Daugl v Albert [2016] PGNC 28; N6209 (18 February 2016)

N6209

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No 656 of 2014

THOMAS DAUGL -trading as Kubom Limited
Plaintiff

V

ALEX ALBERT -as Manager of Kundiawa Local Level Government
First Defendant

AND:

KUNDIAWA LOCAL LEVEL GOVERNMENT
Second Defendant

AND:

JOE KUNDA NAUR in his Capacity as the Chimbu Provincial Administrator
Third Defendant

AND:

CHIMBU PROVINCIAL ADMINISTRATION
Fourth Defendant

Kundiawa; Liosi AJ
2016: 17th & 18th February

PRACTICE & PROCEDURES – Application for Interim Orders-
Serious Questions to be tried - whether Damages would not be an adequate remedy - Balances of convenience – Interest of Justice

Held
1. There are serious issues to be tried in relation to

(a) Who issues the grant of Certificate Authorising Occupancy?

(b) Whether footnoting on a document constitutes a legal and proper direction and advise.

(c) Whether an issue that was not pleaded in the Originating Summons can be raised and relied upon at the application for interim orders.

2. Whether damages would not be an adequate Remedy - Although Damages can be claimed, the focus of the proceedings is on the property, Damages therefore would not be an adequate remedy.

Cases cited:
Chief collector of Taxes v. Bougainville Copper Ltd (2007) SC 853
Ewasse Landowners Association Inc v. Hargy Oil Palms Ltd (2005) N2878
Konivaro v. Zurenouc [2014] N5771
Mai Corp. Ltd v. National Airports Corporation [2015] N6031
O'Neill v. Kaluwin [2015] N5843
Unagi v. Westpac Bank Ltd (2013) N 5328

Counsel:
Mr. P. Kuman, for the Plaintiff
Miss V. Yobone, for the Defendants

Ruling on Interim Injunctions

18th February, 2016

1. LIOSI AJ: Applications for Interim Injunctions was heard inter party on 17th February and ruling was reserved to today.

Background Facts
2. The background to the application is set out in the supporting affidavits of Thomas Daugl sworn and filed 18th August 2014, 17th April 2015, and 29th January, 2016.

3. The plaintiff's company was involved in buying and exporting of spice. The business provided income earning opportunities and markets for growing and producing spice products for village farmers in Simbu. With the assistance of Simbu Administration an office space was secured for the plaintiff company in Department of Primary Industry Building located at Section 14, Allotment 52, Kundiawa Town. This conception was later formalised by a commercial Land lease Agreement resulting in the plaintiff paying Land Rates to the Simbu Provincial Administration.

4. Soon after a dispute started brewing over the portion of Land between Simbu Provincial Administration, Kundiawa Urban Local Level Government and the Plaintiff. The Dispute resulted in the Plaintiff instituting District Court proceedings against the Defendants, The proceedings sought to restrain Kundiawa Urban Local Level Government from interfering with the plaintiff's operations.

5. During the course of the Dispute, the Simbu Provincial Administrator purporting to act as Chairman Simbu Provincial Lands and Physical Planning Board issued a Certificate Authorising Occupancy to Kundiawa Urban Local Level Government (KULLG) in respect of Allotment 52 Section 14. The Plaintiff argues this was illegal as the Certificate Authorising Occupancy was not issued by Department of Lands and Physical Planning.

6. On 11th May 2015, the Kundiawa District Court issued a warrant to Police to carry out eviction exercise over allotment 52, Section 14 and to deliver vacant possession to the defendants. The plaintiff argues, the warrant may have been premised on the District Court Order. However, there is nothing as such on the District Court Order. Furthermore, the plaintiff say it is ironic that the Warrant served the purpose of delivering vacant possession of the land to the Simbu Provincial Government and Kundiawa Urban Local Level Government (KULLG) as neither has title over the said land. Prior Title search reveals the Land as been vacant.

7. On Monday 16/11/2015 police carried out the eviction exercise on Allotment 52, Section 14 resulting in demolition of plaintiff's properties of significant value.

8. The plaintiff also had taken steps with Department of Lands and Physical Planning to have Allotment 52, Section 14 sub divided. The National Physical Planning Board approved the plaintiff's application to have it subdivided into 3 Allotments. The subdivision survey was registered and drawn into 3 allotments. Allotment 70, 71, 72, Section 14. The plaintiff also enquired on the validity of the Certificate Authorising Occupancy. In response to a letter written on the plaintiff's behalf, the A/Secretary Department of Lands and Physical Planning footnoted that the Certificate Authorising Occupancy was not genuine.

9. The Plaintiff contends the Certificate Authorising Occupancy is illegal as only the Minister for Department of Lands and Physical Planning or his delegate can issue Certificate Authorising Occupancy and not Provincial Administrator as in this case.

10. Submission by the Plaintiff on Grant of Interim Orders.

Whether there are serious issues to be tried.

11. On the facts, the issuing of Certificate Authorising Occupancy by Simbu Provincial Administrator as alleged is illegal. Issue of such a certificate is within the exclusive jurisdiction of the Minister for lands and Physical Planning or his delegate and not anybody else pursuant to s.135 of the Land Act. Further the plaintiff has reasonable prospect of success in the substantive case. In view of the evidence adduced in support of the Notice of Motion which evidence will be relied upon in the substantive hearing.

Undertaking as to damages given
12. This has been filed.

Whether damages would not be an adequate remedy.

13. The plaintiff argues that the subject property is the main focus of the proceeding. There is evidence of a Police Raid and demolition of plaintiff's properties on the subject land of significant value. Even if damages are assessed as compensation, this is not in the best interest of the plaintiff to claim damages in lieu of the subject property. He therefore says damages would not be adequate remedy.

Balance of Convenience

14. The plaintiff argues that since settling on the subject property (at the invitation of the previous Simbu Administration) the plaintiff had made significant developments. This cost him considerable amount of money. The subsequent Police raid on the subject property and demolition of developments thereon at the instruction of Simbu Provincial Administration has caused much hardship and suffering and financial losses on the plaintiff. If the defendants are allowed to interfere continuously it will render the proceedings useless. The plaintiff further has gone to great length to obtain title over the said property and such, interferences if not addressed by the court will render the plaintiff's endeavours futile.

Submission by Defendant

15. In response the defendant rely on affidavits of Peter Laurie and Alex Albert. Both affidavits depose to the plaintiff not having title to the property, the plaintiff not paying land rentals and District court proceedings. The Defendants really have not responded to the issues raised relating to grant of Interim Orders.

16. The Defendant argues the Kundiawa Urban Local Level Government was given the Certificate Authorising Occupancy and that plaintiff was one of the tenants but remains silent on who issued the Certificate Authorising Occupancy.

17. It however argues that the issue of the Certificate Authorising Occupancy was not pleaded in the Origination Summons and therefore should not be raised.

18. In respect of the footnoting by the A/Secretary for Department of Lands and Physical Planning, the defendant's argue the court should not rely on the footnotes unless there is an official letter from the Secretary to that effect.

The Law

19. The Principles governing grant of interim injunctions are well settled in this jurisdiction. Various Supreme and National Court decisions have held that before the Court can grant an interim order it must be satisfied on the following.

1. Whether there are serious questions to be tried.
   
2. Whether an undertaking as to Damages has been given.
   
3. Whether damages would not be an adequate remedy if the interim order is not granted.
   
4. Whether the balance of convenience favours grant of the Interim Order.
   
5. Whether interest of Justice require that Interim Orders be made.
   

20. I have canvassed arguments of both counsels and address each of the requirements as follows:

1. Whether there are serious issues to be tried. There is a serious allegation that the Simbu Provincial Administrator's issuing of the Certificate Authorising Occupancy is unlawful pursuant to s. 135 of the Lands Act. That the relevant issuing officer for Certificate Authorising Occupancy is the Minister for Department of Lands and Physical Planning or his Delegate and nobody else. This in itself alone raises a serious issue. The Defendant argued that the footnoting on a letter by the A/Secretary Department of Lands and Physical Planning should be disregarded as it is not officially on the letter. I am satisfied that the letter is part and parcel of a business document exchanged in normal day to day transactions. I am aware and I'm satisfied that footnoting is a daily occurrence in government Departments and is practiced widely. Whether it is proper and prudent practice is another matter. It may be another issue counsels could raise at the trial proper. Further, the defendants argue, the Certificate Authorising Occupancy was never pleaded in the Originating Summons. Given the evidence adduced, I am inclined to use my discretion to allow the matter to proceed on the seriousness of the issues. This perhaps may be another issue the defendants may raise at the trial proper. I am therefore satisfied there are serious issues to be tried.

2. An undertaking to damages has been filed.

3. Whether damages would not be an adequate remedy if the Interim order is not granted.

I agree with the plaintiff that it could claim for damages for the police raid and demolition resulting in plaintiff's losses. However, as the plaintiff argues the main focus of the proceedings is on the property. There is also evidence the plaintiff has gone through great lengths to subdivide the property into 3 allotments namely section 14, allotments 70, 71, and 72, and to obtain Title to the property. On this premises I am satisfied damages would not be an adequate remedy.

4. Whether balance of convenience favours granting of the Interim Orders.

Since Settling on the Property, the plaintiff has made significant developments costing him a lot of money. The subsequent Police raid and destruction of his property on the subject land has caused the plaintiff much hardship and suffering. The Plaintiff has further gone to great lengths to obtain title to the said property and continued interferences if not addressed by the court will render his endeavours futile.

I agree the balance of convenience favours the grant of interim Injunctions.

Conclusion.

21. I am satisfied the plaintiff has satisfied the grounds for grant of the Interim Orders.

22. The formal orders of the Court are:

1. Orders are granted in terms of paragraphs 2 and 3 of the Amended Notice of Motion by the plaintiff filed on the 29th January 2016.
   
2. The Orders remain in force until the substantive hearing of this matter.
   
3. The defendants are further restrained from any further dealing on the subject land until final determination of this matter.
   
4. Any Party wishing to revisit the orders is at liberty to do so by giving 3 clear days notice.
   

Ruling and Orders Accordingly,

________________________________________________________________
Kuman Lawyers : Lawyers for the Plaintiff
Yobone Lawyers : Lawyers for the Defendants