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Papua New Guinea Forest Authority v Sukiri Investment Ltd [2021] PGNC 558; N9272 (12 October 2021)

N9272

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (IECMS) (JR) NO. 74 OF 2020


BETWEEN:
PAPUA NEW GUINEA FOREST AUTHORITY
Plaintiff


AND:
SUKIRI INVESTMENT LIMITED
First Defendant


AND:
BENJAMIN SAMSON SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant


AND:
SAM WANGE CHAIRMAN NATIONAL LAND BOARD DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Miviri J
2021: 11th & 12th October


PRACTICE & PROCEDURE – Judicial Review & appeals – Leave Granted –Notice of Motion – application for Interim Stay & Injunction – Arguable Case – Related WS Proceedings –Applicant not Party – Second & Third Defendant Decision Stay – Balance of Convenience – Overall Interests of Justice – Stay Granted – cost follow event.


Cases Cited:
Papua New Guinea Cases


Pruaitch v Manek [2019] PGSC 123; SC1884

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PNGLR 396

Aihi v The State (No 2) [1982] PNGLR 44

Wartoto v State [2015] PGSC 1; SC1411

McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279

Mai and Avi, The State v [1988-89] PNGLR 56

Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831

Arrow Trading Ltd v New Ireland Development Corporation Ltd [2016] PGNC 431; N7277

Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309

Independent State of Papua New Guinea v Kalaut [2021] PGSC 2; SC2067


Overseas Cases


Films Rover International Ltd v Canon Film Ltd (1987) WLR 670 at 680


Counsel:


A. Chillion, for Plaintiff
Mr. Kondop, for First Defendant


RULING


12th October, 2021

  1. MIVIRI, J: This is the ruling on the notice of motion of the 29th September 2021 by the Plaintiff seeking restraining orders to maintain status quo of the matter until the issue of the title is dealt with. He relies upon Order 16 Rule 3 (8) (a) of the National Court Rules that the grant of leave operate as a Stay. This includes what emanates from the related proceedings WS 703 of 2013 that they are Stayed also pending the determination of the substantive matter here.
  2. Further that pursuant to Order 16 Rule 3 (8) (b) and Order 12 Rule 1 of the National Court Rules, the defendants, servants, agents including Policemen, security Guards, sheriff Officers from the National Court and associates of the Defendants are restraint from;
  3. The title is in the hands of the first Defendant but the possession of the subject land is with the plaintiff. Leave was granted for Judicial review on the 14th May 2021.
  4. The challenge by the Plaintiff is over State Lease issued to the first defendant over the subject property described as Section 19 Allotment 8, Montoro Street, Lae, Morobe Province. Which property is currently occupied by the plaintiff with (2) two other State entities the Department of Works and Education the National Archives which are by Certificate of Authorising Occupancy. This occupancy extends over 30 to 40 years until 08th February 2012 when title was given to the First Defendant.
  5. Here the Plaintiff seeks to review the decision of the First and Second Defendant made through the National Lands Board where on the 20th January 2012 State Lease Portion 08, folio 2020, section 19, Montoro Street, Lae, Morobe Province was issued the First Defendant through the meeting number 03/2011 on the basis that it was vacant land with no persons or entities occupying, using or having developed it, thus it was available as vacant land for leasing to the First Defendant. And as such it was exempted from advertisement.
  6. Notably from the Affidavit verifying facts dated the 21st November 2020 filed by one Tunou Sabuin Managing Director of the Plaintiff annexure “T” is Ex Parte Court Order dated 05th April 2017 in WS No. 703 of 2013 between Sukiri Investment Limited v Joe Lorma Secretary Department of Works and Department of Works and Vicky Puipui as National Archivist National Library & Archives and National Archives and Library. It means one side only was in court to culminate in the order denoting that term. And it did not include the applicant because they were not parties to that proceeding.
  7. What is clear from this proceeding is that the applicant Papua New Guinea Forest Authority is not a party to that proceedings, and therefore its position in the matter would not have been of a party to that proceedings. Its voice and discontentment were not aired so that it amounted to abuse here to resurrect the matter. Its position would not be the same observed in Pruaitch v Manek [2019] PGSC 123; SC1884 where it would amount to abuse of process where multiple proceedings were mounted to deviate or draw attention away from what was underlying.
  8. Here leave application for judicial review has sustained in favour of the plaintiff, internal process administratively within the Department of Lands evidenced by the Affidavit Verifying Facts dated the 21st November 2020, filed by one Tunou Sabuin Managing Director of the Plaintiff has been channelled, but no effective remedy administratively hence this application. It would be consistent with Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. And strictly confining to WS No. 703 of 2013 between Sukiri Investment Limited v Joe Lorma Secretary Department of Works and Department of Works and Vicky Puipui as National Archivist National Library & Archives and National Archives and Library as seen this matter already by law but would deny equity.
  9. This is fundamentally evident from the affidavit dated 26th November 2020, in support filed by Absalom Haiyo of the Papua New Guinea Forestry Authority. He is an acting Inspection Supervisor Momase in the employ of that authority, currently resident at section 19 lot 8 Montoro Street where the Papua New Guinea Forestry Authority has two permanent houses, and of which he has occupancy of one since 2006 after joining the Forestry with his family and children. And like Forestry the Department of Education Libraries and National Archives is also located there. He never saw the court order of the 20th August 2019 in the proceedings WS 703 of 2013. And the National Forestry Authority was never a party to the proceedings. “Even then, our interests were effected and we rallied behind the Department of Works & Supply and the Department of Education and National Archives and Library to be witnesses when the matter was heading towards trial. That was when an amended defence was filled on 09th March 2018 raising allegations of Fraud in the issuance of title in favour of the plaintiff who is now the first defendant in the within proceedings. The matter was set down for trial never proceeded but summary judgement entered instead, thus the order for vacant possession to the land in favour of the First Defendant.” And he annexures as “A” “B” “C” the Writ of summons that was filed on the 04th July 2013, the amended defence filed 09th March 2018 and a true copy of the Court order of the 20th August 2019. It is the same view by Yakam Katimani filed 27th November 2020.
  10. What is clear is that Papua New Guinea Forest Authority never got a hearing, that it was resident and occupied the subject land for over 35 years, and it had worked on that land to see out its functions to serve the Independent State of Papua New Guinea. And that it was on the subject land even at the time these proceedings were on, and even before doing what it was set up to do for the Country. There were Papua New Guineans who lived on that property for over 35 years and who were moved and evicted without voice, especially from the applicant plaintiff. There were issues of the Constitution in particular section 53 Protection from unjust deprivation of property and rights to basic human needs such as housing and shelter as observed in Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PNGLR 396 at heart. And to give effect to the rule of law would have denied the Papua New Guinea Forest Authority the right to be heard why it should be evicted. Equity demanded that equity be done as compliance to the law would deny equity.
  11. Because there are issues pleaded set out above in the originating summons that must be properly determined in a full judicial review hearing. They outweigh and give effect to the Constitution section 53 Unjust deprivation of Property. This is borne out by the affidavit relied of Tobias Dalid sworn of the 19th July 2021 filed 20th July 2021. That brings into prospective the facts set out above warranting leave that was granted and examination now open of the process and procedure to attain title by the First Defendant. To ignore this evidence would be tantamount to denial of justice, particularly with the fact that this is a Court of Equity. And Equity is compatible with law. It is therefore warranted even in the face of a decision of this court in a related matter to the subject land. Of grave is the fact that the applicants were not heard in that proceeding despite being on the land and continued to be on it as at the date of this Judgement.
  12. The defendant is one person alone and the duties that are called upon of the three Government and State Departments and the Applicant serve almost 8 million people. Land which serves the People of this Country dwelt on by State Departments must be protected for the services due to its people from this Departments and Authorities of the State. Here there are serious issues arguable of and at law apparent, as to why the land was put through a process that landed with in the hands of a private corporate individual who has voiced discontentment over lives and property over self.
  13. It is not justice by the Constitution which incorporates equity as an integral part of the laws of the land. It would as in Aihi v The State (No 2) [1982] PNGLR 44 be facilitated here to see that restraint is accorded to set right an inherent and apparent abuse of the law and equity. Particularly considering that exemption from advertisement on a land that was occupied by Government Departments drawing years back could be uprooted without any notice to those Departments. Especially in the light of the fact that there was no forward planning for those Departments effected, either to resettle elsewhere at a different location already set for them to be accommodated, to continue to do what they did for the Government. If indeed there was a sale bona fide, by one of the Government Departments there are no paperwork to evidence to relocate all on that land. It is as if all fell into a blind hole with no hand hold to climb back and out.
  14. The first defendant has argued that there is no jurisdiction because the National Court cannot stay its own decision that has been concluded. Staying its enforcement cannot eventuate unless there is appeal filed in the Supreme Court by section 19 of the Supreme Court Act. As it is, there is no appeal instituted there is no jurisdiction upon the Court in the application made. Because it would constitute an abuse within the meaning of Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015).
  15. Further to stay the decision of the second and third defendants is not by Supreme Court, and the National Court lacks jurisdiction to grant as applied. And even then, the subject decision granting leave has been appealed to the Supreme Court, it cannot operate as a Stay given. In support of this argument, he relies on the affidavit of the first defendant’s Managing Director, Morgan Sukiri of the 08th October 2021. It sets out the cause of action which clearly does not have the plaintiff applicant as party to that initial proceeding. He does not have the Standing to institute an appeal to the Supreme Court in the matter. And in my view would move as he does here by an action that he has instituted in judicial review. He has secured leave for judicial review. His cause is arguable per se and hence the grant. It follows that he is now seeking stay to preserve until determination as to where title lies. The process of grant is challenged and so will be preserved until that determination.
  16. That is not to insist that title is in the hands of the first defendant, and he continues with it without any flatter to it. Dealings on it that change the scene on it must be stopped so that what is brought out now be aired and settled as to title. The process leading is questioned. It is proper that issue is settled before any activity continues changing its scenery there. The initial cause of action does not concern how the title was processed to where it is. It seeks to evict on the basis of a questioned document which is the heart of the dispute. It is proper that there is compatibility in law. The questioned document giving title must be examined by its process as to how it was accorded the first defendant, so that the issue is settled once and for all. Leaving it as it would be injustice glaring, particularly where a resident on the land for 35 years or more is ejected without being heard in its defence. It is important to iron that issue now pending which restraint is apparent bearing in mind section 155 (4) of the Constitution and Aihi’s case (supra). Just as a conviction will not be recorded after consideration of a record of interview that is disputed as to its admissibility: Mai and Avi, The State v [1988-89] PNGLR 56. Similar scene falls here the process must be exhumed to see out the trial before it is declared consistent, or non-consistent with procedure.
  17. The issue raised of whether or not a Stay should be granted or not the applicant is material, and must be determined here.
  18. The law on Stay is set out in the often-cited authority of McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279:

“To conclude that the test for a successful application for stay should be whether there are "special" or "exceptional circumstances" or that there is a "good reason" or that it is an "appropriate case" is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time.

We distil from these precedent cases the kinds of factors and circumstances that the Court will consider, amongst others, in the exercise of the discretion whether or not to grant a stay order. We start with the principal premise that the judgment creditor is entitled to the benefits of the judgment. The other factors include the following:

• Whether leave to appeal is required and whether it has been obtained;

• Whether there has been any delay in making the application;

• Possible hardship, inconvenience, or prejudice to either party;

• The nature of the judgement sought to be stayed;

• The financial ability of the applicant;

• Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

• Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;

• The overall interest of justice;

• Balance of convenience;

• Whether damages would be sufficient remedy.”


  1. It is clear that the facts and circumstances of each case will demonstrate as to what is appropriate for Stay to be accorded. Being arguable is a very strong basis for the grant. It is not restrictive particularly because leave was granted which in itself is a very strong basis in favour of the application. It maybe the subject of a Supreme Court Appeal yet to be heard and determined. That issue belongs to that Court and will have its day in Court. What is here is a process of law in judicial review, there is no bar on it to determine it as pleaded. Until and when it is due its day in Court, it remains a proper basis for the consideration of an application as is the case here. This is coupled with the fact here that a prior Stay accorded lapsed on the 10th October 2021. There is consistency in this application. It is not a delayed application made to bring inconvenience and hassle to the defendants. It is appropriate to keep the status quo pending determination of the substantive cause of action, whether title was properly accorded the first defendant.
  2. Reliance by the first defendant that this Court made a decision in the related matter WS No. 703 of 2013 between Sukiri Investment Limited v Joe Lorma Secretary Department of Works and Department of Works and Vicky Puipui as National Archivist National Library & Archives and National Archives and Library bars the applicant, in my view cannot stand. The simple reason is that the applicant was never a party to that proceeding. He would not have standing to bring an appeal against. Therefore, the argument advanced by the first defendant does not stand that the applicant has recourse to the process of appeal in the Supreme Court. Not this action for Stay. That argument is without merit and fails.
  3. The history of the subject land is such that there is arguable basis demonstrated beyond the balance of preponderance for Stay to be accorded. Because hardship and inconvenience to the plaintiff/applicant outweigh any bar. Damages would not be adequate given his occupation on it for over 35 years and matters he raises set out above in the process attaining for the first defendant. The prejudice to the first defendant, who seeks to attain possession with a title that is questionable by the process attained is not on the same level with the applicant. The applicant plaintiff’s cause of action outweighs, because the nature of Judgement sought questions the process in grant of the title to the subject land. There is apparent error of procedure and law which is prima facie and ought by process now granted leave be examined to settle.
  4. It is clear given that the overall interest of justice both for the first Defendant, with the applicant/plaintiff is for the grant of a restraint. It is important that the process in attaining the title is settled to see the title out to whomsoever in law. The balance of convenience leans to the grant of the application then against given. It is also important to weigh the costs to the defendant in adhering to the Stay if granted against the likely damage to the applicant/plaintiff. That is, which is likely to cost less, or to use the words of Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005) the lower risk of injustice, if it turns out the Court has made the “wrong” decision.
  5. It is not a light matter to be simply granted and this is clear in law that a process of law is not amenable to be Stayed as here without proper basis, or one process in law is not to be stopped by another process without proper basis, Wartoto (supra). The question that is pertinent and underlying as adopted from Films Rover International Ltd v Canon Film Ltd ( 1987) WLR 670 at 680 in Arrow Trading Ltd v New Ireland Development Corporation Ltd [2016] PGNC 431; N7277 is:

“The principal dilemma about grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make the wrong decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds ( or would succeed) at trial. A fundamental principle is therefore that the Court should not take whichever course it appears to carry the lower risk of injustice if it turns out to have been wrong in the sense I have described.”


It is a delicate act of balance and the discretion is judicially exercised backed by cogent and credible evidence.


  1. This Court has shown this out in Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309 (11 November 2002) that:

“A reading of these authorities show consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised by the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further the authorities agree that, if damages could adequately compensate the applicant, then an injunctive order should not be granted”.


  1. This court recently considered this in Independent State of Papua New Guinea v Kalaut [2021] PGSC 2; SC2067, that although the incumbent holding did not have the tertiary qualification, prejudice outweighed. The constitutional role that was discharged by the Office of the Commissioner of Police was such that it was necessary that a status quo be maintained pending the appeal. A stay was granted.
  2. In my view the aggregate is that the motion for Stay is granted as pleaded by the notice of motion filed by applicant 29th September 2021.
  3. The orders of the court are:

Orders Accordingly.

__________________________________________________________________

Chillion Lawyers: Lawyer for the Plaintiff/Applicant

Manase & Co Lawyers: Lawyer for Defendants

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