Dion v Walukia [2023] PGNC 502; N10810 (13 October 2023)

N10810

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.394 OF 2023

BETWEEN:
SINTA IA DION AND JOHN LUBANG
Plaintiffs

AND:
JEFFREY WALUKIA
Defendant

Kokopo: David, J
2023: 11^th & 13^th October

INJUNCTIONS – interlocutory injunction – principles governing grant or refusal of injunction – abuse of process – multiplicity of proceedings – preservation of property - application granted.

Cases Cited:
The State v Peter Painke [1976] PNGLR 210
Robinson v National Airlines Commission [1983] PNGLR 476
PNG Forest Products Pty Ltd and Anor v The State and Genia [1992] PNGLR 85
National Executive Council v Public Employees Association of PNG [1993] PNGLR 264
Karl Paul v Aruai Kispe (2001) N2085
Anderson Agiru v Electoral Commissioner v The State (2002) SC687
William Duma v Yehiura Hriehwazi (2004) N2526
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Philip Takori v Simon Yagari (2008) SC905
Peter Makeng v Timbers (PNG) Ltd (2008) N3317
Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340
Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118
Michael Wilson v Clement Kuburam (2016) SC1489
Jacob Popuna v Ken Owa (2017) SC1564
Telikom (PNG) Ltd v Kila Rava (2018) SC1694

Treatise Cited:
Injia and Lay, Civil Procedure in the National Court, Colorcraft Ltd, Hong Kong, 2016

Counsel:
Jacqueline Marubu, for the Plaintiffs
Epita T.T. Paisat, for the Defendant

RULING

13^th October 2023

1. DAVID, J: This is the Court’s ruling on a contested application by the plaintiffs, Sinta IaDion and John Lubang who, by notice of motion filed on 23 August 2023, move for the following orders to be granted:

1. The property in dispute described as Portion 1077, Volume 2 Folio 44 be preserved for the duration of the substantive proceedings pursuant to Order 14 Rule 10(1) and (2) of the National Court Rules; and
   2. The defendant, his agents and associates are further restrained from evicting, harassing, intimidating and threatening the plaintiffs until the substantive matter is determined pursuant to Order 12 Rule 1 of the National Court Rules.
      

2. The plaintiffs rely on the following affidavits:

1. Affidavit of Sinta IaDion sworn on 10 August 2023 and filed on 23 August 2023 (first affidavit); and
2. Supplementary Affidavit of Sinta IaDion sworn and filed on 23 August 2023.
   

3. The defendant, Jeffrey Walukia relies on his own affidavit which was sworn on 10 October and filed on 11 October 2023. The plaintiffs did not object to the use of the affidavit by the defendant for short service despite it being served on them prior to the hearing in Court.

BRIEF BACKGROUND

4. The plaintiffs dispute the validity and transfer of the title issued over land known as Tovakudum being Portion 1077 Milinch Blanche Fourmil Rabaul and contained in Certificate of Title Volume 2 and Folio 44 (the Disputed Land) initially to the defendant’s parents (Gabriel ToWalukia and Hilda IaLolo) on 29 September 2005 both of whom are now deceased and the subsequent transfer of the Disputed Land to the defendant on 17 June 2015: annexures A1 and A2, Supplementary Affidavit of Sinta IaDion. The Certificate of Title was initially issued to Mathias ToTutuo, Martin ToBungtabu, Elias ToKavanamur and Gabriel ToWalukia of Rabaul, East New Britain Province as tenants in common in equal shares on 29 October 1993: annexures A1 and A2, Supplementary Affidavit of Sinta IaDion. The plaintiffs have been and are currently in occupation and possession of the Disputed Land.

5. In 2007, an action was commenced in this Court here by OS No.149 of 2007, Esekia ToLubang and Sinta IaDion v Hilda IaLolo and Jeffery Walukia (the Prior Proceedings) challenging the validity and transfer of the Disputed Property to the defendant’s parents and subsequently to the defendant. On 24 March 2023, the Court, among others, directed the plaintiffs in the Prior Proceedings to file and serve a Statement of Claim by 11 April 2023 which they did not do. An application was filed thereafter by second defendant, Jeffrey Walukia, seeking to dismiss the Prior Proceedings in their entirety for non-compliance of the order to file and serve a Statement of Claim. On 5 July 2023, Justice Dingake in a written judgment granted the application and dismissed the Prior Proceedings in their entirety with costs awarded against Sinta IaDion to be taxed if not agreed. Following the dismissal of the Prior Proceedings, on 16 August 2023, the plaintiffs commenced these proceedings by writ of summons endorsed with a statement of claim raising, among others, fraud under s.33(1)(a) of the Land Registration Act as a basis for challenging the title issued to the defendant’s parents and then to the defendant.

LEGAL ISSUES

6. The main issues that emerge from the evidence presented and submissions of counsel for my determination are:

1. Whether these proceedings are an abuse of process of the Court?
2. If not, whether the plaintiffs have made out a case for the orders sought to be granted.
   

ABUSE OF PROCESS
Submissions

7. Mr. Paisat for the defendant submits that these proceedings should be dismissed for being an abuse of the process of the Court as:

1. It is a continuous attempt by the plaintiffs to deprive the defendant from his peaceful enjoyment and use of the Disputed Land including developing it;
2. As the Prior Proceedings had been dismissed, the plaintiffs’ remedy was by way of an appeal; and
3. The plaintiffs are attempting to get a second bite of the cherry.
   

8. Ms. Marubu for the plaintiffs argues that:

1. While Justice Dingake’s ruling dismissing the Prior Proceedings was not challenged, the proceedings are properly before the Court as they raise fraud under s.33(1) of the Land Registration Act and therefore are not an abuse of the process of the Court; and
2. The defendant does not reside on the Disputed Land whereas the plaintiffs do and have made improvements there.
   

Reasons for ruling

9. Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings, the proceedings are an abuse of the process of the Court, the Court may order the stay or dismissal of the proceedings generally or in relation to any claim for relief in the proceedings. The Court is vested with such power under Order 12 Rule 40(1)(c) of the National Court Rules which is discretionary and also by its inherent jurisdiction, the Court has power to protect and safeguard its own processes and protect its dignity and integrity from any possible abuse by its users or litigants: The State v Peter Painke [1976] PNGLR 210, National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Karl Paul v Aruai Kispe (2001) N2085, Philip Takori v Simon Yagari (2008) SC905, Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118, Anderson Agiru v Electoral Commissioner v The State (2002) SC 687, Jacob Popuna v Ken Owa (2017) SC1564, Telikom (PNG) Ltd v Kila Rava (2018) SC1694. The types of abuses of process may vary from case to case: National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Michael Wilson v Clement Kuburam (2016) SC1489.

10. The Court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants: Injia and Lay, Civil Procedure in the National Court, Colorcraft Ltd, Hong Kong, 2016 at 284. A litigant having selected one mode of proceeding and who has failed to obtain a remedy cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding: Anderson Agiru v Electoral Commissioner v The State (2002) SC687, Injia and Lay, Civil Procedure in the National Court, Colorcraft Ltd, Hong Kong, 2016 at 284.

11. In the present case, the Prior Proceedings were dismissed for non-compliance of an order to file and serve a Statement of Claim by a certain date which the plaintiffs there did not do. Sinta IaDion was one of the plaintiffs in the Prior Proceedings. It is not clear however from the plaintiffs’ evidence what the relationship is between John Lubang and Esekia ToLubang, the other plaintiff in the Prior Proceedings. The Prior Proceedings were not dismissed on the merits.

12. The plaintiffs should not be driven from the judgment seat unless the case is unarguable: PNG Forest Products Pty Ltd and Anor v The State and Genia (1992) PNGLR 85. From the plaintiffs’ evidence, it appears that they have a strong arguable case.

13. The parties did not address me on any time limitation implications under the Frauds and Limitations Act or any other law, but that may be raised at another occasion later.

14. For these reasons, I am of the view that these proceedings are not an abuse of the process of the Court.

INJUNCTION
Submissions

15. Ms. Marubu for the plaintiffs submits that the orders sought should be granted as:

1. The plaintiffs have an arguable case because the Disputed Land should have been allocated or transferred to them after the defendant’s parents forfeited their rights by receiving the relevant reimbursement of a fee payable for the allocation of the Disputed Land to them;
2. The balance of convenience favours the grant as the plaintiffs have been residing on the Disputed Land since 1987 and not the defendant;
3. The injunction sought was necessary to maintain the status quo pending the substantive hearing and determination of the matter and the defendant has taken out District Court eviction proceedings recently against the plaintiffs; and
4. An Undertaking as to Damages signed by the plaintiffs dated 23 August 2023 was filed on 23 August 2023.
   

16. Mr. Paisat for the defendant submits that the relief sought should be refused as the proceedings are an abuse of the process of the Court.

Reasons for ruling

17. I have found already that these proceedings are not an abuse of the process of the Court so I will consider the plaintiffs’ application for an injunction together with the question of preservation of property.

18. An order for preservation of any property may be made pursuant to Order 14 Rule 10(1) of the National Court Rules in conjunction with Order 12 Rule 1 of the National Court Rules.

19. The grant of an interlocutory relief is an equitable remedy and it is a discretionary matter. The purpose of an interlocutory injunction is to preserve the status quo until the determination of the substantive action. That position was succinctly put in Robinson v National Airlines Commission [1983] PNGLR 476 where at 480, Andrew, J held:

“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] PNGLR. 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] 2 W.R.L. 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.”

20. The relevant principles governing applications for the grant of interim injunctions in this jurisdiction are well settled and these were restated and reaffirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. So, in order for an injunction to be granted, it is incumbent upon an applicant to demonstrate that:

1. there is a serious question to be determined (either of law or fact) in the substantive proceedings;
2. the balance of convenience favours the grant or continuity of the injunction;
3. damages would not be an appropriate remedy if the injunction is not granted; and
4. an undertaking as to damages has been given by the applicant.
   
21. Is there a serious question to be determined in the substantive proceedings? The plaintiffs raise fraud under s.33(1)(a) of the Land Registration Act to invalidate the allocation and transfer of the title to the defendant’s parents and then to the defendant. Their evidence demonstrates that they have a strong arguable case and not a speculative one and there is a right or interest which might be jeopardised if the injunctive relief is not granted.
    
22. Does the balance of convenience favour the grant of the injunction? Yes. The evidence shows that the defendant does not reside on the Disputed Land. The plaintiffs reside there. They have been residing there for many years now and have made improvements. If District Court eviction proceedings have been issued recently against the plaintiffs as is submitted by Ms. Marubu, then there is no evidence before me about the status or outcome of those proceedings to assist me in my deliberations. I have however sighted a copy of an order issued by the Rabaul District Court in proceedings CI 28/18, Jeffrey Walukia v Johanes Lubang & Ors on 21 March 2019, but firstly, it is of no real assistance and secondly, I am not certain whether those are the District Court proceedings Ms. Marubu refers to.
    
23. Are damages not an appropriate remedy if the interim injunction is not granted? This point was not specifically addressed by the parties, but considering the totality of the plaintiffs’ submissions, the contention appeared to be that damages will not be an appropriate remedy. I note however that in the statement of claim, one of the relief sought by the plaintiff is compensation in the sum of K56,900.35 for the value of improvements made on the Disputed Land.
    

24. Has an undertaking as to damages been given? Yes.

Conclusion

25. Looking at the whole case, most importantly my findings that the plaintiffs’ have a strong arguable case and not a speculative one and the balance of convenience favours the plaintiffs, I would, in the exercise of my discretion, grant the application as sought.

ORDERS

26. The formal orders of the Court are:

1. The property in dispute described as Portion 1077 Milinch Blanche Fourmil Rabaul and contained in Certificate of Title Volume 2 and Folio 44 is preserved for the duration of the substantive proceedings.
2. The defendant, his agents and associates are restrained from evicting, harassing, intimidating and threatening the plaintiffs until the determination of the substantive proceedings.
3. Costs of the application shall be in the cause.
4. Time is abridged.

Ruling and ordered accordingly.
________________________________________________________________
Marubu Lawyers: Lawyers for the plaintiffs
Paisat Lawyers: Lawyers for the Defendant