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Keyapaka Investments Pty Ltd v Dat [1998] PGNC 94; N1772 (25 September 1998)

Unreported National Court Decisions

N1772

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 102 OF 1998
BETWEEN:
KEYAPAKA INVESTMENTS PTY LTD
- PLAINTIFF -
AND:
WAMANGE DAT & 7 ORS
- DEFENDANTS -

Mount Hagen

Injia J
25 March 1998
20 August 1998
31 August 1998
25 September 1998

PRACTICE AND PROCEDURE - Injunctions for preservation of property situated on customary land - Whether jurisdiction available - Constitution, s. 166(1), National Court Rules, O.14, r.10.

Counsel

P. Kopunye for the Applicant.

P. Kunai for the Defendant.

25 September 1998

INJIA J: On 25th March 1998, I granted interim injunctive orders, ex parte, restraining the defendants, their servants, agents, relatives, friends, assignees, and other members of the Ramdi Melibo and Ramdi Jiyabo tribes from entering the Keyapaka Coffee Plantation “owned” by the plaintiff and managed by Natgro Management Pty Ltd on behalf of the plaintiff. The defendants now apply to set aside that interim order. They also apply to dismiss the entire proceedings for this Court’s want of jurisdiction to deal with what they way is basically a customary land dispute between the parties which can only be dealt with under the dispute resolution machinery provided by the Land Dispute Settlement Act (Ch. No. 45). The plaintiff contests the defendants’ application and seeks to perfect the interim injunction as per the substantive relief sought in the Originating Summons.

There is only two affidavits before me. The first one is for the plaintiff. It is by Pugma Kopi who says he is the “proprietor” of the coffee plantation and the Chairman of the Plaintiff company. The second one is for the defendants. It is by Wamage Dat who says he is the “customary tittle holder” of the land on which the Coffee plantation is situated.

Upon considering the submissions put before me by both lawyers, there appears to be two principal issues to determine - (1) Whether this Court has jurisdiction to deal with the matter. (2) Whether the restraining orders ought to have been issued in the first place and whether they should be continued.

The first issue is a little complicated. Whilst the plaintiff has not provided any registered title over the property, it has produced a Lands Department Survey plan of the subject property which was prepared in 1987/1988 for purposes of registration of title. It appears the plaintiff is yet to obtain a registered title even though they have occupied the land since 1977 and developed the coffee project. The defendant has produced a caveat issued under s 84 of the Land Registration Act Ch. No. 191 over the subject property, which they say is situated on “Customary Land, Portion 1476C M/I Hagen, F/M Ramu, Western Highlands Province”. The caveat is not sealed with the seal of the Registrar of Titles’ office and I am not sure if it was actually registered. Be as it may, the uncontested evidence is that the plaintiff has developed and operated the coffee project for the last 20 years (see para. 15 of Mr. Dat’s affidavit). The plaintiff’s evidence is that the coffee project is owned by the plaintiff registered company and managed by another registered company. The defendants appear to be saying that the plaintiff fraudulently acquired or sought to acquire title to the subject land. In these circumstances, I am unable to positively conclude whether the land is customary land or registered under the Land Registration Act or under some other statute. I consider that the entire proceedings be set on a different course for parties to plead the issue if the land is customary land or registered land and if title was registered and whether such title was obtained by fraud. As the defendant is alleging fraud, it is appropriate for the defendant to commence fresh proceedings by Writ under Order 4 rule 2(b).

In relation to the second issue, there is little doubt that this Court has unlimited jurisdiction to issue injunctions, interim or permanent, for the preservation of property, real or personal, whether the property be situated on customary land or registered land: See order 14 r 10 of National Court Rules. Constitution s 166(1). On the evidence of the plaintiff alone, when I issued the interim orders, I was satisfied that the plaintiff was the sole owner and proprietor of the coffee plantation and that the defendants were interfering with its operation. The defendants’ evidence, para. 15 of Mr. Dat’s affidavit, now confirms my view that the Plaintiff has substantial interest in the property in that it developed it by putting a coffee plantation, owns it and has been operating it for the last 20 years. In my view, the plaintiff has a substantial interest in the property which is deserving of protection by this Court. For these reasons, I perfect the interim restraining orders. Any person found to be in breach of this order, ever since its issue, is liable to prosecution for contempt.

The end result is that the defendant’s application is dismissed. The plaintiff’s application to perfect the injunction (make it permanent) is granted. Costs follow the event.

Lawyer for the Plaintiff: KOPUNYE Lawyers.

Lawyer for the Respondent: KUNAI & CO. Lawyers.