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Yipma v Pawut [2018] PGNC 248; N7333 (7 June 2018)

N7333

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 289 OF 2018

BETWEEN:
LINUS YIPMA, District Administrator for Namatanai District and Chief Executive Officer for NAMATANAI DISTRICT DEVELOPMENT AUTHORITY
First Plaintiff

AND:
NAMATANAI DISTRICT DEVELOPMENT AUTHORITY
Second Plaintiff

AND:
LAMILLER PAWUT, Provincial Administrator for NEW IRELAND PROVINCIAL ADMINISTRAION
First Defendant

AND:
NEW IRELAND PROVINCIAL ADMINISTRATION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018: 7 June

PRACTICE AND PROCEDURE – Interim Injunction – Considerations – held – Interim injunctive relief refused.

Cases Cited:
Papua New Guinea Cases

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Employees Federation of Papua New Guinea v Papua New Guinea Waterside Workers Union (1982) N393;

Overseas Cases

American Cyanide Company v Ethicon Limited [1975] UKHL 1; (1975) 1 ALL ER 504;

Counsel:

Ms. K Andrew, for the Applicants
Mr. J Kuim, for the Respondents

7^th June, 2018

1. DINGAKE J: By Notice of Motion filed with this Court on the 9^th of May, 2018, the Plaintiff (applicants) move the Court, on the main, for an Order in the nature of an interim injunction pursuant to Order 4 Rule 37 of National Court Rules, restraining the First and Second Defendants, their servants and agents, including but not limited to, Provincial Administrator for New Ireland Province and the Provincial Police Commander for New Ireland Province, from interfering with, disrupting or otherwise obstructing the Plaintiff’s and their servants or agents from entering on to the land described as Portion 9, Allotment 1, Namatanai, New Ireland Province, being land upon which the Namatanai Airstrip is located and from carrying out maintenance and refurbishment work on the Namatanai Airstrip, pending the determination of this proceedings.

2. The dispute between the parties essentially concerns the use of the aforesaid piece of land. The Plaintiff wants to carry out maintenance and refurbishment work on the Namatanai Airstrip, with a view to re-opening the airstrip, whilst the Defendants want the piece of land to host a technical college.

3. The Applicants aver that the Namatanai District Development Authority (Namatanai DDA) was given approval by the Civil Authority (CASA) to re-open the Namatanai Airstrip for use. They aver that the approval was conditional on certain terms including, maintenance of the runway.

4. The applicants aver that in February, 2018, the Namatanai DDA, upon consulting all relevant Departments commenced some maintenance work on the airstrip. The maintenance work was apparently stopped by the Second Defendants, through the deployment of police officers, culminating in the arrest of the District Administrator for Namatanai District.

5. The applicants state that the Second Plaintiff complied with the necessary provisions and procedures required under the Land Act 1996; the Aerodrome (Business Concessions) Act 2000 and Civil Aviation Act 2000. They also say there is no conflict between the Development Plans and Programmes of the second plaintiff and that of the second defendant, in any substantive manner.

6. The applicants also assert that there is already a vocational college on the adjacent land.

7. The applicants submit they have met all the requirements for the relief sought. They maintain that their actions are lawful because Section 5(b) f the District Development Authority, the Namatanai DDA is empowered to repair, improve and maintain the Namatanai Airstrip.

8. The Defendants on the other hand aver that in 1997, the National Government made a decision to upgrade the Namatanai Vocational School to a Technical College, which decision was subsequently ratified by the Second Defendant. Subsequent to the ratification, sometime in 2014, the Second Defendant decommissioned the Namatanai Airstrip to make land available for the Namatanai Technical College.

9. The Defendants aver that the Applicants refused to comply with the instructions of the First Defendant not to maintain and re-open the Airstrip as it was ear marked for the development of the Technical College. The First Defendant points out that it was only after the applicants refused to comply with the Notice to Quit that he sent the police to force the Applicants to comply.

10. Before dealing with the requirements for obtaining an interim injunction, it would be helpful to consider the relevant legislative provisions that govern the relationship between the District Development Authority (DDA) and the Provincial Government and analyse the implications arising there from in so far as this application is concerned.

11. In terms of Section 5(b) of the District Development Authority (DDA) the functions of the DDA include development and maintenance of infrastructure, but Section 8 thereof obliges the DDA to cooperate with Provincial Government, and not to perform any functions or exercise any of its powers in a way that is inconsistent or in conflict with the policies and plans of the Provincial Government (Section 8 of the DDA Act; Section 74(3) of the Organic Law on Provincial Governments and Local-Level Governments 1995).

12. Section 74(3) (a) and (b) of the Organic Law on Provincial Government & Local-Level Governments (District Development Authority) Law 2014 deserves to be quoted in full. It provides:

(3) In performing the functions under Subsection (2), a District Administrator shall comply with any -

• a) policy directions from the Provincial Governments and Local-Level Governments; and
• b) administrative and functional directives from the Provincial Administrator.
  

13. It follows from the legislative scheme outlined above, that the applicant is prohibited by law to do anything in conflict with the policies and plans of the Provincial Government.

The Law on Interim Injunctions

14. The law is clear that if the applicant is to succeed to obtain the relief he seeks he must establish that:

1. There is a serious question to be determined;
2. The balance of convenience was in favour of granting an injunction;

100. Damages are not an adequate remedy if the injunction is not granted;

4. The applicant provides an undertaking as to damages (American Cyanide Company v Ethicon Limited [1975] UKHL 1; (1975) 1 ALL ER 504; Employees Federation of PNG v PNG Waterside Workers Union (1982) N393; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853).
   

15. On a consideration of the evidence and the legal framework discussed above, and the law governing interim injunctions, I do not think the applicants have established that there is any serious question of law or fact to be tried.

16. On the basis of the legal framework discussed above, the case of the applicant, if this matter is to proceed to trial looks ex facie weak and that of the defendants much stronger. Having regard to the case as a whole, the applicant has failed to prove that it has a serious question of fact or law, which has a real prospect of ultimate success and that there is a legal or equitable right, title or interest which might be jeopardised if the injunctive relief is refused.

17. More significantly, there is nothing in the affidavit of the applicants that suggests that the balance of convenience lie in favour of granting the interim order sought. In considering the balance of convenience the court is entitled to take into account public interest. In my mind I do not think public interest is served by subordinate authority, acting contrary to law, and engaging in conduct that frustrates the policies and projects of a higher authority, being the Provincial Government, as the second plaintiff seeks to do in this case.

18. In the premises, I find that the applicants have failed to discharge the onus that lies with them to establish the requisite elements entitling them to the relief sought.

19. The grant of injunction is discretionary. Even of the applicants have satisfied all the requirements for grant of the relief (which is not so in this case) the court still retains the discretion not to grant the relief.

20. For the reasons stated above, the Court declines to exercise its discretion in favour of granting the relief sought.

21. Accordingly, the relief sought is refused, with costs to the Defendants.
___________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiff
No Appearance for the Defendant