N5873

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 563 OF 2013

BETWEEN:

MAGASAKI LTD
Plaintiff

AND:

AKUILA TUBAL
First Defendant

AND:

LUDWIG GUNAN
Second Defendant

Kokopo: Oli, AJ
2014: August 29th.
2015: February 18th

CIVIL JURISDICTION - RACTICE AND PROCEDURE –Application by Plaintiff seeking permanent injunction order against the defendants not to deal with two named landowners – In particular restrained defendants not to deal with two named particular landowners –To grant the injunction order against the defendants, will effectively amount to going against the Parliamentary legislative intent – The appropriate action would have been to restrain the two named landowners – Not against the defendants who are merely performing their mandated legislative duties - Plaintiff action is misconceived and tantamount to abuse of the due court process – Court has a duty to protect its own due processes – The action breached s. 30 of the Forestry Act 1991 and thereby render it unconstitutional and impact greatly against the spirit of public interest and public policy - Plaintiff action is dismissed forthwith.

Cases Cited:

Robinson - v - National Airlines Commission (1983) PNCR 478
Markscal Ltd - v – MRDC (1996) PNCR 419
Benny Wabia – v – BP Exploration Operating Co. Ltd & 2 Ors (1998) PNGLR 8
Ewasse Landowners Association Incorporated. –v – Hargy Oil Palm Ltd (2005) N2878
Yama –v – Sambua [2011] PGNC 173; N4411
Barava Ltd – v – Numapo [2011] PGNC 246; N4943

Counsel

Mr. N. Motuwe, for the Plaintiff
Mr. Benedict Killian, for the First Defendant
Mr. Seri Mitige, for the Second Defendant

DECISION

18th February, 2015

1.	OLI, AJ. The Plaintiff files an Originating Summons against the defendants on 30th October 2013, and seek leave of the Court to secure:

1.	An order for permanent injunction against defendants from dealing with Mr. Linus Bai and Mr. Philip Telakul, their servants, agents, or representatives in any manner or form in respect of the inland Pomio TRP Timber Project or at all. 
2.	An Order for costs against Defendants.
3.	Any further Orders as Court deems proper in the circumstances.

2.	Plaintiff's application is supported by an affidavit of Mr. Peter Kaiopuna, sworn on 29th October 2013 and filed on 30th October 2013, the Managing Director of Magasaki Limited.The defendants filed notice of intention to defend on 7th November 2013. The defendants rely on the affidavits of Akuila Tubal and Ludwig Gunan sworn and filed on 7th November 2013. The affidavit of Linus Bai sworn on 13th November and filed on 14th November 2013 respectively. However, the defendants from the outset object to the action by plaintiff that the defendants are basically carrying out their statutory powers and submit that if any person should be restrained in this action, the appropriate cause of action should be to restrain Linus Bai and Philip Telakul from dealing with or interfering with the Timber Permit TP 15-49. The Defendants are merely performing their statutory powers under National Forest Act, hence, the action by the plaintiff in this case is misconceived. However, the Plaintiff's learned counsel has filed a succinct written submission before the due date. The court is at liberty to deal with the matter and determine the case with what material evidence on file with both learned defence counsels submissions on file.

FACTS
3.	The primary undisputed facts in this case are as follows:

(1)	The Plaintiff is the Permit Holder of Timber Permit N. TP15-49 for the Inland Pomio Timber Rights Purchase (TRP) area.

(2)	The Timber Permit is current and will lapse in and around 30th November 2020.

(3)	The First Defendant is the Chairman of the East New Britain Provincial Forest Management Committee ("The PFMC").

(4)	The Second Defendant is an employee of PNG Forest Authority ("PNGFA") and is the Area Manager – New Guinea Islands Region. By virtue of his position, he is a member of the PFMC. He is in charge of forestry activities or matters in the NGI region.

(5)	There were two submissions made to the PFMC by Hatwok Development Ltd for Inland Pomio TRP ("TRP area"). One is for the transfer of Timber Permit from the Plaintiff company to Hatwok Development Ltd and secondly proposal to divide the TRP area into two operational areas. The respective PFMC resolution and recommendations are that Hatwok Development discuss with Plaintiff after the court decision for transfer and the PFMC to meet with the two factions of the Plaintiff Company to come up with solutions to solve the infighting issues of the TRP.

Both submissions were rejected by PFMC on the basis that the Plaintiff was the Permit Holder.

(6)	The PFMC sent a letter to the Plaintiff Management to attend a meeting at the Pomio Catholic Mission on 31st October 2013 to mediate issues in the TRP area including management dispute. There was no attendance. Refer to Annexure "C" of Peter Kaiopuna Affidavit.

(7)	An invitation letter dated 18th October 2012 was sent to both parties of Plaintiff Company (Peter Kaiopuna and Linus Bai) to attend PFMC meeting of 8th November 2012 but both did not attend the meeting.

(8)	The function and responsibilities of the PFMC are set out in paragraph 4 of the Affidavit.by Akuila Tubal

(9)	The Respondents (Linus Bai, Jackson Keskala, Alois Makile, and Leo Lelle Beve) in the proceedings OS No. 573 of 2006 are permanently restrained from interfering with the Management of Magasaki Ltd in any manner or form.

(10)	There is an Originating Summons OS No. 332 of 2012 claiming, amongst others, a declaration that Linus Bai was duly appointed a Managing Director of Magasaki Ltd and an order that Peter Kaiopuna be restrained permanently from interfering with the affairs of Magasaki Ltd. This proceeding is pending full determination.

ISSUE
4.	The pertinent issue in this case is:

1.	Whether injunctive orders sought against the defendants who are performing their mandated legislative duties render the action unconstitutional and therefore against the spirit of public policy and public interest.

LAW
5.	The principles governing injunctions is well settled in this jurisdiction and must be observed and followed. The following tests are requisite legal requirements that must be satisfied before the injunction orders sought are granted and they are:-

1.	Are there any serious issues that requires the court inquiry?
2.	What is the balance of convenience favoring the courts issue the orders sought?
3.	Would an award of damages be the appropriate remedy?
4.	And finally it is also a requirement that the applicant must provide evidence of undertaking as to damages.

6.	The Provincial Forest Management Committee (PFMC) derived its primary legal functions in dealing with landowner company's is provided under section 30 of the Forestry Act 1991 and it reads:-

30. Functions of a Provincial Forest Management Committee. 
(1) The functions of a Provincial Forest Management Committee are–

(a)	to provide a forum for consultation and co-ordination on forest management between the National Government and Provincial Governments, forest resource owners and special interest groups; and

(b)	to undertake continuous consultation with the Chairman of the Provincial Forestry Committee on matters relating to acquisition and allocation of forest resources; and

(c)	to assist the Provincial Government in preparing forest plans and forest development programmes, consistent with national and provincial programmes; and

(d) to make recommendations to the Board on–

(i) the preparation and terms of Forest Management Agreements; and

(ii) the selection of operators and the preparation of timber permits; and

(iii) the enforcement of timber permit conditions and of this Act; and

(e) to make recommendations to the Chairman of the Provincial Forestry Committee on–
(i) the issue of timber authorities; and
(ii) the amendment or surrender of timber authorities; and

(f) to supervise extension services with respect to business management, agroforestry, silviculture, reforestation, environmental protection, processing and marketing; and

(g) to oversee the receipt and distribution of government levies and charges and other benefits due to landowners; and

(h) to assist in the early identification and resolution of land-owning disputes affecting forest resources; and

(i) to carry out such other functions as it is required to carry out by this Act or any other law.

(2) A Provincial Forest Management Committee may, by notice in writing, delegate to the National Forest Service any of its functions under Subsection (1).

APPLICATION OF LAW TO THE FACTS
7.	The grants of injunction or restraint are guided by the same principles involved in granting of interlocutory injunctions under Order 14 Rule 10 of the National Court Rules. The grants of injunctions are discretionary and are guided by the following principles:

1.	 Is there a serious question to be tried? 
2.	Does the balance of convenience favor the grant of the injunction?
3.	Will damages be adequate remedy?, and;
4.	Has the Plaintiff given sufficient undertaking as to the damages? 

8.	In consideration of the above requisite legal principles in seeking injunction orders against the defendants, the learned counsel for Plaintiff, in support of the above principles did provide the following case authorities, but not exhaustive and they are:- In the following cases of Robinson - v - National Airlines Commission (1983) PNCR 478; Markscal Ltd - v – MRDC (1996) PNCR 41; Benny Wabia – v – BP Exploration Operating Co. Ltd & 2 Ors (1998) PNCR 8, and Ewasse Landowners Association Inc. –v – Hargy Oil Palm Ltd (2005) N2878.

9.	However, the Plaintiff Counsel further submitted that the case of Ewasse Landowners Association Inc. –v – Hargy Oil Palm Ltd (2005) N2878, is quite exceptional in that it was held that the court can still grant injunctions in cases where none of the above legal requisite considerations have not been made out. The learned counsel for Plaintiff stated categorically that whilst legal principles alluded to under issues numbered (1) (3) & (4) do not apply nor featured prominently in this case except legal principle refer to under number (2), the learned counsel for Plaintiff submits further that this alone do qualify the Plaintiffs' position for the granting of the injunction order sought. The Plaintiff made exceptional submission that his client's application is one that is not suing for damages of any sort, but suing to maintain and to keep the status quo. 

10.	Hence, the Plaintiff submit that the "balance of convenience favour granting of injunction sought" in the Originating Summons as the Plaintiff is the T.R.P Holder and a landowner company. What this effectively means is that Defendants should not communicate nor deal with third parties, in particular Mr. Linus Bai and Mr. Philip Telakul, because the resource owners have their mouth piece through which all correspondence should be channeled and thereby was very concern that it would defeat the purpose of granting the T.R.P to Plaintiff. The Plaintiff's primary objectivity is to protect and promote the "common interest of the project" that the relief sought be granted. At this juncture, I find the Plaintiff submission interesting, but one that is designed to achieve quick fixes interim relief, but rather inconsistent with the established legal principles pertains to the granting of injunctions sought. 

11.	I further find that plaintiff's legal argument appear to be contradictory from two fronts. Firstly, there is evidence that Plaintiff has successfully obtained injunction order against one of the named person, Mr. Linus Bai not to interfere with the Plaintiff T.R.P operation. Secondly, what appears to be that this relief obtained against Mr. Linus Bai, as if it is not sufficient warning, the Plaintiff see fit to file this action against the Defendants' to obtained permanent injunctive relief against them from performing their lawful duties, and that is not to communicate or deal with Mr. Linus Bai and Mr. Philip Telakul from any dealing with or interfering with Plaintiff TP 15-49, who is the T.R.P Holder. The Plaintiff submits that taking this cause of action against the Defendants' is to promote the "common interest of the project" as the primary justification consideration for so doing. 

12.	However, the Plaintiff has fail to do a post mortem diagnostic examination to find out and articulate as to what comprise of the phrase "to promote the common interest of the project" from whose perspective, the landowners, also includes Mr. Linus Bai and Mr. Philip Telakul or project developer, in order to established, whetheror not there is a serious question of law to be tried in this action. Whilst Plaintiff through its learned counsel has submitted from the outset that Plaintiff conceded to requisite legal principles and issues refer to under number (1) (3) & (4) except issue number (2). The Plaintiffs' action in this case is simply just relying on one of the four requisite legal grounds, in my view, cannot stand up to secure granting injunction relief sought in this action. 

13.	I would like to differ from Plaintiff counsel relying on the case authority of Ewasse Landowners Association Inc. –v – Hargy Oil Palm Ltd (2005) N2878, is simply because the learned counsel has misinform himself and therefore misinform the court in his final legal submission that court should apply the above case in this case, despite the non-presence of the four requisite legal principles in granting the injunction relief sought. I find this legal argument is inconsistent with the factual circumstances and ruling in the case of Ewasse Landowners Association Inc. –v – Hargy Oil Palm Ltd where his Honour Cannings J dealt with the matter where the brief facts are as follows. The Plaintiff, a landowner group centred on a village located next to an oil palm mill and export facility, commenced proceedings aimed at shutting down the facility on environmental and public health grounds. The Plaintiff sought an interim injunction, pending the hearing and determination of the substantive proceedings. The court held that:-

1.	When dealing with applications for interim injunctions the court should consider three main issues. First, are there serious questions to be tried or does Plaintiff have an arguable case? Secondly, does the balance of convenience favour the granting the injunction. Thirdly, is an injunction necessary to do justice in the circumstances of the case?

2.	In the circumstances, none of the considerations favour the granting of the injunction sought.

3.	The application for interim injunction was accordingly refused.

14.	The court in the Ewasse case did applied the four requisite legal issues in granting injunction of which is indispensable in this case. I therefore reject Plaintiffs' legal submission on this issue in its entirety.

15.	The learned defence counsels for first and second defendants on the contrary submits that the Plaintiff has not provided evidence that there is a substantive matter before the court worthy to be tried by the court. The two defence counsels submit that Plaintiffs apprehension that defendants are dealing with other two other landowners does not in itself disclose a cause of action at law for substantive deliberation by the court. I find this submission is misconceived and I cannot find any other way then the logical outcome that emanate from the learned defence counsels submission under the first leg. The court therefore cannot find in favour of the Plaintiff for two obvious reasons: - (i). The first and second defendants are mandated by law under section 30 of Forestry Act 1991 to perform their stipulated legal statutory functional chores for the people of this Province and those that come under the ambit of the Forestry Act 1991where Provincial Forest Management Committee (PFMC) provide regulatory and proper monitoring functional legal duties under the said Act. (ii). The Plaintiff through this action to take injunction against the two targeted Public Officers, the first and second defendants from performing their lawful duty with landowners in particular with Mr. Linus Bai and Mr. Philip Telakul, the duty is on the Plaintiff to established and satisfied the four main issues. They are:-

1.	Are there any triable legal issues to be dealt with by the court?

Firstly, it must be noted that although the Plaintiff has made the application, the Plaintiff must demonstrate that it has a substantive matter before this Court to be tried. In another word, there must be a real legal cause of action at law to be tried during the substantive hearing. The Plaintiff's apparent apprehension of "dealing" with two other named persons by defendants and affidavit by Peter Kaiopuna that support the Plaintiff's application has clearly failed to disclose some substantive legal issues, that ought to be determined by this court urgently.

I am incline to accept the legal proposition that the learned defence counsels have submitted, that based on the first leg of the requisite legal principles on injunction alone, the Court can exercise its discretion against issuing the orders sought, as it does not disclose any reasonable cause for urgency determinable by this court on substantive hearing. However, I intend to address the other requisite legal principles, for purposes of completeness that pertains to the application for injunction orders sought by Plaintiff in this case.

2.	Secondly, given the mandated legislative duties of the defendants under section 30 of the Forestry Act 1991and that is to regulate and to provide proper superintendent monitoring of the pace of development at designated license TRP forest areas including the disputed customary land areas by landowning parties. However, the action by Plaintiff is not only impact against public policy but it breaches the parliamentary legislative intent provided under section 30 of the Forestry Act 1991, and that is to issue such an indefinite injunction order, but I am of the view, that the balance of convenience far outweigh the grant of any such injunctive orders sought.

3.	Thirdly, according to affidavit by Peter Kaiopuna and Linus Bai, who confirm that there is currently no operation taking place on the ground at TP 15-49, hence, the issue on the possibility of damages on the part of the plaintiff does not arise. Even, if that is the case, the merit of the application for injunction order is not supported by affidavit of Peter Kaiopuna, where he does not disclose any material evidence particular that they may incur any damages at all or any material inconvenience may be cause, as the case may be.

4.	Fourthly, it is a procedural and legal requirement under the National Court Rules that the Applicant seeking an injunction must provide an undertaking for the payment of any damages that may be incurred by the party restrained. The lack of compliance with this procedural legal requirement by plaintiff is clear demonstration of bad faith. If the omission is bad enough, and in addition by failing to disclose no reasonable cause of action, is prejudicial as against the legislative duty of the defendants, an embarrassment, and therefore is effectively amount to an abuse of the court process.

5.	Finally, the defence counsel submitted that, even if this court is to rule that the application's procedurally correct, of which is objected strenuously by the defendants, there is simply no material evidence before this court that the first defendant action in sending out the notice to Peter Kaiopuna and the other landowners for a meeting to attempt a resolution as between parties was ill-conceived or that there was any breach of the Forestry Act 1991 or the Timber Rights Purchase (TRP) Agreement and the Timber Permit No. 15-49.

16.	I am indebted to the following case authorities to provide some comparative contrast to this case. I refer to the case of Yama –v – Sambua [2011] PGNC 173; N4411, where her honour Murray J, dealt with the matter; where Plaintiff sought certain declarations and both permanent and interim injunction restraining the defendant, who is the Acting Public Prosecutor from personally dealing with or dealing with or handling prosecution files created from complaints laid with the police by the Plaintiff, Mr. Yama. The Plaintiff also applied for an interim injunction restraining the Acting Public Prosecutor from exercising his powers pursuant to section 525 of the Criminal Code Act relating to prosecution matters that arose out of the complaint laid by the Plaintiff. The court held that:-

1.	The Plaintiff does not have a serious question to be tried;
2.	The issue of adequacy of damages is not an appropriate consideration in this case.
3.	The balance of convenience does not favour the grant of interim injunction.
4.	It is not in the interest of justice nor in the interest of the public that the defendant, who is the Acting Public Prosecutor, be separated from carrying out his lawful duty under section 525 of the Criminal Code Act, or be restrained from performing functions which he is empowered to apply or exercise;
5.	The Plaintiff's notice of motion seeking the interim injunction is refused.

17.	The brief facts in this case somewhat is similar, in so far as the defendants, who are performing their lawful duty under section 30 of the Forestry Act, with all potential landowners including the two named persons. To restrained the defendants, not to deal with the two named landowners is indeed, not in the best interest of justice nor in the interest of justice of the public that the defendants, who are Public Officers, who are vested with statutory powers under section 30 of the Forestry Act are basically performing their public lawful duty, ought to be separated from carrying out their lawful duty or not to be restrained from performing functions which they are empowered to apply or exercise. To do so, in my view, will rendered the relief sought unconstitutional because it impact directly against the legislative intent and court cannot have power to interfere with mandated lawful duties, unless there is a serious legal issue to be tried during the substantive hearing.

18.	In another case of Barava Ltd v Numapo [2011] PGNC 246; N4943where his Honour Lenalia J dealt with the matter where the Government established a Commission of Enquiry to enquire into acquisition of land for purpose of development. The Applicant argued that its land was held by State Lease and consequently the Enquiry did not have jurisdiction to enquire into it. The Court held that:-

1.	The enquiry is dealing with Special Agricultural and Business Leases and the Court cannot interfere with the Enquiry, at[8];
2.	There is no evidence before the court to establish that there is a valid case between the Plaintiff and the Defendants, at [11];
3.	The application is dismissed.

19.	Having considered the above case precedents and the substantive deliberations on the above legal principles pertains to the granting of injunction relief sought; I find the justice pendulum swings in favour of the defendants and the Court in exercising its discretion have no other option but will have to rule against the application by the Plaintiff. It is very clear from my deliberations on all range of requisite legal issues before me, that the appropriate action, in my view, in this case, would have been taken against Linus Bai and PhilipTelakul and not against the defendants. That is, to restrain them from and or not to interfere with the operation and management of Plaintiff Company Magasaki Ltd and its agents. This is not the case in this case. However, to come to court to seek restraining order against the State instrumentalities' agents, a creature of legislation by Parliament, in the absence of disclosing a credible cause of action at law, such a move is not only unconstitutional but it's against the legislative intent of the enabling Act and the spirit of public policy and public interest. Hence, it is bad precedent and amount to abuse of court due process.

CONCLUSION
20.	On the face of the action by the Plaintiff, the applicant company, Magasaki Ltd is by way of Originating Summons is seeking to restrain the Defendants, who are State Statutory agents, through Forestry Act 1991,to whom the Applicant suggests or insinuates are "dealing" with two other named persons who, it is not disputed are also landowners from within the inland Pomio TRP area. The Plaintiff action is misconceived and render it unconstitutional and tantamount to abuse of due court process and impact greatly against the public interest and public policy under the present legislative framework under the enabling legislation, in particular Forestry Act 1991. The court therefore dismissed the Plaintiff's action with cost.
The court so orders accordingly.

ORDER
1.	The matter is dismissed with cost against the Plaintiff, if not agreed to be taxed.
2.	The time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Motuwe Lawyers: Lawyer for the Plaintiff
ENB Provincial Government - In-House Lawyer: Lawyer for the First Defendant
PNGFA - In-House Lawyer: Lawyer for the Second Defendants