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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS. NO. 158 OF 2024
BETWEEN:
MAX BENNY
Plaintiff
AND:
KINGSFORD ORERE
Defendant
POPONDETTA: KUPMAIN AJ
09 – 10 AUGUST 2024
INTERLOCUTORY INJUNCTION – Principles governing grant of interim injunction considered – Whether a serious question of law or fact to be determined raised in the proceedings – The balance of convenience favouring injunctive orders –
Cases cited
Janet Roland Sios v Philma Kelegai and others (2016) N7189
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Ramu Nico Management Ltd and ors v Tarsie and ors (2010) SC1075
Chuan v Chin (2004) N2538
James Marape v Paul Paraka (2014) N5740
Edward Robinson v National Airlines Commission [1983] PNGLR 478
Markscal Ltd & Robert Needham v. Mineral Resources Development Co. Pty Ltd [1996] PNGLR 419
Telikom PNG Ltd v Independent Consumer and Competition Commission and Digicel PNG (2007) N3143
PAC LNG International Ltd & ors v SPI 208 Ltd & ors (2014) N5681
Golobadana No.35 Ltd v Bank of South Pacific Ltd (2002) N2309
Counsel
Mr. E. Yavisa for the plaintiff
Mr. Sextus Orere for the defendant Kingsford Orere
1. KUPMAIN AJ: This is my ruling on a Notice of Motion filed on the 1st of August 2024 OS No. 158 of 2024 between the plaintiff Max Benny and the defendant Kingsford Orere. This is a motion for an interim injunction to prevent the defendant and his servants and agents and others from enforcing the orders of the Popondetta District Court of 20th October 2022 and also the order of 16th July 2024 in the proceeding DCCI (No. 96 of 2020) between Kingsford Orere as the plaintiff then and Max Benny as the defendant until the substantive matter of the ownership of the customary land is resolved.
ORDERS SOUGHT
2. The plaintiff in the Notice of Motion sought among other things that the court firstly dispense with the requirements for service of the Notice of Motion pursuant to order 1 rule 7 of the National Court rules.
3. Order 1 rule 7 reads as follows:
‘The Court may dispense with compliance with any of the requirements of these rules, either before or after the occasion for compliance arises.’
4. The second order sought in the Notice of Motion was that an interim injunction be issued and remain pending the determination of the proceeding and to prohibit the defendant and his servants, agents and licences and any others from enforcing the orders of the Popondetta District court of 20th October 2022 and that of 16th July 2024 in the proceeding DCCI (No. 96 of 2020) between Kingsford Orere and Max Benny .
FACTS
5. The facts relied on by the plaintiff to bring this Notice of Motion before this court stem from an ongoing customary land dispute over the customary land known as Kendeta and are as follows:
The Plaintiff is married to Joy Porusa Egimbari and resides with his wife and family on the customary land known as Kendata. His wife belongs to Paru Jangorupa Clan who claims ownership of the said land. In the year 2020, the defendant commenced proceedings against the Plaintiff by way of complaint in the civil jurisdiction of the District Court under the District Courts Act. The case titled CI No.96 of 2020 in the matter between Kingsford Orere for and on behalf of the Hamaipa Clan of Urio village, Oro Bay, Popondetta in Northern Province who was the complainant then and Max Benny who was the defendant then. These proceedings challenged the ownership of the Kendata Customary land in the Sauga area of the Urban LLG in Popondetta District of Popondetta, Northern Province and further seeks to evict the defendant from the said land. He defendant then, was Max Benny. On 27th September 2022, the District Court having received evidence of the ownership of Kendata ordered the complainant to refer his dispute of ownership to mediation under the Land Dispute Settlement Act. The Court also ruled that matters concerning the ownership of the customary land are within the sole jurisdiction of the local land court to be dealt with under the Land Dispute Settlement Act.
6. The order of the court of 27th September 2022 were final orders and the matter was fully determined in those proceedings. Order No. 2 specifically directs that the whole of the matter refers back to fresh land mediations to be conducted between the complainants Hamaipa clan and other clans harbouring customary interests and claim over the Kendata land including the Paru Janguropa clan of Sauga.
7. Instead of conducting land mediation between interested parties, in accordance with the land dispute settlement and as per the directions of the court, the mediator conducted a mediation hearing under the same civil jurisdiction of the District Court under the same title or Reference CI No.96 of 2020 in the matter between Kingsford Orere for and on behalf of the Hamaipa clan of Urio village, Oro Bay, Popondetta in Northern Province and Max Benny, the defendant. A matter that was already adjudicated by a court of competent jurisdiction which was the Popondetta District court. This resulted in an order of the court dated 20th October 2022, ordering the plaintiff here, Max Benny, his family, friends, agents and servants to self-evict from the said land.
8. Further order was obtained by the defendant on the 16th of July 2024 to enforce eviction. A warrant dated 18th of July 2024 was issued to the members of the Police force to carry out the eviction forcefully. The plaintiff now seeks interim restraining orders to prevent the defendants from the eviction by the Police force.
ISSUES
9. The issues before this court are that:
10. I intend to deal with the first issue: whether this court can dispense with the compliance of the requirement of service of the Notice of Motion for an interim injunction.
11. The plaintiff in this proceeding even though was seeking such orders to dispense with the requirement for service had served the Notice of Motion on the 9th of August 2024 as per the affidavit of service by Mr. Yavisa, counsel for the plaintiff after an unsuccessful attempt on the 8th of August 2024 as per Murray Egimbari’s affidavit of service.
12. The defendants did make their appearance, Mr. Kingsford Orere and his brother Sextus Orere who represented Mr. Kingsford Orere. Sextus Orere announced his appearance and addressed the court and asked the court to adjourn the matter to give them time to seek proper legal assistance. His argument was that they were short served. Mr. Yavisa, from the office of the Public Solicitor who was counsel for and on behalf of the plaintiff, Max Benny responded to the defendant’s application for adjournment by referring the court to the Notice of Motion filed on the 1st August 2024, document number 2 to the first order sought. That was, an order for the dispensation of the requirement under the National Court rules for the service of the Notice of Motion. He referred the court to Order 1 rule 7 of the National Court Rules and submitted that, that was the basis for the Plaintiff asking this Court to dispense with the requirement. The reasons advanced by the plaintiff are as follows.
13. Firstly, I adopt and apply fully the reasoning in the case of Janet Roland Sios v Philma Kelegai and others (2016) N7189 by His Honour, Justice Dingake. There is evidence before me which shows urgency in this matter; affidavit evidence of Lucy Max Benny, photographic evidence of houses being burnt down on the 5th of August 2024, this motion was filed on the 1st of August 2024. I also find that the service of the Notice of Motion on the 8th of August 2024 was impracticable because Mr. Murray Egimbari was chased away by the defendants’ son. Considering these reasons, leave is granted to dispense with the requirement to service of this Notice of Motion. I make that ruling first, which means that the application for adjournment by the defendant was refused and directed the plaintiff to move the motion. The defendant too was present.
THE EVIDENCE
14. In establishing the facts which I have outlined, the plaintiff relied on firstly the affidavit of Max Benny dated 1st August 2024, the affidavit of Lucy Max Benny dated 8th August 2024, the affidavit of Murray Egimbari dated 8th August 2024 and the affidavit of Joy Porusa Egimbari filed on the 9th of August 2024.
15. The plaintiff Max Benny deposed to the fact that he is married to a member of the Paru Janguropa Clan who claims ownership
of the Kendata customary land and that his wife’s name is Joy Porusa Egimbari.
16. The District Court has concluded the matter of CI No.96 of 2020 in the matter between Kingsford Orere for and on behalf of the Hamaipa Clan of Urio village and Max Benny, the defendant on the 27th of September 2022 sitting in its Civil Jurisdiction under the District Courts Act with orders issued for a fresh land mediation to be conducted between interested clans including the plaintiffs wifes’ clan Paru Janguropa.
17. The plaintiff also deposed to the fact that he was unaware of the land mediation conducted under the same jurisdiction under the same district court and under the same title or reference CI No. 96 of 2020 in the matter between Kingsford Orere for and on behalf of the Hamaipa clan of Urio village and Max Benny, the defendant then. With orders issued on the 20th of October 2022 for the plaintiff and his family to self-evict.
18. That order is titled, Standing Order.
19. The plaintiff also deposed to the fact that he was unaware of any prior proceedings in the local land court disputing ownership of the Kendata customary land. There was no proper identification of the original landowners over the land, through land dispute settlement processes per the affidavit in support of the then Provincial lands advisor, which is an annexure to the plaintiffs affidavit, “Annexure B”.
20. The plaintiff also deposed to the fact that without properly assessing the merits of the case, the District Court issued orders for eviction against the plaintiff and his family on the basis of this order. A warrant to use force was issued against the plaintiff on the 18th of July 2024. Following this, on the 23rd of July 2024, the defendants associates armed with bush knives and other dangerous weapon entered the said land and threatened the plaintiff and his family. Those are the crux of the evidence on the plaintiffs affidavit.
21. The affidavit of Lucy Max Benny, she deposes to the fact that the state authorities in the form of the Police force have entered and started the eviction exercise by burning down houses and shelters and she deposes to taking photographs of that eviction exercise and the photographs show houses being burnt down.
22. The affidavit of Murray Egimbari, he deposes to the fact that he is the chief of Paru Janguropa clan. The plaintiff’s wife is his cousin sister and their fathers are brothers. Paru Janguropa clan, claims ownership of the Kendata customary land which their ancestors occupied in time immemorial and transferred part of the land as Uguma grassland to the Crown on the 28th of August 1952 and reserved Kendata land for customary use. He provides proof in “Annexure B” that his ancestors the Haimbaris and the Porus’s were part of the signatories. Currently he is unaware of any prior declaration of ownership of Kendata land through the land dispute settlement processes pursuant to the Land Dispute Settlement Act. That was the crux of his evidence in his affivadit.
23. The affidavit of Joy Porusa Egimbari. She deposes to the fact that she belongs to the Paru Janguropa clan who claims customary ownership over the Kendata land. Part of the land was transferred to the Crown by her ancestors. She is married to the Plaintiff, and they lived on the land for more than 40 years. They have developed the land by building properties planting hectares of cocoa plantation. Those are the evidence before this court that came in the form of affidavit evidence for the plaintiff.
Principles Governing the Grant of Interim Injuction
24. Mr. Yavisa referred the court to the case of Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 and submitted that the Supreme Court in that case set out the 4 requirements which the plaintiff must establish for the Court to grant the interim injunction orders. The 4 requirements are as follows:
Firstly, that there is or there must be a serious question to be tried in relation to the substantive matter.
Second requirement is that an undertaking as to the damages must be given by the Plaintiff.
Thirdly, that the damages would not be an adequate remedy if the interim order is not granted.
Finally, that the balance of convenience favours the granting of the interim restraining orders.
Mr. Yavisa also referred the court to other cases which also expounded on those four requirements and they are namely the case of Ramu Nico Management Ltd and ors v Tasi and ors (2010) SC1075, the case of Chuan v Chin (2004) N2538 and the case of James Marape v Paul Paraka (2014) N5740.
Submissions by the Plaintiff
25. In relation to the first requirement, counsel for the plaintiff submitted that there is a prima facie evidence that there still exists a dispute as to the ownership of the Kendata customary land on which the Plaintiff and his family are occupying. It is clear from the evidence of the Plaintiff and Murray Egimbari that the matter, CI No. 96 of 2020 between Kingsford Orere for and on behalf of the Hamaipa Clan and Max Benny was concluded under the civil jurisdiction of the District Court pursuant to the District Courts Act. Counsel referred the court to those relevant evidence in the affidavit of Max Benny, “Annexure A” especially paragraph 10 and paragraph 5. “Annexure A” of Murray Egimbaris’ affidavit. The court referred the matter back for fresh mediation to be conducted in accordance with the processes under land dispute settlement Act instead the defendant and the mediator recommenced the mediation under the same civil jurisdiction of the same district court under the same matter, CI No.96 of 2020 which was already adjudicated by the Court of competent jurisdiction.
26. Mr. Yavisa also relies on the affidavit evidence, paragraph 10, 13 and 15 and “Annexure C” of the affidavit of the plaintiff Max Benny and paragraph 6 and 7 and “Annexure B” of the affidavit of Murray Egimbari. Mr. Yavisa further submitted that the Paru Jungoropa clan of Sauga claims ownership of the Kendata land in which the plaintiff’s wife is part of the clan. Murray Egimbari, one of the Chiefs of this major clan and strongly claims that his ancestors were the signatories who transferred part of the land to the Crown in 1952 and reserved the Kendata land for customary use. The land, the plaintiff and his family are occupying now, was given to him by his grandfather, Egimbari.
27. As to what constitutes a serious question to be tried, Mr. Yavisa referred the court to the case of Edward Robinson v National Airlines (1983) PNGLR 478, specifically at p482. Mr. Yavisa referred the court what His Honour, Justice Andrew said and I quote, “What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success.” He also referred the court to the case of Marksco Ltd v Michael Resources Development Company Pty Ltd (1996) PNGLR 419 where Her Honour Justice Doherty said and I quote, “A strong case which on the evidence presented would support a permanent injunction.” Those are the cases which establishes the first requirement - a likelihood of success or ultimate success.
28. Mr. Yavisa submitted that the plaintiffs’ claim has a real possibility of succeeding because once a case has been adjudicated in a court of competent jurisdiction it cannot be reopened in the same court or a lower court. And the argument is that: that is the principle of res judicata. Res judicata is defined as a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same court. The plaintiff submits that the principle of res judicata has been breached.
29. In relation to the second requirement, Mr. Yavisa counsel for the plaintiff submitted that the plaintiff had given an undertaking as to the damages by filing the same in court, this undertaking has been signed and endorsed by the plaintiff by inserting his signature. In the case of Telikom PNG Ltd v Independent Consumer and Competition Commission and Digicel PNG (2007) N3143, His Honour Justice Kandakasi (as he then was), held that the undertaking must have a seal of the company affixed to it and it must be executed by a person who has authority to bind the company to the undertaking. That was in relation to the company,
30. This case before me is being instituted by an individual person. Mr. Yavisa, submitted that the wording of the undertaking is also appropriate to bind the plaintiff to the undertaking that he makes. He referred the court to part of His Honour Justice Kandaksi’s statement and I quote:
“An undertaking as to damages for the injunction applied must be made clear, I was of the view that the undertaking should have words to that effect, name of the person or party giving the undertaking, undertakes to pay damages occasion or otherwise arising out of and consequential on a grant of injunctive relief applied for in these proceedings. An undertaking in these terms might adequately reflect the fact that any damaged occasioned by the injunctive order for which the undertaking is given will be paid for without any argument on litigation except as to the measure of the actual damages”.
31. Mr. Yavisa submitted that in this case the undertaking given by the plaintiff in support of its application for an interim restraining order clearly meets the requirements of the law and is sufficient for the purposes of the grant of the interim restraining order sought by the plaintiff. This court even inquired, and ask Mr. Yavisa to read for record purposes the undertaking as to damages and for that purpose, the undertaking reads as follows:
“ The plaintiff hereby undertakes to the court to pay any persons whether a party or not who is affected by any interlocutory injunction granted on its behalf such amount as the court decides should be paid for damages to such a party who may have suffered damages because of the effect or the implementation of the interlocutory injunction. Signed , Max Benny, dated 7th August 2024.
32. That was the plaintiffs submission in relation to the second requirement.
33. In relation to the third requirement, that is: that the plaintiff must show that damages would not be an adequate remedy if this interim order is not granted. In relation to that, Mr. Yavisa submitted that the plaintiff has lived on the concerned land and have developed the land by building properties and cultivating cocoa plantations. The defendants actions are harming and destroying the properties developed over the years. Several of the houses and shelters have been burnt down, these are matters that a monetary compensation will not adequately remedy. In addition, to this harm that it was submitted that it is difficult to put a monetary value on the destruction caused by the defendants agents to their human lives. Consequently, damages would not be adequately remedied in monetary terms. Those are the plaintiffs submissions in relation to requirement number three.
34. The plaintiff relied on the affidavit evidence; “Annexure A” of Lucy Benny’s affidavit. Mr. Yavisa also asked the court to consider the case of PAC LNG International Ltd & ors v SPI 208 Ltd & ors (2014) N5681. Where His Honour Hartshorn, J held and I quote:
“ If a loss suffered is readily quantifiable, damages will be an adequate remedy”
35. Mr. Yavisa submitted that in this case the damages suffered by the plaintiff will not be adequately remedied because it is difficult to quantify the number of years living on and developing the land. It is also difficult to quantify the value of his and his family’s life in connection with the land.
36. In relation to the fourth and final requirement, the requirement firstly is that the plaintiff must show that the balance of convenience favours the granting of this interim restraining order.
37. The plaintiff submitted that the balance of convenience favours the grant of the interim restraining order and he relied on the following:
That there is a prima facie evidence that there is no declaration of the true owners of the Kendata customary land. Secondly, that the plaintiffs wife’s’ clan the Paru Janguropa claims ownership of the concerned land because their ancestors were the signatories to the transfer of part of the land to the Crown. The plaintiff relies on the affidavit evidence of Murray Egimbari and Joy Porusa Egimbari. The plaintiff also submitted that the principles of res judicata was breached in this case and asked the court to consider the affidavit evidence of the plaintiff Max Benny and that of Murray Egimbari. The plaintiff also submitted that there is evidence that unless the defendants are restrained, their conduct will continue to harm the plaintiffs’ livelihood and properties on the concerned land. In making that submission Mr. Yavisa referred the court to the case of Golobadana No.35 Ltd v Bank of South Pacific Ltd (2002) N2309 where His Honour Justice Kandakasi (as he then was) said and I quote:
“ The balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. The question of whether or not the balance of convenience favours the grant or continuity of an interlocutory injunction incorporates the question of irreparable damages. Which an injunctive order or relief is sought to prevent.”
38. It was further submitted that in this case there is prima facie evidence that the defendant and his agents conduct are directly harming the plaintiffs livelihood and his properties are irreparable. Accordingly, the plaintiff submitted that the balance of convenience favours the grant of an interim restraining order as it will protect and maintain the status quo as the parties litigate the matter in court as to the ownership of the customary land.
Submission by the Defendants.
39. The defendants were present and so Mr. Sextus Orere was given an opportunity to respond which he did. In a nutshell, he submitted that this dispute was for 30 years up until now and there were 5 different court orders. The first one was in 1997 by a local land court, they do not have the court order because the disaster flood washed away the document and the courts copy was burnt down with the Popondetta Court house here.
40. The second order Mr. Orere submitted was a District Court order in 2008 which was handed up to this court and is in the following form for records, it read:
“In the Oro Provincial District Court at Popondetta CI No.387 of 2008 between Hamaipa Clan the complainant and Max Benny the defendant Court order, before His Worship Mr. Leslie Asimba District Court Magistrate, the 8th day of July 2008. Judgement entered for complainant;
Order No. 1. The previous decision of local land court during 1997 to 1998 still stands effective.
Order No. 2. The defendant only has users right through marriage connection, adhere to communally customary land tenure policy of Saua area.
Signed and sealed with the District Court stamp.”
41. The third Court order which Mr. Orere submitted, was a District Court Order on the 27th of September 2022 which refused eviction. It is also the “Annexure A” of the plaintiffs affidavit. That order reads as follows.
“In the district Court held at Popondetta, Civil Jurisdiction, CI No.96 of 2020 in the matter between Kingsford Orere for and on behalf of the Hamaipa Clan of Urio village, Oro Bay, Popondetta in Northern Province, the complainant and Max Benny, the defendant, having heard the submissions from the complainants and the defendants counsels pursuant to Section 22 of the District Court Act, the Court rules as follows;
The complainants application for eviction of the defendant from the Kendata lands in the Sauga area of the Oro Bay Local Level Government of Popondetta is refused. The whole of the matter is referred back for fresh land mediations to be conducted between the complainants Hamaipa clan and other clans harbouring customary interests and claims over the Kendata land including the Paru Janguropa clan of Sauga. Costs of these proceedings is awarded to the defendant to be agreed, if not, to be subjected to taxation. Dated 27th September 2022 under the hand of the Principal Magistrate Michael Apiye.”
42. The fourth order which Mr. Sextus Orere referred the court to was the Court Order titled as Standing Order which I was read for purposes of records, it was “Annexure C” of the plaintiffs affidavit as well.
“At the District Court held at Popondetta, Civil Jurisdiction CI No.96 of 2020 in the matter between Kingsford Orere for and on behalf of the Hamaipa Clan of Urio village, Oro Bay, Popondetta in Northern Province, the complainant and Max Benny, the defendant.
Standing Court Orders; having ordered the parties to go to land mediations over the Kendata lands of the Sauga area of Popondetta, the mediations having concluded and the mediators Mr. John Aenare and Mr. Lindsey Kosode have reported back to this court on their findings as follows;
Signed and sealed on the 20th day of October 2022 by the Acting Principal Magistrate Michael Apiye.”
Finding of Facts
43. From the evidence before me, I find the following:
There still exists a dispute as to the ownership of the customary land titled Kendata. The matter was concluded by the District Court constituted by His worship Michael Apiye on the 27th of September 2022, referred the matter to land mediation. His Worship on the 20th of October 2022 makes another order titled, Standing Order relying on the report of the mediators. The plaintiff Max Benny disputes that he was not aware of the mediation. The plaintiff raises the issue of res judicata and says that it has been breached.
44. I also refer to the “Annexure C” of Murray Egimbari’s affidavit which is a transfer of the land by Natives to the Crown which both parties referred to the Court in their respective submissions. It is “Annexure B “ of the affidavit of the plaintiff Max Benny, the relevant part of that document which I will rely on, in the second last page states:
“Transfer of land by Natives to the Crown. We Kove, Sehahupa, Erejo, Toasi, Awawai, Kaipa, Surako, Efa, Oiembari, Forusa, Kore (who was a female), Egimbari, Tikambari, Bozahija.”
45. Fourteen persons named there and that document, still on the second last page goes onwards and states:
“Natives of the village of Urio and Oranda village is situated near the Sambogo river in the Higaturu sub-district of the Northern division in the Territory of Papua and being the sole owners of the land, the boundaries of which are set out below.”
46. And a rough and approximate plan of which is draw below in consideration of 150 Pounds which was paid in cash. Further reads:
“Paid over to us as the price of the said piece of land by the Crown do hereby sell and transfer to our sovereign, the Queen, the whole of the said piece of land and all our rights therein and we declare that we are the sole owners of and have full right to sell the said piece of land and that no one else is an owner of or has any right to such land.”
47. The second last page of that document basically states how the payment was distributed. That evidence shows that all these persons are still part owners of that land but it is not for this court to determine the ownership of the land. It is for the proper Court to determine. But it is for this court to say that there is still a dispute which must be resolved properly.
48. Firstly, I find that there is a real possibility of success. The purported land mediation was not properly conducted, all parties must be present.
49. I also find that the plaintiffs undertaking as to damages are properly before this court. The plaintiff signed the undertaking and the wording is in no uncertain terms. See the case of Telikom PNG Ltd v Independent Consumer and Competition Commission and Digicel PNG (2007) N3143 which was referred to earlier.
50. I also find that the damages will not be adequately remedied taking into consideration the number of years the plaintiff lived on the land and developed the land.
51. Finally, the damages are irreparable, the plaintiffs properties have been burnt down, the balance of convenience favours the grant of interim restraining orders and I do so.
52. The formal orders of the court is that:
Those are the orders of the court.
____________________________________________________________
Lawyer for the plaintiff: Public Solicitor
Lawyers for the defendant Kingsford Orere: Sextus Orere
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