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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 134 OF 2019
BETWEEN
PASTOR KITUBING MON as the Pastor of the Three (3) Mile Church Local Church
First Plaintiff
AND:
ELDER KUI KINNEN for himself and for and on behalf of the Three (3) Mile Local Church
Second Plaintiff
AND:
ASSOCIATION OF LOCAL CHURCHES OF PAPUA NEW GUINEA INC
First Defendant
AND:
PASTOR IOSE IAMBA, THOMAS OMOT & SERI SESEKE collectively as Executive Committee Members of the ASSOCIATION OF THE LOCAL CHURCHES OF PAPU NEW GUINEA INC
Second Defendant
AND:
NATIONAL HOUSING CORPORATION
Third Defendant
AND:
SAMSON BENJAMIN in his capacity as Registrar of Title
Fourth Defendant
Lae: Numapo AJ
2019: 06th September
PRACTICE AND PROCEDURE – Application for extension of interim orders pending substantive determination (O 4 r 38 (2)) – Applicable principles on interlocutory injunctions – Serious question to be tried – Balance of convenience to grant or refuse injunction – Serious and irreparable damages – Preservation of status quo - Plaintiff bears the onus of proof – Mere speculations or conjecture without firm evidence is not adequate– Application refused.
Cases Cited:
Papua New Guinea Cases
Yama Group of Companies v PNG Power Ltd (2005) N2831
Hon. Havila Kavo MP v Hon Mark Maipaka MP (2010) N4094
Overseas Cases
Beecham Group Ltd n Bristol Laboratories Pty Ltd (1969) 118 CLR
Wakefield v Duke of Buccleugh (1865) 12 LT 628 at 629.
Counsel:
Mr M Mugarenang, for the Plaintiffs
Mr S Toggo, for the First and Second Defendants
No Appearance, for Third and Fourth Defendants
DECISION
06th September, 2019
1. NUMAPO AJ: The matter came before me for inter partes hearing following an interim order issued ex parte by the court restraining the Defendants from taking any steps or using any means to remove the Plaintiffs from the properties described as Section 187 Allotments 07 and 09 at 3 Mile, Lae Morobe Province pending inter partes hearing of the interim orders. The interim order was issued on an application made ex parte by the Plaintiffs pursuant to Order 4 Rule 38 (2) of the National Court Rules. The motion seeking to stay the eviction order was refused however, the Court in its discretion, restrained the Defendants from removing the Plaintiffs pending this hearing. The Plaintiffs now seeks to extend the interim order and make it permanent until the substantive matter is determined.
2. The issue is whether the interim order granted by the court on the 27th May 2019 can be extended and made permanent until the determination of the substantive matter.
3. The First Plaintiff was evicted from the two properties referred to as Section 187, Allotments 07 & 09 at 3 Mile, Lae following an eviction order issued by the District Court. Plaintiff claimed that he had a valid tenancy agreement with the Third Defendant at the time he was evicted. He further claimed that he purchased the properties from three (3) different people but he has not produced any evidence relating to the purchase. The Plaintiffs claimed that the 3 Mile Church is not a member of the Association of the Local Churches of Papua New Guinea Inc. at the time the property was transferred to the First Defendant. Plaintiffs alleged that the First and Second Defendants by fraud, trickery and deceit obtained the titles to the properties leased to the 3 Mile Local Church by registering the transfer of properties from Third Defendant to the Association of Local Churches of Papua New Guinea Inc. without their knowledge. The Third and Fourth Defendants were not present in court to confirm or deny that.
4. Defendants executed the eviction orders issued by the District Court when the First Plaintiff failed to vacate the property after six months as ordered by the court. Defendants argued that the subject properties which also includes a Church building were assets belonging to the First Defendant. The First Defendant purchased the two properties from the Third Defendant and obtained the titles in 2018. The First Plaintiff occupied the said properties when he was working as a Pastor of the 3 Mile Church. His engagement as a Pastor however, ceased in January 2017. According to the Defendants, the First Plaintiff’s purported tenancy agreement with the Third Defendant was terminated after the properties were sold to the First Defendant. The Defendants further submitted that the First Plaintiff was present in court when the District Court issued the eviction order. He was also served with the eviction order.
C. PRESENT CASE
5. Counsel for the Plaintiffs submitted that the court has the power to extend the interim orders granted and issue a permanent injunction pending the determination of the substantive matter. Counsel referred the court to the relevant principles developed through case laws in this jurisdiction that gives the court the powers to do so and cited the case of Yama Group of Companies v PNG Power Ltd (2005) N2831 and Hon. Havila Kavo MP v Hon Mark Maipaka MP (2010) N4094. In these two cases the court succinctly sets out the applicable principles in the following terms:
It is incumbent on a party seeking an interim injunction pending a trial to show that:
(a) it should only be granted where a strong case that a serious damage will occur to the applicant is made out;
(b) there is a serious question to be tried and that an arguable case exists;
(c) an undertaking as to damages has been given;
(d) damages would not be an adequate remedy if the interim order is not granted;
(e) the balance of convenience favour the granting of the interim order; and
(f) the interests of justice require that the interim order be made.
6. Generally, to obtain an injunction, the plaintiff is required to establish two things; firstly, that there is a serious question to be tried and an arguable case exists, and secondly, that the balance of convenience favours the granting of an interlocutory injunction.
7. On an application for an injunction, the court will require the plaintiff to provide the usual undertaking as to damages. That undertaking, although a belated one, has been provided by the Plaintiffs when they filed the undertaking as to damages prior to the hearing of this application.
8. In an application seeking injunction, the onus is on the Plaintiff to show by way of evidence that he is likely to suffer serious and irreparable damage if an interlocutory injunction is not granted to preserve the status quo. The damages, potential or actual, must be very serious for the plaintiff. There must be prima facie evidence that the damages or loses to be suffered is real and has the potential to permanently alter the Plaintiffs’ position that no amount of monetary compensation, restitution or reparation will restore him back to his original position. All these must be sufficiently pleaded and supported by cogent and credible evidence. Mere speculations or conjecture without firm evidence is not adequate.
9. The Plaintiff’s evidence relates mostly on how he came to occupy the properties. He said he bought the properties from three different people who claimed to be the “owners” of the properties. However, the Plaintiff has not produced any receipts of the purchase or a title to prove ownership. Later in 2017 he signed a tenancy agreement with the Third Defendant after having lived in the property for 10 years without any proper tenancy agreement. The Plaintiff had the opportunity then to exercise his right as the sitting tenant to purchase the property from the Third Defendant but he did not do so. And there is no evidence to suggest that he was taking steps to purchase the property. The First Defendant purchased the properties and obtained the titles in June 2018. The Plaintiff cannot rest on his laurels and cry foul for his own actions or inactions.
10. In this present case, the Plaintiff has not convinced court that his reputation and/or standing as a pastor has been tarnished or likely to suffer as a result of the eviction and therefore serious and irreparable damage would occur to him. There is also no evidence to suggest that he would suffer financial losses and furthermore, that his health, welfare or well-being or that of his family has suffered or likely to suffer as a result of the eviction. To be granted an injunction, the Plaintiff must show through factual evidence that he would suffer serious damages. The Plaintiff has not made out a strong case showing that he would suffer serious and irreparable damages.
(ii) There is a serious question to be tried and that an arguable case exists;
11. The court must be convinced that there is a serious question to be tried. The onus is on the plaintiff to convince the court that there is a prima facie case pointing to an arguable case.
12. In the present case, the Plaintiffs submitted that the serious questions to be tried are in the pleadings as follows:
(i) whether the 3 Mile local church was admitted as a member of the Association of the Local Churches of Papua New Guinea Inc. (ALCPNG) under clause 23 of the Constitution of the ALCPNG (pleadings – para 14).
(ii) whether the ALCPNG obtain the titles to the property by fraud, trickery and deceit (pleadings –para 16).
(iii) whether the District Conference nor the National Conference of the ALCPNG in its properly constituted meeting agreed and approved of the properties located at 3 Mile and used by the 3 mile local church to be transferred to the ALCPNG (pleadings – para 18 (c) – (h).
13. I agree with Counsel for the Defendants that the issues raised by the Plaintiffs have been dealt with by the courts. They were first raised when the Plaintiffs defended the action taken by the Defendants to evict them from the properties. The same issues were raised again in the motion moved by the Plaintiffs to stay the eviction orders which was refused. There is no serious question to be tried and it would be a futile exercise on the part of the Plaintiff to raise the same issues again.
14. Another issue raised was in relation to the service of the eviction order. Plaintiff claimed he was not served with the eviction order and was unlawfully evicted from the property. According to the Plaintiff the only document he was served with was the bill of costs. However, in paragraph 2 (c) of his own affidavit he stated that he was present in court on the 15th November 2018 when the magistrate handed down his decision on the bill of costs. That was also the same day the eviction order was issued. In any event, a bill of costs follows a court order. And that also confirmed what the Defendants stated in their affidavits that the Plaintiff was present in court when the eviction order was issued. He has clearly contradicted himself and I do not think the Plaintiff is telling the truth. If he was not been served with the eviction orders as he claimed the decision handed down on the eviction when he was in court is as good as an eviction order. The materials placed before me clearly showed that the Plaintiff was served with the eviction order along with the bill of costs on the 13th February 2019 and subsequently, got evicted from the properties on the 24th May 2019. Three days after on the 27th May 2019 the Plaintiff filed an application to set aside the eviction order which was refused by the court.
15. The relief sought by the Plaintiffs are:
(i) a declaration that the 3 Mile Local Church has an equitable interest over the properties described as allotments 07 & 09 of section 187 Lae, Morobe Province;
(ii) a declaration that the transfer of title registered and entered by the Fourth Defendant on the 26th June 2018 is illegal & void and is no effect therefore be cancelled pursuant to section 161 of the Land Registration Act 1981
(iii) an order that any title document held by the First Defendant vesting upon the registered proprietorship of State Lease, property described as allotments 07 & 09 of section 187 Lae, Morobe Province and the State lease be cancelled and returned forthwith to the Fourth Defendant pursuant to section 38 (c) of the Land Registration Act 1981, and
(iv) an order that the Fourth Defendant is directed to delete or amend all entries made in the Journal of the Fourth Defendant of the said property of those transactions made.
16. The Plaintiff claimed an equitable interest in the properties and asked that the title issued to the First Defendant be declared void and cancelled. However, he has not specified what type of an equitable interest he holds, for example, an interest held by virtue of an equitable title or claimed on equitable grounds such as the interest held by a trust beneficiary. Needless to say, an equitable title only accords the Plaintiff the right to obtain actual ownership of the property if he chooses to but it does not give him the exclusive rights of ownership as would for a person with a legal title. The Plaintiff, in my view, is seeking the type of relief only available to those with the legal title to a property where the ownership of such is in dispute. It does not apply to those with equitable interest. For this reason, I doubt if there is a real prospect of the Plaintiff being granted the relief sought if the evidence now before me is placed before the court at the substantive hearing. The Plaintiff must establish that if the evidence before the court on the hearing of the application for an interlocutory injunction remained as it was at trial, there was a probability that, at trial, that the Plaintiff would be entitled to relief. See: Beecham Group Ltd n Bristol Laboratories Pty Ltd (1969) 118 CLR at 622.
(iii) Balance of convenience
17. The next consideration is whether the balance of convenience lies in favour of granting or refusing the interlocutory injunction. The question of balance of convenience arises if there is any doubt as to adequacy of the respective remedies in damages available to either party or to both. It is the balance of the relief given to the plaintiff against the injury that will be done to the defendant. If the Plaintiff was to succeed at the trial establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. See: Wakefield v Duke of Buccleugh (1865) 12 LT 628 at 629.
18. It became obvious to me that the Plaintiff’s ultimate intention is to have the properties restored back to him or that he be allowed to continue to remain in the property and this is despite the fact that he does not have any legal right of claim over it. The Plaintiff alleged that the Defendants obtained the property through fraud, trickery and deceit and therefore, the title issued by the Third Defendant should be declared illegal, void and of no effect and therefore be cancelled. If fraud is established the properties revert back to the owner, the Third Defendant, not the Plaintiff. In that regard, I fail to see how the Plaintiff would benefit from this argument.
19. One of the reasons for granting an interlocutory injunction is to preserve the status quo as I alluded to above. A lot has happened since the Plaintiff was evicted from the properties. The First Defendant has taken possession of the properties after the titles were transferred and a number of new developments have since taken place on the properties. There is no utility therefore, in issuing an injunction as the status quo has changed. There is nothing to preserve. In that regard, the balance of convenience does not favour the granting of the interlocutory injunction.
20. Secondly, the loss or injury to the Defendants would be much greater than the relief sought by the Plaintiffs if an injunction is granted. The loss would include financial losses, loss of titles, loss of creditability, loss of standing in the community and loss of support etc. One cannot put a monetary value on those kinds of loses. In the circumstances, the balance of convenience does not favour the Plaintiffs.
E. RULING
21. Application for a permanent injunction is refused.
Costs be in the cause.
Orders accordingly
________________________________________________________________
Muromo Lawyers: Lawyer for the First & Second Plaintiffs
Daniels & Associates Lawyers: Lawyer for the First & Second Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2019/346.html