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Gomai v Narere [2017] PGNC 326; N6964 (24 May 2017)

N6964

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 629 OF 2016
BETWEEN
MICHAEL GOMAI
Plaintiff

AND
VICTOR NARERE –MATAKATO HOLDINGS LTD
First Defendant

AND
AND MATAKATO HOLDINGS LTD
Second Defendant

AND

FRED WALUKA – Principal Advisor, WNB Provincial Commerce & Industry Department
Third Defendant

AND
PROVINCIAL COMMERCE & INDUSTRY DEPARTMENT
Fourth Defendant

Kimbe : Batari J
2016 : 9 December
2017: 24 May

PRACTICE AND PROCEDURE – application for Interim injunction – inter partes hearing - judicial review application - applicant seeks injunctive orders to preserve the status quo - discretionary - cause - whether serious issue raised – Notice of Eviction – state land – land required for legal and commercial interests – Plaintiff claiming unpaid monies for work done – public interest - balance of convenience – O. 12, r.1, O.14, r. 10

Cases Cited :

Employer Federation v. PNG Waterside Workers (1982) N393
Kekedo v Burns Philps [1988-89] PNGLR 122
Robinson v. National Airlines Corporation [1983] PNGLR 476 at p.480.

Counsel :

Applicant, In-person
F. Kua, for the Defendants

RULING

24 May, 2017

1. BATARI J: This is an inter-partes hearing of an application for injunctive orders. Having filed a purported judicial review application against a notice of eviction to vacate its property, the Applicant obtained ex parte interim restraining orders against the defendants pending this hearing.
   
2. The ex parte interim orders of 23/9/ 2016 reads:
   
   1. The defendants, their agents and their servants be restrained from entering the subject property located at Section 17 Allotment 7 Kimbe until further orders of the Court.
   2. The defendants, their agents and their servants be restrained from evicting the plaintiff until further orders of the Court.
   3. These proceedings shall be mentioned at the next call-over to set a date for inter partes hearing on the question of whether these interim orders shall continue.
      

Background

3. The Department of Commerce and Industry (DCI) has the Certificate Authorising Occupancy (CAO) over Section 17 Allotments 7 and 8 within Kimbe town for commerce and trade purposes. I think for many years, the two properties have served as the promotional venues for small national business activities overseen by the DCI. Aspiring business men and women are initially provided rented space to start off under supervision by business promotion officers before relocating their business ventures.
4. In the early to mid-2000s, DCI employee, Dominic Bambai unlawfully set on fire, a three bedroom house located at Allotment 7. Cannings J convicted him in 2006 and ordered as part of his sentence, that he rebuild the house at K35,000.00 at his own costs. The arsonist possibly engaged the Applicant to construct the building. This is not clear as in his affidavit; Dominic Bambai claimed he rebuilt the house himself at his own costs in compliance with the Court orders. In 2008 the Applicant moved onto the property. He has since resided and conducted business activities from there.
   
5. Meanwhile, the Provincial Government had in collaboration with the DCI determined that the two allotments be redeveloped as a Business Promotion Centre. So, eviction notices were issued and the occupants vacated in compliance. At the time of hearing of this application, early works have commenced with site clearings on the two allotments. The Applicant who has all along resisted the eviction filed for judicial review of the eviction notices.
   

Parties Positions

6. The Applicant’s contention is that the respondents ought to pay him fair compensation first before he vacates Allotment 7. Mr Gomai argued he had rebuilt the three bedroom residence on the property and hence, is entitled to fair and just recompense for his labour and material costs. He argued that the respondents’ offer of K14,508.90 to vacate is grossly inadequate. This strong feeling I think is based on two factors namely, about five of those who have vacated the properties in question were paid in excess of the amount offered to him and second, the market value of the house is estimated at K150,000.00. His contentions on this issue are found in his Affidavit on file.
   
7. The extension of injunctive orders he now seeks will preserve the status quo pending hearing of the substantive matter. Mr Gomai feared that if the existing state of affairs is not maintained, he stands to lose out on his claim for adequate compensation.
   
8. The respondents contend that the eviction exercise is in order and necessary in the public interest. The Provincial Government in its resolve to redevelop the two portions of land in question have properly served notices of eviction on the occupants. Counsel, Mr Kua argued that the Applicant concedes the status of land holding in that DCI and that he has no legal basis to remain on the property. His defiance of the eviction process has no good basis and further that his case lacks good cause. Counsel submitted, the claim in reality is for monies owing from a private contractual arrangement with a third person. His cause is against that party in a civil suit for damages. Hence, coming to court by way of a judicial review application is an abuse of the court process. Furthermore, the whole proceedings are unmeritorious, frivolous and vexatious. The ex parte orders should therefore be set aside and that the claim for continuing restraining orders dismissed.
   

Issue

9. The main issue for consideration is whether it would be just and convenient to preserve the status quo and allow continuation of the restraining orders until the hearing of the main action.
   

The law and principles applied

10. The rule governing interlocutory injunctions is well settled. The need to preserve the current situation until the hearing of the main case may be warranted where other facts being evenly considered, it would be just and convenient to maintain the status quo: Robinson v. National Airlines Corporation [1983] PNGLR 476 at p.480.
    
11. The case of Employer Federation v. PNG Waterside Workers (1982) N393 provides these guidelines when an application for interlocutory orders is made –
    
    1. Whether the action is not frivolous or vexatious. Whether there is a serious question to be tried. Whether there is a real prospect that the applicant will succeed in the claim for an injunction at the trial.
    2. The court must then consider whether the balance of convenience lies in favour of granting or refusing interlocutory relief.
    3. As to the balance of convenience, the pertinent issue is whether, if the applicant succeeds, he would be adequately compensated by damages for the loss sustained between the application and the trial, in which case no interlocutory relief should normally be granted.
    4. If damages would not provide an adequate remedy, the Court should then consider whether if the applicant fails, the defendant would be adequately compensated under the applicant’s undertaking in damages, in which case there would be no reasons on this ground to refuse an interlocutory injunction.
    5. Then one goes on to consider all the other matters relevant to the balance of convenience, an important factor in the balance should, other things being even, be to preserve the status quo, and
    6. When all other things are equal it may be proper to take into account in tipping the balance the relative strength of each party’s case as reviewed by the evidence before the Court hearing the interlocutory application.
       

Whether there is a serious case to be tried

12. The principal cause here is a judicial review application to review the respondents’ decision to evict the Applicant and other residents from the property in question. The course taken by West New Britain Provincial Government and Commerce & Industry Department were based on two primary reasons namely;
    
    1. The occupants have either over-stayed their tenancies as per condition of occupancy for those who signed tenancy agreements or are illegal occupants for those who do not have tenancy agreement, and
       
    2. Public Funding has been secured for re-development of the Business Promotion Centre facility. The land is needed to be freed immediately for the redevelopment to proceed.
       
13. The onus is on the Applicant to show that he has a serious, not a speculative case which has a real possibility of success. He must also show that he has property or other interests which may be jeopardised if the status quo is not preserved.
    
14. A review of the file in these proceedings reveals a purported judicial review application in a general form that is not filed in compliance with the requirements in Order 16 of the National Court Rules. The basis for a leave to apply for judicial review has not been filed and the Applicant has not applied for leave to apply for judicial review. Neither has he alleged any error in the executive decision to issue eviction notices to the residents of Section 17 allotments 7 and 8. The grounds and reasons the Applicant relies on to challenge the decision of an administrative authority set out above are not disclosed.
    
15. It is trite that in a judicial review application, the applicant must alleged and show that the decision-making authority made an error in the decision making process under one of the following circumstances;
    
    1. exceeded its powers, or
    2. committed an error of law, or
    3. committed a breach of natural justice, or
    4. made a decision no reasonable tribunal could have reached, or
    5. abused its powers:
       

Kekedo v Burns Philp [1988-89] PNGLR 122.

16. The applicant must however first seek leave and show that;
    
    1. He has sufficient interest or standing,
    2. He has an arguable case,
    3. There is no undue delay,
    4. He has exhausted all other avenues for appeal or review.
       
17. It is apparent from the face of the records that the application for judicial review is misconceived. It is a mischievous smokescreen for the real underlying reason why Mr Gomai is resisting the eviction notice. Whilst conceding that, the DCI is the proprietor with the CAO over the property and hence, the authority to issue the eviction notices, the primary objective of his court action, apparent from his affidavit and submissions, is to secure fair compensation before he vacates the property. He is adamant that the respondents pay him fair value for the three bedroom house he had constructed for them before he gives up vacant possession.
    
18. I agree with the respondents, the Applicant should plead his cause. His claim is based firstly, on a purported contract with the Provincial Government to construct a three bedroom house at Section 17 allotment 7. It was the same three bedroom house the construction of which was court ordered. His second claim may be for fair and just compensation to vacate section 17 allotment 7. Those are possible causes that he appears to be propagating against the respondents.
    
19. As it is, the Applicant has no apparent basis to mount a judicial review application. Hence, the proceeding on foot is frivolous and vexatious. It also amounts to an abuse of the court process.
    
20. Assuming the plaintiff has a case against the respondents for the value of his labour and the materials used to build a three-bedroom house, that claim in my view, may have no legal basis. Even if the claim for labour and material is based on some real or perceived contract, the contract may be void for being illegal.
    
21. The reasons are these. The construction of a replacement three bedroom house on section 17, allotment 7 followed a National Court Order. The Court ordered the arsonist, Bernard Bambai to rebuild the three-bedroom house to the value of K30,000.00 for materials and K5,000.00 for labour at his own costs. Bernard Bambai then possibly engaged the Applicant to build the house. If that was the case, then it is a private arrangement on the basis of which the Applicant can sue Bernard Bambai. But then, Bernard Bambai states in his Statutory Declaration on file that he constructed the house at his own costs. Whether Bernard Bambai built the house himself or hired a contractor to do that is a private matter for settlement at another process. The Applicant can sort that out with Bernard Bambai. He has no claim against the Provincial Government because the Provincial Government is a Court ordered beneficiary.
    
22. Besides, the Applicant moved onto the property in 2008 and has been there since. The circumstances of his occupation are not clear. But it no doubt had something to do with the construction of the three bedroom residence and the Applicant’s claim for labour and material costs. According to the affidavit of the Fourth Defendant Fred Waluka, the plaintiff has been conducting business activities on and from the premises without any rental payments, since 2008.
    
23. That suggests the Applicant is not coming to court with clean hands. He is placed in the most precarious situation without lawful a title to the land, his occupation appears to be permissive and that the landlord can evict him anytime for breach of the tenancy agreement or for being an illegal occupant. Moreover, his claim against the respondents is clearly speculative. There is little chance of his claim succeeding against the respondents.
    
24. Also, the balance of convenience tips the scale against the applicant. The orders/notice for eviction is in the public interest. The benefits to the public at large cannot be over-ridden by a private interest. The applicant has been offered monetary compensation and the option to pull-down his own property except the court ordered three-bedroom house. He has to leave. His vacation of the property is not a bar to the pursuit of his claim from elsewhere. Quite clearly, he cannot hold a public body to ransom for his personal private interests.
    
25. In the upshot, the applicant has not shown that it would be just and convenient to preserve the status quo and allow continuation of the restraining orders until the hearing of the main action. The orders of the court are that -
    
    1. The injunctive orders of 23/9/16 are set aside.
    2. The application for injunctive orders in this proceeding is dismissed.
    3. The plaintiff will bear the costs of this application.
    4. The substantive matter is adjourned to the next call-over.
       

_________________________________________________________________
In-Person : Lawyers for the Applicant
Felix Kua Lawyers : Lawyers for the Defendants