N8313
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 771 OF 2019

BETWEEN:
NASOFONG GORANDING
Plaintiff

AND:
JERRY MANGKEPE
First Defendant

AND
ALBERT NOGONE
Second Defendant

AND
LOW IMPAC LOGGING LTD
Third Defendant

Lae: Dowa AJ
2020:  18th March &13th May

PRACTICE AND PROCEDURE – application to extend interim restraining order – reasons given – consideration of – interim restraining order cannot continue – restraining order set aside

Cases Cited:

Leda v Setting Bay Lumber Logging Company (2011) PNG NC 194, N4542
Maiva v Marl (2012) PNG N4696
Powi v Southern Highlands Provincial Government (2006) SC844
Sky Development Corporation Ltd v Emau (2017 N6807)
Wamena Trading Ltd v Civil Aviation Authority (2006) PNGLR 

Counsel:

K. Kevere, for the Plaintiff
K. Keindip, for the First Defendant
J. Kusip, for the Second & Third Defendant

JUDGMENT

13thMay, 2020

1.	DOWA AJ:	This is a ruling on whether to extend Interim Restraining Orders obtained by the Plaintiff on 4th December 2019.

2.	I heard this matter on 18th March 2020.  At the commencement of hearing, there was an application by two other parties, Albert Nogone for Lumeng Clan, and Low Impact Logging Ltd.  By consent of the Plaintiff and the Defendant, they were joined as second and third Defendants, pursuant to Order 5 Rule 8(1)(a) and Order 12 rule 1 of the National Court Rules.

3.  	I then proceeded to hear the Plaintiff’s application seeking to extend the Interim Restraining Orders obtained on 4th December 2019.  The Defendants opposed the application, and after hearing parties I reserved my ruling, which I now deliver.

Restraining Orders

4.	On 4th December 2019, the Plaintiff obtained the following Interim Restraining Orders:

“1.	The Defendant, his servants and or agents including the PNG Forest Authority Officers are restrained from collecting and distributing the logging payments in the form of Royalty and Project development Levies which monies due and accrue from the logs harvested from clans in Yombong village until the court deals with to completion the substantive matters.

2.	The Defendant, his servants, relatives and or agents are restrained from signing new consent forms allowing the logging company to enter and harvest the logs from the land own by the Plaintiff and his Seven (7) other land owned clans in Yombong village.

3.	That Low impact logging Company Limited is restrained from conducting logging operations in Yombong village until the Court deals with to completion the substantive issue on the Company Consent Forms that the Defendant had signed giving the company access to enter and conduct the logging operations on the parcels of land belonging to the Eight (8) land owning clans who had been denied the right to endorse the same.

4.	Orders 1,2 & 3 are granted on an Interim basis.”

5.  	The matter returned to Court, whether to extend, make permanent or discharge these orders through inter party hearing.

Facts

6.	The case relates to ownership and distribution of Logging payments over customary land at Yombong village, Finschaffen District. The facts are disputed by the parties, as to customary land ownership, clan leadership, land mediation Agreements and the engagement of the Logging Company and the Department of Forests.

The Plaintiffs

7.	The Plaintiff, Nasofong Gorading alleges, he is the Clan leader of OfongsogoTongone Clan, and he represents seven other clan leaders of Yombong Village who own land commonly known as Ofongsogo Clan Land. The Plaintiff alleges, only he and seven other clan leaders named in the Schedule to the Originating Summons are the true clan leaders and customary land owners. The Plaintiff alleges, the First Defendant, Jerry Mangkepe is not a clan leader, nor a true owner of the customary land in question.

8.	The Plaintiff alleges, that in a Land Mediation, conducted in 28th April 2010, he was recognised as the true landowner and leader under an Approval of Agreement – Form 10 issued under the Lands Dispute Settlement Act. The Plaintiff alleges, the First Defendant has in his possession one Approved of Agreement dated 30th March 2007 which is not genuine, and not approved or agreed to by all clan members.

9.	The Plaintiff alleges that the first Defendant used the Approval of Agreement dated 30th March 2007to deal with the Logging Company, the third Defendant and Office of Department of Forestry to collect and use royalties to the detriment of the other genuine land owners.

10.	The Plaintiff said he has the consent and authority of the other seven (7) clan leaders to institute these proceedings.

First Defendant

11.	The First Defendant says, he is a genuine land owner of Togome Land.  He was given recognition as leader, which was sealed in a Local Land Court Approval of Agreement (Form 10) and a record of proceedings (Form 7) issued on 30th March 2007.The First Defendant says, the Plaintiff is not a legally recognised leader. The Plaintiff’s Approval of Agreement dated 28th April 2010was not properly sealed by the Local Land Court. The First Defendant further alleges that the Plaintiff does not represent all the seven (7) clan members.

12.	The First Defendant, alleges that since the Plaintiff is challenging the Court ordered Approval of Agreement of 30th March 2007, that would be a matter of appeal to the Provincial Land Court, and not the National Court.

Second Defendant – Albert Nogene Endenuka

13.	Albert Nogene Endenuka is the Second Defendant.  The Second Defendant says he is the clan leader of Lumeng clan.  Lumeng clan is a major clan in Yombong Village, and they share common borders with Mugisung village of Yabim/Mape LLG, Finschaffen District.

14.	The Second Defendant says he was surprised to see two separate Approval of Agreements (Form 10 and Form 7) produced by the Plaintiff and the First Defendant, covering Lumeng Clan Land.  The Second Defendant disputes the Form 7 and Form 10 issued on 30th March 2007.  He said, the Approval of Agreement does not contain any agreement reached between the customary owners sharing common boundaries between Yombong/Mugisung and Butala.

15.	The Second Defendant’s position is supported by the Plaintiff that there was no mediation in October 2006, and so the Approval of Agreement of 30th March 2007 is questionable. The Second Defendant, also said, the Plaintiffs Approval of Agreement of 28th April 2010 was incomplete, and no agreement was reached at all. The Second Defendant says, neither the Plaintiff nor the First Defendants are true customary Land owners in so far as it encroaches on his Lumeng clan land, and other cross-boundary lands owned by other clan members.

16.	The Second Defendant says, the Area the subject matter of the proceedings are inside a Forest Management Agreement, and the Third Defendant has a Timber Permit over the area. The Timber Permit No. 13-38 is issued under the Project Area Buhem Mongi/Mogi Busiga FMA. Both the Plaintiff and the First Defendant’s clans and their Yombong village are inside the FMA area.

17.	According to the Second Defendant, the declarations sought by the Plaintiff touch on ownership of customary land, which have not been properly dealt with by the local land court under the Land Dispute Settlement Act, and they are not matters for this Court to deal with.

3rd Defendant:  Low Impact Logging Ltd

18.	The third defendant is a Logging Company.  The Company has a Timber Permit and is the current holder of Forest Management Agreement with the Department of Forestry.  The Company was granted the Timber Permit for the Project area of Buhem Mongi/Mongi Busiga, in the Finschhafen District. The Project area covers the Land Area the subject of these proceedings. The Third Defendant says, the proceeding relate to issues of ownership and leadership tussle between and amongst the clans.  The Logging Company is not involved and is not a party to this dispute.

19.	The Restraining orders of 4th December 2019 has caused financial hardships as they had to cease operations.  The third Defendant said they have been compliant with its obligations under the Forest Management Agreement.

Issues

20.	After hearing from all parties, the following issues emerge:

1.	Whether restraining orders issued on 4th December 2019 be extended, varied, made permanent or be discharged.

2.	Whether the proceedings be dismissed on the face of technical issues raised by the Defendants.

Principles for setting aside Ex parte Inter-locutory Orders

21.	The case of Wamena Trading Ltd v Civil Aviation Authority (2006) PNGLR 1, pages 236, set out the following principles:

“9.      The following principles have been found to apply to an application to vary or discharge an interlocutory order:
A.	The court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order;
B.	an application to dissolve an injunction should not simply be an opportunity for the parties to reargue an earlier inter parties order;
C.	if the interlocutory order is the subject of an appeal the court should be slow to make an order which is likely to interfere with the review powers of the appellate Court;
D.	some of the circumstances in which an interlocutory order might be set aside are:
a.	where the conditions or stipulations of the order have been met and the order is no longer necessary.
b.	If it is subsequently discovered by the Court that the interlocutory order was founded on wrong principles;
c.	changes in relevant circumstances, including the failure of the party enjoying the order to act responsibly after obtaining it;
d.	it is shown that the party obtaining the order has not come to the Court with ‘clean hands’; See Mainland Holdings Ltd v Paul Stobbs N2522 (Injia DCJ)
e.	where the plaintiff has failed to prosecute its’ action after obtaining an injunction: See National Housing Corp. v  Yama Security Services Pty. Ltd N1985 (Sevua J);
f.	if the Court finds that it was misled on the earlier application: See Mark Ekepe v William Gaupe N2694 (Cannings J);
g.	on an ex parte interlocutory application there has been a failure to make a full disclosure of relevant material both for and against the applicant’s case: See Sioti Bauf and Lovoi Nadai v Poliamba Pty. Ltd [1990] PNGLR 278, Golobadana No 35 Ltd v Bank of South Pacific Ltd N2309 (Kandakasi J);
E.	An interlocutory order should not be set aside if the application is merely the opportunity for the applicant to produce evidence which was available and could have been produced when the injunction was first argued inter parties: See Mainland Holdings Ltd v Paul Stobbs (supra)”.
Whether the Plaintiff misled the Court

22.	The First Defendant submitted that the Plaintiff has misled the Court in claiming that he was representing and acting for the seven (7) other clans.

From the evidence produced by the First Defendant, and the Second Defendant, the Plaintiff did not represent the entire 7 clans.  The clan leaders named in the proceedings did not sign their consent and authority to give the Plaintiff the authority to represent them.  The Second Defendant, Mr Nogone who represents the Lumeng clan, stated in his affidavit that the Plaintiff does not represent Lumeng clan in these proceedings.

23.	In the cases of Leda v Setting Bay Lumber Logging Company (2011) PNG NC 194, N4542, and Maiva v Marli (2012) PNG N4696, the Court stated that in a class action case, all persons wanting to be Plaintiffs must sign the consent form authorising the principal plaintiff to represent them.

24.	In the present case, I find the plaintiff failed to file the necessary Authority, from the other seven (7) clan leaders, authorising him to act for them.

25.	Secondly, the First Defendant alleges that the Plaintiff misled the Court in relying on his Approval of Agreement and Record of Proceedings (Form 10 & Form 7) which were not sealed by the Local Land Court. This assertion is also supported by the Second Defendants alleging that the mediation conducted in March 2010 was not concluded and it remains incomplete.

26.	I find this as a matter of contention, rather than misleading.  The facts surrounding the legality of the Plaintiffs Approval of Agreement of 28thApril 2010 is disputed and remains yet to be verified.

Whether the Plaintiff failed to make a Full disclosure of relevant material.

27.	The First Defendant submitted that the plaintiff failed to disclose that he and the seven other clan members had not exhausted the Appeal process of the Local Land Court decision under section of the Land Dispute Settlement Act.  Instead they filed the Court proceedings invoking the inherent powers of the National Court under Section 155(4) of the Constitution.

28.	I find the First Defendants submission has merit.  The Plaintiff is challenging the First Defendants Approval of Agreement dated 30th March 2007.  It is an order of the Local Land Court.  The only way to set aside, is by way of appeal to the Provincial Land Court under Section 54 of the Land Dispute Settlement Act.

29.	In choosing to come direct to the National Court using Section 155(4), of the Constitution amounts to an abuse of the process.  In Sky Development Corporation Ltd v Emau (2017 N6807), and Powi v Southern Highlands Provincial Government (2006) SC844, where the Court said, that invoking Section 155(4) of the Constitution would be an abuse of the process where there are existing processes and procedures under respective legislations.

Whether The Interim Orders were granted on an Erroneous Legal Basis

30.	The First Defendant alleges that the Plaintiff did not have a proper and valid Approval of Agreement dated 28th April 2010.  The Plaintiff relied on an agreement which was not sealed by the Local Land Court under Section 19 of the Land Dispute Settlement Act.

31.	Again, my findings are the same as those I find in respect to the First Defendants Approval Agreement dated 30th March 2007.  The validity of these two Agreements remain disputed.  If this agreement has not been appealed to the Provincial Land Court, it remains despite questions surrounding its validity.

32.	Therefore I cannot safely conclude that the interim orders were erroneously granted.

Other relevant principles.

33.	There are other considerations the Court should also take into account in dealing with interim injunctions;

1.	Is there action that is not frivolous or vexatious.
2.	Is there a serious question to be tried.
3.	Is there a real prospect that the applicant will succeed in the claim for an injunction at the trial.

Is there action that is not frivolous or vexatious

34.	In the originating summons the Plaintiff is seeking a series of declaratory orders which I summarise as follows:

1)	    A declaration that the First Defendant, Jerry Mankape has not been a customary land owner of Yombong village.

2)	    A Declaration that the First Defendant’s claim as customary owner is unlawful and contrary to Section 43 of the Land Dispute Settlement Act.

3)	    A declaration that the First Defendants Approval of Agreement dated 30th March 2007 did not declare or approve the First Defendant as owner of the customary land in Yombong Village.

4)	    A declaration that the Plaintiff and his seven clan leaders be confirmed as the proper customary land owner leaders of Yombon village.

5)	    A declaration that the Approval of Agreement dated 30th March 2007 relied on by the First Defendant be declared null and void.

6)	    An order that that the First Defendant be refrained from using the Approval of Agreement dated 30th March 2007 to collect and distribute royalty payments from logging operations by the Third Defendant.

7)	    An order that the Plaintiff and other the other seven (7) clan leaders be allowed to collect the royalty payments using the Approval of Agreement dated 28th April 2010.

35.	It is clear the dispute is over land, and its leadership.  There are two competing Approval of Agreements each party is relying on.  Each party is challenging each other on the validity of these two Land Approval Agreements, purportedly issued by the Local Land Court.

36.	Where there is underlying issues as to customary land ownership, the National Court cannot competently deal with the matter. In so doing it will only encroach on the duties of both the local and Provincial Land Courts to deal with, under the provisions of Land Dispute Settlement Act.

37.	Since the parties are questioning each other’s Approval of Agreement, the right place to resolve the matter would be the Provincial Land Court which has the jurisdiction to deal with, at the instance and invitation of the parties through the appeal process.

38.	To this end, I am of the view that the proceedings may be frivolous and vexatious.  In the end, this Court might eventually dismiss the proceedings for an abuse of the process.

Is there a Real Question to be tried.

39.	I note there are real questions to be tried by an appropriate judicial Authority to decide who is the genuine customary owner of Offongsogo Clan Land of Yombong village, or which of the Approval Agreement is genuine, and who should rightfully collect the royalty payments.

40.	However, I am of the view that this Court cannot proceed to hearing and determining those issues, as the Court lacks, jurisdiction.  There is an existing procedure under the provisions of the Land Dispute Settlement Act for parties to follow.

Is there a real Prospect that the Applicant will succeed in the claim for an injunction at the trial.

41.	I am of the view that there is no real prospect of the Applicant/Plaintiff succeeding in obtaining the declaratory and other orders sought in the current originating summons, for reasons I have given above.

Balance of convenience

42.	The continuation of the Interim orders will affect the operations of the third Defendant.  I am not convinced that the undertaking as to damages, filed by the Plaintiff will adequately compensate the economic loss currently sustained by the third Defendant.

43.	The third Defendant is not a party to the dispute between the Plaintiff and the First Defendant.  The Third Defendant has a Timber Permit to do logging in the Area issued by the Department of Forest, and the National Forest Authority.  Their operations cannot be disrupted, as long as they remain compliant with the Forest Management Agreement.  I note that the royalty payments are managed by the Forestry Department.  It is an administrative matter which the third Defendant has no involvement. Therefore, the balance of convenience does not favour the continuation of the interim orders.

Conclusion

44.	The Plaintiff framed these proceedings on the premises that his position and interest as land owner of Ofongsogo Ton gone Clan along with the seven others are not being given the due recognition and are being overlooked by the First and the third Defendant and the Department of Forest.

45.	I find from facts disclosed in the proceedings that the Plaintiff’s claim and interest he is seeking to protect is vigorously disputed. I find the plaintiffs request for declaration as a customary land owner is also disputed, and is not an appropriate matter for this Court to deal with.

46.	I find the Plaintiffs request for a declaration that the first Defendant is not a rightful customary land owner of Ofongsogo Clan Land, is also disputed and is not an appropriate matter for this Court to deal with.

47.	I find the Plaintiffs request for a declaratory order nullifying the First Defendants Approval of Agreement issued by the Local Land court dated 30th March 2007 is not an appropriate matter for this Court to deal with.  The procedures and process involved in nullifying a decision of the Local Land court are set out in the Land Dispute Settlement Act.

48.	I find the Plaintiffs request for a declaratory order validating his Approval of Agreement issued by the Local Land Court dated 28th April 2010 is contested. It is not an appropriate matter for this Court to deal with.  The parties are to follow the procedures and process under the provisions of the Land Dispute Settlement Act.

49.	I find the Plaintiffs request for nullification of the first Defendants dealings as landowner with the third Defendant is likely to disturb the current status quo.  As I have found, the Plaintiffs own claims are disputed, and the process has not been followed, this court can not disturb the current status quo.

50.	I note, the grant of and the extension of the interim restraining orders sought in paragraphs 6, 7 and 8 of the Originating Summons depends on the findings and declarations, in respect of Orders 1-5 sought in the Originating Summons.  Since the substantiative orders sought in Orders 1-5 lack merit, the restraining orders have no footing.

Interim Restraining Orders

51.	For reasons and findings in my ruling above, the restraining orders cannot continue.  The Plaintiff and the seven clans may have genuine concerns, but those have to be addressed in a proper forum, and follow the proper process.  In respect of the seven (7) clans, they have not properly authorised the lead Plaintiff to represent them.

Orders

52.     The formal orders are:

	(1)	The interim orders given on 4th December 2019 are set aside.
	(2)	The Parties are to address the court on the fate of the proceedings.
	(3)	Cost be in the cause.

__________________________________________________________
Public Solicitor		:	Lawyer for the Plaintiff
Kesno Lawyers		:	Lawyer for the First Defendant
Kusip Lawyers		:	Lawyer for the Second & Third Defendants