N8481

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.  513 OF 2019

BETWEEN:
KATUMANI INCORPORATED LAND GROUP
First Plaintiff

AND:
PNG FOREST PRODUCTS LIMITED
Second Plaintiff

AND:
ELIZAH YAWING as clan leader of PATEP DENGLU CLAN 
First Defendant

AND:
ISMAEL ONAM as clan leader of PATEP LAND GROUP
Second Defendant

AND:
SAWAC MALAC as clan leader of YANGBULAC CLAN
Third Defendant

AND:
AWATENG EPHRAIM as clan leader of PATEP DENGLU MAJOR CLAN
Fourth Defendant

AND:
YALA YAKING as clan leader of BUVGA ICLG CLAN
Fifth Defendant

Lae: Dowa AJ
2020:  23rd June & 29th July

LAND LAW – state lease - substantive hearing on claims of ownership of land the subject of a state lease – plaintiff seek declaratory relief of ownership of state lease – plaintiffs also seek declaratory relief restraining defendants from harassing or intimidating plaintiff and its servants and agents for further developing the land and carrying on business activities on their land -  defendants dispute ownership of land – court has no jurisdiction to deal with customary land dispute – the appropriate body to hear customary land dispute is the Land Titles Commission – defendants have not disturbed the legal title to land held by the plaintiffs – plaintiffs have an indefeasible title to land under s33 land Registration Act – interim orders made permanent – defendants and their servants and agents are permanently restrained from interfering or disturbing the plaintiffs in the use and enjoyment of their land.

Cases Cited

Employers Federation v PNG Waterside Workers (1982) Unreported Judgment N393
Robinson v National Airlines Corp (1983) PNGLR 476
Craftsworks Niugini Ltd v Allan Mott (1998) PNGLR 572
Louis Mediang v Ramu Nico Management (MCC) Ltd (2010) N4127
Ramu Nico Management (MCC)Ltd (2010) SC1075

Counsel:

B Sinen, for the Plaintiffs
P. Yayabu, for the Third Defendant
In Person for the First, Second, Fourth & Fifth Defendants 

RULING

29thJuly,2020

1.	DOWA AJ:	This is a ruling on the substantive claims by the Plaintiffs in these proceedings.

2.	 By an originating summons, the Plaintiffs seek the following orders:

1.	A declaration that the first Plaintiff is the registered proprietor of Special Agricultural Business Lease described as Allotment 482C, Bulolo, Wau, Morobe Province, registered under Volume 18 Folio 44 (the State Lease).

2.	A declaration that the Second Plaintiff has three registered portions of subleases within the First Plaintiff’s State Lease described as sublease Journal No. 16207, Sublease Journal No. 19364 and Sublease Journal No. 19363 (the Subleases).

3.	A declaration that the First, Second, Third, Fourth and Fifth Defendant are squatters and have no legal rights to the First Plaintiff’s State Lease.

4.	The Defendants, their servants, agents, clans people, relatives or whosoever are restrained from:

(a)	harassing, interfering with or affecting the first Plaintiff, its employees, servants, and agents and its operations generally.

(b)	harassing, interfering with or affecting the Second Plaintiff, its employees, servants and agents and its operations generally.

(c )	entering, conducting any or further activity or otherwise disrupting or dealing with the land subject of the First Plaintiffs State Lease Land described as Special Agriculture Business Lease, (SABL) Allotment 482C, Bulolo, Wau, Morobe Province registered under Volume 18 Folio 44 (“ State Lease “ )

 (d)  	entering, conducting any or further activity or otherwise disrupting or dealing with the land subject of the Second Plaintiff’s subleases registered on the First Plaintiff’s State Leases as Sublease Journal 16207, Sublease Journal 363 and Sublease Journal No.19364.

3.  	On 28th May 2020, the court granted interim injunction in terms of the paragraph 4 of the claim. The matter returned to court on 23rd June,2020 for inter parte hearing. I heard the matter and reserved my ruling.

	FACTS

4.	The First Plaintiff is a registered incorporated land group (ILG) pursuant to the Land Groups Incorporation Act. It is the registered proprietor of Special Agricultural Business Lease (SABL) of land described as Allotment 482C, Bulolo, Wau, Morobe Province contained in State Lease Volume 18 Folio 44 (“the State Lease”).

5.	The Plaintiffs allege that prior to the registration of the State Lease and the incorporation of the ILG, the whole of the land within the State Lease belong to the Katumani people. This is disputed by the defendants and I will say a little bit more later in the judgment.

6.	By a sublease agreement the First Plaintiff leased three portions of the said State Lease to the Second Plaintiff. The three portions are registered as Journal Nos. 16207, 19363 and 19364.

7.	The Sublease Journal No. 16207 has a hydroelectric power station owned and operated by PNG Forest Products Limited, the Second Plaintiff. The Second Plaintiff constructed, owns and operates the hydroelectric power station for the purpose of generating electricity for sale and supply to PNG Power LTD at the Ramu Supply point, where the electricity enters the main Ramu Grid. This is done under a separate Power Purchase Agreement entered into between the Second Plaintiff and the PNG Power Ltd.

8.	The power stations supply electricity to Wau, Bulolo and Zenag apart from PNG Power Ltd. The Second Plaintiff pays royalty and other benefits to the First Plaintiff.

9.	The Second Plaintiff says, due to increase in electricity demand, it wants to extend and increase the capacity of its current power stations by constructing a new power station. The other two portions of the sublease Journals 19363 and 19364 are to be used for the new stations. The Second Plaintiff is currently undertaking feasibility studies.

10.	The Defendants are clan leaders from various clans who make up the Patep people who also live around Katumani area. The defendants dispute the ownership rights of the Katumani people. It is alleged that the defendants and their people have continuously and on numerous occasions threatened and disrupted the daily lives of the Katumani people and the employees of the Second Plaintiff.

11.	The actions of the Defendants and their agents are causing delays to the project. The project is huge and beneficial to the people of Wau Bulolo. The initial project value is estimated to be K75 million. It is alleged that such disturbances continue even more recently despite the existence of the interim restraining orders of 16th August,2019.

EVIDENCE

12.	The Plaintiffs rely on the following Affidavit evidence in support of their application:

(a)	Affidavit of Geama Katu filed 26th July,2019
(b)	Affidavit of Ron Sneath filed 26th July. 2019
(c)	Affidavit of Anastacio Puapil filed 24th October,2019
(d)	Affidavit of David Mango filed 24th October,2019
(e)	Affidavit of Hurick Timothy filed 24th October,2019
(f)	Affidavit of Yarp Basu filed 24th October,2019
(g)	Affidavit of Faino Kamuang filed 14th February,2020
(h)	Affidavit of Luke Wangi filed 12th May 2020

13.	The Defendants oppose the application. They rely on the following Affidavits:

(a)	Affidavit of Ismael Onam filed 15th August,2019
(b)	Affidavit of Awateng Ephraim filed 18th March,2020
(c)	Affidavit of Sawa Mala filed 24th April,2020
(d)	Affidavit of Elizah Yawing filed 29th January,2020
(e)	Affidavit of Ismael Onam filed 13thJuly, 2020
(f)	Affidavit of Awateng Ephraim filed 13thJuly, 2020

14.	The Defendants, predominantly, the Patep people dispute the ownership of the land, the subject of the State Lease, currently held by the First Plaintiff. The defendants indicated in court that they have no issue with the Second Plaintiff and would go along with the proposed projects. However, they dispute the recognition given to the Katumani people as customary landowners to the exclusion of the defendants and the people they represent.

15.	At the hearing, I advised the parties that I will not deal with reliefs sought in paragraph 1, 2 and 3 of the originating summons.  Paragraphs 1, 2 and 3 of the originating summons concern issue of the ownership of land.  There is a dispute over ownership of the subject land by the Defendants.  It is not an appropriate matter for the Court to deal with at this stage.  I will say more later in the judgment.

ISSUE

16.	The main issue is whether or not the interim orders be made permanent against the defendants.

 LAW

17.	The relevant jurisdictional basis of the application relied on in this application is section 155(4) of the Constitution.  Order 12 Rule 1 and Order 14 Rule 10 of the National Court Rules which I set out below.

Section 155(4) of the Constitution states:
	
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

18.	Order 12 Rule 1 of the National Court Rules, states:

	“General relief. (40/1)

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

19.	Order 14 Rule 10 (2) of the National Court Rules, further provides:

	10.	Preservation of property. (28/2)

“(2) 	An order under Sub-rule (1) may authorize any person to enter any land or to do any other thing for the purpose of giving effect to the order.

Plaintiff’s case

20.	The Plaintiffs submitted that the permanent injunctive orders are necessary to protect its people, employees, agents contractors who are required to travel to and work in the hydro project sites. The project is in progress and it be allowed to continue without disruption.

21.	The Plaintiffs rely on the following cases in support of their submissions:

Las Peles Shipping and Plantation Management Services Ltd v Cosmas Buak (2015) N5975 (Oli AJ), and Himoni Toim Lapiso v Damson Lafana National Court Judgment N1840.

Reasons for Decision

22.	Generally, a grant of an interlocutory injunction is discretionary.  Its purpose is to maintain status quo until final determination.  See Robinson v Airlines Corp (1983) PNGLR 476.

A permanent injunction on the other hand is more serious and is sparingly granted.
The Supreme Court in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC144 discussed the law on permanent injunction.  At paragraphs 58-63 of the judgment, the court said and I quote:
“58. 	The law in relation to the grant of permanent injunctions is summarised in the text Spry, Equitable Remedies, Injunctions and Specific Performance, Seventh Edition (1980). At pg.392, Spry (supra) states;
"In all cases, it is a matter of discretion whether an injunction will or will not be granted; but the manner of exercise of that discretion depends on the precise nature of the particular rights that it is sought to protect and on all other material circumstances."
(my emphasis)
59. 	Spry (supra) quotes further at pg.393 from the case Pride of Derby and Derbyshire Angling Association Ltd v. British Celanese Ltd [1953] ch.149 at 189, which states;
"An injunction may nonetheless, be refused, as a matter of discretion, should it appear to be unjust or 'highly unreasonable' to grant it, by reference to established equitable considerations such as laches, hardship, acquiescence, the absence of clean hands or such other matters. Further, statutory rights must be taken into account by the Court."
(my emphasis)
60. 	The claim in the National Court by the appellants was effectively, for a quiatimet injunction. This is an injunction seeking to restrain future conduct in respect of which different considerations apply.
61. 	Murphy, the Law of Nuisance, par.6.20 states;
"As in the case of mandatory injunctions, the Courts grant quiatimet injunctions very sparingly. That this should be the case is understandable when one bears in mind that such orders are granted before a complete cause of action has vested (that is, before any actual harm has actually been occasioned). In line with this, it is generally accepted that harm must be imminent before the Court will grant a quiatimet injunction. Thus, in one case in which the claimants were fearful of encroaching roots, the Court of Appeal was unprepared to grant an injunction since the damage that was feared was insufficiently imminent." (Lemos v. Kennedy Leigh Development Co. Ltd (1961) 175 EG 119).
62. 	Again, at pgs.379 and 380 of Spry (supra), the author states;
"[A]s has been seen, the degree of probability that the material injury will occur must be weighed together with its gravity and likely consequences, as well as with any other matters that may affect the balance of hardship or justice between the parties; and the observation of Russell LJ [in Hooper v. Rogers [1975] Ch.43 at page 49] should be noted, that the use of the word "imminent" in this context merely indicates "that the injunction must not be granted prematurely."
63. 	A quiatimet injunction was considered by the National Court in Pastor Johnson Pyawa v. CR AndakeNunwa (2010) N4143. That was a representative action and concerned an ex parte application for orders to restrain the defendants and their respective tribesmen from entering the Simakin tribe's customary land and provoking, threatening, intimidating or declaring war on the plaintiffs' tribe. Makail .J quoted extensively from F H Lawson, Remedies of English Law, Butterworths, Second Edition, (1980), held and concluded;
"11. From these discussions, I summarise the principles of quiatimet injunctions as follows;
1.	There must be proof of imminent danger to the plaintiffs' rights.
2.	There must be proof of prospective damage which is substantial or irreparable.
3.	The violation of the plaintiffs' rights is inevitable."

Genuine interest to be protected 

23.	Applying the above principles, the Plaintiffs application in the present case is not unjust or highly unreasonable.

24.	The First Plaintiff is seeking declaratory orders in the Originating Summons, for recognition of its current and existing legal rights as registered proprietor of State Lease on property described as Allotment 482C, Bulolo, Wau, Morobe Province. The Defendants are challenging both the proprietary and usage rights of the subject land. The Second Plaintiff is seeking similar orders for protecting its interests as sublessee over the property. I am satisfied from evidence presented, there are genuine interests to be protected.

Would damages be an inadequate remedy if the injunctive orders are not granted?

25. 	The Plaintiffs have submitted that damages would not be an adequate remedy if the injunctive orders are not granted. I am inclined to agree with the submissions of Mr Sinen of counsel for the Plaintiffs. A perusal of Affidavit evidence filed by the Plaintiffs show they have legal and valid interest in the subject land. It appears, there has been some unsuccessful challenges to the First Plaintiff’s interest in both the District and the National Courts. There is evidence that these disturbances are continuing which affects the major hydro project initiated by the Second Plaintiff. I am of the view, given the magnitude and cost involved in the project and the benefits that will flow from it, damages will not be an adequate remedy if the injunctive orders are not granted.

Does the balance of convenience favour the granting of the order?

26. 	Striking a balance between competing interest is an exercise of judicial discretion to maintain the status quo without causing inconvenience to the other party. In Robinson v National Airlines Corp (1983) PNGLR 476 at page 480, His Honour, Andrew J, said:

“ The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action and as per Frost CJ in Mt Hagen Airport Hotel v Gibbs (1976 ) PNGLR316 “where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo” No real  principles can be laid down as to when they should or should not be granted except they are granted when just and convenient and what falls within that description must differ substantially from case to case.”

27. 	In the present case, there is evidence filed in court showing continuous threats to the lives of the Katumani people and the employees of the Second Plaintiff and disruption to the work on the project. The defendants have openly disputed in court the ownership rights of the First Plaintiff. The court can hear and determine the rights of the parties at an appropriate forum. For the present application, I am satisfied that the balance of convenience favours the granting of the injunctive orders. The First Plaintiff has a registered State Lease over the subject land. The Second Plaintiff has valid and current registered subleases on the said property to which it has a power station, with plans for a bigger and better station. The new multi-million project is being delayed by the disruptions caused by the Defendants and their people. In the circumstances, the interim orders granted on 28th May 2020 can be made permanent.

Issue of Ownership: Alternative Forum

28.	Since the Defendants have raised substantial dispute over ownership, I will address them as well so the parties have proper and informed understanding of the process involved in furthering their interests.  It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present case, a disputing party can mount a case with the Land Titles Commission pursuant to Land Titles Commission Act. The Supreme Court in Kimas v Oala (2015) PGSC69, SC1475 said at paragraphs 6 and 7 of its judgment and I quote:

“6. 	It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under section 15(determination of Disputes) of the Land Titles Commission Act, which states:
	
	The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

7. 	Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”

29.	In the present case, the issue before me, is whether or not to grant permanent injunctive orders. I am not dealing with the issue of customary ownership of the land in question.  I am of the view that I have jurisdiction to hear and grant the injunctive orders under Section 155(4) of the Constitution and Order 12 Rule 1 and Order 14 Rule 10(2) of the National Court Rules. 

	No Bona Fide Dispute About Title

30.	Secondly, the First Plaintiff produced a clear title to the land. Under Section 33 of the Land Registration Act the First Plaintiff has an indefeasible title to the land. I note a good number of affidavits were filed by the Defendants disputing ownership by the First Plaintiff.  They go to show how the parties have been wrestling with each other over the possession of the land. They have raised issues of irregularity on the grant of title to the Plaintiff.  These are important and genuine issues that can be raised challenging the title.

31.	However, I find, at the time of hearing, the Defendants and the other customary landowners have not commenced any proceedings challenging the title obtained by the First Plaintiff.  The title was issued some years back.  The Defendants and the other customary landowners may have been aware then. The validity of the title was not challenged so far, in a Court of Competent Jurisdiction or the Land Titles Commission. 

32.	I am guided by a National Court decision in Yandu v Waiyu (2005) PNGLR N2894; where the Court (Cannings J) in dealing with an eviction matter held that:

“2. 	If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in the land there is no bona fide dispute about title to the Land unless some other person demonstrates that they have taken some distinct, formal, legal steps to disturb that title.”

33.	In the present case, the Defendants have not demonstrated to me that they have taken formal or legal steps to disturb the First Plaintiff’s title.  Therefore, there is no bona fide dispute about title and I am inclined to grant permanent injunctive orders.

34. 	For the foregoing reasons and in the interest of justice, I will order that the interim orders granted on 28th May 2020 be made permanent.

35.	The formal orders are:

1.	The interim injunctive orders granted on 28th May 2020 are made permanent.

2.	The Defendants, their servants, agents, clans people, relatives or whosoever are restrained from:

a)	Harassing, interfering with or affecting the First Plaintiff, its employees, servants, and agents and its operations generally.

b)	Harassing, interfering with or affecting the Second Plaintiff, its employees, servants and agents and its operations generally.

c)	Entering, conducting any or further activity or otherwise disrupting or dealing with the land subject of the First Plaintiffs State Lease Land described as Special Agriculture Business Lease, (SABL) Allotment 482C, Bulolo, Wau, Morobe Province registered under Volume 18 Folio 44 (“State Lease”)

d)	Entering, conducting any or further activity or otherwise disrupting or dealing with the land subject of the Second Plaintiff’s subleases registered on the First Plaintiff’s State Leases as Sublease Journal 16207, Sublease Journal 19363 and Sublease Journal No.19364.

3.  	Costs be paid by the Defendants.

4.	The time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
___________________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers: Lawyer for the Plaintiffs	
Yayabu Lawyers:	Lawyer for the Third Defendants
The First, Second, Fourth & Fifth Defendants in Person