N4655

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 242 OF 2011

BETWEEN

TEDIAS KOI OPINTS, KOI OPINTS, PENU OLD & JIM KOPUN
Plaintiffs

AND

NEKEINTS OPINTS, KENNETH MANJIP OPINTS, JOHN NUMDI, WANPIS PENU, KENNETH PONJI, WISHER OPINTS, SAPNE NGUMBANG & JIMBEN NGOMBANONG
First Defendants

AND

KOLUM OPINTS PTY LTD
Second Defendant

AND

WR CARPENTERS (PNG) LIMITED
Third Defendant

Mount Hagen: Makail, J
2012: 13th & 23rd April

PRACTICE & PROCEDURE - Application to dismiss proceedings - Grounds of - Abuse of process - Wrong mode of proceedings - Res judicata - Dispute over royalty benefits derived from coffee plantation land - Accounting of royalty monies sought - Land ownership unclear following grant of application for judicial review by National Court - Clarification of landownership subject of appeal to Supreme Court - Serious issue - Arguable case shown - Application for dismissal refused.

PRACTICE & PROCEDURE - Application for interim injunction - Restraining of royalty benefits derived from coffee plantation land - Land ownership unclear following grant of application for judicial review by National Court - Real risk of dissipation of future royalty monies - Interim injunction granted.

Facts

The plaintiffs and the first defendants who are blood relatives had a dispute over royalty benefits derived from a land known as Kolum situated in the Kimil area of Waghi valley in the newly created province of Jiwaka. On it is a coffee plantation. The third defendant manages the coffee plantation and pays royalty to the landowners. The first defendants alleged they were sole beneficiary of the royalty and the plaintiffs claimed otherwise, alleging they were equally entitled to it. The plaintiffs applied to restrain the defendants from dealing with the royalty pending among other orders, a declaration that the land is customary land and communally owned by them and an order for production of an account of the monies paid as royalty by the third defendant to the first and second defendants. At the same time, the defendants applied to dismiss the proceedings for being an abuse of process.

Held:

1.	It is arguable that the issue as to who owns the land following the decision of the National Court granting the application for judicial review in favour of the plaintiffs has not been determined by the National Court and is now subject of an appeal to the Supreme Court. Therefore, the plaintiffs' entitlement to royalty benefits derived from the land is dependent on this issue.

2.	The issue as to who owns the land is neither trivial nor speculative such that it ought to be brushed aside by the Court. On the other hand, it is a serious issue which required a proper consideration at the substantive hearing either in the National Court or in the Supreme Court. 
3.	The proceedings was not an abuse of process and the defendants' application was refused. 

4.	The plaintiffs' application for interim injunction was granted and the third defendant was restrained from making further payments of royalty to the first and second defendants until the determination of the issue of who owns the land either by the Supreme Court in appeal SCM No 01 of 2011 or the National Court in this proceedings. 

5.	The third defendant was ordered to place in a separate vote or portfolio in its accounts, all monies due as royalty to the first and second defendants until the issue of who owns the land was determined or clarified either by the Supreme Court in appeal SCM No 01 of 2011 or the National Court in this proceedings. 

6.	Costs of both applications in the cause.

Cases cited:

Tedias Koi Opints & Ors -v- Nekints Opints & Ors: OS No 272 of 2002 (Unnumbered & Unreported Judgment of 04th January 2011)

Counsel:

Mr P Kunai, for Plaintiffs
Mr K Peri, for Defendants

RULING
23rd April, 2012

1.	MAKAIL, J: The plaintiffs and the first defendants who are blood relatives had a dispute over royalty benefits derived from a land known as Kolum situated in the Kimil area of Waghi valley in the newly created province of Jiwaka. On it is a coffee plantation. The third defendant manages the coffee plantation and pays royalty to the landowners. The first defendants alleged they are sole beneficiary of the royalty and the plaintiffs claimed otherwise, alleging that they are equally entitled to it. The plaintiffs applied to restrain the defendants from dealing with the royalty pending among other orders, a declaration that the land is customary land and communally owned by them and an order for production of an account of the monies paid as royalty by the third defendant to the first and second defendants. At the same time, the defendants applied to dismiss the proceedings for being an abuse of process.

3.	From the affidavit of Mr Koeya Peri filed on 05th September 2011, affidavit of Kenneth Manjip Opints filed on 08th September 2011 and the affidavit of Tedias Koi Opints filed on 12th May 2011, it is not disputed in 1984, the Local Land Court sitting at Banz held that the land known as Kolum belonged to Opints Ngombamong. He is now deceased. He is the father of Koi Opints and Nekeints Opints. Koi Opints is the eldest son and his son is Tedias Opints and Kenneth Manjip Opints is the son of Nekeints Opints. Some years later, a dispute arose between them in relation to the ownership of the same land. 

4.	In 2001, the dispute was brought before the Mt Hagen Local Land Court and it held that the land belonged to Nekeints Opints. Aggrieved by that decision, the plaintiffs appealed to the Provincial Land Court. On 19th April 2002, the Provincial Land Court dismissed the appeal. They then filed an application for judicial review in proceedings OS No 272 of 2002 against the decision of the Provincial Land Court. On 04th January 2011, the National Court presided by David, J upheld the application for judicial review and quashed the Provincial Land Court decision: see Tedias Koi Opints & Ors -v- Nekints Opints & Ors: OS No 272 of 2002 (Unnumbered & Unreported Judgment of 04th January 2011). On 27th January 2011, the first and second defendants appealed to the Supreme Court in appeal SCM No 01 of 2011. This appeal is pending. One of the grounds of appeal is that, the National Court failed to declare who owns the land.

5.	Firstly, as I correctly understand Mr Peri of counsel for the defendants' submissions, the main ground of the defendants' application is that, the proceedings is res judicata, and should be dismissed. This is because the plaintiffs' primary grievance is distribution of royalty derived from the land between them and the first defendants. This issue was raised and settled in the decision of the National Court by Davani, J on 07th January 2004 in proceedings OS No 272 of 2002 between the same parties. 

6.	Her Honour dismissed an application for interim injunction sought by the plaintiffs to restrain further payments of royalty to the first and second defendants until the determination of the proceedings. If the plaintiffs were aggrieved by that decision, they should have appealed to the Supreme Court. As they have not, they are not entitled to challenge that decision in this proceedings. In bringing the same application in this proceedings in the guise of seeking a declaration that the land is customary land and communally owned by them and the first defendants, this is an abuse of process and the proceedings should be dismissed. 

7.	For the Court to dismiss the proceedings as being an abuse of process, it must be satisfied among other grounds that, a wrong mode of proceedings have been commenced to seek the relief sought, or that the case is a speculative one which will not succeed at trial. In the originating summons, the plaintiffs seek a declaration that the land is customary land and owned by late Opints Ngombamong. In addition to that, they seek an order for production of an account of all monies paid as royalty by the third defendant to the first and second defendants. They have not sought an order for payment of royalty.

8.	The last point is an important aspect of the case because as far as I can see, the plaintiffs are not seeking damages in terms of the monies paid out as royalty to the first and second defendants by the third defendant in this proceedings. All they are asking is for the defendants to give an account of all the monies paid out by the third defendant and distributed as royalty and that is because they say the land of which the royalty is derived, is customary land and owned by late Opints Ngombamong. As Koi Opints, Nekeints Opints, Tedias Opints and Kenneth Manjip Opints are blood descendents of Opints Ngombamong, they are entitled to communally own the land and receive any benefits derived from it. For all these years, the first and second defendants have not shared any royalty monies with them.

9.	In my view, the payment and distribution of the royalty cannot be fair and lawful if there is a dispute over the ownership of the land. One would have thought the dispute was settled when the National Court presided by David, J upheld the plaintiffs' application for judicial review and quashed the decision of the Provincial Land Court. That decision would have by necessary implication restored the original decision, being the 1984 Local Land Court decision. This would seemed to have been the case because while his Honour did not declare the plaintiffs as owners of the land, if the history of the dispute is traced back, it would end up at the 1984 decision of the Local Land Court at Banz. In other words, the land belonged to late Opints Ngombamong and according to custom, his descendants being Koi Opints, Nekeints Opints, Tedias Opints and Kenneth Manjip Opints would be the heirs in succession following his death, hence owners of the land and would be entitled to any benefits derived from it. The question of how much royalty benefits each may receive would be a matter of course.

10.	But it would seem, that does not appear to be the case. The first and second defendants still take issue with the decision of the National Court. Their position is affirmed by the fact that they have appealed to the Supreme Court. As noted above, one of the grounds of appeal is that, the National Court failed to declare who owns the land. They say the decision of the National Court is unclear as to who owns the land and want the Supreme Court to clarify it. In my view, in so doing, new set of events have developed since the refusal of the first application for interim injunction by Davani, J on 07th January 2004, thus prompting the present application. For this reason, I am not satisfied this proceedings is res judicata. 

11.	The issue of who owns the land is very much alive to this point such that it establishes an arguable case and a matter for the Supreme Court to determine or clarify. It also establishes that, the same point is before the National Court for determination or clarification in this proceedings. The defendants' ground for dismissal of proceedings is not premised on the basis that the same issue is before the Supreme Court for determination, hence the proceedings in the National Court should be dismissed but rather, the mode of proceedings is wrong because the plaintiffs seek damages for failure by the defendants to pay them their share of royalty. For this reason, I am of the view this issue remains open for determination by the National Court.

12.	In my view, this issue is neither trivial nor speculative and should be brushed aside by the Court. On the other hand, it is a serious one and requires proper consideration at the substantive hearing either in the National Court or in the Supreme Court. For this reason, I am not satisfied the proceedings is an abuse of process and should be dismissed. I refuse the defendants' application.

13.	As to the plaintiffs' application for interim injunction, depending on which Court will be the first to decide the issue of who "owns" the land, I consider it fair and necessary that any future royalty monies to be paid by the third defendant be preserved until the determination of this issue. This is because firstly, the plaintiffs' entitlement to royalty benefits derived from the land is dependent on this issue. Secondly, the balance of convenience favours the grant of an interim injunction. The first and second defendants do not deny receiving royalty monies since the third defendant took over the management of the coffee plantation. However, there is no evidence as to how they have used past royalty monies. 

14.	For example, were they given out to the first defendants solely for personal use, or some were invested somewhere, or injected into the operations of the second defendant, noting the second defendant is a company and would require money to run it? The plaintiffs say they do not know how much money has been paid by the third defendant to the first and second defendants in terms of royalty since the third defendant took over the management of the coffee plantation and how much has been distributed among the first defendants so far. That is why they have sought an order for the defendants to account for these monies. The final reason is, I consider damages would not be an adequate remedy for the plaintiffs. If future royalty payments are paid out by the third defendant, there is a real risk that they will be dissipated and the plaintiffs will be unable to recover them. 

15.	I uphold the application and order that until the issue of who owns the land is determined or clarified either by the Supreme Court in appeal SCM No 01 of 2011 or the National Court in this proceedings, the third defendant is restrained from making further payments of royalty to the first and second defendants. I also order the third defendant to place in a separate vote or portfolio in its accounts, all monies due as royalty to the first and second defendants until the issue of who owns the land is determined or clarified either by the Supreme Court in appeal SCM No 01 of 2011 or the National Court in this proceedings. Costs of both applications shall be in the cause and time abridged.

Ruling and orders accordingly.

____________________________________

Kunai & Co Lawyers: Lawyers for Plaintiffs
Warner Shand Lawyers: Lawyers for Defendants