Steamships Ltd & Kiunga Stevedoring Company Ltd v North Fly Development Corporation Ltd [2016] PGNC 32; N6203 (24 February 2016)

N6203

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 76 OF 2015

BETWEEN:

STEAMSHIPS LIMITED & KIUNGA STEVEDORING COMPANY LIMITED
Plaintiff

AND

NORTH FLY DEVELOPMENT CORPORATION LIMITED
First Defendant

AND

HENRY WASA, IN HIS CAPACITY AS THE REGISTRAR OF TITLES
Second First Defendant

AND:

ROMILY KILA PAT, in his capacity as THE DEPARTMENTAL HEAD AND SECRETARY OF THE DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant

AND

SAM WENGE (CHAIRMAN), NAWAN KIMISOPA PUPUNE, KEPO POMAT, WALTER OMA NOMBA, DR. LINUS SILOPAK, HAPULA POLA & JOSEPHA NAMSU KIRIS in their respective capacities as MEMBERS OF THE PNG LAND BOARD
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Ipang, J
2015: 20 March
2016: 24 February

CIVIL MOTION – First Defendant filed motion to dismiss proceedings for being abuse of process and non-disclosure of a reasonable cause of action, order – 12 Rule 40(1) National Court Rules (NCR) and setting aside Ex-parte Interlocutory orders – Order 12, Rule 8(4) National Court Rules (NCR).

Cases Cited:

Beauf v. Poliamba Pty Ltd
Lerro v. Stagg [2006]N3050
Mainland Holdings Ltd v. Stobbs [2003]PGNC 10

Counsel

G. Purvey, for the Plaintiffs
P. Nii, for the First Defendant

RULING

24th February, 2016

1. IPANG, J: This is an application by the First Defendant seeking to dismiss the proceedings, described as OS. No 76 of 2015 and set aside the Ex-parte Interim Injunction of 20th February, 2015.

2. The First Defendant's motion was filed on the 25th February, 2015 and seeks the following orders:

1. That the proceedings be dismissed for being an abuse of process and does not disclose a reasonable cause of action pursuant to Order 12, Rule 40 (1) of the National Court Rules;
   
2. That the ex-parte interlocutory order of 20th February, 2015 be set aside and discharge pursuant to Order 12, Rule 8 (4) of the National Court Rules.
   
3. That the court order that the Survey Plan Cat. No28/96 is valid for all intents and purposes pursuant to section 155(4) of the Constitution.
   
4. That the court orders that any and all parties are at liberty to apply for the lease title for Section 6, Allotment 30, Kiunga, Western Province under Survey Plan 28/96 before the Papua New Guinea Land Board pursuant to section 155(4) of the Constitution.
   
5. Costs to be paid by plaintiffs.
   
6. Any further or other orders that the court deems fit.
   

Originating Summons (OS)

3. In the Originating Summons (OS) filed the Plaintiff applies for:

• A declaration that the First Defendant's Tender Application before the Papua New Guinea Land Board for Business (Commercial) Lease over Allotment 30, Section 6, Town of Kiunga, Western Province (Tender No. 003/2008) is illegal and unlawful.
  
• Pursuant to section 155 (4) of the Constitution and the inherent jurisdiction of the Honourable Court, and order in the nature of an interlocutory restraining forthwith the Defendants, their servants, agents or whosoever otherwise, from pursuing, considering or dealing with the First Defendants Tender Application for Business (Commercial) Lease over Allotment 30, Section 6, Town of Kiunga, Western Province (Tender No. 003/2008) until further of the Honourable Court and/or the determination of this proceeding.
  
• Costs
  

Motion

4. In moving its motion, the First Defendant moved for the first two (2) reliefs sought in the motion and have not so much moved for the other relief.

5. The motion is supported with Affidavit of Paiyo Bale sworn on the 24th February, 2015. Much of the background facts to this case is contained in this Affidavit of Paiyo Bale. I consider appropriate to state the background facts.

6. Brief Background Facts

(1) The North Fly Development Corporation Ltd (NFDCL) is a company formed by six (6) Local Level Governments of Western Province that was incorporated on the 02nd September, 1998. The NFDCL was set up to venture in to the business of Stevedoring as a form of generating income for the six (6) LLGs and for the benefit of their people. The monies generated from these operations are paid in dividends to the LLGs as part of monies which supplements their budget for various projects carried out by the LLGs in their respective wards.

(2) In late 1989, NFDCL used its own funds and further sourced funds from other areas especially funds from the Kiunga Lake Murray Agreement where the Western Provincial Government provided K600, 000.00 and contracted Curtain Brothers to build current Kiunga Wharf. NFDCL has developed Kiunga Wharf to cater for increased demands for stevedoring services.

(3) Wharf is situated on State Lease described as Section 6, Allotment 30, Kiunga. The wharf catered for other shipping companies who brought goods and services to the people of Kiunga and Western Province as a whole. Steamships and other shipping companies also use the wharf.

(4) NFDCL stevedoring business is that it charges fees monthly for storage of cargo on the wharf and also berthage fees are charged for ships that berth at Kiunga wharf. These fees are charged to all companies including Steamships since 1989 when NFDCL built Kiunga wharf.

(5) After the wharf was built, NFDCL has applied several tiems for the title to the land including land on which the Kiunga wharf is located and the other surrounding areas. NFDCL attempts have failed.

(6) In an around 2011 and then in 2012, the National Physical Planning office conducted a site inspection on the wharf and the surrounding areas in response to NFDCL's submissions for development and expansion of the wharf. NFDCL paid required fees for the sub-division and zoning of the land surrounding the wharf. The new survey plan from this survey was registerd as Survey Plan Cat. No. 28/143

(7) The Kiunga wharf was formerly on Section 6, Allotment 30, Kiunga at which NFDCL built the wharf. Since 1989 NFDCL unsuccessfully tried to obtain this portion of land. The National Physical Planning Board approved a subdivision and rezoning of this portion of land on the 5th July, 2012. The two (2) new subdivided allotments are Allotment 41 and 42, Section 6, Kiunga.

Concerns

(8) First Defendant said the issue which the Court would rely on and declare the survey plan Cat. No. 28/143 and NFDCL's land title application as illegal is that; a part of another portion of land belonging to Kiunga Stevedoring Company Ltd (a subsidiary of Steamships), which is Section 6, Lot 12 was erroneously included in the survey plan as part of Lot 42.

(9) A matter of concern is that some of the land i.e. Fly River bed which was included as part of the new Lot 42, Section 6 should have been declared by the Minister as State Land in accordance with section 5 of the Land Act prior to its inclusion in the survey plan and was not published in the National Gazette.

(10) The National Gazette advertising for application for two (2) portions of land (41 and 42, Section 6 Kiunga) was released after the time for application to be made expired.

(11) Some of the survey plans of both Steamships and NFDCL did not properly supercede the other causing confusion.

(12) On the 17th January, 2014 Steamships filed OS. No.08 of 2014 against the North Fly Development Corporation Ltd (NFDCL) and the other defendants. It sought two (2) main orders; (1) for the Court to declare the Survey Plan Cat. No 28/143 illegal and Null & Void. (2) a declaration by the Court that NFDCL tender application for light Industrial Business Lease for Section 6, Allotment 41 and 42 is illegal and unlawful due to encroachment. On 20th January, 2014 Steamships was granted restraining orders by the National Court restraining all defendants from dealing with NFDCL's land title application.

Action(s) Taken To Address Concerns

(13) NFDCL realized prior to first PNG Land Board sittings in January, 2014 of the encroachment of Steamships Land and sought assistance from office of the Surveyor General to rectify this error. The office of the Surveyor General issued a new Survey Plan registered on the 27th January, 2014. The Survey Plan Cat. No. 28/155 superceded previous Survey Plans, Cat. No. 28/143, Cat. No. 28/143 has been declared null & void.

(14) Plaintiffs have raised issues regarding irregularities in Survey Plan 28/155 refer to Affidavit of Aldridge. I will address the issue later in this judgment.

7. The First Defendants are saying that the Survey Plan Cat. No. 28/155 is no longer valid. It is null and void pursuant to Court Order of 6th August, 2014 in OS. No. 8 of 2014.

8. Plaintiff raised number of issues as contained in the Affidavit of Brian James Aldrich filed on the 17th March, 2015. The issues raised are:

• Kiunga Stevedoring Company Ltd lodged an application with the Department of Lands and Physical Planning dated 22nd November, 2012 seeking the grant of a Business (General Industrial) Lease over Allotment 30 Section 6.
  
• the agenda for PNG Land Board No. 1/2015 (Item 164) should have included both applications lodged by North Fly Development Corporation Company Limited with the appropriate notice to Kiunga Stevedoring Company Ltd, North Fly Development Corporation Limited application for a Business (Commercial Lease).
  
• the plaintiffs argued that upon receiving the application by North Fly Development Corporation Ltd, the PNG Land Board should have provided notice of that application to Kiunga Stevedoring Company Ltd.
  
• Plaintiffs say the Chairman of PNG Land Board failed to notify Kiunga Stevedoring Company Ltd of the fact that PNG Land Board No. 01/2015 (Item 164) was to consider NFDCL's application in contravention of the Land Act. NFDCL's application is required by s. 58(2) of the Land Act 1996.
  
• Plaintiffs say because Kiunga Stevedoring Company Ltd was not given notice and was not listed as an applicant seeking the grant of a Business (General Industrial) Lease over allotment 30, section 6 Town of Kiunga in the gazette agenda for PNG Land Board No. 01/2015 (Item 164) would have precluded PNG Land Board No. 01/2015 (Item 164) from hearing Kiunga Stevedoring Company Limited's application.
  

Court's Analysis

9. It is in evidence before this Court by Affidavit evidence of Paiyo Bale Sworn on the 24th February, 2015 and respectively filed on the 25th February 2015 that the issue of encroachment of the Steamship's Land has been resolved or rectified by the office of the Surveyor General. The office of the Surveyor issued a new Survey Plan registered on the 27th January, 2014. The Survey Plan, Cat. No. 28/143 and Cat. No. 28. The Survey Plan Cat. No. 28//143 has been declared null & void.

10. The concerns raised by the Plaintiff through the Affidavit of Brian James Aldrich (supra) in relation to PNG Land Board No. 01/2015 (Item 164) to include both application by the First Defendant with appropriate notice to the Plaintiffs especially Kiunga Stevedoring Ltd. The consequence is that the Kiunga Stevedoring Ltd would not have been listed as an applicant thus would be precluded from PNG Land Board No. 01/2015 (Item 164) from hearing Kiunga Stevedoring Ltd's application.

11. From the time the Ex-parte Interlocutory Order of 20th February, 2015 was issued to this time of ruling 24th February 2016, on the First Defendant's motion filed on the 25th February 2016 is almost or exactly one (1) year thus the event had gone past and the time would have healed or corrected errors and omissions.

12. I do agree that at the time when Plaintiff applied for the submission that the subject Portion of the land was never tendered when the evidence now before this court is that the subject land has in fact been tendered in the National Gazette.

RULING

13. Given the above reasons, I grant orders sought in the First Defendant's motion that the ex-parte interlocutory orders of 20th February, is set aside and discharged pursuant to Order 12, Rule (4) of the National Court Rules (NCR). Further ordered that the proceedings be dismissed for being abuse of process. First Defendant's costs of this proceeding to be paid by the Plaintiff to be agreed if not to be taxed.

____________________________________________
Young and William Lawyers: Lawyers for the Plaintiffs
Greg Manda Lawyers: Lawyers for the First Defendant