N8554
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 405 OF 2018

DADS INVESTMENT CORPORATION LIMITED formally known as ERIC TRADING PTY LTD
Plaintiff

V
BENJAMIN SAMSON AS REGISTRAR OF TITLES
First Defendant

AND
JUSTIN TKATCHENKO AS MINISTER FOR LANDS AND PHYSICAL PLANNING
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
JAMIE MAXTONE GRAHAM
Fourth defendant

Waigani: Miviri J
2020: 25th September, 2nd October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of motion –Order 16 Rule 3(8)(b) NCR – Interim Injunction – Property of – Registered Proprietor – Dealings real on not Speculation – basis for injunction – evidence insufficient – constant amendments pleadings statement in support & originating summons – Leave granted – arguable case – delay inordinate – overall interest of Justice – undertaking as to damages – balance of convenience – balance not discharged – motion denied – cost follow event.

Cases Cited:
Papua New Guinea Cases
Southern Highlands Provincial Government v National Housing Corporation [2001] PGNC 104; N2110 
McHardy v Prosec Security and Communications Limited [2000] PGSC 22; SC646 
Nobetau v Bougainville Executive Council [2020] PGNC 176; N8395 
Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers & Seamens Union & Lawrence Titimur & Ors (N393, 11th October 1993, unreported)

Overseas Cases

JT Stratford & Son Limited v. Lindley [1964] 3 All ER 102
American Cyanamid Co. v. Ethicon Ltd [1975] AC 396
Counsel:

E. Asigau, for Applicant
B. Kulumbu, for First, Second & Third Defendants
M. Muga, for Third Respondent
					RULING 
 02nd October, 2020

1.	MIVIRI, J: This is the ruling on the Plaintiff’s Notice of Motion pursuant to Order 16 Rule 3 (8) (b) of the National Court Rules (“the Rules”) and section 155 (4) of the Constitution for an order restraining the first second and third defendants jointly and severely from approving any dealing in, including the sale, mortgage, pledge, transfer, assignment or doing anything to effect the transfer to any person, entity, the property described as allotment 9 Section 33, Granville, Port Moresby, National Capital District pending the hearing and determination of this proceedings or until further order of the court.

2.	An interim injunction under Order 16 Rule 3 (8) (b) of the Rules restraining the fourth defendant from dealing in, including the sale, mortgage, pledge, transfer, assignment or doing anything to effect the transfer to any person, entity, the property described as allotment 9 Section 33, Granville, Port Moresby, National Capital District pending the hearing and determination of this proceedings or until further order of the court. 

3.	There is no issue as the jurisdictional basis to move. Primarily it is upon the applicant to satisfy on the balance of probabilities by evidence that indeed since the grant of leave on the 20th September 2018 the subject of the proceedings has been dealt with, including sale, mortgage, pledge, transfer, assignment or the doing of anything which effect has been to transfer to any person, entity, the property described as allotment 9 Section 33, Granville, Port Moresby, National Capital District. This plea denotes title to the subject property over the defendants and that what is asserted is not speculative or argumentative but real as in Southern Highlands Provincial Government v National Housing Corporation [2001] PGNC 104; N2110 (18 June 2001). Because there an application as here was made by the plaintiff for retraining order against the Defendant or its servants or agents from having any further dealings or selling or assigning of any interest over State houses described as Ex-Army Houses located in the township of Mendi, Southern Highlands Province to former landowners or anybody until the substantive matter in this application is heard. And further that an interim order restraining the former landowner or anybody who is not an employee of the State from occupying State Houses described as Ex-Army Houses located in the township of Mendi, Southern Highlands Province. 

4.	It was refused because the defendant was the registered proprietor and had indefeasible title to the subject property. In so holding the court detailed the law on interim injunction since the House of Lord’s decision in JT Stratford & Son Limited v. Lindley [1964] 3 All ER 102; recanvased in American Cyanamid Co. v. Ethicon Ltd [1975] AC 396, adopted as part of our underlying law per Kapi, DCJ in Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers & Seamen’s Union & Lawrence Titimur & Ors (N393, 11th October, 1993, unreported) and followed in many other cases including McHardy v Prosec Security and Communications Limited [2000] PGSC 22; SC646 (30 June 2000) settling the principles as: 	

(i)	whether the applicant has an arguable case prima facie;
(ii)	whether there has been delay in the making of the application;
(iii)	whether there are possible hardships, inconvenience, or prejudice to the parties.
(iv)	what is the nature of the matter sought to be stayed;
(v)	whether damages would be an adequate remedy;
(vi)	what is the overall interest of Justice;
(vii)	what is the balance of convenience.

5.	To assert his cause to satisfy the principles set out above the Plaintiff relies firstly on David Wong director of the Plaintiff affidavit of the 21st June 2018 with copy of the company extract dated the 20th June 2018 annexure “DW-1”. Plaintiff is the registered proprietor of the property Allotment 9 Section 33, Granville, Port Moresby, National Capital District, State Lease Volume 1 Folio 206 (the Land). He deposes that the subject land was initially purchased by way of a contract of Sale with previous registered proprietor one Sali Kinawa and it was registered by the Registrar of Titles following on the 24th March 1993. But then it was illegally transferred to a Yu Qing Liang on or about November 2010 with an entry in the Journal numbered 653925. He took the matter to court in proceedings numbered OS No. 866 of 2010 against Yu Qing Liang, Henry Wasa, Registrar of Titles, Pepi Kimas, and Secretary for Lands and Physical Planning Lukas Dekena Minister for Lands and Physical Planning and the Independent State of Papua New Guinea. And was granted orders in his favour on the 10th February 2012 that the Journal entry numbered 653925 dated 15th March 2010 in respect of transfer of State Lease Volume 1 Folio 206 over Allotment 9 Section 33 Granville. National Capital District to Yu Qing Liang was invalid void ab initio and the Plaintiff was the registered proprietor. This was conveyed by letter to the defendants but not filled in the entries made by this court being inserted back into the Titles Registrar.

6.	This evidence is supported by the further affidavit of the 15th September 2020 of his lawyer Emmanuel Asigau of the firm Pacific Legal Group lawyers. Who deposes that further leave was obtained on 27th September 2019 to amend the Statement in support and that was done. It was further amended to set out the alleged breaches of the Land Act. On the 4th March 2019 directions were issued by this court for filing service of affidavits and on the 15th July 2019 these orders of the 4th March 2019 were extended further for the full compliance of the parties. And further orders were made for the filing and service of the same. He continues, “Upon review of the amended Statement, it became obvious that further amendments was required to properly set out the grounds for Judicial review and to include certain facts relating to previous order of the National Court relating to land in question.” And that draft amended Statement is attached annexure “F”. And subject to the grant of the order to amend we intend to amend the Notice of Motion (pursuant to Order 16 Rule 5 (1) of the National Court Rules) filed the 27th September 2018. And the draft of the amended notice of motion is attached annexure “G”. And these amendments are concluded as necessary for the real issues to be tried in the court.

7.	From the original Statement in support under Order 16 Rule 3 (2) (a) filed 21st June 2018 compared with the proposed amendment to it annexure “B” there appears to be facts emanating from the 8th December 2010 leading up to the present that are intended by the application proposed to have by amendment included in the statement in support of the Judicial review. It is as if the history of dealings in that particular land including various court actions will be uncovered by that annexure if allowed. And no doubt will amass the immediate decision targeted in this review.

8.	Because judicial review is concerned with the process rather than the substance. And therefore, to recount in the way that has been proposed as set out above would draw in matters external to the decision-making process affecting the plaintiff.  This in my view is not allowed because leave is specific at the decision subject of review and not beyond as intended nor of all or any other matters. Judicial review has by order 16 rule 4 a time limitation of 4 months in which to begin the process. Drawing in matters of 8th December 2010 to a decision possibly around 5th September 2017 for which leave was granted would in my view defeat the purpose of Judicial review particularly with reference to the matters set out above: Nobetau v Bougainville Executive Council [2020] PGNC 176; N8395 (22 June 2020).

9.	The application is opposed by the fourth defendant only not the other three. He contends that the material relied has not tilted the balance so that a case for interim restraint has been made out.  Particularly because since the grant of leave 20th September 2018 now 2 years up to the present the applicant has done nothing to bring the matter to finality. He has a valid title to the subject property and cannot be restrained from accessing it. He is the registered proprietor in the present and cannot be restrained from his own property. He has sworn an affidavit dated the 2nd August 2019 annexure “A” of which is the State Lease for 99 years from 05th May 2017 to 04th May 2116 for residential purposes on all that piece of land known as Allotment/Portion 9 Section/ Milinch 33 Town/fourmil Granville in National Capital District containing an area of 0.1619 hectares or thereabout delineated or registered survey plan Urban one (1) catalogued 49/549. The instrument is dated 11th July 2017. 

10.	Then annexure “B” is forfeiture of State Lease pursuant to section 122 (1) of the Land Act 1996 in the National Gazette number G296 of the 20th October 2011 issued by one J. Ofoi that the subject land has been forfeited because the improvement conditions imposed have not been fulfilled. And notice issued to the lease holder has not materialized in return with developments hence the forfeiture.

11.	Annexure “C” is the application form lodged by the fourth defendant in response to the advertisement of Allotment 9 Section 33 which is dated the 1st August 2013. And then a receipt No. 362022 for K50.00 dated the 01st August 2013 payment for the application fee for residential lease high covenant lease of Allotment 9 Section 33 Granville National Capital District payment to the Lands Department. Then Annexure “D” is acknowledgement from the office of the Minister for Lands to the fourth defendant dated the 25th September 2013 acknowledging his letter for the vacant allotment 9 section 33 Granville and advice for him to follow up with the Director for State Land. Letter is signed by the Ministers First Secretary one Luke Kegoyatayoyu. Then annexure “E” is letter from the Department of Lands and Physical Planning headed the Papua New Guinea Land Board addressed to the fourth defendant informing that the Board will deliberate meeting number 03/2013 deferred from last year is now rescheduled to commence 8.30am at the Eda Tano haus Waigani and his application will be considered and that he or his agent can attend and submit evidence of his financial ability, indication of survey plan for developments proposed and value approximate including any other evidence to assist the land Board in its deliberations in the matter. And unless all materials are provided the board will deem his application disqualified. It is signed by Sam Wange Chairman of the PNG land Board.

12.	And annexure “F” is National Gazette number G551 of Thursday 05th December 2013 informing that the fourth defendant was the 8th person listed applying for Allotment 9 section 33 Granville, city of Port Moresby National Capital District. And their matter was number 98 of the total number 98 to be dealt with in that meeting number 03/2013. Then annexure “G” is letter from the office of the chairman of the Papua New Guinea Land Board Department of Lands & Physical Planning of the recommendation of the land board on item 98 of him being of one Francis Wagaia applicant number 5. 

13.	The fourth defendant appeals annexure “H” his letter dated the 09th April 2014 appealing that he had offered K1.8 million home but the recommendation was for a property less than K250, 000.00. He also attaches the receipt for the payment for the Land Board appeal fee of K 500.00 dated the 03rd April 2014. And on the 20th May 2015, he is informed from the office of the Secretary for Lands & Physical Planning that his appeal has been upheld and matter is referred to the Land Board to be reheard. That publication is in the national Gazette G330 of Tuesday 19th May 2015 and his advice is number 25 out of 77 matters altogether advertised in that gazette.

14.	Then annexure “J” is letter head of Wellness by the fourth defendant as executive chairman dated the 15th September 2015 writing to thank the secretary for upholding his appeal and that he would follow up with the relevant officers as advised. Then annexure “K” is letter dated the 24th February 2016 addressed to the fourth defendant from the office of the Papua New Guinea Land Board department of Lands and Physical Planning advising of land board meeting No. 02/2016 Item No. 14 Applicant No.4 from the 14th -18th March & 21st to 25th March 2016 at 8.30am Eda Tano House Department of Lands & Physical Planning and for the fourth defendant to make himself available at that meeting to submit his financial ability, account statement with the bank details, of proposed development, and any other information that he considers relevant for the consideration of the land board in his application. And again, the letter is signed by the Chairman of the board Sam Wange. 

15.	In annexure “L” is Letter in the letter head of the PNG Land Board Department of Lands & Physical Planning dated 18th April 2016 recommendation of the PNG Land Board meeting number 02/2016 Item No 14 applicant No.4 signed by Sam Wange as chairman attaching the recommendation which again recommends Francis Wagaia as first choice for a 99 year residential lease to the value of K250, 000.00, second choice is Kendoll Investments Ltd and 3rd Choice is Jamie Maxtone Graham. Then annexure “M” is letter dated the 10th May 2016 written by the fourth defendant to the Minister for lands & Physical Planning to reconsider and amongst the three choices to give him the land over the other two as he has the money K 1.8million to develop the subject land.  He attaches the receipt for the appeal in the sum of K500 receipt number R00000569219 including electronic transmission receipt of that amount for the land board appeal fee inscribed too is the seal of the department of lands dated 17th May 2016.
 
16.	The last annexure “N” is Appeal decision No. G354 Friday 05th May 2017 by letter head of the Secretary for Lands & Physical Planning signed by Acting Secretary Tiri Wanga attaching Gazette No. G354 dated Friday 05th May 2017 out of 24 matters altogether matter No. 9 is the successful appeal of the fourth defendant over Kendoll Investments limited. He is granted a 99 lease over the subject property over Kendoll Investments Limited.

17.	In my view this evidence establishes on the balance of preponderance that he is the registered proprietor of the subject land. His evidence details out an intricate process eventually to where he is at the end with the registered title to the subject property. As such to restrain in accordance with the application of the plaintiff would be analogous to locking him out of his own house and retaining the keys with the Court. There is no arguable case demonstrated by the plaintiff/applicant given these facts and the evidence. He may have sustained so to be granted leave but the evidence which I have set out above clearly demonstrate over the balance that there really is no arguable case made out by the plaintiff for the motion sought here. Because his evidence in support is inconclusive and full of amendments proposed intended every turn of the way as set out above. I have particularized to show that he is not fixed on his pleading. He has proposed amendments to the instituting forms of this proceeding that beg as to the genuineness of his cause of action. And I need not repeat my observations set out above.

18.	It follows that the delay in making this application is inordinate and begging of its veracity as to its genuineness because leave was granted 20th September 2018 and it is two years since without such an application. Rather he has resorted to the contrary given the details of Order 16 rule 4. And Injunction would have been immediate after leave was granted. The delay in so making defeats his cause and tilts the balance against grant. It also follows that the hardship if any would be at the hands of the registered proprietor now the fourth defendant by evidence that he has set out above. He would be restrained from his own property and therefore would suffer. And would be such that it would be inadequate by settlement through damages. And so, grant on the basis of this is defeated. The hardship inconvenience and prejudice would befall the fourth defendant more than the plaintiff/applicant. This ground is not made out by his evidence to the required balance.

19.	Certainly, the interest of justice given do not favour his cause pleaded with the material he has sought to rely upon as set out above. The matter is clearly a process that has seen out the fourth defendant by the evidence he has produced that he is the registered proprietor and under section 33 of the Land Registration Act must be entitled to its use free without encumbrances. He has not demonstrated to the required balance that the balance of convenience by the materials he has advanced support his cause for an interim injunction. Rather the materials that the fourth defendant has advanced derail his application because if it were genuine it would have been pursued with vigour and stamina not resort to amendments that he has strenuously set out above. He would have seen the pillar holding his cause of action and attended to it sustaining his cause. As it is the fourth defendant sustains over his plea accordingly his application for interim restraint is refused with Costs to follow the event.   

20.	Motion is denied with Costs to follow the event.
Orders Accordingly.
__________________________________________________________________
Pacific Legal Group Lawyers: Lawyer for the Plaintiff/Applicant		
Simpson Lawyers: Lawyer for the Fourth Defendant	
Office of Solicitor General: Lawyer for the First, Second & Third Defendants