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Momase Procurement & Supply Services Ltd v Herman [2018] PGNC 21; N7088 (19 January 2018)

N7088

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS No. 602 of 2017

MOMASE PROCUREMENT & SUPPLY SERVICES LIMITED

V

PAUL HERMAN aka PAUL KIALE
Kimbe: Miviri AJ
2018: 19^th January

PRACTISE & PROCEEDURE - notice of motion-preservation of property-status quo maintenance-service of motion-no appearance respondent-undertaking as to damages-balance of convenience-serious issue to be tried-respondent in possession of property-ownership title to property-pending os proceedings-temporary injunction granted.

Cases cited:

Public Officers Superannuation Board v Imanakuan (2001) SC677

Rural Development Bank v Laka [2007] PGSC 7; SC 897

Reimann v Skell [2001] PGNC 84; N2093

Counsel:

PP Yange, for Plaintiff Applicant

No Appearance for Respondents

RULING

19^th January, 2018

1. MIVIRI, AJ: This is the ruling of the Court on an application by Motion that pending the final determination of this proceedings. The Defendant/Respondent and his family members, agents and servants are restrained from carrying out any improvements on the property Allotment 4, Section 8, Kimbe Township described in volume 90 folio 60 and the orders are sought pursuant to the National Court Rules Order 14 Rule 10.
   
2. Order 14 Rule 10 is headed preservation of property question of which is before the Court as to that property and for the court to make orders for its detention, custody, or its preservation. And it follows that this order may include access to the property or denial thereof dealing with it in any way.
   
3. The Application is moved ex parte this morning and there is before me an affidavit of service handed up with leave of court dated todays date 19^th January, 2018 sworn by Ernest Pepe, Police Officer based here at the Kimbe Police Station who deposes that he on the 17^th January, 2018 served a letter from Islands Legal to Paul Herman of Section 8, Allotment 4, P. O. Box 398, Kimbe annexed to the affidavit marked as annexure “A” under hand of Paul P Yange advising of OS 602 of 2017 titled as in this proceedings being heard on the Friday 19^th January, 2018 todays date. Service has been effected in discharging the requirements of fairness and that the Defendant Respondent is not denied nor is he prejudiced to his cause in the matter: Public Officers Superannuation Board v Imanakuan (2001) SC677; Rural Development Bank v Laka [2007] PGSC 7; SC 897
   
4. The substantive proceedings pending now relates to the subject property detailed above which is the subject of a dispute over the title ownership to it which is before this court yet to be determined and to be settled.
   
5. There is a serious question to be tried as to the ownership of the subject property and it is pertinent that it must be maintained in its status quo without any dealings on it either by the defendant respondent or any other person related or agent or servants. Plaintiff is claiming he has legal documents evidencing his ownership and title to the property and that the Defendant Respondent is illegally on the subject property.
   
6. The balance of convenience also favours that the status quo of the property be maintained and for the applicant he has filed an undertaking as to damages dated the 20^th July, 2017 which effectively is that he will undertake to indemnify the Defendant upon the orders that it now seeks should the Defendant Respondent in anyway suffer damages as a result thereof.
   
7. The interlocutory order restraining will not prejudice the respondent as it relates to preservation and maintaining status quo of the subject of the dispute. I am satisfied that the matter is urgent that the respondent has been duly served and that delay in the hearing may result in mischief. That there is proper affidavit material presented before me set out above on the basis of which I am satisfied on the balance of probabilities that the motion should be granted as applied: Reimann v Skell [ 2001] PGNC 84; N2093
   
8. And that is that Pending the final determination of this proceedings, I make interlocutory orders that the defendant, his family members, agents and servants are restrained from carrying out any improvements on the property described as Allotment 4, Section 8, Kimbe, West New Britain more particularly described as Volume 90 Folio 60.
   
9. It is important that the parties bring this matter to finality on the substantive issue before the court upon which this interlocutory order is made. But I grant liberty to the parties to seek further orders or directions should the justice of the case otherwise warrants.
   

Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Islands Legal Services : Lawyer for the Plaintiff/Applicant

No appearance : Lawyer for the Defendant