N9487

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO 153 OF 2020

BETWEEN:
HARI SG INVESTMENT LIMITED, DEWOLS LIMITED, LIPUHOL CONTRACTOR, ZAKATA LIMITED, SALDO LIMITED, HGN & M LIMITED, OVEAN TECHNICAL SERVICES, NALS SERVICES
Plaintiff

AND:
LONDOLOVIT TOWN DEVELOPMENT COMMITTEE
First Defendants

AND:
NEWCREST MINING LIMITED
Second Defendant

Kavieng: Kangwia J.
2020: 23rd & 25th June

INJUNCTIONS – application by plaintiff seeking interim injunction – plaintiffs are landowner companies occupying land covered by the second defendants mining lease – requirements to be satisfied for the grant of interim injunction – discussion of– two most notable requirements to be satisfied  among others - that there is a serious question to be determined - that the balance of convenience favors the grant of the interim injunction in order to preserve the status quo – plaintiffs have not demonstrated to the court that there exist a serious question to be tried – plaintiffs’ application for interim injunction refused with costs

Cases Cited:

AGK Pacific (NG) Ltd v William Brad Anderson Construction (PNG) Ltd & Chief Collector of Taxes v Bougainville Copper (2007) SC853
Downer Construction PNG Ltd (2000) N2062
Golobadana NO. 35 Ltd v Bank South Pacific Ltd (2002) N2309
Louis Medaing v Ramu Nico (2010) N4127
Robinson v National Airlines Corp. [1983] PNGLR 476
Mt. Hagen Airport Hotel v Gibbs [1976] PNGLR 316

Counsel:

R. Habuka, for the Plaintiffs
No appearance for the First Defendant 
Igua Katu Guba, for the Second Defendant

25th June, 2020

1.	KANGWIA J: The Plaintiffs by Originating summons sought various declaratory and injunctive orders. Pending the determination of the substantive matter, they by notice of motion moved the Court for the following interlocutory orders:

(i) That requirements for service of the Notice of motion on the respondents be dispensed with in accordance with Order 4 Rule 38 (d) of the National Court Rules (NCR hereon)

(ii) That the Respondents by their servants, agents, employees or whosoever be restrained from evicting the Plaintiffs from the property described as portion 686 & 869 LMP 43, Londolovit, Lihir Island more commonly referred to as (Smol Business Senta)/Container city) until further orders of the Court.

(iii) That the Respondents forthwith reconnect water supply and electricity to the property described in paragraph 2 herein.

(iv) Such other orders as the Court deems proper.

2.	They relied on the affidavit of one William Taura who deposed as the Managing Director of HARI SG Investment Limited. 

3.	The Defendants opposed the motion. They relied on the affidavit of Leo Legra on behalf of the First Defendant who deposed as the Acting community Relations Manager for Lihir Gold Limited.

4.	 The background leading to this proceeding are these. The Plaintiffs are landowner companies. They are occupying land on LMP portion 34 portion 868 and 869 commonly referred to as” Smol Bisnis Senta” (the land hereon). The land is under the mining lease owned by the Lihir Gold Limited. The Defendants issued notices for the Plaintiffs to vacate the land. Upon failure by the Plaintiffs to adhere to the notices the Defendants issued an eviction notice. Power and water services were disconnected. 

5.	Being aggrieved by the eviction notice and actions of the Defendants the Plaintiffs filed proceedings to seek permanent declarations and injunctions against the Defendants from evicting them and orders for the connection of electricity and water. 

6.	On behalf of the Plaintiffs, Mr Habuka through a written submission argued that the First Defendant had no legal standing to investigate any eviction proceedings as it has no specific powers under the agreement to do so. They had failed to set up a legally constituted authority within three years and continued to operate outside its terms of reference. 

7.	It was submitted that there was no evidence that the Plaintiffs were illegally occupying the land; that they were granted permissive occupancy by Lihir Management Company to occupy the land to set up potential spinoff business activities under item 3 of the Londolovit Township Agreement (agreement hereon).

8.	It was also submitted that there was a serious question to be tried. The First Defendant had no specific authority to carry out eviction proceedings against the Plaintiffs. It was formed by agreement only as an advisory committee. 

9.	It was then submitted that the balance of convenience lay in maintaining the status quo. If the Plaintiffs were evicted there will be substantive damages incurred by the Plaintiffs as they have no alternative place to operate their business and most will have to shut down.

10.	It was finally submitted that they have given an undertaking as to damages.

11.	For the Second Defendants Ms Igua Katu Guba through a written submission argued that the proceedings consisted of defects in the following manner;

1.	The motion did not cite the correct jurisdiction of the Court. The notice of motion referred to rules that did not exist for urgent ex parte application for restraining orders. The motion is incompetent for not citing the jurisdictional basis of the Court as per Yaluma v the State (2010) N4088.
2.	Plaintiff Saldo Limited was not a registered company and did not have legal capacity to sue.
3.	The First Defendant was not a legal entity capable of being sued. 
4.	Some of the Plaintiffs were not correctly named.
5.	The relevant land was misdescribed on occasions.

12.	It was submitted that in view of the defects identified the proceeding cannot stand and the Plaintiffs cannot be granted the relief they are seeking.
She then referred to the principles governing motions seeking interim injunctions enunciated in the case of Chief Collector of Taxes v Bougainville Copper (2007) SC 853 and submitted that it was incumbent on the Plaintiff to establish that:

(i)	That there are serious questions to be tried.
(ii)	 An undertaking as to damages has been given
(iii)	whether damages would be an adequate remedy if the order is not granted
(iv)	whether the balance of convenience favors the grant of the interim orders
(v)	whether the interest of justice favor the grant of interim orders sought

13.	She then discussed the principles in detail. 

1.	On whether there was serious question to be tried it was submitted that the Plaintiffs were allowed to occupy the land in similar circumstances as a ‘tenancy at will’ under which the tenancy implied is mere occupancy without payment of rent. It was argued that no breach was committed by the Defendants as there was no clause in the agreement which gave the Plaintiffs the right to occupy the land. The Plaintiffs had no legal right under the agreement for permanent occupancy. The Defendants had given numerous notices to all occupants to vacate and move to other allocated land so that the land could be re-developed. They had failed to comply. 

14.	In light of the above it was submitted that the Plaintiffs had not shown that there is a serious question to be tried which is likely to succeed at trial.

15.    On undertaking as to damages it was submitted that undertaking given by one Plaintiff was insufficient. A few of the Plaintiffs were not legal entities and could not give undertakings.

16.     As to damages it was submitted that damages were an adequate remedy for the Plaintiffs if the orders were not granted. Any damages suffered in relocation or eviction could be recovered.

17.      On the balance of convenience, it was submitted that if the Plaintiffs were permitted to continue occupying the land, re-development would be delayed with the Second Defendant incurring costs. If the reconnection of power and water were granted the Second Defendant will also incur costs. Re-development had commenced and a lot of the occupants had left already. The delay has been caused by a handful of landowners after most of the occupants had left. Therefore, the balance of convenience did not favor the grant of the orders sought.
 
18.    It was finally submitted that in view of the above submissions the orders sought in the Notice of Motion should not be granted.

19.     This proceeding is an application for interim injunctive orders. The grant or refusal of interim orders is in the exercise of discretion

20.      In the case of Golobadana NO. 35 Ltd v Bank South Pacific Ltd (2002) N2309, Kandakasi, J said this on the grant of injunctive relief;

“… the grant of an injunctive relief is an equitable remedy and it is a discretionary matter.”

21.    The law is settled in numerous case laws that discretion is exercised in either a grant or refusal to grant interim relief.  (See Louis Medaing v Ramu Nico (2010) N4127; Robinson v National Airlines Corp. [1983] PNGLR 476; Mt. Hagen Airport Hotel v Gibbs [1976] PNGLR 316)

22.     Before an Interim relief can be granted, the Plaintiff must satisfy the   considerations referred to by Ms. Igua Katu Guba in the case of Chief Collector of Taxes v Bougainville Copper (2007) SC 853.

23.      If the considerations are satisfactorily satisfied, the Interim Orders would generally be granted.  

24.   In the case of AGK Pacific (NG) Ltd v William Brad Anderson Construction (PNG) Ltd & Downer Construction PNG Ltd (2000) N2062 it was held that an applicant for interim orders must in essence satisfy two basic requirements. They are:

1.	That there is a serious question to be determined
2.	That the balance of convenience favors the grant of the interim injunction in order to preserve the status quo.

25.      I adopt those views to the present case. 

26.     In the present case the issue is whether there is a serious question to be tried. It is undisputed that the land the subject of this proceeding is under the mining lease hence the Second Defendant is entitled to do what it prefers on the land. It includes eviction of occupants living on it. 

27.     The Plaintiffs argued that there were serious issues to be tried. First is whether the Plaintiffs were occupying the land illegally? It was submitted that the Plaintiffs were not occupying the land illegally by virtue of clause 03 of the agreement.

28.     Clause 03 of the Agreement is as follows:

BUSINESS DEVELOPMENT OPPORTUNITIES.

LMC shall assist the customary landowners from the Londolovit Plantation area to establish business opportunities which will allow them to participate in the business spinoffs from the project’s construction and operations. The assistance will be through the LMC Business Development office and may involve the provision of financial and managerial assistance, by the LMC, to help establish viable business ventures. 

29.      This clause provides that LMC shall provide assistance to the customary landowners to establish business opportunities through financial and managerial assistance. The clause makes no provision for giving occupancy to land. It is obvious that the occupancy given was not under the agreement nor under any law. The clause does not confer a right to the Plaintiffs to occupy the land. It is erroneous of the Plaintiffs to allege that they were not occupying the land legally because they were given the occupancy right pursuant to clause 03 of the agreement. 

30.     The Plaintiffs have failed to disclose the basis of their legal occupancy that they wanted argued in the substantive hearing. The issue of whether they were not occupying the land illegally is not an issue as the evidence is clear that they were given permission to occupy only. That authorization or permission to occupy was in my view not indefinite. 

31.      Despite the occupancy the Second Defendant as the holder of the mining lease was entitled to do what it pleased with the land. The Defendants decided to do re-development on the land. When that happened the legality or otherwise of their occupancy falls into insignificance. It no longer remains as an arguable issue at trial.  

32.      Second is whether the First Defendants were operating illegally after they failed to establish a committee within three years as required by the agreement. This is not an arguable case at trial. Even if the First Defendants were operating illegally the fact is that the Second Defendant as the lessee wanted the Plaintiffs evicted for re-development to take place. It would be futile to argue on the legality of the First Plaintiff to issue the eviction notice. Even if a declaration was made that the First Plaintiffs were not operating legally it would not in any way affect the eviction.

33.      The Plaintiffs were legally occupying the land by virtue of the permission given to them. This permission in my view was not indefinite. It was subject to the rights of the Second Defendant as lessee. In this case the Second Defendant wanted to do re-development on the land and the eviction came about.  

34.      The second ground is also not an arguable issue. 

35.      In total the Plaintiffs have not established that they have an arguable case that should go to a trial. In view of that determination it is not necessary to consider the other requirements in an application for interim orders.

36.      Having determined that the grounds relied on by the Plaintiffs are not arguable at trial it brings the entire proceeding to an end. 

37.      Therefore, the orders sought in the Notice of motion are refused in their entirety.

38.      The Plaintiffs shall pay the costs to be taxed if not agreed. 

Formal Orders

39. The formal orders of the Court are:

1.	The Orders sought in the notice of motion are refused in their entirety.
2.	The entire proceeding in OS 153 of 2020 is dismissed.
3.	The Plaintiffs shall pay the costs on a party, party basis to be taxed if not agreed.
______________________________________________________________
Habuka Lawyers: Lawyers for the Plaintiffs 
Allens Lawyers: Lawyers for the Defendants