Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kar v Rosso [2022] PGNC 192; N9586 (21 April 2022)

N9586

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 40 OF 2022 (CC1)

BETWEEN:

MOSES KAR AS DIRECTOR OF KALANG LIMITED

Plaintiff

AND:

KALANG LIMITED

Second Plaintiff

AND:

HON. JOHN ROSSSO in his capacity as Minister for Lands & Physical Planning

First Defendant

AND:

BENJAMIN SAMSON in his capacity as Secretary for Department of Lands & Physical Planning

Second Defendant

AND:

SAM WANGE in his capacity as Land Board Chairman

Third Defendant

AND:

HON. POWES PARKOP in his capacioty as Chairman of the National Capital District Physical Land Board and Governor of NCD

Fourth Defendant

Waigani: Tamade AJ

2022: 14^th And 21^st April

INJUNCTION – application for injunctive relief – seeking orders to restrain a purported meeting of the PNG Land Board - orders sought by applicant seeks “declarations” which is a substantive relief that is usually sought in the substantive matter and not by way of an interlocutory application – whether this is an abuse of process to seek substantive relief in an interlocutory manner – no evidence of the impending land board meeting – injunctive relief will serve no useful purpose – application refused

Cases Cited:

The following cases are cited in the judgment:

Employers Federation v Waterside Workers (1982) N393

Robinson v National Airlines Corporations [1983] PNGLR 476

Counsel:

Mr Koreken Levi, for the Plaintiff

21^st April, 2022

1. TAMADE AJ: This matter came before me on 14 April 2022 wherein I heard Mr Levi for Plaintiff in relation to an urgent application seeking injunctive relief to stop a purported meeting by the Land Board of PNG that Mr Levi submitted was to be heard sometime beginning the 20 April 2022.

2. I proceeded to hear Mr Levi on granting him leave to proceed ex parte dispensing with the requirements of service of the application and all court documents on the Defendants, however I was not satisfied as to the matter before me as there was no evidence of such a meeting that Mr Levi submitted to Court that his client intends to seek orders to restrain from happening and I, therefore, made orders that as I have part heard the matter, the Plaintiff was to serve all court documents on the Defendants and the matter shall return to me today, 21 April 2022 for inter parte hearing.

3. When the matter returned to me this morning, Mr Levi with leave of Court handed up an unsealed affidavit of service of Cohen Levi sworn on 20 April 2022 deposing to the fact Mr Cohen Levi had effected service on all the Defendants court documents in relation to these proceedings.

4. I heard Mr Levi on submissions in relation to his client’s application seeking interim injunctive orders as though the Defendants were served, they were not in attendance in Court and now make my ruling in relation to that application by way of a Notice of Motion filed on 8 March 2022.

Application for interim injunctive orders

5. The Plaintiffs in their Notice of Motion filed 10 March 2022 seek the following orders (apart from the first term of the Notice of Motion seeking dispensation in regard to the requirements of service of the application):

2) Declaration that the Defendants be restrained from dealing with the below State Leases when the decision is pending before the National Physical Planning Board and the National Capital District Building Board. The subject State Leases are;

i. Lot 16, Section 135 Volume 30 Folio 74

ii. Lot 17 Section 135 State Lease Volume 30, Folio 223

iii. Lot 18, Section 135, State Lease Volume 30 Folio 75

3) Declaration that the First Defendant’s action in forfeiting the above leases are unreasonable and in breach of natural justice.

4) Declaration that all Defendants be restrained from taking any steps as to the forfeiture if the said allotments.

5) Maintain the status quo, declaration that the second Plaintiff is the duly granted lease of the subject leases.

6) Any other Orders that this Honourable Court deems fit in this circumstance.

6. The four reliefs sought in the Notice of Motion by Plaintiff basically seek “declarations”, substantive reliefs that is usually sought in the substantive matter and not by way of an interlocutory application. This to my mind is an abuse of process to seek substantive relief in an interlocutory manner.

7. The Plaintiffs rely on Order 4 Rule 49(5) of the National Court Rules in regard to the procedure for Urgent ex parte applications and section 155(4) of the Constitution of the Independent State of PNG. Order 4 Rule 49(5)(ii)(f) states that:

“ (f) A party shall not seek and the Judge shall not make any order in terms of the substantive relief sought in the Originating process.”

8. The orders sought in the application are in the nature of “Declarations” as is usually pleaded in an Originating document though Mr Levi implores me to find that the application is essentially for interim injunctive relief to restrain the PNG Land Board from holding a meeting which will decide on the grant of the subject State Leases to other parties other than Kalang Limited. The documentation by Mr Levi for the Plaintiff is haphazard and is poorly drafted and presented seeking declarations rather than interim injunctive orders.

Brief Facts

9. From the Affidavits filed in this matter, it appears that the First Plaintiff is a director of the Second Plaintiff company, Kalang Limited.

10. Kalang Limited was granted three State Leases on or about 26 July 2006. The three State Lease are described as Allotment 16 Section 135, Hohola, NCD, Allotment 17, Section 135, Hohola, NCD and Allotment 18, Section 135, Hohola, NCD.

11. Plaintiff states in affidavits that in 2012, it had submitted a Development Plan through to the Physical Planning Division of the Department of Lands over these portions of land however these plans were not approved and that there were many attempts to follow up on approval.

12. The Plaintiffs state that they were surprised to learn of a National Gazette publication that showed that the State had forfeited these State Leases.

13. On 25 May 2017, the First Plaintiff Mr Moses Kar approached the Secretary for Lands & Physical Planning accompanied by Mr Mark Chan the Managing Director for the Second Plaintiff and took issue with the forfeiture over these State Leases.

14. On 11 July 2017, a letter was written from the Acting Secretary of the Department of Lands & Physical Planning to Kalang Limited stating that they are allowing an extension of two years to pay a fee every month instead of forfeiture of the State Leases to Kalang Limited in respect to the subject State Leases.

15. On 13 July 2017, the Acting Secretary for the Department of Lands & Physical Planning instructed the Manager Compliance in the Department of Lands & Physical Planning to halt a forfeiture process, I take it over the subject state leases and follow through with the fees instead of forfeiture over the subject leases.

16. On 11 May 2019, the Minister for Lands, Physical Planning and Urbanisation wrote to Kalang Limited and stated that he had instructed the Department of Lands & Physical Planning Compliance Division to allow an extension under section 124(2) of the Land Act to pay a fee over a period of two years instead of forfeiture over the subject State Leases.

17. The publication in the National Gazette described as G752 was published on 5 November 2020 and showed that the subject State Leases were forfeited for failing to fulfil the improvement conditions and that the Lessee has failed to meet the Notice to Show Cause.

18. Plaintiff has filed a Supplementary Affidavit of Moses Kar, the First Plaintiff, which states that there will be a PNG Land Board Meeting No 1/2022 which will commence on 20 April 2022 and end on 3 May 2022 as per the National Gazette No. G179 of 2022. I cannot find a copy of the National Gazette No. G179 of 2022 in any of the Affidavits of the Plaintiffs.

19. The only National Gazette in evidence in the affidavit of the First Plaintiff Mr Moses Kar which is in regard to the forfeiture of the subject State Leases held by Kalang Limited is the National Gazette No. G752 of 2020.

20. I find that there is no evidence before the Court that the subject State Leases held by Kalang Limited is on the agenda of the purported Land Board meeting scheduled to begin on 20 April 2022.

21. The written submissions handed up by Mr Levi go to the substantive nature of the matter and submit the requirements of the law in terms of considerations the Court should take into account in the grant of interim injunctive relief.

22. The principles for the grant of injunctive relief are set out in the case of Employers Federation v Waterside Workers (1982) N393 and Robinson v National Airlines Corporations (1983) PNGLR 476 and has been cited and followed in numerous other cases. The principles are:

1. Has the Plaintiff delayed in making the application;
2. Is the action frivolous and vexatious;

100. Is there a serious question to be tried, does the Plaintiff have a serious and not a speculative case which has a real possibility of ultimate success;

4. Does the balance of convenience favour granting or refusing the injunction-does the Plaintiff have property or other interests which may be jeopardized if it is not granted: what hardship will the Plaintiff suffer it is not granted, what hardship would the defendant suffer if it was granted
5. If an injunction is not granted, can the Plaintiff’s loss be adequately compensated in damages;
6. Is the Defendant adequately protected by the Plaintiff’s undertaking as to damages
7. When all other things are equal, the status quo should be preserved.
   

23. The interest of justice is therefore an important consideration in matters before the Courts in weighing out all the due considerations and principles.

24. I am not satisfied that there is a meeting by the Land Board which has on it the agenda of the subject State Leases previously held by Kalang Limited and now has been forfeited by the State. An injunction would serve no purpose as it is futile, the Plaintiff has not made out a case warranting the grant of injunctive relief.

25. The reliefs sought in the Notice of Motion before the Court seek substantive relief in the nature of declarations and therefore that is an abuse of the Court’s process and in contravention of Order 4 Rule 49(5)(ii)(f) of the National Court Rules.

26. I, therefore, make the following orders:

1. The Plaintiff’s application for injunctive relief filed on 10^th March 2022 is dismissed.
2. No order as to costs.
   

Orders accordingly.

________________________________________________________________

Levikep Lawyers: Lawyers for the Plaintiffs