Gorobe Kae Incorporated Land Group v Samson [2022] PGNC 512; N10023 (15 November 2022)

N10023

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 300 OF 2021

BETWEEN

GOROBE KAE INCORPORATED LAND GROUP
First Plaintiff

VAGA INCORPORATED LAND GROUP
Second Plaintiff

AND
BENJAMIN SAMSON in his capacity as SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND
TOEA HOMES LIMITED
Third Defendant

Waigani: Linge, AJ
2022: 10^th November

PRACTICE AND PROCEDURE – application for restraining order – application seeks to restrain defendants from rectifying the details on the Urban Development Lease (UDL), granted to the third defendant over Portion 675 Milinch of Granville Fourmil of Moresby in the Central Province until the substantive matter is determined – requirements to be fulfilled for the grant of restraining order – consideration of - plaintiffs have not established a case for granting the interim orders - plaintiffs have not proved that they have an arguable case - the balance of convenience does not favor them - damages would not be an adequate remedy and that while an undertaking as to damages was given it is of no consequence to the plaintiffs – application for restraining order refused -

Cases Cited:
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Golobadana No.35 v Bank South Pacific [2002] PGNC 36; N2309
Pora v Justice Sakora, George Manuhu and Orim Karapo constituting the Leadership Tribunal and Panuel Mogish [1996] PGSC 12; SC512
Mudge v Secretary for Lands State & Delta Development Pty Ltd [1985] PNGLR 387
Koitachi Ltd v Zhang [2007] SC870

Counsel:
Mr. Jomel Waka, for the First and Second Plaintiffs
Mr. Uari, for the First and Second Defendants
Ms. M. Goina, for the Third Defendant

RULING

15^th November, 2022

1. LINGE, AJ: This is a ruling on a Notice of Motion filed by the plaintiffs/applicants on 22 September 2022 seeking to restrain the first defendant, its agents, servants and associates, including the National Lands Board and the Minister for Lands and Physical Planning and the Registrar of Titles from rectifying the details on the Urban Development Lease (UDL), granted to the third defendant over Portion 675 Milinch of Granville Fourmil of Moresby in the Central Province until the substantive matter is determined.
   
2. The total land area of Portion 675 is 68.998 hectares (hereinafter referred to as “Portion 675”), was initially acquired by the Colonial Administration on 4 September 1964 and was published in the National Gazette on 17 September 1964 by way of Declaration of Acquisition.
   
3. The plaintiffs claim that the acquisition was revoked on the 16 December 1964 by a purported Notice of Revocation published in the National Gazette on 7 January 1965 and that there has never been any other acquisition of Portion 675 until the 10 June 2017 when the State through the then Secretary for Lands and Physical Planning purportedly acquired 16.5123 hectares, leaving the balance measuring 52.486 hectares, as customary land.
   
4. This proceeding commenced by the plaintiffs seeks declarations to demarcate the boundary of Portion 675 into two (2) separate portions as 16.5123 hectares being State land and 52.486 hectares being customary land.
   
5. The State claims that all of Portion 675, measuring 68.998 hectares remains State land pursuant to a Certificate of Occupancy (CAO) granted in 1964 for purposes of a defence reserve.
   
6. On the 24 November 2011 the Defence Council decided to allocate the land for Defence Force Housing Scheme. That decision would entail the surrender of the CAO. On the 9 May 2012 the Minister for Lands and Physical Planning authorized the issue of Notice of Revocation to the Department of Defence, effectively revoking the reservation of Portion 675 for defence purpose.
   
7. The State claims that Portion 675 reverted to State land. On the 18 July 2014, the State granted the third defendant an Urban Development Lease (UDL) over Portion 675 based on the Registered Survey Plan Catalogue No. 49/743 ( Cat.No.49/743) to facilitate the development of the land for the Defence Force Housing Scheme. The UDL was renewed on the 13 January 2022 for a usual term of 5 years.
   
8. The UDL granted to the third defendant is for the whole Portion of 675 but for whatever reason the land area was declared as 23.87 hectares. On the 1 September 2022 the first defendant deposed to a supplementary affidavit that there was a honest typing error in the land area of the UDL which must be corrected. In particular 23.87 hectares must be replaced by 68.998 so as hectares to be consistent with the Cat.No.49/743.
   
9. The action contemplated by the first defendant in his supplementary affidavit prompted the plaintiffs to file this application, seeking to restrain the first defendant and other agents of State including the National Land Board and Registrar of Titles from conducting any dealings on the land including rectifying the details on the UDL until the substantive matter is determined.
   
10. The issue for my consideration is whether the first defendant, its agents, servants and associates, including the National Lands Board and the Minister for Lands and Physical Planning and the Registrar of Titles can be restrained from rectifying the details on the UDL, granted to the third defendant until the substantive matter is determined.
    
11. Mr. Waka Counsel for the plaintiffs contends that Order 14 Rule 10(1) of the National Court Rules empowers the Court to make orders for the detention, custody or preservation of the property in proceedings concerning any property or in proceedings in which any questions may arise as to any property.
    
12. He refers me to the Supreme Court ruling in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 that affirmed the settled principle in dealing injunctive orders when it accepted the ruling in Golobadana No.35 v Bank South Pacific [2002] PGNC 36; N2309 wherein Kandakasi J concluded that:
    

“...grant of an injunctive relief is an equitable remedy and it is a discretionary matter. ...The Court must be satisfied that there is a serious question to be determined...the balance on convenience favors the grant or continuity of the injunction to the applicants and if damages would adequately compensate the applicant, then injunctive remedy should not be granted”

13. I will consider the settled elements or prerequisite referred to above to consider the plaintiffs application.
    

Whether or not there is an arguable case?

14. Mr. Waka for the plaintiffs refer me to the Supreme Court case of Pora vs Justice Sakora, George Manuhu and Orim Karapo constitutingg the Leadership Tribunal and Panuel Mogish [1996] PGSC 12; SC512 (14 November 1996) which defined the phrase arguable case was defined in the following terms:
    

“arguable case involves the question of whether the application raises any fundamental or serious legal issues”

15. He submits that the plaintiffs have an arguable case. Their case is that the State acquisition was revoked on the 16 December 1964 by a purported Notice of Revocation published in the National Gazette on 7 January 1965 and that there has never been any other acquisition of Portion 675 until the 10 June 2017 when the State through the then Secretary for Lands and Physical Planning purportedly acquired 16.5123 hectares, leaving the balance measuring 52.486 hectares, as customary land.
    
16. The plaintiffs do not dispute the total land area of Portion 675 as being 68.998 hectares. The plaintiffs claim a land area of 12.236 hectares (registered as customary land portion 3392C) out of the 52.486 hectares of purported customarily owned land within Portion 675. The plaintiffs submit that the State owns only 16.5123 hectares since 2017.
    
17. The plaintiffs submit and object to the intervention by the first defendant for reasons of being contemptuous and the matter being sub judice. Also, it preempts the land being State land whereas there is a competing claim of customary ownership over part of Portion 675 which is pending the Court’s determination.
    
18. Ms Goina for the third defendant submits that her client has a legal claim over Portion 675 by virtue of a grant of an UDL on the 18 July 2014 which was reissued on the 13 January 2022.
    
19. Counsel submits that the third defendant holds an indefeasible title and is protected under Section 33 (1) (a) of the Land Registration Act. She refers me to Mudge v Secretary for Lands, State v Delta Development Pty Ltd [1985] PNGLR 387, Koitachi Ltd v Zhang [2007] SC870.
    
20. In my view whether the land area is 68.899 hectares or 23.87 hectares, the critical consideration is the Registered Survey Plan Catalogue No. 49/743 which specifies the land area for Portion 675, and there is no evidence of any alteration. At the hearing of the substantive matter parties must prove whether the subject land is State land or customary own land.
    
21. If for example it is proven that Portion 675 is customary land, the issue of the land area in the UBL, whether it is 68.899 hectares, or 23.87 hectares becomes academic. It will not affect the first plaintiff and the second plaintiff claims.
    
22. If the Court find that Portion675 is State land, it is a relevant consideration to the third defendant in as far as to confirm that there is no inconsistency in the land area of Portion 675 with the land description captured in Cat.No. 49/743 and granted as UDL or any subdivision thereof.by the State to the third defendant. Thus, the rectification of the land area by the first defendant is a proper administrative action taken at this juncture to correct the honest mistake and to be consistent with Cat.No. 49/743.
    

Whether or not the balance of convenience favors the grant or continuity of the injunction to the applicants?

23. Mr. Waka refers me to Golobadana No. 35 Ltd –v- Bank of South Pacific Ltd (supra) and a passage from Kandakasi J (now DCJ) in his judgment in which he stated:
    

“The question of whether or not the balance of convenience favours the grant or continuity of an interlocutory injunction incorporates the question of irreparable damage sets the context of whether or not the balance of convenience favours the grant of injunctive orders to the applicant.”

24. Counsel for the plaintiffs submits that the balance of convenience favours the grant of an injunction based on the Supplementary Affidavit of Cecil Natera Jnr filed 7 March 2022 depicting photos of the structures or houses and persons with settled livelihood on the strength of the plaintiff’s claim and knowledge that they have always known that of the 52.486 hectares customary land area, about 12.236 hectares has already been registered as customary land portion 3392C.
    
25. Counsel also submits that the third defendant’s UDL purportedly covers only 23.87 hectares and does not match the size of the part of portion 675 it claims was acquired by the State which is 16.5123 hectares.
    
26. Further, Mr.Waka submits that if the first defendant rectifies the UDL to reflect the whole of Portion 675, it will be very detrimental to the plaintiffs because their land will be given away without any proper acquisition thus unjustly deprive them of what they own. It will further render the utility of this proceeding untenable without substantially determining it.
    
27. He submits that it is in order to maintain status quo and to restrain the first defendant from rectifying any documents pertaining to Portion 675 until the substantive matter is determined.
    
28. Ms. Goina for the third defendant submits that the originating summons does not challenge the third defendant’s title but the land boundary of Portion 675 and whether it was acquired by the State. Thus, if the Court rule in favour of the plaintiffs it would possibly nullify the entire acquisition of portion 675 and any subsequent dealings on the land.
    
29. Also, Counsel for the third defendant submits that the plaintiffs will not be prejudice at all, and that the balance of convenience does not favour the grant of the interim restraining order.
    
30. I have considered both submissions and note Her Honour Tamade AJ ruling on the 19 August 2022 restraining the defendants from carrying out any eviction exercises, until the substantive proceedings are determined. I distinguish that preservation order to the restraining order being sought here. It is my considered view that the extent and the boundaries of the UDL whether it is a land area of 68.899 hectares, or 23.87 hectares is still subject to the main issue to be determined and that is, whether Portion 675 is State land or mostly customary land as is the plaintiffs’ claim.
    
31. I agree with the submission of the third defendant that the plaintiffs are not prejudiced at all. The balance of convenience does not favour the granting of the injunctive order.
    

Whether or not Damages would not be an adequate remedy

32. Mr. Waka of Counsel for the plaintiffs submits that his clients have established their livelihood on the Portion 675 and have built very big permanent structures, they also have a registered a customary land group in Portion 3396C within Portion 675.
    
33. Counsel refers to Golobadana No. 35 Ltd –v- Bank of South Pacific Ltd (supra) where DCJ Kandakasi upon considering the applicants claim and reached the conclusion that since the applicant’s claim was purely monetary it can be adequately compensated and so damages would be an adequate remedy.
    
34. I ascertain the claim here to be not monetary. The plaintiffs are seeking declarations of ownership over land they claim to have been subject of revocation by the State. On the balance, it is possible that damages would not be an adequate remedy.
    

Whether or not an undertaking as to damages has been given by the plaintiff/ applicant?

35. The plaintiffs filed an Undertaking as to Damages on the 22 September 2022. Filing does not guarantee absolute payment. The third defendant submits that the plaintiffs have not met previous orders for costs, and I am not convinced they would do otherwise in this instant.
    
36. In the end am not satisfied that the plaintiffs have established a case for granting the interim orders. The plaintiffs have not proved that they have an arguable case, the balance of convenience does not favor them, damages would not be an adequate remedy and that while an undertaking as to damages was given it is of no consequence to the plaintiffs.
    

Order

37. Order of the Court:
    
    1. I refuse to grant the interim order sought in the Notice of Motion.
       
    2. The hearing of substantive matter is set down for the 22 November 2022 at 1.30 pm.
       
    3. Parties pay own costs.
       
    4. Time is abridged.
       

Ordered Accordingly.

Namani & Associates Lawyers: Lawyers for the Plaintiff
Dentons PNG: Lawyers for the Defendants