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Auro Incorporated Land Group v Papua New Guinea Forest Authority [2020] PGNC 76; N8289 (23 March 2020)

N8289

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO 690 OF 2019

BETWEEN:
AURO INCORPORATED LAND GROUP
Plaintiff

AND
PAPUA NEW GUINEA FOREST AUTHORITY
Defendant

Kavieng: Kangwia J
2019: 22^nd November
2020:23^rd March

PRACTICE AND PROCEDURE – Application by Notice of motion to Restrain payments of royalties pending hearing of substantive proceeding
- Application to dismiss notice of motion– Lack of jurisdiction pursuant to Order 4 Rule 49 (8) of the National Court Rules - Whether restraining orders should be granted

Cases Cited

Employers federation of PNG v PNG Waterside Workers Union & Ors (1982) N393
Chief Collector of Taxes –v- Bougainville Copper Ltd (2007) N853
Louis Medaing –v- Ramu Nico (2010) N4127
Tigam Malewo v Keith Faulkner (2009) SC960.

Counsel

M. Titus, for the Plaintiffs
S. Mitige, for the Defendant

23^rd March, 2020

1. KANGWIA J: The Plaintiff by notice of motion moved for the following orders:

1. That service requirements be dispensed with.

2. That the defendant and its agents and or servants be restrained from distributing royalty payments for trees harvested from the “Aruo Land” in the sum of K4,503,052. 59 to all clans of Komalu Village who were parties to the original TRP agreement for the central New Ireland TRP, pending the determination of the substantive proceeding.

3. Costs of and incidental to this application.

4. The defendant be at liberty to apply giving 3 clear days

5. Such orders the Court deems just.

2. The Plaintiff relied on the affidavit of Rose Makin Ogen with annexures attached. It was submitted that the orders sought were interim only pending the determination of the substantive maters.

3. It was submitted for the Plaintiff that there was no dispute that the money was with the Defendant. If the money was paid to the parties who were signatories to the TRP it would be unjust and unfair to the Plaintiffs and therefore the discretion of the Court should be invoked to grant the orders sought.

4. The Defendant made appearance and objected to the application as the Plaintiff failed to plead the jurisdiction it was relying on amounting to an abuse of process.

5. Since the Defendants made appearance and object to the motion the order sought under item 01 the Notice of Motion for dispensation of service requirements is no longer relevant.

6. The background leading to the applications are as follows. Logging operations commenced and royalty payments were made to the Defendant. The Plaintiff approached the Defendant to pay them the royalty monies but the Defendant refused and said that they would pay the money to all clans of Komalu who were parties to the agreement in Timber Rights Permit (TRP hereon). Aggrieved by the refusal the Plaintiff initiated these proceedings.

7. In the originating summons the Plaintiff claimed the following Orders:

1. A declaratory Order that the Plaintiff did not consent to the first grant and then the substituted permit No. 16-42 in so far as the customary land was concerned and all forest industry activities undertaken by the Defendant on the customary land are unlawful.
2. A declaration that the Plaintiff is entitled to the royalty payments for timbers and logs harvested from Aruo land in the sum of K4, 563,052. 59 under the original TRP agreement for the Central New Ireland TRP 16-42.
3. Judgement in the sum of K4,563,052. 59.
4. Interest at 8% per annum from 6 December until payment.
5. Such other orders the Court may deem fit.
6. Entry of orders be abridged to the time of settlement forthwith.
   

8. The only issue remaining is whether the Court should restrain the Defendant from paying the royalty payments as sought under item 2 of the Notice of motion.

9. Mr. Mitige for the Defendant submitted that there was no jurisdictional basis in the notice of motion to restrain the Defendant. The motion failed to plead the jurisdiction on which they were relying on to seek the orders. The lack of reference to the jurisdiction they were relying on is not compliant with Order 4 Rule 49 (8) of the Motions (Amendment) Rules and the motion should be dismissed.

10. It was also submitted that there was no evidence of the Integrated Land Group (ILG) claimed. There was no corporate seal attached with any ILG document. No copy of the ILG certificate was produced to substantiate the Plaintiff’s standing to sue. The map relied on by the Plaintiff was no evidence of land ownership. Likewise, the letter from the Magistrate annexed to the affidavit of Rose Makin Ogen was not a Court order awarding land ownership to the Plaintiff.

11. It was further submitted that there was insufficient evidence or proof of the undertaking as to damages. Therefore, the Notice of Motion should be dismissed.

12. In response Mr. Titus for the Plaintiff submitted that the discretion of the Court should be invoked on the issue of jurisdiction. As to the ILG certificate it was not relevant in this application. It was further submitted that the Plaintiff will miss out on any royalty paid by the Defendant if the restraining orders were not granted.

13. Interim Orders are equitable remedies which the Court may grant or refuse in the exercise of discretion.

14. The law on the requirements for interim orders is settled.

15. The oft cited case of the Employers federation of PNG v PNG Waterside Workers Union &Ors (1982) N393 set out two requirements an applicant must satisfy which are as follows:

1) Whether there is a serious question to be tried or determined

2) Whether the balance of convenience favour the grant of the injunctive relief sought

16. Additional requirements have featured in later cases which included maintaining the status quo, the interest of Justice, likely or real prejudice to parties, whether an undertaking as to damages been given, whether damages would be an adequate remedy if the interim orders were refused. (See Chief Collector of Taxes –v- Bougainville Copper Ltd (2007) N853; Louis Medaing –v- Ramu Nico (2010) N4127).

17. The applicant must also establish the basis for a grant of the restraining orders sought.

18. The Defendants have raised the issue of lack of jurisdiction. Even though jurisdiction is not a consideration to be satisfied for the grant or refusal of interim orders it must be considered first as proceedings cannot commence or proceed in the absence of the Courts jurisdiction.

19. The Plaintiff has not taken serious issue on jurisdiction.

20. On the face of the Notice of motion it is obvious that the Plaintiff / Applicant did not plead the law under which the motion was moved.
The motion lacks the necessary requirements under Order 4 Rule 49 (8) of the Motions (Amendment) Rules which states:

Rule 8. Form of motion

All motions must contain a concise reference to the Courts jurisdiction to grant the orders being sought.

Motions containing no such reference will not be accepted for filing. If accepted by the registry without such reference and it goes before the motions Judge, the Court may strike out the motion for being incompetent and for lack of form. The motion must state the following;

“...move the Court for orders pursuant to e.g. s 5 of the Claims Act.

21. The requirement to plead jurisdiction is in mandatory terms and must be complied with. Without it the Court may strike out the motion.

22. In the present case the Notice of Motion contains a fundamental flaw. It does not plead the jurisdiction it was seeking to invoke. Therefore, the motion is incompetent amounting to an abuse of process.

23. This is not a situation where the Court can exercise its discretion to permit an amendment to the Notice of Motion. There was an oversight on the part of the registry and the Court before the motion was moved.

24. It was moved and heard without jurisdiction and proper pleading. The flaw on the Notice of motion was fatal to the hearing of the motion. No amendment can cure the defect after the hearing. I consider that the error on the record must be attributed to the failure of the Plaintiff’s lawyer and should be penalized for gross abuse of the Court process.

25. I now consider the issue of the Plaintiffs standing even though it has not been argued. It is trite law that a party to a proceeding must have the standing to sue or be sued. In the present case the Plaintiff is named as an Integrated Land Group (ILG). It is common knowledge that an ILG must consist of persons as members of the named ILG.
There is no information as to who the members of the ILG are. There is also no information that the other members of the ILG endorsed the representative capacity of the Plaintiff.

26. The only information on the ILG seems to be the declaration in the affidavit of Rose Makin Ogen that she was the chairperson of the Plaintiff ILG. Various questions arise; Who are the other persons constituting the ILG? If the ILG is constituted of other members, have they consented to or endorsed representative capacity of the Plaintiff? If the Plaintiff ILG is the owner of the land on which logging operation exists then evidence of ownership must be clearly identified in the pleadings.

27. The Supreme Court in the case of Tigam Malewo v Keith Faulkner (2009) SC960 while dismissing an appeal against the National Court decision held that:

“the plaintiffs were not properly identified and failed to disclose the authority to represent other people numbering 13, 000.”

28. In the present case I fail to comprehend how an unidentified Plaintiff can bring an action in Court. There can be no claim in the Court without clearly establishing the identification and standing of the Plaintiff. The Plaintiff has also failed to properly plead how it as an ILG owns the land in question. This failure also renders the Originating summons as an abuse of process.

29. On the undertaking as to damages I agree with counsel for the Defendant that there was no satisfactory explanation or relevant information given to satisfy the Court. However, the Court in the exercise of discretion accepts the undertaking given by Rose Makin Ogen who deposed to being the Chairperson of the Plaintiff as adequate.

30. On the claim for a declaration that the Plaintiff ILG did not consent to the grant of the TRP for logging and that it was entitled to the royalty payments, the question that arises is; “Where was the Plaintiff when consent was given by the other landowners who would shortly be paid the royalty?”

31. The logging operation commenced already and royalty payments amounting toK4,563,052. 59 has been paid to the Defendant for distribution.
The Plaintiff has not pleaded any ground or grounds for not giving its consent from which the claim would have a basis for a Court hearing. It is in my view far belated now to claim a declaration that the Plaintiff allowed to pass in the first place.

32. As to the claim that the Plaintiff was entitled to the K4, 563,05. 59 that was paid as royalty payments to the Defendant, it has failed to plead how the ILG as an entity was entitled to the royalty payments.

33. The Plaintiff has failed to establish whether the amount claimed accrued from logging of its land only and no other landowner. Issues including the Plaintiffs standing, whether there was any breach committed by the Defendant or the capacity under which the Plaintiff is entitled to the amount claimed, have not been properly pleaded. In my view it is an outlandish and non-sensical claim.

34. This is a claim for a purported entitlement through the Court process after foregoing its right to be involved with the other landowners in the first place. It is also belated to seek such an order against the Defendant when logging had commenced and royalty payments already made to the Defendant.

35. Finally, the claims in the Originating Summons is convoluted and confusing. There is no proper pleading on the various heads of claim. The Plaintiff sought various declarations and judgement for the royalty amount of K4,563,052. 59 to be paid to it.

36. The claim for K4,563,052. 59 seems to be a liquidated claim that should have been commenced under a Writ of Summons and not through declarations by Originating Summons.

37. It is difficult to ascertain the cause of action claimed to satisfy the requirements for an interim injunction to be granted. The Plaintiffs failure to disclose a reasonable cause of action amounts to an abuse of process.

38. On the back of the foregoing considerations the Court makes the following Orders:

1. The orders sought in the Notice of Motion are refused and dismissed in their entirety.
2. The Originating Summons is dismissed in its entirety as disclosing no cause of action.
3. Costs are allowed in favor of the Defendant which is to be paid by the Plaintiffs Lawyers on a Solicitor Client basis.

_______________________________________________________________
Titus Lawyers: Lawyers for the Plaintiff
In House lawyers: Lawyers for the Defendant