N10170

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 285 OF 2021

HENRY SONE
Plaintiff

V

BENJAMIN SAMSON, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Wewak: Thoke, AJ
2021: 23rd & 29th November
2022: 29th April

PRACTICE & PROCEDURE – Interlocutory application – National Court Rules, Order 12, Rule 8, sub-rules (3) to (5) – Varying or dissolving interim orders – Relevant considerations and principles governing dissolving interim orders

PRACTICE & PROCEDURE – National Court Rules, Order 12, Rule 40, sub-rule (1) – Identity of cases with no reasonable cause of action – Properties of frivolous and vexatious claims – Abuse of court process

LAND – State Leases – Indefeasibility of registered title – Land Registration Act 1981, Section 33: Protection of registered proprietor – Burden of challenging a registered title must be discharged well

LAND – Effect of Land Act 1996, Section 145 – Notice to Quit – Residence of lengthy period not sufficient to waive effect of Notice to Quit

Cases Cited:

Avia Aihi –v- The State [1981] PNGLR 81
Boochani –v- The State (2017) SC1566
Canopus No. 101 Ltd, In re [2020] PGNC 216; N8459 
Ere –v-National Housing Corporation (2016) N6515
Golobadana No 35 Ltd –v- Bank of South Pacific Ltd (2002) N2309
Lerro –v- Stagg (2006) N3050
Louis Medaing –v- Ramu Nico Management (MCC) Limited (2011) SC1156
Mainland Holdings Ltd –v- Stobbs [2003] PGNC 10; N2522 
Mark Ekepe –v- William Gaupe [2004] PGNC 82; N2694 
Mount Hagen Urban Local Level Government –v- Sek No. 15 Ltd (2009) SC1007
National Housing Corporation –v- Yama Security Services Pty. Ltd (2000) N1985
NKW Holdings Ltd –v- Paladin Solutions PNG Ltd [2019] PGNC 361; N8135
Powi –v- Southern Highlands Provincial Government (2006) SC844
Renali –v- Loko [2012] PGSC 19; SC1186 
Rimbink Pato -v- Maku Kopylala (2017) N7279
Robinson –v- National Airlines Commission [1983] PNGLR 476
Sioti Bauf and Lovoi Nadai –v- Poliamba Pty Ltd [1990] PNGLR 278
Siu –v- Wasime Land Group Incorporated (2011) SC1107 
Takori –v- Yagari (2008) SC905
Wamabiag –v- Palme (2012) N4715
Wamena Trading Company Ltd –v- Civil Aviation Authority of Papua New Guinea [2006] PGNC 57; N3058 

Legislations Cited:

Constitution
Land Act 1996
Land Registration Act 1981
National Court Rules

Counsel

Mr. Jim Vitus, for the Plaintiff
Mr. Enoch Manihambu, for the Defendants

RULING

29th April, 2022

1.	THOKEAJ: This is a Ruling of the Court on an Interlocutory Application filed by the Defendants on the 18th of November 2021, and heard on the 29th of November 2021. The Motion was filed pursuant to Order 4, Rule 37 of the National Court Rules (NCR), wherein, inter alia, these main orders were sought:

i.	Pursuant to Order 12, Rule 1 of the NCR and Section 155 (4) of the Constitution, the Ex parte Orders granted on the 03rd of September 2021 be dissolved; and

ii.	Pursuant to Order 12, Rule 40(1) (b)(c) of the NCR the entire proceedings be dismissed for being frivolous or vexatious and an abuse of court process.

2.	The Motion was supported by an Affidavit sworn on the 27th of October 2021 by the First Defendant who was the current Secretary of the Department of Lands & Physical Planning (DLPP). 

BACKGROUND

3.	These are the uncontested facts that all parties accepted either by word or by silence.

4.	All parcel of the land described as Section 05, Allotment 67, Wewak contained in State Lease Volume 27, Folio 03 was formerly unallocated vacant land which was advertised through public tender as land available for leasing and published in the National Gazette No. G27 - 24th February 2017.

5.	The Lease was awarded to Michael and Jensiana Wapi by the Land Board. Andro Holdings Ltd, being an aggrieved applicant, appealed to the Minister and its Appeal was upheld.

6.	Following publication, Andro Holdings Ltd settled the 2021 annual rental fees along with the lease preparation fees. Thus, the lease was prepared and executed by the Minister for Lands and Physical Planning in favor of Andro Holdings Ltd.

7.	However, it was later discovered that the land was illegally occupied by squatters, the Plaintiff (Respondent) being an occupant therein. Accordingly, the First Defendant, using his powers as the Departmental Head, issued Notice to Quit under Section 145 of the Land Act 1996 dated 5th July 2021.

8.	The Plaintiff (Respondent), on 3rd September 2021, successfully sought ex parte interim Orders (pursuant to Section 155(4) of the Constitution and Order 12, Rule 1 of the NCR) staying the effect of the Notice to Quit  which was duly served on him by the Defendants. 

9.	This Motion currently before me by the Defendants (Applicant) beckons the dissolving of the ex parte interim Orders (mentioned above) whilst seeking to dismiss the whole matter thereby gaining full utility to execute the Notice to Quit. 

ISSUES FOR THE COURT TO CONSIDER

10.	There are two (2) main issues for this Court to consider:

(a)	Whether or not the ex parte interim Orders granted on 3rd September 2021 be dissolved or continue?

(b)	Whether or not the entire proceeding can be dismissed for being frivolous and vexatious and an abuse of Court process?

ISSUE 1: WHETHER OR NOT THE EX PARTE INTERIM ORDERS GRANTED ON 3RD SEPTEMBER 2021 BE DISSOLVED OR CONTINUE?

Relevant Principles
11.	Interim orders or interlocutory injunctions are temporary reliefs which the Court grants while the actual substantive process is pending. They are usually made when there is an urgent/pressing issue calling for immediate attention/action while the court process is going on.

12.	Andrew J; held in Robinson v National Airlines Commission [1983] PNGLR 476 (at p. 480) that “no real principles can be laid down as to when interlocutory injunctions 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” [emphasis is mine]. Thus, the National Court is vested with general jurisdiction by virtue of Order 12, Rule 1 of the NCR and Section 155(4) of the Constitution to apply its “trained” discretion in granting interim orders.

13.	To vary or set aside (dissolve) interim orders, an applicant is availed this opportunity through Order 12, Rule 8, sub-rules (3), (4), and (5) of the NCR. Obviously, the National Court, on application by a party, has powers to vary or set aside its own previous orders. A proportionate amount of discretion is applied diligently by the Court depending on the peculiarity of the case. Common litigants are no stranger to this scenario. 

14.	Over time, principles have been developed on how to qualify the discretion of the National Court to grant or not to grant orders varying or dissolving earlier orders. It is worth starting with the case of Ekepe v Gaupe [2004] PGNC 82; N2694 (13 October 2004). His Honour Justice Cannings, in that case, whilst heavily relying on the case of Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522 (29 October 2003), concisely summarized the relevant considerations worthy of noting before varying or setting aside an interim order, which are as follows:

i.	Has there been any change in circumstances since the previous orders were made, which render their continuation unnecessary or inappropriate?

ii.	What has been the relative conduct of the parties since the earlier orders were made? Have they been behaving themselves? Are the hands of the person who is benefiting from the earlier order, still clean? (Bearing in mind the maxim that those who come to a court of equity must have ‘clean hands’.) If the party who obtained the interim injunction behaves badly, this is something that weighs in favor of dissolving the earlier order.

iii.	Are there previously undisclosed relevant facts, which have been discovered since the interim orders were made? If there are, those facts can be taken into account. But they do not deserve the same weight, as where there is a material change in circumstances after the interim order was made.

iv.	Has it subsequently been discovered that the order was granted on an erroneous legal basis? It should only be where the Court has made a clear error of law in the course of making its earlier interim order that the exercise of discretion entailed in the granting of the earlier order should be interfered with.

v.	Were the grounds relied on to support the setting aside or variation of the interim order, argued before the Court when it granted the earlier order? Or did the party wanting to set aside or vary the earlier order have the opportunity to raise those grounds? If yes is the answer to either of these queries, the Court should be reluctant to set aside or vary the earlier order. In this way the Court will give effect to the principles underlying the doctrines of res judicata and issue estoppel.

vi.	Was the Court misled when it issued the interim injunction? If yes, was that attributable to the conduct of the party which sought the injunction? This is a very important consideration, which focuses on the conduct of the party which obtained the original interim injunction. If it deliberately misled the Court, this will be a factor weighing heavily in favor of setting aside the interim injunction.

15.	Submission by the Defendant’s Counsel on the principles governing the dissolving of interim orders was not elaborate. He only assisted this Court by quoting paragraph 9 of the judgment in Wamena Trading Company Ltd v Civil Aviation Authority of Papua New Guinea [2006] PGNC 57; N3058 (10 May 2006). The Wamena case took into account the relevant considerations enlisted by Cannngs J in the Ekepe (supra) case. Truly so, the Wamena case subsumed the relevant considerations to arrive at six (6) circumstances in which an interlocutory order may be dissolved, which are:
“ ...
a)	“where the conditions or stipulations of the order have been met and the order is no longer necessary.
b)	if it is subsequently discovered by the Court that the interlocutory order was founded on wrong principles;
c)	changes in relevant circumstances, including the failure of the party enjoying the order to act responsibly after obtaining it;
d)	it is shown that the party obtaining the order has not come to the Court with ‘clean hands’; See Mainland Holdings Ltd v Paul Stobbs N2522 (Injia DCJ)
e)	where the plaintiff has failed to prosecute its’ action after obtaining an injunction: See National Housing Corp. v Yama Security Services Pty. Ltd N1985 (Sevua J);
f)	if the Court finds that it was misled on the earlier application: See Mark Ekepe v William Gaupe N2694 (Cannings J);
g)	on an ex parte interlocutory application there has been a failure to make a full disclosure of relevant material both for and against the applicant’s case: See Sioti Bauf and Lovoi Nadai v Poliamba Pty. Ltd [1990] PNGLR 278, Golobadana No 35 Ltd v Bank of South Pacific Ltd N2309 (Kandakasi J)…”

16.	Now, I shall apply these relevant considerations and principles to settle the first issue before this Court.

Reasoning
17.	In the application before this Court, the Applicant (Defendant) claims that the Plaintiff (Respondent) is an illegal occupant (squatter) who settled on property described as, Section 05, Allotment 67, Wewak contained in the State Lease, Volume 27, Folio 02, while the latter more profoundly requests time to vacate if the Notice to Quit is genuine.

18.	The evidence of the First Defendant (Applicant) as an Officer of DLPP unequivocally confirmed that the said property described as, Section 05, Allotment 67, Wewak contained in the State Lease, Volume 27, Folio 02 was lawfully granted to one, Andro Holdings Limited. Copies of all relevant documents, more particularly the Title Copy, annexed to his Affidavit left no room for doubt. 

19.	The Plaintiff (Respondent) did not refute this evidence. No fresh affidavit was filed rather he relied on his sworn Affidavit filed on 2nd September 2021 in support of his earlier application staying the effect of the Notice to Quit.

20.	Let us now provide answers to the inquiries put forth by Cannings J in the Ekepe (supra) case:

i.	Has there been any change in circumstances since the previous orders were made, which render their continuation unnecessary or inappropriate? 

There has been no identifiable material change. The Plaintiff (Respondent) did not file any fresh affidavit to suffice a legal or equitable claim over the said property. All acts and omissions of the Plaintiff (Respondent) were geared towards lengthening his residence over the property. 

ii.	What has been the relative conduct of the parties since the earlier orders were made? Have they been behaving themselves? 

It was incumbent upon the Plaintiff (Respondent) to show that he had ‘clean hands’. Where an applicant party enjoying an interim relief obtained ex parte ignores the commitment to show real cause for its matter by filing appropriate and reasonable evidence in preparation for a face-off with an indefeasible title, it can be safely concluded that the interim relief was only a time winner for the applicant, which is an abuse of court process. 

Alternatively, ‘clean hands’ would have been shown had he provided evidence pertaining to removal of belongings from the said property, that is to say that, during the course of transferring possessions some items such as demolished buildings reasonably required additional time. Merely seeking more time to be on the property without any trivial commitment to vacate has colored his hands ‘unclean’.

iii.	Are there previously undisclosed relevant facts, which have been discovered since the interim orders were made? 

Definitely yes, since the earlier interim orders were made ex parte, meaning the other party (Defendant in this case) was waived the opportunity to disclose its relevant facts. For instance, Andro Holdings Ltd has an indefeasible title over the said land as indicated by the First Defendant (Applicant) in his Affidavit. 

iv.	Has it subsequently been discovered that the order was granted on an erroneous legal basis? 

The earlier interim orders were granted fairly, under the Court’s discretion subject to Order 12, rule 1 of the NCR, as it was necessary to do justice to the Plaintiff (Respondent) who required time to maintain status quo for purposes of either vacating the property or establishing a good case against the Defendant (Applicant) for reliefs sought.

v.	Were the grounds relied on to support the setting aside or variation of the interim order, argued before the Court when it granted the earlier order? 

No, because the earlier interim orders were granted ex parte.

vi.	Was the Court misled when it issued the interim injunction? 

The sum of evidence mounted by the Plaintiff (Respondent) was not misleading but sufficient at that time for an ex parte hearing. To do temporary justice, the Court prudently exercised its general jurisdiction by granting interim relief.

The Plaintiff (Respondent) had the onus of showing he had a compelling cause of action against the Defendant (Applicant). Once the orders were granted, he did not discharge this duty well by providing appropriate evidence to continue this litigation. In the alternative, he did not use the ample time the Court provided through the granting of the interim orders to show evidence of vacating the property.

21.	The Plaintiff (Respondent) fails to show cause why the interim orders he enjoys should not be dissolved. In answering the questions above, this Court is of the view that the Defendant (Applicant) has won the favor of the test. 

22.	It is apparent that the Plaintiff (Respondent) nor his Counsel have admitted any document nor made any persuasive submission showing this Court that the granting of the Title Deed to one, Andro Holdings Limited, was an issue to be further dealt with in this Honorable Court. 

23.	This Court can safely infer that the Plaintiff (Respondent) majorly seeks more time to vacate the premises as indicated obsessively in paragraphs 10 and 11 of his Affidavit.

24.	Hence, the ex parte interim Orders granted on 3rd September 2021 should not continue rather be dissolved.

ISSUE 2: WHETHER OR NOT THE ENTIRE PROCEEDING CAN BE DISMISSED FOR BEING FRIVOLOUS AND VEXATIOUS AND AN ABUSE OF COURT PROCESS?

Relevant Principles 

25.	Order 12, Rule 40(1) of the NCR provides that:

“Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a)  no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c)  the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

26.	It is the Court’s inherent blessedness to protect and safeguard any abuse of its process: Wamabiag –v- Palme (2012) N4715. Just as a turtle’s shell is the defender of its body, Order 12, Rule 40(1) secures the Courts daily modus operandi from an inimical and diabolical party’s intentions.

27.	Although there are numerous authorities pertaining to the utility of Order 12, Rule 40(1), such as Lerro v Stagg (2006) N3050 and Takori v Yagari (2008) SC905, it was the Supreme Court decision of Mount Hagen Urban Local Level Government -v- Sek No. 15 Ltd (2009) SC1007 that subsumed previous interpretations to render the outstanding definition we enjoy today. Part of paragraph 29 of the decision, which is more relevant to this case, outlined the principles summarized as follows:

i.	A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

ii.	The Court has an inherent jurisdiction to protect and safeguard its process from abuse.

iii.	The purpose of O.12 r.40 is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

iv.	A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

v.	A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

28.	Cases that followed thereafter such as Siu v Wasime Land Group Incorporated (2011) SC1107 and Ere v National Housing Corporation (2016) N6515 wisely applied the principles above to administer justice.

29.	Accordingly, the Court has discretionary power to summarily dispose of this case if any of the circumstances set forth in Order 12, Rule 40(1) are met to the satisfaction of this Court.

Reasoning

30.	In this case, the First Defendant, Secretary of Department of Lands and Physical Planning (DLPP), stated in paragraph 3 of his Affidavit that the subject parcel of land, was not a vacant State land. He confirmed that from his Department’s records. The private company, Andro Holdings Limited was the current registered proprietor of the property. He annexed the copy of the State Lease registered to the name of Andro Holdings Ltd. 

31.	Furthermore, annexed to Andro Holdings Limited’s Affidavit and numbered A to L confirmed that DLPP legally granted the Title to Andro Holdings Ltd. Besides, paragraphs 4 to 9 of the First Defendant’s (Applicant’s) Affidavit, set out the stringent processes involved within DLPP that Andro Holdings Ltd adhered to in acquiring the piece of land.

32.	The Plaintiff’s (Respondent’s) evidence did not sustain any point against the legality of Andro Holdings Ltd’s interest over the land. Section 33 of the Land Registration Act 1981 guarantees Andro Holdings Ltd freedom of use and enjoyment of the State Lease thereby protecting it as the registered proprietor. 

33.	Should the Plaintiff (Respondent) have an interest that would comfortably question the Title, it should fall under anyone of the nine (9) categories posed by Section 33(1) of the Land Registration Act 1981. The provision provides that: 

“33. Protection of Registered Proprietor.

(1)	The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a)	in the case of fraud; and
(b)	the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(c)	the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(d)	in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e)	in case of the wrong description of the land or of its boundaries; and
(f)	as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(g)	as provided in Section 28; and
(h)	a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(i)	any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.”

34.	Apparently, as to the first category, whether the passing of title was dipped in fraud or not is a question to be answered in a proceedings commenced by Writ (pursuant to Order 4, rule 2(b) of the NCR) and not by way of Originating Summons as the present case. This puts to rest any fraud allegation, if any, made by the Plaintiff (Respondent) in this proceeding.

35.	The other eight categories deserve inquiry as the present case was instituted by way of an Originating Summons. However, the Plaintiff (Respondent) does not provide that opportunity to this Court by alleging any of them. 

36.	In the absence of any contention to this extent by the Plaintiff (Respondent), this Court accepts the First Defendant’s statement that the subject parcel of land was State Land leased to Andro Holdings Ltd for 99 years, and that those persons dwelling on the land, including the Plaintiff (Respondent) were illegally occupying the land as there was no legal proof or authority from the State or the legal registered proprietor, Andro Holdings Ltd. Hence, as the Departmental Head charged with the duty of administering and protecting the State’s interest over any State land, a Notice to Quit pursuant to Section 145 of the Land Act 1996 was rightfully issued by the First Defendant. 

37.	Section 145 of the Land Act 1996 states as follows:

 “145. Unlawful Occupation of Government Land & Customary Land

1)	A person who, without authority, enters, occupies or uses Government land or customary land, is guilty of an offence;
Penalty: For a first offence – a fine not exceeding K500.00 or imprisonment for a term not exceeding 6 months.
For a second or subsequent offence- a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months.
2)	It is not a defense that the entry, use or occupation of the land was under a claim or right.
3)	A person who contravenes subsection (1) and refuses to leave after receiving notice to quit from the Department Head of the Provincial Administrator of the province in which the land is located may be forcibly ejected by a member of the Police Force.”

38.	Paragraphs 10 to 13 of the First Defendant’s (Applicant’s) Affidavit elaborately indicated the reasons for the issuance of the Notice to Quit.

39.	More importantly, it is to be noted that any claim by any person that their entry or occupation by a claim or right, is not a defence, as per sub-section (2) of Section 145 of the Land Act 1996.  Hence the Plaintiff (Respondent) cannot raise a defence that he entered and occupied the land because of some sort of arrangements with previous occupants.

40.	This Court understands that the Plaintiff (Respondent) had been residing in the premises for more than 30 years. Why did he not take any action to secure the title of the property (land) by committing to the well-established processes of DLPP? He was well aware that his occupation on the land was not final. He had been residing on the land without notifying the relevant State authority neither even made any attempt to seek a license to occupy or settle on the vacant land. 

41.	Although the Plaintiff (Respondent) may have an equitable interest in the property, this mode of proceeding is not appropriate. For this, whether damages is an equitable remedy should be tested by way of utilizing the Writ mode of proceeding. 

42.	Clearly, balance of convenience favours the Defendants (Applicant).

43.	The Plaintiff (Respondent) initiated this proceeding without any reasonable cause of action against the Defendants (Applicant). If he persists that there has been fraud in the issuance of Title to Andro Holdings Ltd, he should use the correct mode of proceeding and back his claim up with concrete evidence.

44.	This Court further says that this is a frivolous and vexatious claim. Taking into account the Supreme Court decision of Mount Hagen Urban Local Level Government (supra) case’s definition, this matter is plainly and obviously untenable and bound to fail if it proceeds to trial. Both parties can save themselves from unnecessary trouble and expense in defending or proving the claim.

45.	The Plaintiff (Respondent) had been given sufficient time (up to six months) courtesy of the operation of the interim orders, to vacate the land and relocate to a different place. Earlier interim orders were necessary. The Plaintiff (Respondent) had not made out a case to be further dealt with by this Court, thus amounting to this proceeding being frivolous and vexatious and an abuse of Court process. 

46.	The circumstances set forth under Order 12, Rule 40(1) are met to the satisfaction of this Court. Accordingly, I order that this entire proceeding be dismissed.  

DECISION SUMMARY 

47.	In light of the discussions above, Orders sought under the Notice of Motion filed on 18th September 2021 by the Defendants (Applicants) are granted.

48.	The Court Orders are as follows:

i.	The Plaintiff (Respondent) is an Illegal Settler on the Land described as Section 05, Allotment 67, Wewak, East Sepik Province, State Lease Volume 27 Filio 03 (the land).

ii.	Andro Holdings Pty Limited has indefeasible title over the land described as Section 05, Allotment 67, Wewak, East Sepik Province, State Lease Volume 27 Filio 03 (the land).

iii.	The Ex parte Orders granted on 03rd September 2021 be dissolved.

iv.	The Originating Summons filed by the Plaintiff seeking injunction to restrain the Defendants and Andro Holdings Pty Limited is dismissed for being frivolous and vexatious and an abuse of court process.

v.	The Plaintiff is given two months from the date of this order to vacate the property described as Section 05, Allotment 67, Wewak, East Sepik Province, State Lease Volume 27, Folio 03.

vi.	The cost of these proceedings shall be paid by the Plaintiff (Respondent), to be taxed, if not agreed. 
________________________________________________________________
 Kamen Lawyers:	Lawyer for Plaintiff (Respondent) 
 Office of Public Solicitor: Lawyer for the Defendants/Applicant