Lara v Samy [2020] PGNC 306; N8513 (23 September 2020)

N8513

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 901 OF 2019

BETWEEN:
WAPSON LARA
Plaintiff

AND:
BR. ANTHONY SAMY, Principal Dela Salle Secondary School
First Defendant

SAM LORA, Assistant Secretary NCD- Education Services
Second Defendant

THE APPOINTMENTS OFFICER NCD Education
Third Defendant

THE SECONDARY SCHOOL COORDINATOR NCD
Fourth Defendant

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2020: 15^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Amended Originating summons – Notice of Motion – Application discharge restraining order Order 12 Rule 8 (2) (b) NCR – evidence insufficient to maintain – Grounds change in relevant circumstances since grant of – Balance discharged – Application granted – Interim restraint set aside – cost follow event.

Cases Cited:

Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522
Counsel:

A. Token, for the Applicant

F. Lunge, for Respondents

RULING

23^rd September, 2020

1. MIVIRI, J: This is the ruling of the court on the First defendants notice of motion dated the 30^th June 2020 pursuant to Order 12 Rule 8 (2) (b) of the National Court Rules, “the rules” for the discharge of the interim orders and for the plaintiff to give vacant possession of the said property forthwith.
   
2. The facts relied on are in the affidavit sworn 17^th June 2020 and filed the 24^th June 2020 of Brother Anthony Samy Pancras the principal of the Della Salle Secondary School first defendant in the proceedings. Relevant to the issue at hand are the following facts that come out from that affidavit. The plaintiff is aggrieved in respect of his appointment by his employer the Papua New Guinea Teaching Services Commission. That grievance does not warrant that he holds onto and maintains possession of the residence that is the subject of a tenancy agreement with the Della Salle Secondary School per Brother Anthony Samy Principal. Which in effect means the Della Salle Secondary School a Catholic Education Agency School does not employ the plaintiff however the subject house where the plaintiff is resident is the property and the discretionary provision of the Catholic Agency and the School. It is owned by the Catholic Archdiocese of Port Moresby Trustees and built on its land entrusted to the Board of the Della Salle Secondary School.
   
3. The plaintiff has signed a tenancy agreement with the School to pay K50.00 every fortnight to occupy the subject house. Which condition he has failed to discharge hence he owes unpaid rental K 2, 350.00 outstanding to date to pay to the School. And as a result, the Board has written to the plaintiff to voluntarily vacate the property however that has not been adhered to. Accepting that this fact is basis for the vacation of the property at the discretion of the landlord, the school. The agreement states that he as tenant will vacate the property in good condition when the position at the school is given to someone or there is no position for the tenant at the school. The plaintiff is no longer holding the position at the school and is no longer providing services at the school. This is the termination part of the agreement. That part also states that upon failure of the tenant to vacate legal action can be taken with the help of police personal to ensue.
   
4. This tenancy agreement is annexure “A” of the affidavit of Brother Anthony Samy Pancras. It is a five-page document which intricately sets out the obligations and duties of the parties and is endorsed and signed by the Plaintiff on the one part and Brother Anthony Samy Pancras on the other witnessed by a Ms. Paula Gande of the Catholic Education Agency dated the 29^th August 2018. The seal of the Catholic Education Agency and the School is affixed to the document.
   
5. This evidence has not been rebutted by the plaintiff except for a vague submission from the bar table by counsel that he would be victimized because he has no where to go with his wife and children if he is vacated from that property. It is without any evidence and does not advance the cause of the plaintiff against the application by the respondents.
   
6. For all intent and purposes, the agreement is a legal document and is enforceable and binding in law between the plaintiff on the one hand and the first defendant. The parties are bound by it and the obligations it sets out are enforceable at the discretion of either party to it. Here it is clear evidence and undisputed that the plaintiff is living on the subject property in breach of the agreement entered 29^th August 2018 between them. He has unpaid rental outstanding of K 2, 350.00 due to the landlord. Who is entitled to terminate and seek removal of the plaintiff from it. It is clear this is a material change in the circumstance from the initial when the matter came before this court on the 04^th June 2020.
   
7. On the basis of this the first defendant has applied for the discharge of the interim stay that was granted for the vacation of the subject property back into the hands of the landlord through the first defendant. What is the law in respect of the discharge of interim injunction?
   
8. Though not addressed by either counsel, the law on the setting aside of interim injunction is set out explicitly in Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522 (29 October 2003) and there is no reason advanced to the contrary for its application. Firstly, it is a discretionary matter and like all is depended on the evidence and material placed before the court. But the following are underlying in its consideration that there has been a material change in the circumstances since rendering the continuation of the restraint unnecessary or inappropriate. Or that condition initially underlying upon which the order was given have since being met or are no longer necessary. In this regard it is also open for the court to consider and discharge if the interlocutory was founded on wrong principle. It is not the case that parties are at liberty to reargue what was missed initially but the fact is that the discretion of the court is wide so as to ensure proper management and control of its process and proceedings until the substantive disposal of the matter.
   
9. In the present the material that are set out above by the affidavit of the Principal of Della Salle Secondary School Brother Anthony Samy Pancras are substantive and have not been negatived in any way or form by the plaintiff. It remains overwhelming and cannot be ignored and viewed with the law set out above leaves no room, except to find that proper basis has been established and the balance has been discharged by the first defendant applicant that the interim restraint granted on the 04^th June 2020 in favour of the plaintiff will henceforth be discharged forthwith. The motion is granted in the terms applied.
   
10. The orders of this court issued dated the 04^th June 2020 that all the defendants named are restrained by themselves severely or jointly or by their servants or agents restrained from evicting the plaintiff or his immediate family from the residence that he occupies at the Della Salle Secondary School is now discharged forthwith. The motion of the First defendant is granted in the terms as applied. That interim order is now discharged forthwith.
    
11. The orders of the court are:
    
    • (1) The application of the first defendant is granted in the terms of the Notice of motion filed.
    • (2) The interim orders of the 2^nd June 2020 and entered the 04^th June 2020 are set aside and discharged forthwith pursuant to Order 12 Rule 8 (2) (b) of the National Court Rules.
    • (3) The plaintiff will give vacant possession of the subject property to the first Defendant forthwith.
    • (4) Costs will follow the event.

Orders Accordingly.

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Office of the Public Solicitor : Lawyer for the Plaintiff/Applicant

Ninerah Lawyers : Lawyer for the First Defendant