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Stoessel v Carnovale [1999] PGNC 122; N2019 (7 December 1999)

N2019

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 756 of 1999

BETWEEN:

MAX STOESSEL, NORM GIAMSA,
YAKING GIAMSA, SAM IGA
by themselves and on Behalf
of GIBUMLABU-SIMBUA CLAN
-Plaintiffs-

AND:

BRUNO CARNOVALE
-Defendant-

LAE: INJIA, J.
1999: December 7

No cases are cited in the judgment

Counsel:
P. Ousi for the Defendant
E. Paisa for the Plaintiffs

7th December 1999

INJIA, J.: This is an application by the plaintiffs for interim injunction to restrain the defendant from removing WWII aeroplane relics from various customary land sites which the plaintiffs say they own. The relics are in the process of being removed by the defendant pursuant to an agreement signed between the National Museum and Art Gallery on behalf of the State and the 75th Squadron Flying Museum of Victoria, Australia, on 22//99 and a further 3 agreements entered into between the 75th Squadron Flying Museum and 3 landowners, namely Gilnisac Isala, Aitil Kalabu and Yalaman Kelendec dated 27/7/97, 10/6/98 and a third one whose date cannot be ascertained, respectively. The plaintiffs say there is a dispute over ownership of the customary land on which the relics are situated pending determination by the Local Land Court following completion of mediation process on 30/4/98, and pending the outcome of those proceedings, they seek a stay of the excavation and removal of the relics.

It is settled law that an applicant for interim injunction must show that he has a serious issue to be tried at the trial of the substantive matter, that the balance of convenience favour the granting of an interim injunction to preserve the status quo, and that damages would not be an adequate remedy for the plaintiffs, if he were to succeed at the trial.

Pursuant to S.2 of the War Surplus Materials Act (Ch. No. 331), the WWII relics "shall until the contrary is proved, be deemed for all purposes to be the absolute property of the State." The plaintiffs accept that they are not the legal owners of the relics but they nonetheless say they have an equitable interest which deserves protection. My own inclination is that S.2 confers clear legal title of WWII relics to the State and there is no room for equitable principles of property ownership to apply. Section 6 and 7 of the same Act makes clear provisions for payment of reasonable compensation to landowners, for damages caused to their land and environment by the State or other persons authorised by the State to enter, search for and obtain possession of the war relics. The amount of compensation is to be agreed upon between the parties, and in default of agreement, to be determined by arbitration. Pursuant to its ownership rights conferred by S.2, the State has assigned its rights, for a fee, to the defendant through its arm, the National Museum and Art Gallery. Any dispute as to the ownership of the land on which the relics are situated has got nothing to do with the ownership of the War Relics. Any relief which the plaintiff might have is purely compensatory in money terms, and that is something for the landowners to negotiate and pursue with the State, in accordance with S.7 of the Act and the regulations to that Act. Still if there is a dispute of ownership over the land on which the relics are situated, then that is a matter for the Local Land Court to determine under the Land Dispute Settlement Act, and not this Court.

For these reasons, I am not satisfied that the plaintiffs have shown that they have a serious issue to be tried for which I should exercise my equitable discretion to issue the interim injunction sought to preserve the status quo. Any relief which the plaintiff might have is compensatory in damages. For these reasons, I dismiss the application with costs to the respondent.
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Lawyer for the Defendant : Warner Shand
Lawyer for the Plaintiff