N4757

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.943 OF 2011

BETWEEN

MIKE GOHENO, PIKULI GOHENO, ROBIN PURE, SOKIRE APINAUVE, JOHN LOVAVE, HENRY LUSAVE
Plaintiff

AND

OREKE INAPO, JOHN HENI, POPE MIKAIVE
Defendants

Goroka: Ipang AJ
2012: 15 & 22 June

CIVIL MOTION – Plaintiff seeking to order for one of the Defendants to vacate property Paragon Compound pursuant to Order 4 Rule 32 (b) and Order 12 Rule 1 of the National Court Rules.

CROSS MOTION – Defendants seek to set aside Ex-parte Orders of 13th December, 2011 – dismiss the entre proceedings for want of cause of action in law – Order 12 Rule 40 (a), (b) and (c) of NCR and for want of "-and in the alternative an interim restraining order.

Counsel 

Mr. D. A. Umba, for the plaintiffs
Mr. P.Punau, for the Defendants 

22nd June, 2012

1. IPANG AJ: There are two (2) motions before this Court. The first motion was filed by the plaintiffs on the 9th of March, 2012 and the second is a cross motion filed by the Defendants on the 22nd May, 2012.

2. 	Plaintiffs move their motion seeking the following orders:

i.	That Defendants Oreke Inapo be ordered to vacate Paragon Compound forthwith pursuant Order 4 Rule 32 (b) and Order 12 Rule 1 of the National Court Rules;

ii.	Defendants pay the costs of this application;

iii.	Any such further or other orders as this Honourable Court deems fit.

3.	In support of their motion, the plaintiffs rely on the affidavit of D.Umba sworn and filed on the 9th March 2012 and the affidavit of Mike Goheno sworn and filed on the 9th of March, 2012, the affidavit of Sokire Apirave sworn on the 8th of June, 2012 and filed on the 12th of June, 2012, the affidavit of Robin Pure sworn the 8th June, 2012, and filed on the 12th June 2012, the affidavit of Izaho Goheno sworn and filed on the 12th of June, 2012, the affidavit of John Lovave sworn on the 8th of June, 2012 and filed on the 12th June, 2012, and the affidavit of Mike Groheno also sworn on the 8th of June, 2012 and filed on the 12th of June, 2012.Mr. Umba deposed in his affidavit filed that he has written to the Defendant Oreke to cease collecting rents and to reimburse monies collected and pay the same to the ANZ Bank Account.

4.	All the deponents of the respective affidavit raised the arguments that they as plaintiffs are fighting this Court action for the Emegave villages and who are the beneficiaries of Uritoka Trust Fund. The plaintiffs also went further to argue that the Defendants do not represent majority of the beneficiaries who are villagers and children from Ufeto and Emagave villages.

5.	This raises a lot of the issues of who are the genuine trustees to the Uritoka Trust Fund? Who are not the genuine trustees of the Uritoka Trust Fund? Whether genuine trustees of the Uritoka Trust Fund are conducting business in the interest and for the beneficiaries of the said trust?

6.	Mike Goheno deposed that Defendant Oreke Inapo has been living in one of the houses at Paragon Compound since February, 2010 and has not been paying rent to the Uritoka Trust Fund. He said because he (Oreke) is living in that compound he said he believe he (Oreke) has easy access to the tenants living there to collect the monthly rental.

7.	I do not support the argument by the plaintiffs that because Oreke lives in one of the houses at Paragon Compound he is also collecting monthly rentals from the tenants living there. There need to be material evidence by way of an affidavit substantiating that claim. The affidavit by Mike Goheno is just basing on his assumption.

8.	The next relief sought by the plaintiffs seek an order for the Defendant Oreke to vacant one of the houses he is currently occupying at Paragon Compound. 

9.	Is Oreke Inapo a trustee and if so, is he entitled to some form of benefits? Clause 20 of the Uritoka Trust – Trust Deed deals with; Appointment, Resignation, Removal and Replacement of the Trustee. I wish to re-state clause 20.

20. APPOINTMENT RESIGNATION, REMOVAL AND REPLACEMENT OF THE TRUSTEE.

20.1 	Initial Trustees

The number of Trustees must be 8 unless this number is increased by a resolution in accordance with Clause 21.8 Majority decisions.

The initial Trustees named in this deed have been appointed by the setlor and shall consist of: 

(a)	–
(b)	–
(c)	–
(d)	–
(e)	–
(f)	–
(g)	The person for the time being appointed as Chairman of the Company representing the Ufeto community which is proposed to be Ufeto Property Company Limited and which at the date of execution of this deed is proposed to be Oreke Inapo.
(h)	- 

10.	The Clause 17.3 of the Uritoka Trust Deed deals with benefits regarding Trustees of the funds.

17.3 No profit or renunciation. 

(a)	The Trustees must not, except as provided by this deed, profit from or to be remunerated for, acting or purporting to act as Trustees.

(b)	The Trustees described in Clause 20.1 (f) may change a professional fee for providing his or her services as Trustee with Clause 10.1 (c) Use of Fund 

Clause 3 	PURPOSE OF THE FUND

3.1 	Primary Purpose of Funds

The Fund is organised and operated exclusively for non- profit purpose including charitable, scientific and educational purpose.

Specifically, the purpose of the Fund is to provide financial support for health project and activities conducted at Uritoka Site in Eastern Highland Province.

11.	Having skimmed through the Uritoka Trust Deed, I do not find any clause on the benefits for Trustees under the Fund. Defendants Counsel did not deny that his client Oreke Inapo is not occupying one of the houses at Paragon Compound. This raises the argument that as a Trustee is he entitled to such benefit? Obviously, the plaintiffs argued that he is residing in one of the houses without paying the rent. Does the conduct of Oreke Inapo go towards achieving or fulfilling the primary purpose of the Fund? I guess not. It is therefore, in the interest of the fund and its beneficiaries, the villagers and children of Ufeto and Emagave villages that Oreke Inapo be ordered to vacate the house he is currently residing in at Paragon Compound. I also consider that there is now a tussle between the plaintiffs and the defendants over who are the legitimate Trustees of the Fund. Oreke Inapo's continued occupancy of the property at Paragon Compound will not solve the problem but further add fuel and further ignite the problem.

Defendants Cross- Motions

12.	The Defendants have through their Cross Motion filed on the 22nd of May, 2012 seeking the following orders:

(1)	That the Court dispenses with service requirements of the Cross Motion pursuant to Order 1, Rule 7 and Order 12, Rule 1 of the National Court Rules.

(2)	The Interim Ex Parte Orders made on the 13th December, 2011 be discharged forthwith;

(3)	The entire proceedings against each of the Defendants be dismissed in its entirety for failing to disclose a reasonable cause of action in law, the proceedings are frivolous, vexatious and being an abuse of Court process pursuant to order 12, Rule 40 (a), (b) & (c) of the National Court Rules. 

(4)	The proceedings be dismissed for the Plaintiffs' want of locus stand to Institute proceedings against the Defendants in relations to the management and control of the Uritoka Trust.

(5)	In the alternative, an interim injunctive order restraining the plaintiffs by themselves, their servants or agents from issuing any manner of treats whether physical, verbal or written and from intimidating the Defendant Oreke Inapo from the management of the Uritoka Trust.

(6)	The plaintiffs to pay the Costs of this application and the whole proceedings.

13.	The Defendants rely on the affidavits of Sam Hasu Inapo sworn on the 26th day of March, 2012 and filed on the 23rd of May 2012, the affidavit of Oreke Inapo sworn on the 23rd March, 2012 and filed on the 22nd May, 2012, the affidavit of Pope Mikaive sworn on the 23rd March, 2012 and sworn on the 22nd May, 2012 the affidavit of John Heni sworn on the 26th March, 20212 and filed on the 22nd May, 2012, the affidavit of Helina Esana sworn on the 29th of May, 2012 and filed on the 30th of May, 2012. 

14.	In a nutshell the defendants claim they are the legitimate or say genuine Trustees as they are the landowner's representatives representing Emagave clan and Ufeto clan respectively. Thus, they argued they have the locus standi and not the Plaintiffs. On the converse, Mr. D. Umba of counsel for the Plaintiffs argued that the matter before this Court is not about land ownership but about proper management and control of assets belonging to beneficiaries of Uritoka Trust. 

Court Ruling

15.	In my view, granting of orders sought by the Defendants will not solve the dispute. Mediation would have been the appropriate forum to resolve these differences however, the matter to the Board with specific directions would not work out in my view as there was a commotion outside Court House when the matter was to be mediated. So as to refer the matter to the villages Emagave & Ufeto for the beneficiaries might not be the appropriate course or direction to take. 

16.	It is in the best interest of justice that matter proceeds to substantive determination to resolve all the issues raised by both parties. At the most dependents of all affidavits be cross-examined to substantive material facts they have deposed of with this ruling I refuse reliefs sought by the Defendants in their motion and order that costs be in cause.
______________________________________________

D. A. Umba Lawyers: Lawyers for the Plaintiffs
Stevens Lawyers: Lawyers for the Defendants