N11656

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 285 OF 2025 (IECMS)

BETWEEN:
RUTH WANI For herself and her children
First Plaintiff

						AND:
WASI WANI for his family and the rest of WANI Family
Second Plaintiff

AND
BRIAN YAPI
First Defendant

AND
NORMA LAWRENCE YAPI
Second Defendant

WAIGANI: WIMALASENA J
03 DECEMBER 2025   

APPLICATION FOR INTERIM INJUNCTIONS –Serious question to be tried – Prospects of success – Undertaking as to damages - Balance of convenience.

Cases cited

Chief Collector of Taxes v Bougainville Copper Ltd (2007) PGSC 1; SC853
Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 41; N3143 
American Cyanamid Company v Ethicon [1975] UKHL 1

Counsel

Mr J. Samuel, for first and second plaintiffs
Mr A. Steven, for first and second defendants

RULING

1.	WIMALASENA J:   This is an application by the Plaintiffs for interim restraining orders. The Plaintiffs originally filed a Notice of Motion on 10 November 2025, which was subsequently amended on 11 November 2025, seeking the following orders:

i)	Pursuant to Order 1 Rule 7 of the National Court Rules, this Honourable Court be pleased to dispense with the requirements of service of this application and its supporting affidavit, on the ground of urgency.
ii)	Pursuant to Order 12 Rule 1 or Order 14 Rule 10 of the National Court Rules, and Section 155(4) of the Constitution and the inherent powers of this Court, that the Defendant and his agents or servants whosoever be restrained from accessing, withdrawing, transferring, or otherwise dealing with any monies held in the main account known as the Bultem Landowners royalty account, 1000725812 and “Bultem Landowners Royalty – Keke 2 Account No. 7011643991” maintained for Kinumsengayun (Keke) Clan B, pending the final determination of this proceeding or further order of the Court. 
iii)	That the Defendant and all signatories or agents be restrained from accessing or withdrawing monies held in the following three sub-accounts created under Kinumsengayun (Keke) Clan Group B:
(a)	Account No. 1000717521- Brian Sarapiap Family (Group A);
(b)	Account No. 1003201264 – Norma Yapi Family (Group B);
(c)	Account No. 1001391612 – Leok Dopiap Family (Group C).

iv)	That the Defendants be directed to provide acquittals, financial statements, and reports of all OTML royalty benefits received and disbursed under Kinumsengayun (Keke) Clan Group B, including all transactions made from the above- named accounts since 2020.
v)	That the costs of and incidental to this application be borne by the Defendants.
vi)	Such further and other orders as this Honourable Court may deem just and proper in the circumstances.

2.	On 17 November 2025, the Court made the following ex parte restraining orders, inter alia:

5)	In the meantime, an interim order pursuant to Order 12 Rule 1 or Order 14 Rule 10 of the National Court Rules, Section 155(4) of the Constitution and the inherent jurisdiction of the Court, the First, Second Defendants and the Bank of South Pacific (BSP) Financial Group Limited, their agents, servants, and/or any persons acting on their instructions are restrained from accessing, withdrawing, transferring, or otherwise dealing with any monies held in the main account known as the Bultem Landowners Royalty – Keke 2 Account No. 7011643991, maintained for Kinumsengayun (Keke) Clan B, pending the final determination of this proceedings or further order of the Court.

6)	The First, Second Defendants and the Bank of South Pacific (BSP) Financial Group Limited, and all signatories, agents, or persons acting on their behalf are restrained from accessing, withdrawing, or otherwise dealing with monies held in the following Bank of South Pacific (BSP) accounts created under Kinumsengayun (keke) Clan Group B:
			a. Account No 1000717521 – Brian Sarapiap Family
			b. Account No. 1003201264 – Norma Yapi Family
			c. Account No. 1001391612 – Leok Dopiap Family

3.	Interim restraining orders are remedies in equity. The principles governing the grant of interim restraining orders are well settled. In determining whether to grant such relief, the Court must consider the following factors: see American Cyanamid Company v Ethicon [1975] UKHL 1; Chief Collector of Taxes v Bougainville Copper Ltd (2007) PGSC 1; SC853

(a) are there serious questions to be tried and does an arguable case exist?
(b) has an undertaking as to damages been given?
(c) would damages be an inadequate remedy if the interim order is not made?
(d) does the balance of convenience favour the granting of interim relief?
(e) do the interests of justice require that the interim injunction be granted?

Serious Case to be Tried or Arguable Case

4.	When considering an application for an interim restraining order, the Court must consider whether there is a serious question to be tried and the prospects of success of the Plaintiffs’ substantive claim. In order to ascertain the nature of the Plaintiffs’ claim, it is pertinent to examine the reliefs sought by the Plaintiffs and the evidence placed before the Court through the First Plaintiff’s affidavit. The Plaintiffs filed an Originating Summons on 10 November 2025, as follows:

1)	An Order restraining the Respondent, his servants or agents whosoever, from accessing, withdrawing, transferring, or otherwise dealing with any monies held in the BSP Financial Group Limited bank account described as "Bultem Landowners Royalty Keke 2 Account Number 7011643991", to the extent of the royalty funds payable to Group B (Weni Family) under the Consent Order dated 9th December 2020, pending the final determination of this matter.
2)	An Order restraining the Respondent, his servants or agents whosoever, from creating, operating, or transferring any funds from other bank accounts under the name of Bultem Landowners Royalty Keke 2 or Kinumsengayun (Keke) Clan Group B, held with BSP Financial Group Limited or any other commercial bank in Papua New Guinea, pending the final determination of this matter.
3)	An Order restraining the Respondent, his servants or agents whosoever, from accessing, withdrawing, transferring, or otherwise dealing with monies held in the following three sub-group accounts created under Kinumsengayun (Keke) Clan Group B:

(a) Account No. 1000717521 - Brian Sarapiap Family (Group A);
(b) Account No. 1003201264 - Norma Yapi Family (Group B);
(c) Account No. 1001391612 - Leok Dopiap Family (Group C);

4)	An Order directing the Respondent to provide full bank statements, financial records, and acquittals for all OTML royalty funds, benefits, and distributions received on behalf of Group B (Weni Family) from January 2021 to date.
5)	An Order directing the Respondent to produce before the Court a full and detailed accounting of all monies received, withdrawn, or distributed from the Bultem Landowners Royalty Keke 2 Account No. 7011643991 since the issuance of the Consent Order dated 9th December 2020.
6)	An Order that the costs of and incidental to this application be costs in the cause.
7)	Such further or other orders as the Court deems just and proper.

5.	It appears that, in their Originating Summons, the Plaintiffs have sought substantially the same orders as those sought in the Notice of Motion for interim restraining orders. The affidavit of the First Plaintiff, Ruth Weni, filed on 10 November 2025, alleges that the royalty funds payable to the landowning group have been misappropriated by the Defendants. On that basis, the Plaintiffs claim a rightful and equal share of the royalty payments.

6.	Counsel for the Defendants submitted in their written submissions that the Plaintiffs have not identified any cause of action against the Defendants in the Originating Summons. It was further asserted that the Plaintiffs have failed to establish their standing to bring this action on behalf of other persons and that, for those reasons, the action is frivolous and vexatious.

7.	It should be noted that, although the First Plaintiff, in her affidavit filed on 10 November 2025, alleges that the Defendants misappropriated the royalty funds, the Plaintiffs do not appear to have identified a proper cause of action. Further, the manner in which the allegations are pleaded in the affidavit is vague. It is also averred that the Defendants distributed small portions of the royalty funds to selected families. However, it is unclear which families allegedly received such distributions, and no supporting evidence has been provided by the Plaintiffs in this regard.

8.	The First and Second Plaintiffs do not appear to be litigating this matter solely in their personal capacities. Instead, the caption of the Originating Summons states that the First Plaintiff, Ruth Wani, brings the action for herself and her children, while the Second Plaintiff, Wasi Wani, brings the action for his family and the rest of the Wani family. The Plaintiffs have not provided particulars of the other family members, nor have they produced any evidence demonstrating that those persons have authorised the First and Second Plaintiffs to represent their interests in these proceedings. 

9.	The manner in which the Plaintiffs have presented their case is not convincing, and it does not appear that they have properly identified a cause of action in this matter that aligns with the allegations put forward by the First Plaintiff in her affidavit. For the foregoing reasons, I am not satisfied that the Plaintiffs have demonstrated a serious question to be tried or that there is a prospect of success in this matter.

Undertaking As to Damages

10.	The Plaintiffs filed a document titled Undertakings as to Damages on 10 November 2025. The document states that the Plaintiffs, as Applicants, undertake to submit to such order as the Court may make for the just payment of compensation. However, at the foot of the document there is space for both Ruth Wani and Wasi Wani to sign, yet only one signature appears. It is not clear which one of the two Plaintiffs signed the document.

11.	The courts have time and again emphasised the significance of an undertaking as to damages. In Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 41 Kandakasi J (as he then was) said:

““The Court hearing an application for injunction has to proceed with the comfort that in the event of any damages occasioned by any injunctive order it may order, will be made good by the party applying for the injunction and that it will not result in any further unnecessary litigation or arguments as to the authority and validity of the  undertaking as to damages  and just what the undertaking covers.”

12.	Given the manner in which the document of undertaking as to damages has been executed, I am not inclined to accept it as a duly signed undertaking as to damages.

Damages as an inadequate remedy

13.	Given the nature of the claims asserted by the First Plaintiff in the affidavit, it is clear that, even if the Plaintiffs were to succeed, damages would be an adequate remedy. The First Plaintiff states that although a family agreement was reached in 2020, the distribution of royalty funds has not been properly carried out by the Defendants since that time. It appears that, from then until the institution of these proceedings, the Plaintiffs did not act with diligence to seek any remedy.

14.	In the circumstances, having regard to the nature of the claim and the allegations concerning the manner in which the financial proceeds are distributed, damages would constitute an adequate remedy if interim restraining orders are not granted.

Balance of Convenience

15.	The Court must consider which party would suffer the greater inconvenience if interim restraining orders are granted or refused. It appears that, notwithstanding the Plaintiffs’ claims regarding the distribution of royalty funds, the Defendants have been receiving and enjoying those funds for a considerable period prior to the institution of these proceedings. The Plaintiffs do not appear to have suffered substantial prejudice, having waited for several years without seeking any formal remedy, if indeed there was any irregularity in the distribution of the royalty funds or deprivation of the shares they now claim to be entitled to.

16.	Counsel for the Defendants submitted that the ex parte restraining orders already made have caused grave inconvenience to the Defendants and their families. If interim restraining orders are not granted, the Plaintiffs would remain in the same position they have been in for several years and, should they ultimately succeed, they may be adequately compensated by an award of damages. On the other hand, the Defendants have relied on the royalty funds for their sustenance, and restraining their use of those funds could cause significant prejudice.

17.	In these circumstances, I am of the view that the balance of convenience does not favour the grant of interim restraining orders.

Interest of justice

18.	Having carefully considered all the circumstances of this case, I am of the view that the interests of justice do not require the grant of interim restraining orders. The Plaintiffs have not placed before the Court material which, on its face, demonstrates that they will suffer grave or irreparable prejudice if such relief is refused. Even accepting the Plaintiffs’ assertion that they have been deprived of royalty funds, the evidence does not indicate any urgency or immediate harm, particularly given the Plaintiffs’ failure to act with diligence in seeking relief over a considerable period of time.

19.	Conversely, as noted earlier, the Defendants have been sustaining themselves and their families through the receipt of the royalty funds. Restraining the Defendants from accessing those funds at this interlocutory stage would likely cause them significant hardship and prejudice. Such an outcome would be disproportionate, particularly where the Plaintiffs’ claims are capable of being addressed through an award of damages should they ultimately succeed.

20.	In the overall circumstances, including the absence of a clearly articulated cause of action and the lack of urgency, I am not satisfied that the interests of justice require the grant of interim restraining orders.

21.	For the foregoing reasons, I am not satisfied that the Plaintiffs have established or satisfied the criteria that must be met for the grant of the interim restraining orders sought.

Orders of the Court 
1)	The interim restraining orders sought in the amended Notice of Motion filed on 11 November 2025 are refused.
2)	The ex parte interim retraining orders made by this Court on 17 November 2025 are dissolved. 
3)	The Plaintiffs Shall pay cost to the Defendants on party-party basis and costs to be taxed if not agreed.
4)	The time for entry of these orders is abridged to take place forthwith upon the court signing the orders.

Lawyers for the plaintiffs: Laken Lepatu Aigilo Lawyers		 
Lawyers for the defendants: Themis Lawyers