That all interim ex-parte orders made by the District Court at Kimbe in DCC/LLC No. 24 of 2013 on application by Walter Lunga in favour of, and for and on behalf of the First Defendant for the purpose of ensuring logging or timber harvesting and marketing operations including building, upgrading and /or reconstructing any or all logging roads by the First Defendant for the purpose of ensuring logging or timber harvesting operations to commence within, at, from, and out of the Aria Vanu Block 3 Local Forest Area are stayed pending the eventual determination of this proceedings by, or until further order (s) of his Honourable Court.

3) Pursuant to Order 12 Rule 1 of the National Court Rules police personnel stationed at Kimbe, or at any other location within the West New Britain Province be directed to, and Shall assist with ensuring compliance of Minute No. 2 of these orders by the First Defendant, its servants and/or agents on request by the Plaintiffs.

4). Costs be in the cause.

5) That the First and Second Plaintiffs shall serve all court documents on the Defendants at least Three (3) clear days before the next return date of this matter herein above mention And file an affidavit of service to that effect.

The matter made returnable on 8th October 2013.

4. The plaintiff came to court armed with a Notice of Motion, Originating Summons, and Affidavit in support from the plaintiff and Undertaking as to Damages, seeking urgent injunctive orders ex-parte. Upon the grant of leave with orders dispensing the requirements of service to the defendants this application was heard ex-parte.

5. The brief facts as I understand them from the plaintiff's affidavit and supporting annexures are these: The plaintiff and the defendant together with their respective supporters appear to have an ongoing difference as to who should be the principal beneficiary of timber royalty and resources for and on behalf of their people in the Kandrian Glouster District, Kimbe, West New Britain Province. A trail of ex-parte and temporary orders made in favour of both parties at different times with varying outcomes have complicated all early resolution attempts to this ongoing dispute.

6. The most recent District Land Court Order delivered on 6th September 2013 and a prior one delivered on 30 August by His Worship Mr. Paul N'Dranoh gave rise to this urgent motion. The orders basically allowing one party from engaging with a developer resulting in heavy logging machinery and trucks being brought into their area and clearing the vegetation for harvesting of merchantable timber hence the urgency of this application. The plaintiff deposed that he was unable to serve the defendants as they were not within reach in Kimbe area but in Kandrian Glouster area. I then proceeded to consider the plaintiffs application on the strength of their supporting affidavits and annexures contained therein.
7. The granting of interlocutory orders are discretionary by the National Court pursuant to section 155 (3) & (4) of the Constitution and Rule (5) 2 of the Motions (Amendment) Rule 2005. Rule). The purpose of an interlocutory injunction 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).

8. Having satisfied myself that the procedures for seeking urgent interim relief set out in Rule 5 of the Motions (Amendment) Rules 2005 were complied with together with the urgency of the matter, Order 14 Rule 9 National Court Rules I grant the urgent orders sought for in this application in the following:

1) That the First Defendant, its servants and /or agents are restrained from conduction any logging or timber harvesting and marketing operations including building, upgrading and/or reconstructing any or all logging roads as well as carrying out any forest inventory survey to aid preparation of all logging and forest working and set-up plans, and negotiation with resource owners for release of set-ups for the purpose of ensuring logging or timber harvesting operations to commence within, at, from, and out of the Aria Vanu Block 1 Local Forest Area pending the eventual determination of their proceedings by, or until further order (s) of this Honourable Court.

2) That all interim ex-parte orders made by the District Court at Kimbe in DCC/LLC No. 24 of 2013 on application by Walter Lunga in favour of, and for and on behalf of the First Defendant for the purpose of ensuring logging or timber harvesting and marketing operations including building, upgrading and /or reconstructing any or all logging roads by the First Defendant for the purpose of ensuring logging or timber harvesting operations to commence within, at, from, and out of the Aria Vanu Block 3 Local Forest Area are stayed pending the eventual determination of this proceedings by, or until further order (s) of his Honourable Court.

3) Pursuant to Order 12 Rule 1 of the National Court Rules police personnel stationed at Kimbe, or at any other location within the West New Britain Province be directed to, and Shall assist with ensuring compliance of Minute No. 2 of these orders by the First Defendant, its servants and/or agents on request by the Plaintiffs.

4). Costs be in the cause.

5) That the First and Second Plaintiffs shall serve all court documents on the Defendants at least three (3) clear days before the next return date of this matter herein above mention And file an affidavit of service to that effect.

The matter made returnable on 11th October 2013.

Orders accordingly.
____________________________________

Bokomi Lawyers: Lawyer for the Plaintiff