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Wape, Spokesperson and member of the Yala Clan v Giheno, Minister for Mining & Petroleum [1996] PGNC 56; N1497 (11 December 1996)

Unreported National Court Decisions

N1497

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 531 OF 1995
BETWEEN: KOMEALIA WAPE SPOKES-PERSON AND MEMBER OF THE YALA CLAN
PLAINTIFF
AND: JOHN GIHENO - MINISTER FOR MINING & PETROLEUM
FIRST DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT
AND: CHEVRON NIUGINI PTY
THIRD DEFENDANT
AND: BARACUDA PTY LTD (NO.1)
FOURTH DEFENDANT

Mount Hagen

Lenalia AJ
11 December 1996

INJUNCTIONS - Interlocutory injunctions - When applicable - Preservation of status-quo - Consideration on balance of convenience - Statutory requirement for review.

Counsel

A. Kwimberi for Applicant

No Lawyer for Defendants

LENALIA AJ: The Plaintiff named in these proceedings is the spokes-person and representative as well as a clan member of the Yala Clan who is a disputing party to the Gobe main and South East Oil Fields in Southern Highlands. They are disputing the Land Titles Commissioner’s decision by His Honour Salika J delivered on the 29 of February 1996 in favour of certain clans which decision is now disputed by the Yala Clansmen. To effect their grievances the Yala clansmen through their lawyer Paulus Dowa Lawyers have filed a review in relation to the Commissioner’s decision. The Plaintiff’s affidavit evidence show that the application for review was filed on 17th of May, 1996 see Annexure “A”. The applicant say that since the review was filed with the Chief Lands Titles Commissioner and the Minister for Mining and Petroleum see annexure “C” no responses has been made by either party.

By a letter dated 27th June 1996, Mr Zecharry Gelu from the State Solicitor’s Office advised the Secretary of the Department of Mining and Petroleum that a review had been filed with the Chief Land Titles Commissioner and suggested to the Secretary that a review should be expeditiously set up to conduct a review. No response was made to this correspondence and a newspaper clipping attached and marked annexure “B”, the Chief Land Titles Commissioner announced that there was no funds to set up a review on the Gobe Oils Project.

The Applicant say in his affidavit that, the letter from the State Solicitors Office represents their view and to avoid any technical issues being encountered the Defendants should be restrained from signing the agreement to commence operation. The signing of such agreement was proposed for the 10th but has now been postponed to 11th of December, 1996. The Plaintiff seeks the following orders:

1. An order restnainie thendefendants from signing agreement with land owners of Gobe Main and Gobe South East projects to commeork, th Der 199til tainti217;s application for review of the Land Land TitleTitles Coms Commissimissionon’s217;s decision dated 29th February 1996, has been adjudicated.

5. ـ That time for ent t of these orders be abridged to the date of settlement by the Assistasistant Registrar which shall take place fith.

6.&ـ Cost.

I have read the evidence ofce of the the PlainPlaintiff tiff contained in his affidavit. I have also read Annexures “A” “B” “D” and “F”. I also have carefully considered submission by Mr Kwinberi that due to the urgency of this application and due to the fact that the signing of the agreement is taking place on the 12 of this month I should grant the application.

It is settled law that interlocutory injunctions are discretionary remedies. There are two crucial issues to be decided. The first is whether or not there is a serious question of law to be tried. Secondly whether or not on the balance of convenience an interlocutory injunction should be an appropriate remedy. Andrew J said in Robinson v National Airlines Commission [1983] PNGLR 476 at 480:

“The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action”

where other factors appear to be evenly balance it is a counsel of prudence to take such measures as are calculated to preserve the status quo”, per Frost C.J. in Mt Hagen Airport Hotel Pty Ltd v. Gibbs and Anor [1976] PNGLR 316. No real principles can be laid down as to when they should or should not be granted except they are granted when “just or convenient” and what falls within that description must differ substantially from case to case. As Lord Denning M.R. said in Hubbard v. Vosper [1972] 2 WLR 389 at 396:

“In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules”.

What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardised if no interlocutory relief were granted. Then it becomes a matter of seeing if, in all the circumstances of the case the court should nonetheless exercise its discretion by declining to issue an interlocutory injunction.

In order to determine this, the court will have regard to such factors as the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches and delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, and most importantly, hardship and the balance of convenience: see Meagher pars 2167-2168”.

The case of American Cyanamide Company v Ethicon Limited [1975] UKHL 1; [1975] 1 All. E.R. 504 sets the principles in determination of an interlocutory injunctions. It sets out certain questions that the Court must consider as to whether the balance of convenience lies in favour of granting or refusing interlocutory relief. The principles laid down there have been adopted into this jurisdiction and has been applied in subsequent cases: see Norah Mairi v Alkan Tololo and Ors [1976] PNGLR 59: see also Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman’s Union and Another (1982) Unreported N 393.

The application before me involves a statutory requirement of the right to review. A party who is aggrieved by the decision of the Land Titles Commissioner has the right to apply for a review pursuant to S. 15 (2) of the Lands Titles Commission Act 1962 as amended to date. As I have said this is the requirement not only under the Act concern, but it is also the “Constitution: see s. 155 (3) (4) and (6). Apart from this O. 14 r. 9 of the National Court Rules 1983 say that where there is an urgent case, the Court may on the application of a person who intends to commence any proceedings grant an injunction.

I am satisfied by the evidence that the Applicant/Plaintiff has a sufficient interest in the proceedings see O 16 r. 5. I consider in this case the status quo should be preserved until the review has been done. I consider that in the interest of all parties, the review should be expeditiously done so that all parties concern should proceed with whatever plans they may have. I grant order No. 1 and I think it will have sufficient force upon the Chief Land Titles Commissioner to expedite a review.

Lawyer for the Plaintiffs: Paulus M. Dowa & Lawyers