Sukiri Investment Ltd v Luma [2021] PGNC 423; N9193 (21 September 2021)

N9193

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 703 OF 2013

BETWEEN
SUKIRI INVESTMENT LIMITED
Plaintiff

AND:
JOEL LUMA – Secretary/Department of Works
First Defendant

AND:
DEPARTMENT OF WORKS
Second Defendant

AND:
VICKY PUIPUI – National Archivist, National Library & Archives
Third Defendant

AND:
NATIONAL ARCHIVES & LIBRARY
Fourth Defendant

Lae: Dowa J
2021: 21^st June & 21^st September

PRACTICE AND PROCEDURE– ex parte injunction – whether injunctive orders continue or be set aside – considerations – whether it is just to continue the injunctive orders where the substantive matter has been concluded-whether a third party could continue to benefit from an injunctive order-balancing competing interests and the need to bring litigation to an end.
Cases Cited:

Wamena Trading Ltd v Civil Aviation Authority [2006] PNGLR 236
Robson v National Airlines Corp [1983] PNGLR 476
Employers Federation -V- PNG Waterside Workers (1982) N393
Mondo -v- Moses (2018) N7563

Counsel:

J. Aku, for the Plaintiff
S. Maliaki, for the Defendants

DECISION

21^st September, 2021

1. DOWA J: This is a ruling on whether to confirm the ex parte restraining orders issued on 20^th November 2020.
   
2. I heard this matter on 21^st June 2021 and reserved my ruling which I now deliver.
   

Background Facts

3. The Plaintiff is the Registered Proprietor of a Land described as Allotment 8 Section 19, Lae, Morobe Province, containing an area of 1.1862 hectares. The Defendants are the occupants of the said property. Part of the said land is also occupied by Papua New Guinea Forest Authority who is not a party to these proceedings.
   
4. On 20^th August 2019, the Court issued eviction proceedings against the Defendants and other occupants on the said property including Papua New Guinea Forest Authority.
   
5. On 24^th February 2020 the Plaintiff filed a Writ for Possession, in execution of orders given 20^th August 2019.
   
6. On 20^th November 2020, on application by the Defendants, the Court granted the following ex parte interim orders:
   
   1. The Defendants/Applicants to be granted leave to dispense with requirements of service pursuant to Order 1 Rule 7 of the National Court Rules and Order 4 Rule 49 Sub Rule 52(d) of the Motions (Amendment) Rules 2005 and proceed ex parte.
      
   2. Pursuant to Order 12 Rule (1) and Rule 8(1)(2)(a)(3)(a) and (4) of the National Court Rules, leave be granted for the Court to stay the Writ of Possession dated 19/02/2020 and filed 24th February 2020.
      
   3. Pursuant to Section 155(4) of the Constitution and Order 14 Rule 10 of the National Court Rules or Preservation of the Property described as “Volume 19 Folio 202 Section 19 Allotment 08, Town of LAE, Morobe Province” an Interim Injunctive Order restraining the Plaintiff their agents or servants and/or police from accessing, demolishing, working on, constructing and dealing with an/or disturbing, stopping, inconveniencing the First, Second, Third, Fourth Defendants and the Papua New Guinea Forest Authority.
      
   4. Pursuant to Order 14 Rule 10 of the National Court Rules for an injunctive order that the Plaintiffs and all the other persons residing on the land known as “Volume 19 Folio dealing with the land until the substantive Review in OS(JR).... of 2020; PAPUA NEW GUINEA FOREST AUTHORITY -V- SUKIRI INVESTMENT LTD, BENJAMIN SAMSON – SECRETARY FOR LANDS & PHYSICAL PLANNING, NATIONAL LAND BOARD & THE STATE seeking Orders to review the Decision of the Minister for Lands granting the State Lease Title to the Plaintiff is heard in Waigani.
      
   5. The matter returns for inter-party hearing on Tuesday, 24^th November 2020”.

7. At the time of the ex parte orders, the Papua New Guinea Forest Authority who is not a party to these proceedings, but an occupant of the subject property commenced Judicial Review proceedings at the National Court in Waigani. I am informed that leave to apply for judicial review of the decision of the lands minister in awarding a state lease over the land to the Plaintiff was granted in March 2021. I am also informed that the decision granting leave for review is appealed to the Supreme Court by the Plaintiff and is pending determination.
   

Issues

8. The issue for consideration is whether the Court should extend the interim orders granted on 20^th November 2020 until the proceedings initiated by the Papua New Guinea Forest Authority against the Plaintiff in OS (JR) No.74 of 2020 are determined.
   

Law

9. The defendants sought and the interim preservation orders were granted under section 155(4) of the Constitution and Order 14 Rule 10 of the National Court Rules. The orders were temporary and interim in nature. They were granted several months back. Due to several adjournments the matter was not heard until recently. It is now necessary to review those orders to determine whether to extend, vary or discharge them. The principles for setting aside ex parte injunctive orders are settled.
   

10. The case of Wamena Trading Ltd v Civil Aviation Authority (2006) PNGLR 1, pages 236, set out the following principles:

“9. The following principles have been found to apply to an

application to vary or discharge an interlocutory order:

1. The court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order;
   
2. an application to dissolve an injunction should not simply be an opportunity for the parties to reargue an earlier inter parties order;
   

100. if the interlocutory order is the subject of an appeal the court should be slow to make an order which is likely to interfere with the review powers of the appellate Court;
     

4. some of the circumstances in which an interlocutory order might be set aside are:
   
   1. where the conditions or stipulations of the order have been met and the order is no longer necessary.
   2. If it is subsequently discovered by the Court that the interlocutory order was founded on wrong principles;
   100. changes in relevant circumstances, including the failure of the party enjoying the order to act responsibly after obtaining it;
   4. it is shown that the party obtaining the order has not come to the Court with ‘clean hands’; See Mainland Holdings Ltd v Paul Stobbs N2522 (Injia DCJ)
   5. where the plaintiff has failed to prosecute its’ action after obtaining an injunction: See National Housing Corp. v Yama Security Services Pty. Ltd N1985 (Sevua J);
   6. if the Court finds that it was misled on the earlier application: See Mark Ekepe v William Gaupe N2694 (Cannings J);
   7. on an ex parte interlocutory application there has been a failure to make a full disclosure of relevant material both for and against the applicant’s case: See Sioti Bauf and Lovoi Nadai v Poliamba Pty. Ltd [1990] PNGLR 278, Golobadana No 35 Ltd v Bank of South Pacific Ltd N2309 (Kandakasi J);
      
5. An interlocutory order should not be set aside if the application is merely the opportunity for the applicant to produce evidence which was available and could have been produced when the injunction was first argued inter parties: See Mainland Holdings Ltd v Paul Stobbs (supra). “
   

Interlocutory Order as Found on Wrong Principles

11. After reviewing the facts and circumstances surrounding the grant of the ex parte orders, I am of the view that the orders were granted on wrong principles. The eviction orders granted on 20^th August 2019 was a substantive order resolving the issues between the parties. The orders of 20^th August 2019 extinguished the foundations of the Defendants application for restraining orders. The orders were made by a Court of competent jurisdiction and is binding on the parties. The only way to set aside the orders of 20^th August 2019 is by way of appeal to the Supreme Court.

12. Secondly, the interim orders were granted in favor of Papua New Guinea Forest Authority which was not a party to these proceedings. Although PNG Forest Authority was affected by the eviction orders of 20^th August 2019, it was not a party to this proceeding. Section 155 (4) of the Constitution was erroneously invoked to create a primary right which was not available to the defendants and extended to Papua New Guinea Forest Authority which was not a party.

Change of Circumstances

13. Since the grant of the interim orders there has been change of circumstances. The orders were granted at a time Papua New Guinea Forest Authority has not yet filed any proceedings in Court. PNG Forest Authority has since commenced Judicial Review proceedings in OS(JR) 74 of 2020 between PNG Forest Authority -v- Sukuri Investment Ltd. I am informed that leave for review was granted in March 2021 and the matter is pending determination. Since PNG Forest Authority, has commenced proceedings in a Court of competent jurisdiction, it is procedurally incorrect and an abuse of the process to maintain the restraining orders in this proceeding pending determination of that application in OS 74 of 2020. If PNG Forest Authority desires, it can seek its own Interim Preservatory Orders in that proceeding rather than relying on these orders in proceedings that are well and truly completed to which it is not a party. There is no foundation for these orders to continue.

PNG Forest Authority has an obligation to protect its own interest.

14. The restraining orders of 20^th November 2020 were only temporary relief. It was obtained by the Defendants who are not parties in proceedings OS No. 74 of 2020 commenced by PNG Forest Authority. They were obtained to preserve the status quo until that proceeding is determined. As I have stated earlier in this ruling, the orders cannot be maintained or extended as the issues between the parties have been extinguished and finalized. The restraining orders have no foundation to continue just for the benefit of PNG Forest Authority who is not a party. It is now incumbent on Papua New Guinea Forest Authority to take such steps to protect its interest. Nothing stops it from seeking preservatory orders in that proceeding (OS 74 of 2020).
    

Other relevant Principles on restraining orders:

15. One of the pertinent principles underpinning the law on interim injunctive orders is to preserve the status quo until final determination. In Robson v National Airlines Corp (1983) PNGLR 476, at page 480 of the judgment, the Court said:

“The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action "where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo", per Frost C.J in Mt Hagen Airport Hotel Pty Ltd v. Gibbs and Anor [1976] P.N.G.L.R. 316. No real principles can be laid down as to when they should or should not be granted except they are granted when "just or convenient" and what falls within that description must differ substantially from case to case. As Lord Denning M.R. said in Hubbard v. Vosper [1972] EWCA Civ 9; [1972] 2 W.L.R. 389 at 396 "In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead ... The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules."

16. The questions often asked is whether the action is frivolous or vexatious. Is there a serious question to be tried? Does the balance of convenience favor the grant of the interim orders? Is it in the interest of justice to grant and maintain the injunctive orders? (Refer: Employers Federation -V- PNG Waterside Workers (1982) N393 and Mondo -v- Moses (2018) N7563. In the present case, the Plaintiffs substantive case was determined in its favor. The Defendants were represented and heard before the decision was made. If they were not happy with the decision, they had the right of appeal to the Supreme Court. They chose not to appeal, and the decision made by a Court of competent jurisdiction is binding and in force. It resolved any issues the Defendant/Applicants may have had. It is plain and clear to me that they do not have any arguable case on the merits in these proceeding.
    
17. There is nothing to preserve. It would be unjust or unreasonable to maintain or even extend the interim orders given in these proceedings. These proceedings have been dragging on for the last eight years. Litigation must come to an end at some stage. The party to whom judgment has been granted should be allowed to enjoy the fruits of the judgement without much interruption within the bounds of law.
    

Conclusion

18. For the reasons given above, I refuse to grant an extension of the interim interlocutory orders issued on 20^th November 2020.
    
19. As I have effectively dealt with the terms of the interim orders, the Defendants’ Notice of Motion filed 20^th November 2020 has no foundation to continue. I will therefore dismiss the Notice of Motion as a matter of course.
    
20. For administrative convenience, I will allow the Defendants time to give up vacant possession of the property. It is also necessary to give sufficient notice to Papua New Guinea Forest Authority of these orders as it affects their interest in the property.
    

ORDERS

21. The Court orders that:

1. The ex parte Injunctive Orders granted on 20^th November 2020 is discharged.
2. The Defendants Notice of Motion filed on 20^th November 2020 is dismissed.
3. The Defendants pay the Plaintiff’s cost of the application to be taxed, if not agreed.
4. The execution of the Writ of Possession filed 24^th February 2020 be stayed until 20^th October 2021.
5. A copy of the orders be served on Papua New Guinea Forest Authority within seven (7) days from date of this order.
6. Time be abridged.

_____________________________________________________________
Manase Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyers for the Defendants