N4914

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 821 of 2010

ROMANE YANGOMINA as chairman of the Kepe Talyulu Land Group Incorporated
First Plaintiff

AND:

KEPE TALYULU LAND GROUP INC
Second Plaintiff

AND:

DR. SAMSON AMEAN as Administrator of the Department of Enga
First Respondent

AND:

ENGA PROVINCIAL GOVERNMENT
Second Respondent

AND:

PEPI KIMAS, Secretary for Lands and Physical Planning
Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Kawi, J
2011: 20th March

LAND LAW- Compulsory acquisition of customary land for public purposes- Notice of Motion- Application for interim injunction to maintain status quo - Status quo relates to stopping of all works while customary land ownership issues are determined- Principles of grant or otherwise of an interim injunction considered- whether application discloses triable or arguable case- National Court has no jurisdiction to hear and deal with issues relating to ownership of customary land- no arguable case disclosed -no triable issues for consideration- Balance of convenience does not favor granting of an injunction- interests in customary land acquired for public purposes is converted to a right to receive monetary compensation once land is compulsorily acquired- damages is an adequate remedy - here public interests is one of constructing a new teachers college- Application for interim injunctive reliefs is hereby refused with costs. 

Facts

The State acquired a piece of customary land through the process of compulsory acquisition for public purposes, the public purpose being to build a Teachers College. The Plaintiffs as former customary owners of the land filed a notice of motion seeking an interim injunction to stop the construction works and maintain the status quo while issues relating to customary land ownership is fully and finally determined.

Held: 

(1) The National Court has no jurisdiction to inquire into and determine issues relating to ownership and interests in customary land. Consequently the motion seeking to halt construction works to a proposed Teachers College as it is has not presented serious triable issues worthy of the Court's consideration.

(2) The Plaintiffs must point to a specific legal right or interests which stands to suffer some irreparable harm if an injunction is not granted. Here the plaintiffs have not pinpointed to a specific right or interest that stands to suffer irreparable harm if it is not protected by the grant of an interim injunction 

(3) When customary land is acquired for public purposes, the interests in such lands including customary interests is converted to a right to receive compensation. Compensation can be monetary compensation or compensation in kind.

(4) The grant of an interim injunction is discretionary and the court must balance whether the imposition of a restraint on the defendants is reasonable and necessary to protect a plaintiff from some irreparable harm and whether damages would be a sufficient recompense.

(5) Here by operation of law, damages would be a sufficient recompense and consequently the injunction sought is hereby declined.

Cases cited:

Victor Golpak v. Alongkarea Kali & Ors [1994] PNGLR.491
 Ronny Wabia v BP Exploration and Operating Company Ltd [1998] PNGLR 8
Ewasse Land owners Association INC v Hargy Oil Palms Limited [2005] N2878
Albert Kuluah v UPNG [1993] PNGLR 490
Robinson v National Airline Commission [1983] PNGLR 475

Counsel:

Mr. J Kama, for the Plaintiffs 
Mr. J Issac, for the Respondents

RULING ON NOTICE OF MOTION

20th March, 2011

1. KAWI, J: By a Notice of Motion dated 12th November 2010, the plaintiffs moved the court for the following orders:

An injunction pursuant to order 14, rule 9(a) and 10 of the National Court Rules, restraining the defendants each and severally, their agents and or servants, assigns and successors to construct, build, erect and or develop, the said Peres land in any manner whatsoever until such time as the customary landownership is established or the court hears and determines this application.

2. In moving this motion, the plaintiffs rely on the affidavit of Mr. Romane Yangomina sworn on the 12th of November 2010. In his affidavit the plaintiff says that the said land identified as "Peres" was initially a customary land owned by the second plaintiff. After it was acquired by the State it was then registered as a State Lease bearing the registration details: as Portion 514c, Milinch of Wapenamanda, Fourmil of Wabag, Enga Province. 

3. This land was compulsorily acquired by the respondents for what appears to be a construction of a teachers college. The plaintiffs argue that prior to the acquisition of the said land, no consultation was undertaken by the respondents and the plaintiff as the rightful customary owners of the land is in question. They argue that the respondents only consulted traditional "land users" and not the rightful owners. Underlying these concerns is the bigger issue of landownership. Indeed the injunction is sought to be in place "until such time as the customary land ownership is established".

4. The State represented by the first, second and third respondents, often exercises its power of eminent domain under the Lands Act to compulsorily acquire traditional or customary land for public purposes. This is specifically provided for in sections 10, 11 12, and 13 of the Land Act 1996. The State's power of eminent domain is exercisable only by the Minister to the exclusion of any other persons or State institutions including Provincial Governments. Under sections 10 and 12 of the Land Act 1996 there are two modes of acquiring traditional land for public purposes: These are:

(a)	Acquisition of customary land by consent and Agreement of the traditional owners; sections 7 and 10 of the Land Act 1996

(b)	Outright compulsory acquisition where no agreement is reached with traditional owners. Sections 7 and 12 of the Land Act 1996.

5. Upon being compulsorily acquired, pursuant to the two modes of acquisition as described above, the ownership of such lands is now vested in the State by operation of law, the land is now freed and discharged from all or any customary interests, obligations and any contracts associated with such lands. Under section 14 of the Land Act any interests that once existed in the land, including customary interests, is then converted into a right to receive compensation, either in monetary terms or compensation in kind. 

6. Here no evidence was produced by both the plaintiffs and the respondents on the mode of acquisition of the land "Peres". Furthermore, no evidence was produced by either parties, to show the payment of compensation. Perhaps compensation is not paid as yet owing largely to the dispute surrounding the ownership of this land between the plaintiffs and those who the second plaintiff identifies as "land users" only. The court can only assume that compensation is not paid as the State and the Provincial Government are still in the process of identifying the rightful owners. 

7. Whatever it is, the National Court has no jurisdiction to look into issues of accession to customary lands and ownership and the degree of interests in such customary lands. See Victor Golpak v. Alongkarea Kali & Ors [1994] PNGLR.491 In so far as the motion seeks an injunction to restrain the defendants from dealing in any way with the land "Peres" until the customary landownership issue is fully determined, is in my view asking the court to act and exercise powers beyond its powers and jurisdiction. The National Court simply has no jurisdiction to entertain claims inquiring into issues of interests and ownership of customary lands. See Ronny Wabia v BP Exploration and Operating Company Ltd [1998] PNGLR 8. 

8. This being so it would appear that the plaintiff has what appears from the outset to be a speculative case.

PRINCIPLES GOVERNING THE GRANT OF AN INJUNCTION

9. In essence an application for the grant of an interim injunction is discretionary and must satisfy two basic requirements: 

(1) That there is a serious question to be determined or that there is an arguable case and an injunction is necessary to protect a plaintiff from some irreparable harm or whether damages would be a sufficient recompense. See Albert Kuluah v UPNG [1993] PNGLR 490.

(2) That the balance of convenience favors the grant of an interim injunction in order to preserve the status quo. 

10. I will therefore determine the plaintiff's application for an interim injunction by taking the same approach that Cannings J took in Ewasse Land owners Association INCv Hargy Oil Palms Limited [2005] N2878.In that case His Honour was guided in an application for an interim injunction before him by asking these questions:

(1)	Are there serious questions to be tried? Does the plaintiff have an arguable case?

(2)	Does the balance of convenience favour granting the injunction:

(3)	Is an injunction necessary to do justice in the circumstances of this case?

Andrew J in the case of Robinson v National Airline Commission [1983] PNGLR 475 defined and outlined the principles of law governing the grant of an interim injunction to maintain the Status quo as follows: 

An interlocutory injunction, the purpose of which is to preserve the status quo, will be granted, where fast and convenient. The plaintiff must prove that he has a serious, not a speculative case, which has a real possibility of ultimate success and he has a legal or equitable right, title or interest, which might be jeopardized if the injunctive relief were not granted; it is then for the court to determine whether nonetheless the injunctive should not go taking into account, such factors as the adequacy of damages as a remedy, the possibility of alternative remedies, whether there has been any lacks or delay, the strength of the grounds of defence, what if any undertakings the defendant is prepared to give and mostly hardship and the balance of convenience."

1.	ARE THERE SERIOUS QUESTIONS TO BE TRIED? DO THE PLAINTIFFS HAVE AN ARGUABLE CASE?

11. The issue here is whether or not serious allegations or triable issues are being raised? Land of course occupies a prominent place in the hearts and minds of many people in Papua New Guinea. Under the traditional land tenure system no one individual person other than the clan or tribe own the land. Because of a person's social or emotional attachment to land, traditional land cannot be easily parted away with by its customary owners.

Be that as it may, modern legislation, such as the Land Act 1996 does authorize and empower the state to exercise its power of eminent domain and compulsorily acquire traditional land for public purposes. Where the state acquires traditional land for public purposes, the customary interest of any kind, which were once vested in the said land is than converted into a right to receive monetary compensation or a compensation in kind. 

12. The land here was compulsorily acquired for a public purposes, namely to build a new Teachers Training College for the Enga Province and ultimately for Papua New Guinea. The photographs of the site annexed to the affidavit of the first plaintiff shows that, since acquiring the land a lot of work has been done. A lot of earth and soil have been moved. Where once hills and mountains stood, these have now been bulldozed resulting in flat land appearing. Buildings have been planned and are now being constructed. Construction works have progressed well beyond the planning stages. A lot of time, money and human effort have been put into making the proposed Teachers College a reality.

13. And the plaintiff's injunction if granted will stop all the construction works and human efforts that was put in to show that the Teachers College is up and operational by the first quarter of 2011 will be a total waste of time, money and human effort. Not to mention that the State has spent so much time, public money and resources in undertaking these works. All these will be a waste if I grant the injunction sought. The plaintiffs argue that the injunction sought is to preserve the status quo, so that the issues of landownership, interests in customary land and customary land accession can be fully and finally determined. Are these triable issues? What kind of right is the plaintiff seeking to protect here? The grant of an interim injunction is discretionary and the court must balance whether the imposition of a restraint on the defendants is reasonable and necessary to protect a plaintiff from some irreparable harm and whether damages would be a sufficient recompense. And what kind of irreparable harm is being done to the plaintiff's right or interests. And What kind of right or interest is the plaintiff seeking to protect here? The only right or interests the plaintiffs are asserting here is an interest in the customary ownership of a land they identify as "Peres". 

14. I have already ruled that this court does not have jurisdiction to look into questions of ownership of and degree of interests in customary lands. While they may well be triable issues, those issues are not necessary for the National Court to determine. They may well be triable issues before a different forum, but not the National Court. Consequently, I find and conclude that the plaintiff has not raised a serious triable issue worthy of the court's consideration and interference.

2.	DOES THE BALANCE OF CONVENIENCE FAVOUR GRANTING THE INJUNCTION?

15. I will try to understand this time honored phrase by asking simple questions as follows:

What is the best thing to do on an interim basis taking into account the conflicting interests of the plaintiffs and defendants? Who stands to suffer most if an injunction is not granted? Where do the interests of justice lie? Who will suffer the greatest inconvenience if an injunction is granted? What kind of interests are the plaintiffs seeking to protect? And if those interest are not protected by the grant of an interim injunction will they suffer from some irreparable harm? 

16. There is no doubt that the plaintiffs clearly have a grievance. They have an interest in the customary land "Peres" which was the subject of a compulsory acquisition by the State. The interests which the plaintiffs seek to protect is their ownership interest in the land "Peres". That is all they seek to protect. There are no other interests which will suffer irreparable harm if the injunction sought is not granted. On that basis I find that the plaintiffs have a speculative case only. I consider that if I grant an injunction now, that would create great inconvenience to the defendants. Workers, both employed and casuals would be laid off. The contractors engaged to carry out construction works have to stop as well. This would mean the defendants spending lot of money on the work so far undertaken as well as on standing down all contractors engaged to do the works. The local economy would suffer a serious setback. This court is very conscious of the message a grant of injunction would send to the wider business community and investors in the country. It would, I consider send a shiver down their spines to realize that the National Court has, on very little evidence of irreparable harm being done to the rights of customary landowners, ordered the immediate shutdown, of the construction of a public learning institution.

17. The plaintiffs have filed an undertaking to pay damages if an injunction is granted to halt the public works and the construction being undertaken. Despite this undertaking, I am not convinced one bit that the plaintiffs are in a better financial position to pay for any monetary damages incurred by the State and its agents, which may arise if the construction works are now to be halted. The possibility of harm to the defendants must likewise be considered as well as the ability of the plaintiffs to meet an order in damages should they fail in their claim. The court here finds that there is real possibility of harm being caused to the defendants here and it is a factor that I also consider and take into account in determining this application. So in my view it is the defendants who stand to suffer most if the injunction is granted. So the balance of inconvenience lies in letting the defendants continue on with the construction works.

3.	IS AN INJUNCTION NECESSARY TO DO JUSTICE IN THE CIRCUMSTANCES OF THIS CASE?

18. The court should never lose sight of its duty to do justice. At the heart of my consideration of this application is the overriding duty of the court to do justice and to balance the conflicting interest of the parties and everybody who would be affected by the court's orders. Justice is often seen in the eyes of the beholder. If I grant the injunction sought and order the defendant to close down, that may well be seen as a great victory for the first and second plaintiffs. But I must also bear in mind the millions of kina expended and incurred in the construction of the new Teachers College. Apart from incurring huge costs, workmen engaged in the construction of the Teachers College will be laid off from work at great expense. The planning of new student intake would be thrown into jeopardy and recruitment of staff unnecessarily halted. The millions of kina spent by the government on the planning, construction and recruitment of teaching and support staff and putting into effect the first phase of the teachers training program would have been nothing, but a total waste of time, money and resources. And constructing a Teachers College is an educational Institution of learning. It is an institution that will help many of our young men and women coming out of schools to be trained as teachers. It is an institution that will help young men and women to gain meaningful employment. It is not a money making institution.

19. One of the principles of law upon which an application for interim injunction can be declined is where it is shown that damages is an adequate remedy.

20. Here upon the compulsory acquisition of the land in question, the plaintiff's interests in that land is converted into a right to receive monetary compensation, or compensation in kind. This is specifically provided for by operation of the law itself. See section 14 of the Land Act 1996. It follows that monetary damages is a sufficient recompense immediately available to the plaintiffs. Furthermore the plaintiffs have not pinpointed to a specific right or interest that stands to suffer irreparable harm if an injunction is not granted.
 
21. Consequently in my view the balance favors the refusal of the interim injunction sought by the plaintiffs. 

CONCLUSION

22. None of the three considerations, I have identified favors the granting of an interim injunction. Consequently the plaintiff's motion seeking an interim injunction to maintain the status quo will be refused with costs to the defendants.

ORDER

23. The Courts Orders are as follows:

1. The order of this court is that the plaintiff's application for an interim injunction to preserve the status quo, until the issue relating to the full and final determination of the interests and ownership of the land "Peres" is hereby refused.

2. The plaintiffs will pay the defendants costs of defending this motion. Cost is to be taxed if not agreed upon. 

Jerry Kama Lawyers: Lawyer for Plaintiffs
Enga Provincial Government Legal Officer: Lawyer for Defendants