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Okuk v Kim [2012] PGNC 162; N4866 (19 October 2012)

N4866

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 180 OF 2011

TANGIL OKUK

Plaintiff

v

TOMMA KIM & BOI TOMMA

Defendants

Goroka: Ipang AJ
2012: 26 September
19 October

CIVIL LAW – Plaintiff seeking permanent restraining orders against Defendants their relatives, associates, servants and agents from trespassing, doing any clearings, grazing, drainage or fencing work on his land.

Cases Cited
Nil

Counsel

Mr. B.Koningi, for the Plaintiff

No Appearance, for the Defendant

RULING

19 October, 2012

1. IPANG AJ: On the 15th of April, 2011 the Deputy Chief Justice Hon. Gibbs Salika heard the Plaintiff's motion filed on the 11th April, 2011 and granted the following Interim Orders. These orders were in the following:
   
   1. Leave is granted to the Plaintiff to dispense with the Rules of the Court relating to service of his motion.
      
   2. The Defendants are forthwith restrained from entering on to or doing any kind of work within the Plaintiff's land described as Portion 326, Milinch of Chimbu, Fourmil of Karamui, in Kundiawa Town, Simbu Province until further orders of the Court.
      
   3. The Plaintiff shall effect service on the Defendants the Interim Orders of this Court and all other documents filed by the Plaintiff in these proceedings at least seven (7) days before the return date set by the Court and shall file Affidavit of Service.
      
   4. The Plaintiff shall file Undertaking as to Damages and serve on or before the return date set by the Court.
      
   5. The parties are at liberty to apply by giving three (3) days notice to the other side.
      
   6. The Interim Orders shall be returned before the Court on the 13th of May, 2011.
      
2. I have after the issuance of the Interim Restraining orders dealt with this matter to some extent and have advised both Defendants to seek services of a lawyer so that the lawyer could argue their case properly. After some time this matter re-appeared before me again and I have realized both Defendants have yet to engage a lawyer of their choice.
   
3. The Plaintiff has complied with the Interim Restraining Orders and have now come back to this Court seeking for permanent restraining orders basically the substantive relief he sought in his Originating Summons. Plaintiff relies on his own Affidavit sworn on the 30th of March, 2011 and filed on the 11th of April, 2011, and the Affidavit of Brian Koningi sworn on the 16thf of August, 2012 and filed on the 16th of August, 2012. On the Court file is the Appointment of hearing filed on the 20th September, 2012 and Notice under Section 35 of the Evidence Act. Being satisfied that sufficient notice of hearing was caused to the Defendants, I allowed the Plaintiff to proceed ex parte.
   
4. In his Affidavit, the Plaintiff deposed of being the registered Title holder over a portion of land in Kundiawa Town described as Portion 326, Milinch of Chimbu, Fourmil of Karamui, Simbu Province. The Plaintiff said he is the registered Title Holder succeeding his late father Sir Iambakey Okuk. Plaintiff has produced copy of the registered title to Portion 326 annexed as "A1 – A3".
   
5. Plaintiff said he faces problems associated with the Defendants, their relatives, servants and agents trespassing through his land, constructing and erecting fences, clearing bushes and dug up drainage on his land. Plaintiff further deposed that the Defendants and their supporters are aggressive and are trying to provoke confrontations.
   
6. Plaintiff also relied on the affidavit of his Counsel Mr. B. Koningi sworn on the 21st September, 2012 and filed on the 24th of September, 2012. Mr. Koningi deposed in his affidavit that on the 15th of April, 2011, the Court granted the plaintiff Interim Restraining Orders against the Defendants. He said after the grant of the orders from the Court, the Defendants nor their Lawyers from Sino & Company Lawyers have disputed the Plaintiff's title to the said portion of land.
   
7. I therefore grant orders sought in the Originating Summons in the following, that Defendants, their relatives, servants, associates and agents are permanently restrained from entering or trespassing on to the Plaintiff's Portion of land described as Portion 326 Milinch of Chimbu, Fourmil Karamui, Simbu Province. They are also restrained from doing any clearing, grazing, cultivate the land or fence any part of the land. I do make further orders that the Defendants pay the Plaintiff's cost of the proceeding to be agreed if not to be taxed.
   

_______________________________

Koningi Lawyers: Lawyer for the Plaintiff

Sino & Company Lawyers: Lawyer for the Defendants