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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS(COMM) NO. 8 OF 2020
BETWEEN:
MARGARET NOGA
First Plaintiff
AND:
NC PROPERTIES LIMITED
Second Plaintiff
AND:
POM STEAK HOUSE
First Defendant
AND:
ALA ANE – THE ACTING REGISTRAR OF TITLES, DEPT. OF LANDS & PHYSICAL PLANNING
Second Defendant
BENJAMIN SAMSON in his capacity as the SECRETARY FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Anis J
2020: 4 & 11 August
NOTICE OF MOTION – Interim injunction – Order 12 Rule 1 and Order 14 Rule 10(1), of the National Court Rules, and section 155(4) of the Constitution – Counter notice of motion seeking to dismiss the proceeding – Order 12 Rule 40(1) of the National Court Rules and section 155(4) of the Constitution – alternatively, an order for security – Order 14 Rule 25(1)(b) of the National Court Rules
Cases Cited:
Keimbun Keindip v. The Independent State of Papua New Guinea [1993] PNGLR 28
Ramu Nickel Ltd v. Honourable Dr Puka Temu (2007) N3252
Dengnege Resources Development Ltd v. Vanimo Jaya Ltd (2018) N7108
Roman Catholic Archdiocese of Rabaul v. Alan Gaung (2017) N6642
Chief Collector of Taxes v. Bougainville Copper Limited [2007] SC 853
Counsel:
Mr K Iduhu, for the Plaintiffs
Mr W Donald, for the First Defendant
RULING
11th August 2020
1. ANIS J: The matter returned on 4 August 2020 for inter-partes hearing on whether to retain or lift the interim injunctions that had been obtained by the plaintiffs on 26 June 2020. Also heard at the same time was the first defendant’s notice of motion filed on 10 July 2020. The motion sought to dismiss the proceeding.
2. I heard both matters and reserved my ruling to a date to be advised. Parties have been notified so I rule on them now.
BACKGROUND
3. The first plaintiff seeks various declaratory relief to asset her right over a land described as Portion 2173, Milinch Granville, Fourmil Moresby, Central Province (Portion 2173). Portion 2173 is a State lease. It was issued as an agricultural lease for a period of 99 years which commenced on 9 May 1991. The second plaintiff is joined or has an interest over Portion 2173, that is, as a sub-lessee or a tenant of the first plaintiff over Portion 2173.
4. The first plaintiff claims that she is the registered proprietor of Portion 2173. Her complaint is this. She says the first defendant, together with its servants and agents, without her permission or authority, have entered Portion 2173 and have begun conducting activities there including fencing. As a result, she is seeking to enforce her rights over Portion 2173 as its registered owner, as she claims, and for the removal of the first defendant and its agents or servants from it. She says if another title has been issued over Portion 2173, her title was registered first in time and that it has not been cancelled to date, and therefore she claims, amongst others, that any subsequent title that is issued by the State should be declared null and void.
MOTIONS
5. The best way to deal with this matter is to deal first with the first defendant’s notice of motion to dismiss the proceeding. Its notice of motion was filed on 10 July 2020 (first defendant’s motion). If granted, that will conclude the matter. If I rule otherwise, I will proceed to consider and determine the plaintiffs’ notice of motion of 25 June 2020 (plaintiffs’ motion), that is, on whether I should extend the interim injunction or not.
6. The first defendant seeks various relief. The main relief sought are, (i), for the proceedings to be dismissed for being frivolous, vexatious and an abuse of process, and (ii), on the basis that this Court sitting in its civil jurisdiction has no jurisdiction to further deal with and determine the issues that are raised herein; that the proper process would be by way of judicial review.
MATERIAL FACTS
7. At the hearing, the following facts were revealed. Portion 2173 was granted to the first plaintiff as an agricultural lease for a period of 99 years on 9 May 1991. A copy of the Title is adduced in evidence. More than 10 years later, 2 other titles were issued over the same land where Portion 2173 is situated. The first is a residential lease described as Portion 2505, Milinch Granville, Fourmil Moresby, Central Province (Portion 2505). Portion 2505 was granted to one Steven Marabe on 3 July 2012 for a period of 99 years. The second is an agricultural lease described as Portion 2661, Milinch Granville, Fourmil Moresby, Central Province (Portion 2661). Portion 2661 was granted to an entity called POM Steak House on 1 July 2016 as an agricultural lease for a period of 99 years.
8. I must also state here that the first defendant has filed evidence that challenges the validity of the Title the first plaintiff has to Portion 2173.
ISSUES
9. The main issues are as follows, (i), whether the proper mode of proceeding should be by way of judicial review, (ii), whether the claim has merit and whether the relief sought is attainable by this proceeding, and (iii), subject to the 2 issues, whether the interim injunction should be extended.
MODE OF PROCEEDING
10. The first defendant submits that the correct mode of proceeding should be for the first plaintiff to commence a judicial review proceeding and challenge the actions of the Registrar of Titles in issuing Portions 2505 and 2661 over Portion 2173.
11. This issue is not a difficult one. I note from the plaintiffs’ evidence that the Title to Portion 2173 has not been cancelled. Their evidence also reveals that no notice of forfeiture was issued over Portion 2173, or if there was such a notice issued, the first plaintiff says that she is not aware of any. In summary, I am satisfied that there is prima facie evidence that supports the first plaintiff’s claim that she may hold a valid Title to Portion 2173 and that she may have acquired it in advance or ahead of the other 2 title holders, one of which is the first defendant. With these relevant facts disclosed, s. 33(1)(c) of the Land Registration Act Chapter No. 191 (LRA) becomes relevant. It reads:
(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except—
......
(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
12. The situation the parties are faced with appears to fit the said exception where indefeasibility of title may be challenged before the National Court. So, I ask myself this. Can a person who holds a title which has not been cancelled and who wishes to seek its enforcement, seek declaratory relief using the mode of proceeding like in this case, that is, Under Division 4 of Order 4 of the National Court Rules (NCR)? I would answer in the affirmative. The reasons are as follows. Firstly, a title holder faced with this type of situation may seek to enforce his or her right as the registered proprietor, and also seek declaration that any subsequent titles that have been issued over the same land, should be declared null and void. See cases: Keimbun Keindip v. The Independent State of Papua New Guinea [1993] PNGLR 28 and Ramu Nickel Ltd v. Honourable Dr Puka Temu (2007) N3252. In this case, the first plaintiff’s Title to Portion 2173 appears valid in the sense that evidence adduced has shown that the Title has not been cancelled or revoked by the State. The same may be said regarding the titles of Steven Marabe and Pom Steak House. The 3 Titles all appear valid or seem to have indefeasible status. So that is why the plaintiffs, it seems, have come to this Court under an originating summons, that is, to ask the Court to declare which of the 3 titles should be regarded as valid and which should not, according to law. I do not believe that that type of relief or issue is reserved exclusively for a Judicial Review Court to determine.
13. The first plaintiff appears to have a primary right or interest which she is seeking to enforce and protect. In Dengnege Resources Development Ltd v. Vanimo Jaya Ltd (2018) N7108, I stated at paragraphs 21 and 22:
21. But it is perhaps useful to say this. The plaintiff appears to have a clear primary right. It has filed proceeding under originating summons to assert and obtain orders including declaratory orders, to enforce and protect that right.
22. The first defendant tends to argue on a wrong premise or assumption that because its timber permits were also issued over the same area as the plaintiff's FCA licence, the plaintiff should seek judicial review against the decision of the second defendant for its actions. But the obvious question is this. Why would the plaintiff commence judicial review proceeding to challenge the second defendant's decision in awarding the two (2) timber permits to the first defendant when the plaintiff has no interest whatsoever on those timber permits or on whether or not the second defendant had followed due process when it granted the timber permits to the first defendant?
14. Counsel for the first defendant refers to the case Roman Catholic Archdiocese of Rabaul v. Alan Gaung (2017) N6642. The case, in my view, cannot assist the first defendant’s argument. Quite to the contrary, what I had said in the case supports my reasoning herein. The plaintiff in that case, like the first plaintiff herein, had commenced proceedings under Division 4 of Order 4, that is, by filing an originating summons. It had sought to enforce its right or interest over its State Lease which had been subjected to occupation or interferences by the defendants who had not obtained its permission over the land. The defendants had raised issues challenging the validity of the title of the plaintiff; they had said that the title had been acquired illegally amongst other reasons. In response to that argument and in my decision, I stated these which I note was also quoted by counsel for the first defendant,
15. In my opinion, a challenge on the plaintiff's title, which is a state lease, may be appropriately raised before a judicial review Court. That is, the defendants could file a separate judicial review proceeding in the National Court. This present proceeding was commenced under Order 4 Division 2 of the National Court Rules. It is not a proper mode of proceeding, for the defendants to appear in and raise such an argument challenging or questioning the validity or legality of a state lease. Secondly, the defendants could also raise a challenge over the title, by filing a writ of summons with proper pleadings. [See cases: Alex Timothy v. Hon Francis Marus (2014) SC1403; Richard Wapua v. Poss Lopkopa (2009) SC1048].
15. I would adopt what I have stated in the 2 cases above herein. If the first defendant herein wishes to challenge the title of the first plaintiff over Portion 2173, on any of the grounds under s. 33(1) of the LRA (for e.g. under judicial review), it may do so. But it cannot tell the plaintiffs to do that. A registered proprietor of a property is entitled to its quiet use and enjoyment. And in the present case, it seems that the parties are faced with a situation where 2 additional titles have been issued or created over Portion 2173. The main question for trial it seems would be to consider what the law says in such a situation, namely, the situation that is expressly permitted under s. 33(1)(c) of the LRA. I am not going to get ahead on the issues. Rather, they should be reserved only for the trial proper to address.
16. But with these, what I can say are as follows. Firstly, I find that the mode of proceeding chosen by the plaintiffs is correct; that this Court can make orders as sought in the originating summons. I find that the relief sought in the originating summons are attainable. Secondly, the findings show that there is a serious question or questions to be tried. The material facts appear settled and the questions of law raised are valid, and in my view, should be left to the trial Court to determine.
MERIT
17. Regarding the issue of whether this case has merit, I note that I have already answered that above in my judgment.
EXTENSION OF INJUNCTIVE RELIEF
18. The elements for granting interim injunctions or restraining orders are, (i), the applicant must have an arguable case, (ii), the balance of convenience must favour the applicant, and (iii) whether an undertaking as to damages has been filed. See case: Chief Collector of Taxes v. Bougainville Copper Limited [2007] SC 853.
19. I have considered the arguments of the parties. Regarding arguable case, I have already addressed that above. I find that there is a serious issue to be argued when the matter is set down for trial. A main issue may be whether the first plaintiff’s Title to Portion 2173 is valid and whether it was acquired first in time; what legal effect will it have to the 2 titles that also appear valid which have also been issued over the land where Portion 2173 is situated?
20. Regarding balance of convenience, I will say this. As it is, the Title of the first plaintiff appeared to have been issued first in time or more than 10 years ago ahead of the 2 titles over portions 2505 and 2661. Evidence adduced by the plaintiffs shows commercial arrangements currently in place between the plaintiffs over a period. Evidence adduced also shows that the first defendant has commenced work of building a fence and that it has started to conduct activities on the same land. When I weigh them, I think the best approach would be to allow the first plaintiff, who has been there longer and who has an existing commercial dealings with the second plaintiff, on the land pending determination of the substantive matter. The other thing I notice which requires mentioning that appears to weaken for now the claim by the first defendant over Portion 2661, is this. Evidence adduced by Rachael Steven shows discrepancies in the Title to Portion 2661. The Title that is attached in her affidavit appears at first under the name, POM STEAK HOUSE. It appears to have been changed by hand or handwriting in the Title itself. Ms Steven claims that was done by the Registrar of Titles to correct the error to the name, PORT MORESBY STEAK HOUSE. But in the recent affidavit of Ms Steven, she claims that the correct name in the Titled to Portion 2661 should read, PORT MORESBY STEAK HOUSE LIMITED. Ms Steven states that they are taking steps to correct this misdescription to the name of the registered proprietor of Portion 2661. So, as it is, the status quote is that I cannot know for sure the correct name of the registered proprietor to Portion 2661. As such, it is arguable whether the first defendant is the legitimate registered proprietor. Again, these may be established later at the trial proper but the prima facie evidence as it is now does not tend to favour the first defendant’s claim that it is the registered proprietor of Portion 2661. Again, I do not want to get ahead of these matters which should rightly be left to the trial Court to determine.
21. The plaintiffs have also filed a joint Undertaking as to Damages on 25 June 2020. The undertaking, in my view, is valid. I note that if the claim is dismissed, any damages suffered by the first defendant from 26 June 2020 to the date of the final decision, is guaranteed or secured by the said undertakings given jointly by the plaintiffs. On the contrary, if I refuse to grant or extend the interim injunctions, I note that the possible injuries or damages that may be caused to Portion 2173 may not be adequately compensated, that is, damages would not be an adequate remedy if I decline to extend the interim orders. Evidence disclosed shows that the first defendant has already disrupted the peace and business set up or the lease arrangement between the plaintiffs. Evidence also shows land clearance and disturbance caused to the vegetation and landscape of Portion 2173. If these activities are permitted to continue, the plaintiffs may suffer irreparable damages.
OTHER CONSIDERATIONS
22. I finally refer to the alternative argument of the first defendant, that is, order for security under Order 14 Rule 25(1)(b) of the NCR. Rule 25(1)(b) states:
25. Cases for security. (53/2)
(1) Where in any proceedings, it appears to the Court on the application of a defendant -
......
(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that that plaintiff will be unable to pay the costs of the defendant if ordered to do so; or
23. I find the relief and argument by the first defendant misconceived. It is obvious that the first plaintiff is seeking protection or enforcement of her Title to Portion 2173. The second plaintiff is a tenant or sub-lessee of the first plaintiff. It is not as if the first plaintiff has not established prima facie evidence of her interest over Portion 2173. The potential benefits, if established, would exclusively be for the first plaintiff as the registered proprietor of Portion 2173. The second plaintiff is joined based on its commercial interest that it has with the first plaintiff.
24. I note that relief 4 in the plaintiffs’ notice of motion was not dealt with, so I make no findings on it.
SUMMARY
25. In summary, I will make the following orders. Firstly, I will dismiss the first defendant’s motion filed on 10 July 2020. Secondly, I will grant the plaintiffs’ notice of motion filed on 25 June 2020, and in so doing, I will order the interim injunctions to remain in force pending determination of this proceeding.
COST
26. Awarding cost in the matter is discretionary. I will order costs of both motions to follow the event.
ORDERS OF THE COURT
27. I make the following orders
The Court Orders accordingly.
________________________________________________________________
Fairfax Legal: Lawyers for the Plaintiffs
Donald & Company Lawyers: Lawyers for the First Defendant
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