N4943

PAPUA NEW GUINEA
[IN THE N ATIONAL COURT OF JUSTICE]

OS NO. 701 OF 2011

BARAVA LIMITED
Plaintiff

AND:

JOHN NUMAPO (Chairman of the Commission of Inquiry) ALOIS JEREWAI & NICHOLAS MIROU as members
Defendants

Kokopo: Lenalia, J;
2011: 9th & 12th September

PRACTICE & PROCEDURE – Interlocutory application – Injunctive relief – Injunction to restrain defendants from receiving any evidence in relation to ownership of Portion 307 consisting of 244, 70 hectares of land in Kokopo.

PRACTICE & PROCEDURE – Application to issue restraining orders against the Commission of Inquiry into Special Agriculture and Businesses Leases (SABL) – Order 12 Rule 1 and Order 14 Rule 10 of the National Court Rules

Cases cited
Papua New Guinea Cases

Norah Mairi v alkan Tololo & Ors [1976] PNGLR 59
Mt. Hagen Airport Pty Ltd v Gibbes & Anor [1976] PNGLR 216
Mauga Logging Company Ltd v South Pacific Oil Palm [1977] PNGLR 80
Craftworks Niugini Pty Ltd v Allan Mott (1977) SC 525
Markscal Limited and Robert Needham v Mineral Resource Development Company Pty Limited, Orogen Minerals Pty Limited, The Independent State of Papua New Guinea and Charles Lepani [1996] PNGLR 419 N1472
Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamna's Union and Arbitration Tribunal (1982) N393

Overseas Cases

American Cyanamid Company v Ethicon Limited [1975] I AII ER 504

Held:

1. In order to succeed on an injunctive relief, an applicant must establish by cogent evidence that he has a prima facie case and the action is not just frivolous or vexatious.

2.	"Is there a serious question to be tried" in terms of Mauga Logging Company Ltd v South Pacific Oil Palm [1977] PNGLR 80 or Norah Mairi v Alkan Tololo & Ors [1976] PNGLR 59 or the case of Mt. Hagen Airport Pty Ltd v Gibbes & Anor [1976] PNGLR 216.

Counsel:

Mr. E. Paisat, for the Applicant/Plaintiff

12th September, 2011

1.	LENALIA, J:	The plaintiff seeks orders pursuant to Order 12 Rule 1 and Order 14 Rule 10 of the National Court Rules to restrain the Commission of Inquiry established by the Government on 9th August 2011 to inquire into acquisition of land for purposes of development. This process had been the government policy since 1979 when the instrument of Special Agriculture and Business Lease was established. The legislature gave effect to that proposal by legislation which subsequently incorporated into the Land Act 1962 which eventually was amended to now as the Land Act 1996.

2.	The intention of the post-independence government was a noble one and was well intended. However, according to the Notice, the process has been left unchecked over the years allowing the process to be abused by forces beyond the landowner's capacity to manager and control.
3.	Mr. Paisat of counsel for the plaintiff/Applicant submitted that because the portion of land is a State lease, the Commission of Inquiry does not have jurisdiction to hear or do any inquiry into the ownership of the land in issue. Counsel submitted that, the portion of land known and described as State Lease Portion 307 usually referred to as Gire Gire Plantation is State Lease and thus the Commission of Inquiry does not have power to deal with it.

Law

4.	The Notice of Motion filed on 23rd August 2011 cites O.12 r.1 and O.14 r.10 as the Court's jurisdiction to grant the orders they seek. Order 12 rule 1 of the National Court Rules States:

"1 . General relief. (40/1)

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment 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 judgment or order in any originating process."

5.	Then O.14 r.10 states:

"10. Preservation of property. (28/2)

(1)	In proceedings concerning any property, or in proceedings in which any question may arise as to any property. The Court may make orders for the detention, custody or preservation of the property.

(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.

(3)	In proceedings concerning the right of any party to a fund, the Court may order that the fund be paid into Court or otherwise secured."

6.	The law on injunctive relief has been stated and re-stated in many cases. The Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott (1997) SC 525 discussed the principles applicable in applications for interlocutory or interim injunctions as follows:

(a) That there is a serious question to be tried, not a frivolous matter and the party seeking the injunction has good prospects of success in the proceeding – Markscal Limited and Robert Needham v Mineral Resource Development Company Pty Limited. Orogen Minerals Pty Limited, The Independent State of Papua New Guinea and Charles Lepani [1996] PNGLR 419 N1472; Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman's Union and Arbitration Tribunal (Unreported judgment of Kapi DCJ. N 393 dated 11 October 1982); American Cyanamid Company v Ethicon Limited [1975] ALL ER 504.

(b) The Court must then consider where the balance of convenience lies in favor of granting or refusing the interlocutory relief.

(c) As to the balance of convenience the court should first consider whether, if the applicant succeeds, he would be adequately compensated by damages for the loss sustained between the application and the trial, in which case no interlocutory injunction should normally be granted.

(d)If damages would not provide an adequate remedy the court should then consider whether, if the applicant fails, the defendant would be adequately compensated under the applicant's undertaking in damages, in which case there would be no reasons on this ground to refuse an interlocutory injunction.

(e) Then one goes on to consider all the matters relevant to the balance of convenience. An important factor in the balance should, other things being even, be to preserve the status quo; and

(f) When all other things are equal, it may be proper to take into account in tipping the balance, the relative strength of each party's case as reviewed by the evidence before the court hearing the interlocutory application."

(See also cases fo Noral Mairi -v- Alkan Tololo & Ors [1976] PNGLR 59
Mt. Hagen Airport Pty Ltd -v- Gibbes & Anor [1976 PNGLR 216
Mauga Logging Company Ltd -v- South Pacific Oil Palm [1977] PNGLR 80).

7.	On the instant application a question can be asked, does the Applicant have an arguable case? This question takes us back to the history of this case. Barava Limited and Gire Gire Estates have had multiple proceedings in this Court. This may be one of the reasons why the mater had been listed under the inquiry list.

8.	After all, the Inquiry is dealing with special agriculture and business leases. Mr. Paisat misled the court by saying that, the inquiry is suppose to be dealing with customary land and not State owned land or wise versa. The Commission of Inquiry has been specifically set up to deal with the type of land referred to in the Notices and this Court cannot intervene on the Inquiry.

9.	Obviously, there are two questions that can be asked. Is there a case before this court on the issue of special agriculture and business leases to be tried by this court? This question turns on the issue of whether there is a serious question to be tried, not a frivolous matter and the party seeking the injunction has good prospects of success in the proceeding.

10.	Then one has to look at the balance of convenience and consider all the matters relevant to the balance of convenience. An important factor in the balance should be to preserve the status quo. On this case what is there to preserve if the Court was to grant the orders sought?

11.	There is no evidence before this court to establish that there is a valid case between the plaintiff and the three defendants. It was said in the above cases that, when all other things are equal, it may be proper to take into account in tipping the balance on the relative strength of each party's case as reviewed by the evidence before the court hearing the interlocutory application.

12.	As earlier stated there is no case before this Court and thus, I must refuse this application. The applicant shall meet its own costs.
______________________________________________________
Motuwe Lawyers:	Lawyer for the Plaintiff