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National Film Institute v Venapo [2012] PGNC 192; N4756 (22 June 2012)

N4756

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.175 OF 2012

BETWEEN

NATIONAL FILM INSTITUTE
Plaintiff

AND

MOSES VENAPO
Defendant

Goroka: Ipang AJ
2012: 15 & 22 June

CIVIL MOTION – Defendant seeking to dismiss entire proceedings – Order 12 Rule 40 (1) (a) & (c) National Court Rules.

CROSS MOTION – Plaintiff seeks restraining order against Defendant from carrying any earth work until interim arrangement is in place to prevent mud and other debris from being washed in to plaintiff's property – Section 117 Allotment 49, Goroka – Order 4 Rule 32 (b) and Order 12 Rule 1 National Court Rules.

Cases Cited
Nil

Counsels
Mr. D.A. Umba, for the Plaintiff
Mr. K. Pilisa, for the Defendant

RULING ON TWO (2) MOTIONS

22nd June, 2012

1. IPANG AJ: There are two (2) motions on foot before this Court. One of the motions was filed by the Defendant Moses Venapo on the 16th of April, 2012 and the second motion was filed by the Plaintiff on the 28th of March, 2012.

2. I will deal with the Defendant's motion first and subsequently deal with the Plaintiff's motion.

Defendants Motion

3. The Defendant through his motion seeks the following orders:

1. That the entire proceedings (OS. No. 175 of 2012) be dismissed pursuant to Order 12, Rule 40 (1) (a) & (c) of the National Court Rules.
   
2. Costs
   

4. Defendant relies on the following documents to move his motion. This is his own affidavit sworn and filed on the 16th of April, 2012. In his affidavit he deposed that he and the plaintiff have titles to Allotments 49 and 07 respectively within Section 117 at Mt. Kiss in Goroka.

5. The Defendant said he is actually the registered lease owner of Section 117 Allotment 07, Goroka. He said at that time the registered lease was granted to him there was no legal access road to reach Section 117 Allotment 07. He actually obtained title to the land on the 15th January, 2009 and the Plaintiff obtained his title on the 15th December, 2009.

6. The Defendant said he applied for and obtained the public utility access road over Section 117 Allotment prior to the Plaintiff obtaining his title over Allotment 49. The defendant then argued that the plaintiff received his title over Section 117, Allotment 49 only after it was subdivided and rezoned for access road. He said given this circumstances, he has not built any illegal access road and as such he has right to use such land as authorised by law.

7. Mr. Robert Buleka deposed in his affidavit sworn and filed on the 28th of March, 2012 that he is the Director of the plaintiff based in Goroka. He said the plaintiff owns Section 117 Allotment 49, Goroka. He went on and said the defendant who is the title holder of Section 117 Allotment 07 Goroka commenced work on his land which is adjacent to the Plaintiff, National Film Institute's land on the same portion, Section 117 Allotment 03 and 49.

8. The Plaintiff's Director emphasised that there is no such public utility access road approved for use through Allotment 49 to Allotment 07. He said Lands Officers in Goroka are aware of what's happening but they have not been able to stop the Defendant from using Allotment 49 as an access road. He said he has not been informed if there has been any subdivision made to Allotment 49.

9. The Defendant said he has been granted the public utility access right over section 117 Allotment 49 Goroka and annexed and marked with letter "B" is a copy of the official Determination by the Physical Planning Board dated 27th March, 2008.

10. The dates on the documents annexed to the affidavit of the Defendant do not correspond to the facts deposed in the affidavit of the Defendant. In paragraph 3 he deposed that he obtained the title to Section 117 Allotment 07 Goroka on the 15th January, 2009. He said at the time the State Lease was granted to him, there was no legal access road to reach Section 117 Allotment 07. However, in paragraph 5, he said the Physical Planning Board on the 27th March, 2008 granted him the access right. This is contradictory and inconsistent in that he was granted the access right prior to him obtaining the State Lease. Secondly, the Defendant's affidavit annexure "B" is the Notification of Determination of an Application for Planning Permission which was determined and approved but it does not reveal whether it was approved for access road as copy of the actual application was not attached. Based on these defects, this motion is struck out with costs.

Plaintiff's Motion

11. The Plaintiff's motion filed on the 28th of March, 2012 seeks the following:

1. An interim injunction for Defendant to restrain him from carrying out any earth works on Section 117 Allotment 07, Goroka until adequate arrangement to remove all the soil that he has extracted to another location pursuant to Order 4 Rule 32 (b) and Order 12 Rule 1 of the National Court Rules.
   
2. An interim injunction restraining the Defendant from carrying out earth work s on Section 117 Allotment 07 until he makes adequate arrangement to prevent the mud and other debris from being washed in to the plaintiff's property Section 117 Allotment 49, Goroka.
   
3. An interim injunction pursuant to Order 4 Rules 32 (b) and Order 12 Rules 1 of the National Court Rules that the Defendant is restrained from using Section 117 Allotment 49 as his access road.
   

12. In support of this motion, the plaintiff relies on the affidavit of Robert Buleka sworn and filed on the 28th of March, 2012. In paragraph 9 he said, it is also a big worry that earth –works on Allotment 07 by the Defendant has destabilized the hillside boundary with the Plaintiff's premises and has also damaged (plaintiff's mud and other debris being washed on to plaintiff's) adjacent land, Allotment 49. The Plaintiff says the Defendant's activity has caused mental strain on his officers who have worked hard not only to improve Allotment 49 but also to obtain the title for the land.

13. In response to the Plaintiff's claim in paragraph 12 of this judgment, the Defendant said there is no soil erosion and debris being washed over Allotment 49 as claimed by the Plaintiff and its agent. The Defendant went on to say he has in fact built a brick wall making the access road to prevent soil and debris from settling on the plaintiff's land. The Defendant said there is no threat from the soil erosion from his land on Section 117 Allotment 07, Mt. Kiss, Goroka.

14. There is substantial dispute on whether the Defendant's earth works on Section 117 Allotment 07 Goroka, has caused soil erosion and mud flow on to the Plaintiff's land Section 117 Allotment 49 Goroka. The Plaintiff said there is such debris flowing on to his property while the Defendant has not been cross- examined and so it is difficult to substantiate or verify who is telling the truth. This issue needs to be dealt in substantive hearing with a view that both parties need to be cross-examined on their respective affidavits filed. On this basis I refuse to grant the orders sought by the plaintiff's motion filed on the 28th march, 2012.

________________________________________

D. A. Umba Lawyers: Lawyer for the Plaintiff
Pilisa Lawyers: Lawyer for the Defendant