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Osi v Sungi [2017] PGNC 390; N7180 (19 December 2017)

N7180

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1014 of 2017

BETWEEN:
CHARLES OSI
for and on behalf of himself and on behalf of the fifty-three
(53) individual clan leaders whose consent and authority is
annexed as Schedule A to this Statement of Claim
Plaintiff

AND:
JOSEPH SUNGI
in his capacity as Custodian for Trust Land
First Defendant

AND:
BEWANI PALM OIL DEVELOPMENT
LIMITED
Second Defendant

AND:
BEWANI OIL PALM PLANTATIONS
LIMITED
Third Defendant

AND:
HON. DOUGLAS TOMURIESA, MP, in his
capacity as the MINISTER FOR FORESTS
Fourth Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Hartshorn J

2017: October 25^th

: December 19^th

Application for interim injunction and restraining orders

Cases Cited:
Papua New Guinea Cases

Bernard Kosie v. John Kapi Nato [2015] N6263
Behrouz Boochani v. State (2017) SC1566
Michael Gene v. Hamidian Rad [1999] PNGLR 444
Puri Ruing v. Allan Marat (2012) N4672
Rabaul Shipping Ltd v. Rupen (2008) N3289
Telikom (PNG) Ltd v. ICCC and Digicel (2008) SC906
Wan Global Ltd v. Luxurflex Ltd (2012) SC1199

Overseas Cases

Films Rover International Ltd v Canon Films Sales Ltd [1987] 1 WLR 670

Counsel:

Mr. J Holingu, for the Plaintiff
Mr. J. Brooks, for the Third Defendant

ORAL DECISION DELIVERED ON

19^th December, 2017

1. HARTSHORN J: This is a decision on a contested application for an interim injunction and restraining orders.
   

Background

2. The plaintiff pleads that he represents himself and 53 others who own customary land contained within a State Lease described as Portion 160C Milinch Oeneka (SW) and (SE) Bewani (NW) & NE) Fourmil Vanimo and Aitape West Sepik province now the subject of a Special Agriculture and Business Lease (SABL).

3. The plaintiff claims that the grant of the SABL to the second defendant Bewani Palm Oil Development (BPOD), the sub lease by BPOD to the third defendant Bewani Oil Palm Plantations Limited (BOPP), a Project Agreement between them, and a project agreement between the fifth Defendant the State and BOPP are all unlawful, invalid and of no force or effect.

4. The plaintiff seeks substantially, amongst others, a permanent injunction restraining BPOD and BOPP from being present on his customary land and from carrying out land clearing and logging activities on his customary land. He also seeks declaratory relief and that an account be taken. Damages are also sought.

This application

5. The plaintiff seeks to restrain BPOD and BOPP from conducting logging related activities on or in relation to the subject land and seeks that all money earned by BPOD and BOPP from logging related activity from 1^st September, 2017 be paid into the Registrar’s Trust Account. Further the plaintiff seeks that this proceeding be heard together with proceeding WS 603 of 2017 John Wuni v. Joseph Sungi & Ors.

6. The plaintiff submits that the relief sought should be granted as:

a) It is necessary to preserve the status quo of the plaintiff land and forests;

b) He wants to stop any further land clearing, all logging activity and the export of forest products after 31^st August 2017;

c) The purported rights of BPOD and BOPP to carry out logging and planting on his land no longer exists as the SABL title was surrendered and cancelled;

d) BPOD and BOPP are still operating;

e) Natural vegetation, trees and streams have been damaged.

7. BOPP submits that the relief sought should not be granted as:

a) This claim should have been brought by way of the judicial review procedure and not as a commercial constructive fraud claim;

b) The claim being purportedly a representative claim does not comply with the requisite representative requirements;

c) The claim is statute barred pursuant to s.16 Frauds and Limitations Act;

d) The plaintiff does not come to court with clean hands and is guilty of laches and acquiescence given that the plaintiff signed the subject Project Agreement and has known of the existence of the SABL since 2008;

e) Damages would be an adequate remedy and the balance of convenience does not favour the relief being sought.
Consideration

8. The principles upon which the court can grant an interim or interlocutory injunction are well settled and were recently repeated by Salika DCJ and Hartshorn J in Behrouz Boochani v. State (2017) SC1566 at [30] as follows:

“The leading authority is a decision of the House of Lords in American Cyanamid Company v. Ethicon Limited [1975] UKHL 1; (1975) AC 396. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525. These principles have been reaffirmed by the Supreme Court in Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853.

31. In Chief Collector of Taxes v. Bougainville Copper Limited [2007] SC 853, the Supreme Court said at 31:

“In our jurisdiction the principles relevant to injunctive reliefs (sic) are well settled. In Golobadana No. 35 v. Bank of South Pacific, Kandakasi J. ... concluded as follows:

“A reading of these authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is a discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant then an injunctive order should not be granted”.”

32. Similarly, in Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors [2010] SC 1075 at [53], in a decision in which Hartshorn J. dissented on matters not currently relevant, His Honour said:

“The law on injunctions is settled in this jurisdiction. Injunction is an equitable remedy. It is a matter for the discretion of the Court to refuse or grant the relief sought. In order for an injunction to be granted, the applicant must demonstrate to the Court that there is a serious case to be tried on the substantive proceedings. The leading authority is a decision of the House of Lords in “American Cyanamid Company v Ethicon Limited (1975) 1 All ER 594. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott (1997) SC525 and Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853.”

33. If damages would be an adequate remedy then even if there is a serious question to be tried interlocutory injunctive relief should be refused: Airlines of PNG v. Air Niugini Ltd (2010) N4047 at 22 and 23 and PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 at 30, PAC LNG International Ltd v. SPI (208) Ltd (2014) N5681 [24], Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075 [53].

9. In regard to whether the plaintiff has a serious question to be tried, in the relief that he claims, he seeks amongst others, that the subject SABL is unlawful, invalid and of no force or legal effect. To determine whether the SABL is unlawful or invalid the court must review it and the circumstances concerning its making. Notwithstanding that, it is not stated in the statement of claim that the declaratory relief sought is in the nature of a prerogative writ such as certiorari or mandamus, when the purpose and substance of the proposed relief are considered, in addition to the language of the proposed relief, it is my view that orders in the nature of a prerogative writ are sought.

10. As orders in the nature of a prerogative writ are sought, but application has not been made pursuant to Order 16 National Court Rules, the application for the relief sought is an abuse of process. In this regard I refer to Michael Gene v. Hamidian Rad [1999] PNGLR 444, Telikom (PNG) Ltd v. ICCC and Digicel (2008) SC906, my decisions in Wan Global Ltd v. Luxurflex Ltd (2012) SC1199 and Puri Ruing v. Allan Marat (2012) N4672, the decision of Lay, J in Rabaul Shipping Ltd v. Rupen (2008) N3289, and Bernard Kosie v. John Kapi Nato [2015] N6263. As it is an abuse of process the plaintiff has not established that he has a serious question to be tried.

11. I note also the other submissions concerning non-compliance with representative requirements and also limitation. I do not have to consider these issues in depth, given that I am of the view that the proceeding is an abuse of process. As the plaintiff has not established that he has a serious question to be tried, he is not entitled to the interim relief that he seeks.

12. If however, I assume for present purposes only that there is a serious question to be tried, the next question is whether damages are an adequate remedy. In this instance, the plaintiff claims amongst others, damages. He presumably is of the view therefore, that damages are an adequate remedy. Further the plaintiff signed the subject Project Agreement and has been receiving royalties. I am satisfied that damages would be an adequate remedy.

13. If however damages are not an adequate remedy then the balance of convenience requires consideration.

14. BOPP submits that it stands to suffer significant damages and injustice, if the injunctions are granted. All stakeholders including the State, stand to suffer significant damage. The landowners will not receive their royalties, premiums and levies.

15. BOPP has provided evidence of the significant damage that BOPP and others will suffer. It is submitted also that there is a very real risk that damages will not be paid by the plaintiff, if the injunctions are granted and the plaintiff loses substantively.

16. Further the plaintiff has known about the lease and the oil palm project for nearly a decade, and only now seeks to injunct the project. It is also submitted that BOPP has invested nearly K1 billion on the project to date. The landowners and the State have guaranteed the project, the investment is enormous and the benefits to all stakeholders are significant.

17. It is also submitted by BOPP that the plaintiff has signed a Mediation Agreement agreeing to lift injunctions and acknowledging that the majority of landowners support the subject oil palm project.

18. In these circumstances, I recall the following statement of Hoffman J in Films Rover International Ltd v. Canon Films Sales Ltd [1987] 1 WLR 670 at 680:

“The principal dilemma about grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the Court should take whichever course appears to carry the lower risk of injustice if it turns out to have been ‘wrong’ in the sense I have described.”

19. The principle contained within this passage has been affirmed in Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831, Canopus No.16 Ltd v. Mausi Trust Co (2008) N3401, Talisman Energy Niugini Ltd v. Bismark Maritime Ltd (2015) N6800 and Mobil Oil New Guinea Ltd v. Yakainga Business Group (Inc) (2014) N6661.

20. After taking all factors into account. I am satisfied that the lower risk of injustice if my decision turns out to be wrong, is to refuse the relief sought. Consequently, as I am not satisfied that the plaintiff has established that he has a serious question to be tried; that damages would be an adequate remedy and that the balance of convenience does not favour the relief being granted, the relief sought by the plaintiff should be refused.

Orders

21. The formal orders of the Court are:

a) The relief sought in paragraphs 1, 2, 4, 5, 6, and 7 of the notice of motion of the plaintiff filed 2^nd October 2017 is refused;

b) The plaintiff shall pay the third defendant’s cost of and incidental to the said notice of motion;

c) Time is abridged.
_______________________________________________________________________
Holingu Lawyer: Lawyers for the Plaintiff
Ashurst: Lawyers for the Third Defendant