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Yambun v Narik [2019] PGNC 291; N7989 (24 April 2019)

N7989

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 160 of 2019

IN THE MATTER BETWEEN

GILBERT YAMBUN
Plaintiff

AND
FIDELIS NARIK
First defendant

AND
THE CHIEF EXECUTIVE OFFICER OF WEWAK DISTRICT DEVELOMENT AUTHORITY
Second Defendant

AND
WEWAK DISTRICT DEVELOPMENT AUTHORITY
Third Defendant

Wewak: Gora AJ
2019: 18 & 24 April

REAL PROPERTY- State Lease- Defendants improvements on State lease without permit, license or authority- Plaintiff seek Interim Injunctive Orders- National Court Rules- Process and Procedures for acquisition of State Lease- Land Act.

REAL PROPERTY- Defendants claim of having equitable interest by reason of being State Instruments is wrong in law- Defendants occupation of State Lease is without right, title or authority.

REAL PROPERTY- Land Title Board recommendations- Plaintiff a successful applicant- No legal title issued as yet- Plaintiff’s interest in the State Lease- Has genuine and sufficient interest- Status quo must be maintained- Injunctive Orders necessary.

PNG Cases Cited

Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman's Union, Lawrence Titimur, Tony Hartwell, Didiulosi Boshen (Member of the Arbitration Tribunal appointed by the Minister for Labour and Industry) [1982] PGNC 24; N393 (11 October 1982)

Kapiura Trading Ltd v Bullen [2012] PGNC 256; N4903 (29 November 2012)

Medaing v Ramu Nico Management (MCC) Ltd [2010] PGNC 149; N4127 (22 October 2010)

Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 41; N3143 (22 June 2007)

Counsel:

Mr. W Tekwie, for the Plaintiff
Mr. E Manihambu, for the First to Third Defendant

JUDGMENT ON MOTION
24^th April, 2019

1. GORA AJ: INTRODUCTION: This is an application by the Plaintiff (a private individual) made pursuant to Order 14 Rule 10 of the National Court Rules seeking Interim Injunctive Orders to restrain the Defendants (State instruments) from entering and carrying out further works and or improvement works on State Lease described as Section 19, Allotment 14, Yawasoro, Wewak town, East Sepik Province, pending determination of the substantive proceeding. Third Defendant is the Wewak District Development Authority and the first and Second Defendants are its agents.

BACKGROUND FACTS

2. Background facts are that:
   
   • (a) In 2016 the Plaintiff applied to the Department of Lands & Physical Planning for acquisition of a vacant State Lease described as Section 19, Allotment 14, Yawasoro, Wewak Town, East Sepik Province. The application was made through the normal tender process under the Lands Act.
     
   • (b) At the time of making the application the East Sepik Province did not have a permanent Provincial Land Board, so the Plaintiff lodged his application with the National Department of Lands & Physical Planning and requested for his application to be brought before the National Land Board.
     
   • (c) Plaintiff’s application was listed Item No. 41 for hearing by the National Land Board. A formal letter dated 05^th October 2018 was sent to him to appear before the National Land Board at its meeting No.05/2018 which was scheduled for 29^th October 2018- 02nd November 2018. He appeared before the National Land Board on Monday 30^th October 2018 for hearing of his application during which he made a brief presentation to the Board of his financial capacity and his proposed development plans for the subject State Lease.
     
   • (d) On the 14^th of November 2018 the plaintiff received a formal letter of confirmation from the Chairman of the National Land Board informing him that his application for State Lease described as Section 19, Allotment 14, Yawasoro, East Sepik Province was successful.
     
   • (e) The Notice of the Plaintiff’s application being successful was subsequently published in the National Gazette No. G50 on 28^th January 2019.
     
   • (f) On the 11^th of February 2019 a further confirmation letter was issued to the Plaintiff by the Secretary, Department of Lands & Physical Planning advising him to confirm whether he accepts the State Lease with all terms and conditions attached. He accepted the lease and proceeded to sign the Lease Acceptance Form. He also paid a sum of K1,489.04 in fees for Lease Preparation together with Pro-rata land rentals for 2019. The plaintiff now awaits the issuance of title proper over the subject Lease from the Department of Lands & Physical Planning.
     
   • (g) Whilst this is pending, the Plaintiff in the month of December 2018 received information that the Defendants were developing the subject State lease for a public purpose. He visited the site and saw people and machinery working on the subject State lease Section 19, Allotment 14, Yawasoro. Wewak Town. He saw that there was general clearance of bushes and shrubs, general land excavation and that dumping and compacting of gravel base had already been done. He also learnt that a survey work was carried out by a registered surveyor. All these works were carried out from December 2018 to January 2019.
     
   • (h) The Plaintiff then approached the Department of Lands office in Wewak concerning the activities carried out by Defendants on the subject state lease. The Department of Lands did not approve nor was it aware of the Defendants activities on the subject State Lease, so it issued a ‘’STOP WORK NOTICE’’ to the Defendants dated 04^th January 2019 ordering them to stop any works or activities carried out on that State Lease.
     
   • (i) Despite the ‘’Stop Work Notice’’ issued by the Department of Lands & Physical Panning, the Defendants, their servants and agents continued to carry out works on the subject State Lease with no due regard and in total defiance of the ‘’Stop Work Notice.’’
     
   • (j) It is for this reason the Plaintiff now seek Interim Restraining Orders against the Defendants.
     

ISSUE

3. Whether the Plaintiff is entitled to seek Interim Restraining Orders against the Defendants.

PLAINTIFFS SUBMISSION

4. Plaintiffs submission is that he had successfully applied for State Lease Section 19, Allotment 14, Yawasoro, Wewak Town whereby he complied with all the due processes and requirements expressly stipulated by Sections 71, 73, 74, 75 and 76 of the Land Act 1996. He only awaits the issuance of title by the Department of Lands.

5. He submits that the Defendants have entered the property and carried out improvement works without approval and despite protest and ‘’Stop Work Notice’’ issued by Department of Lands & Physical Planning. They have not obtained any authority or license from the Department of Lands & Physical Planning.

6. Therefore, the court should grant him the Interim Injunctive Orders restraining the defendants from entering and carrying on further works on State Lease Section 19, Allotment 14, Yawasoro. Wewak Town.

DEFENDANTS SUBMISSION

7. Defendants submission on the other is two-fold. First, they contend that the plaintiff is not properly before this court or is pre-maturely before the court. They say he lacks standing in law to invoke the courts discretionary powers to grant relief sought in the Notice of Motion. Second, that the whole proceeding is vexatious and frivolous and is an abuse of courts process and must be dismissed.

8. These submissions are based on the premise that the Plaintiff/Applicant, though a successful applicant to the subject State lease is yet to be given a title and therefore lacks standing. He is only a successful applicant with no title. Defendants urged the court to follow the case of Kapiura Trading Ltd v Bullen [2012] PGNC 256; N4903 (29 November 2012) in which His Honour Justice Canning clarified what ‘’successful applicant’’ means. He stated at paragraph 5:

“...The term “successful applicant,” in these provisions refers to the person whose application has ultimately been successful after completion of the appeal process, not the person recommended by the Lands Board to be granted a State Lease. In many, presumably most cases the person recommended by the Land Board and the person granted the Sate Lease will be the same. However, they might be different. The Minister might for good reason not adopt the Land Board’s recommendation and decide to grant the lease to another person. Or, as in the present case, a person not recommended by the Land Board might appeal under Section 62 of the Act and the appeal might be upheld and a decision made to grant the lease to the appellant.”

9. This ruling was made in a Judicial Review matter of a decision on an appeal by the National Land Board. It refers to a ‘’successful applicant’’ after an appeal and not a ‘’successful applicant’’ in the first instance or before the appeal as in the present case. I therefore reject the Defendant’s argument in this respect.

10. The Defendants, particularly the second and third defendants further submit that they are institutions or instruments of the State and therefore have acquired equitable interests over the subject State lease Section 19, Allotment 14, Yawasoro, Wewak Town.

THE LAW

Jurisdiction

11. The law upon which the court derives its powers to grant Interim Injunctive Orders is firstly based on Section 155 (4) of the Constitution which provides that:

“Both the Supreme Court and the National Court have inherent power to make, in such circumstances as seem to them proper in the nature of prerogative writs, any such other orders, as are necessary to do justice in the circumstances of a particular case.”

Secondly and more specifically, Order 12, Rule 1 of the National Court Rules provides that:

“The court may, at any stage of any proceedings, on the application of any party, direct entry of such judgment or make such orders as the nature of the case requires, notwithstanding that that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”

Further, Order 14, Rule 10 (Division 2- Interim Preservation) of the National Court Rules provides that:

“In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.”

12. These powers vested in the court require exercise of judicial discretion.

Exercise of discretion

13. In exercising judicial discretion when deciding on whether to grant an Interim Injunctive relief, the law in this jurisdiction is well settled. In the case of Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 41; N3143 (22 June 2007) Kandakasi J, (as he then was) re-iterated the essential requirements or checkpoints to consider:

1. Are there serious questions to be tried in the substantive matter and does an arguable case exist.
   
2. Does the balance of convenience favor the granting of the interim orders, as in the case of Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman's Union, Lawrence Titimur, Tony Hartwell, Didiulosi Boshen (Member of the Arbitration Tribunal appointed by the Minister for Labour and Industry) [1982] PGNC 24; N393 (11 October 1982).
   
3. Would damages be adequate remedy if the interim order is not granted?
   
4. Has a valid undertaking as to damages been given?
   
5. Do the interest of justice require that the interim orders be made, as in the case of Medaing v Ramu Nico Management (MCC) Ltd [2010] PGNC 149; N4127 (22 October 2010).
   

APPLICATION OF THE LAW

14. Are there serious issues to be tried in the substantive matter?

(a) Defendants have carried out works in developing the subject state lease without authority or license issued to them by Department of Lands & Physical Planning. They say they are State instruments and or institutions and as such have acquired equitable interests in the subject state lease. I don’t agree with this contention, it is erroneous in law. Being a State instrument or entity does not necessarily mean you acquire equitable interest in any State lease and can do whatever you want to do on that lease. The Land Act specifically sets out the processes and procedures in applying for State leases. Therefore, there are serious issues to be tried in the substantive matter which would under the circumstances justify the granting of interlocutory orders in the interim.

(b) Furthermore, plaintiff has taken all necessary steps to acquire the State Lease concerned and awaits only the issuance of title. Question of whether he has a legitimate interest in the lease without a title is a contestable issue to be argued at trial. In the meantime, he has acquired genuine and sufficient interests in the subject lease and therefore is entitled to the relief sought.

15. Does the balance of convenience favor the granting of the interim orders?

(k) Plaintiff has complied with all the requirements under Sections 71, 73, 74, 75 and 76 of the Land Act to apply and acquire the subject State lease Section 19, Allotment 14, Yawasoro, Wewak Town. He has been formally advised of being successful in his application and has gone ahead to sign the Lease Acceptance Form and has paid all necessary lease preparation fees and required land rentals for 2019.

16. All these formalities have been completed and now awaits only the issuance of title. In my view he has genuine and sufficient interests in the subject state lease and therefore the balance of convenience favors the granting of the interim orders.

17. Would damages be an adequate remedy if interim orders not granted.

(l) Plaintiff in his affidavit stated he is currently self-employed businessman, operating a PMV. He submitted his plans to the Departments of Lands when he applied for title over the subject lease indicating he has plans to construct a guest house on the said State Lease. He also indicated in paragraph 13 of his affidavit that when he was informed of his application being successful over the subject state lease he was overjoyed and happy. He felt that he had achieved a milestone in his life and was looking forward to developing the property in line with his proposals he submitted to the National Land Board. He has gone into great length to acquire the lease. I am therefore of the view that damages would not be an adequate remedy if interim order were not granted.

18. Has a valid undertaking been given as to damages?

(m) Plaintiff filed his Undertaking as to Damages on the 21/03/19.

19. Does the interest of justice require that the interim orders be granted?

1. Plaintiff had gone into great lengths in terms of time and costs in pursing his interest in the subject State lease with the Department of Lands & Physical Planning. This is to say that he has complied with all due processes and requirements in pursuit of obtaining a legitimate title over the said State lease and being successful, with only title to be given. In my view it would be unfair and unjust if interim orders are not granted in his favor. This must be done to maintain status quo.
   
2. Same cannot be said of the defendants because they failed to follow due and legitimate processes and procedures with the Department of Lands under the Land Act to secure their interest over the subject State Lease before carrying out development works. They did that on assumptions that they had an equitable interest in the subject State Lease on the premise of being instruments of the state which in my view is wrong in law. Being an instrument of the state does not mean one can move into a State lease without following due processes and procedures set out under the Land Act. You cannot claim equitable interest or right when there is an enabling legislation which specifically sets out the processes and procedures which must be followed pertaining to acquisition of State Leases. This is to say that equity must follow the law and he who comes to equity must come with clean hands. Defendants have not followed the law and therefore have no legitimate interest in the subject State Lease.
   

ORDERS

20. Given the forgoing I am satisfied that the plaintiff has met all the necessary requirements needed for granting of the interim orders. I therefore grant the application and make orders in terms of the Notice of Motion as follows:

1. The Defendants and their servants and agents are restrained from entering onto Section 19, Allotment 14, Yawasoro, Wewak, East Sepik Province and carrying out any work to improve the said property, pending the determination of this court proceeding.
   
2. The matter is adjourned to the next National Court Civil Call-over in Wewak for mention.
   
3. Costs be in the cause.
   
4. Time for settlement of this Court Order be abridged to the time of settlement by the Registrar which shall take place forthwith.
   

Orders accordingly

Tekwie Lawyers: Lawyers for the Plaintiff
Office of the Solicitor-General: Lawyers for the First to Third Defendant