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Love v Guo [2019] PGNC 374; N8064 (11 October 2019)

N8064

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 450 OF 2018 (CC1)

BETWEEN
ELLO J LOVE for and on behalf of LATE JONATHAN
AUDA LOVE – Chairman and for his own behalf and
for and on behalf of the rest of the Beneficiaries to Honiri ILG
Plaintiff

AND
HONIRI ILG
Second Plaintiff

AND
ALLAN GUO
First Defendant

AND
CHEN DONG YUAN
Second Defendant

AND
PAPUA NEW GUINEA HYDRO DEVELOPMENT LIMITED
Third Defendant

AND
PETER KEREKA, Manager Public Relations
PNG Relations PNG Power Limited
Fourth Defendant

AND
PAPUA NEW GUINEA POWER LIMITED
Fifth Defendant

AND
CHARLIE KUBEI & WILLIE TEBU
Sixth Defendant

Waigani: Dingake J
2019: 18^th July & 2^nd October

Cases Cited:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC 853

Counsel:

Mr. Lyons Putupen, for the Plaintiff
No Appearance, for the Defendant

11^th October, 2019

1. DINGAKE J: This is an application filed on the 11^th of July, 2019 for wide ranging interim injunctive relief captured in the amended notice of motion.
   
2. It needs to be stated at this stage that at the commencement of the hearing of this matter the applicants successfully sought leave to withdraw proceedings against the fourth and fifth defendants. The implications of this shall become apparent in due course.
   
3. It would appear from numerous exchange of letters between the lawyers representing the applicants and the Registry that the applicants have attempted, on numerous occasions, since filing this matter, to secure an urgent hearing with no success. However, a perusal of the papers filed of record do not make any case whatsoever that the matter should have been heard earlier.
   
4. The application is brought in terms of Order 12 Rule 1, Order 4 Rule 3 8 (2)(d) of the National Court Rules and Section 155 (4) of the Constitution.
   
5. The relief sought is not a model of clarity, and although supposedly for interim injunctive relief, it also, seeks a permanent injunction.
   
6. The facts upon which the relief is sought may be gleaned from three affidavits filed in support, documents No. 3, 4 and 5 filed of record. Several aspects of the aforesaid affidavits are argumentative in nature and do not outline the bare facts that support the relief sought. This makes it difficult to distil the material facts.
   
7. Having withdrawn the proceedings against the fourth and fifth defendants, perhaps the applicants should have filed fresh or amended papers to make the case against the remaining defendants much clearer. However, the applicants chose to proceed on the basis of the papers as filed that still make reference to the fourth and fifth defendants – a situation that creates serious difficulty distilling the facts that apply only to the remaining defendants.
   
8. Having considered all the evidence filed by the applicants and disregarding the argumentative aspects thereof, the applicants central complaint seem to be that the defendants are destroying their customary land in the process of constructing the hydro-electricity project in Evevu Village, Koiari LLG Central without compensation agreement in place.
   
9. Essentially the applicants aver that they are customary landowners of Evevu Village, Hiri Rural (Koiari) LLG, Central Province, Papua New Guinea, and that their land rights and or interests had been affected by the defendants conduct in the construction of the Brown River Hydro Electricity Project. This project was opened in 2017.
10. The applicants aver that the defendants, as early as 2015, when they commenced construction damaged the environment and that such damage is huge and continuing. They complain that the defendant have not honoured their Temporary Land Use and Memorandum of Understanding (MOU) commitments. They also complain that the construction is ongoing but issues related to land compensation, equity and royalty participation, assessment of future damages have not been addressed.
    
11. The law on the grant of interim injunctions has been set out in the case of Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC 853. The five (5) legal principles applicable are as follows:
    1. Whether or not there is a serious question to be tried and that is arguable?
    2. Whether an Undertaking as to Damages has been given?
    100. Whether the damages would be adequate if the interim Orders were not granted?
    4. Whether balance of convenience favours the granting of the interim orders?
    5. Whether the interest of justice requires the grant of interim Orders?
12. In my considered opinion the correct approach is not a mechanical one that just ticks the boxes, but rather the Court must take a holistic view of the entire matter and come to a determination that is fair and appropriate having regard to the material evidence placed before it.
    
13. On the whole, in light of the evidence placed before this Court there does not appear to be a serious question to be tried. I do not think, on the evidence before me that the applicants have made out a sufficiently strong case on the question of infringement of any rights or interests. Firstly, the nature and extent of the damage is unknown. There are no sufficient particulars given. This is particularly so because on the evidence the matter of construction dates way back to 2015, if not earlier, and on the evidence there is no cogent evidence why the applicants have not approached Court earlier.
    
14. In my mind the lack of sufficient particulars may well suggests frivolity and vexatiousness. Furthermore, the evidence placed before me is littered with arguments making it difficult to assess where the balance of convenience lies.
    
15. Quite plainly, on the evidence I cannot say that the balance of convenience favours the plaintiffs. Instead, I find that the balance of convenience favours the denial of the interlocutory relief sought. The applicants must stand or fall on the evidence placed before the Court. The evidence placed before the Court is of a nature that the granting of the relief sought cannot be granted.
    
16. I am alive to the fact that the plaintiffs have made an undertaking to pay damages. However, that on its own is not sufficient.
    
17. In addition to all the above, there are several unsatisfactory aspects of this matter. After the withdrawal of proceedings against fourth and fifth defendants, it may have been prudent to file fresh or amended papers to establish a clear case against the remaining defendants. Furthermore, the averments relating to the membership of the second plaintiff and the authority given to litigate is not satisfactory because although over 60 members appear to have given authority for this litigation there is no information on the total number of the membership of the second plaintiff in order to establish whether the number of the members that gave authority to litigate constitute the majority.
    
18. More significantly, it seems to me that any damages to the environment and failure to pay compensation or royalties is a matter which if duly proved may warrant compensation. This finding militates against granting the relief sought. In a nutshell the applicants have simply failed to make out a case for the relief sought.
    
19. In the result, the application is without merit and it is dismissed with costs.

___________________________________________________________Lyons Putupen & Associates Lawyers: Lawyers for the Plaintiff
Sirae & Co. Lawyers: Lawyers for the Defendant