N10558
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 272 OF 2023 (CC4) (IECMS)

STEAMSHIPS TRADING COMPANY
Plaintiff

V

ESTHER PISORO
Defendant

Waigani: Miviri J
2023: 26th & 27th October

PRACTICE & PROCEDURE – Originating Summons – Stay Application for Interim Preservation of Property – Applicant State Lease Holder – Respondent on Land – Putting Up Structures On Land – Maintaining Status Quo – Arguable Cause – Damages Whether Adequate Remedy – Balance of Convenience – Delay – Interest of Justice – Materials Sufficient – Balance Discharged – Stay Granted – Cost follow event.

Cases Cited:

Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853
Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 
Gonjuan v Bank of South Pacific Ltd [2023] PGSC 55; SC2407 

Counsel:

J. Nigs, for Plaintiff
H. Wally, for Defendant

RULING
27th October 2023

1.	MIVIRI, J: This is the ruling on the Plaintiff’s Notice of Motion filed of the 22nd September 2023 seeking: 

(i)	Pursuant to Order 1 rule 7 and Order 4 Rule 38 (2) & (3) of the National Court Rules the Court grant an order for leave to dispense with the requirement for service of this Notice of Motion and other documents filed in this matter as required under Order 4 Rule 42 of the National Court Rules; and

(ii)	Pursuant to Order 12 Rule 1 and Order 14 Rule 10 (1) and (2) of the National Court Rules pending the determination of the proceedings or until further order of the Court, the Defendant along with her servants, officers, agents, employees, and relatives are restrained from:

(a)	Approaching and entering the land described as Allotment 3 Section 24 Granville, National Capital District (the Land) and or performing any activity associated with the use of the land.

(b)	Harming, damaging, destroying, preventing, interfering and or attempting to harm, damage, destroy, prevent and or interfere with the land and the Plaintiff’s use of the Land.

(c)	Intimidating, coercing, forcing, or making threats by word of mouth, letter, telephone, email or otherwise against the Plaintiff, its employees, servants, officers, agents, contractors, and their employees.

(iii)	The time for entry of these orders be abridged to the time of settlement which shall take place forthwith; and 

(iv)	That the Defendant along with her servants, officers, agents, employees, and relatives be at liberty to apply to amend, vary, set aside, or discharge such orders as are granted on 3 clear working days notice to the Plaintiff’s Lawyers; and 

(v)	Costs be in the cause. 

(vi)	Any other orders in the discretion of the Court.

2.	 At the outset application has been orally made from the bar table by Mr. Hubert Wally who says he represents the defendant but there is no notice of appearance on file which he said he would file in due course. And he would also file necessary affidavits and defence on the basis of which he applies for an adjournment to do. The service details do not warrant an adjournment because notice has been given as far back as 25th September 2023. It would be almost over a month to the date of hearing today. And details of service set out in the affidavits deposed to of the service affidavit of Rose Pakop filed of the 24th October 2023 confirms that subject materials set out above were indeed served on the defendant, and so the defendant is well aware first served on the 25th September 2023, then emailed on the 27th September 2023 in first batch, second batch on the 03rd October 2023. Another batch yet again on the 24th October 2023. This is not an action that has not been put upon the defendant but has been the subject of gradual and sustained communication voicing over quite a period of time evidenced by the material served on the defendant. The detailed affidavit sworn by Rose Pakop sworn of the 02nd October 2023 filed of the 04th October 2023 details this out to all. 

3.	All the material relied on this application have been duly served and this application is not a surprise package for the defendant. She has been given notice of that fact. It is glaring and sustains that the motion must be heard as applied now. It is to maintain status quo. And the argument advanced to vacate and prepare the defence advanced by Hubert Wally for an adjournment to prepare is without merit as no material have been filed in support and on the basis to heed. It is an application that has been made verbally without formal material filed and so does not hold water in the light of PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). The application to adjourn is refused and the motion will be heard now. That is now the orders here.

4.	The facts pertinent and relevant emanating is a dispute over the ownership of the subject State Lease section 24 Allotment 3 Kermadec Street Granville, Port Moresby. The Defendant disputes the State Lease that is held by the Plaintiff on the subject property. And has gone onto the subject property setting up a structure within including putting up a fence. When confronted by the Plaintiff with employees’ servants associates and agents has not rebutted there and then with evidence of title to it. In the case of the Plaintiff the State lease was issued in 1983, which was transferred to the Plaintiff on the 19th September 1950 expiring on 2038. This has come out clear in the National Court proceedings OS (JR) 891 of 2016 presided by Justice Gavera Nanu that affirmed on the 11th February 2021 the Plaintiff’s title over the property declaring null and void the title that was held by National Housing Estate Limited. It means that title is indefeasible against the whole world because of the test in Court Section 33 of the Land Registration Act. So an action against will be against that Legal Fact which in my view will have dire consequences for the defendant.
 
5.	There are fourteen affidavits that the applicant relies on to move this motion: 	
(i)	Affidavit in support of Allan Donigi, Kelamu Gaius, Tess Tavaperry, Xavier Jimmy, Chris Kopie, Gilbert Iseta, Jerry Luke, all sworn of 21st September 2023 filed of the 22nd September 2023.

(ii)	Undertaking as to Damages filed also of the 22nd September 2023.
(iii)	Affidavit of Allan Donigi sworn 2nd October 2023 and filed of the 03rd October 2023.
(iv)	Affidavit of Allan Donigi sworn of the 06th October 2023 and filled of 09th October 2023.
(v)	Affidavit of Allan Donigi sworn of the 10th October 2023 and filled of 11th October 2023.
(vi)	Affidavit of Allan Donigi sworn of the 17th October 2023 and filled of 18th October 2023.
(vii)	Affidavit of Allan Donigi sworn of the 19th October 2023 and filled of 20th October 2023.
(viii)	Affidavit of Alan Heyns sworn of the 18th October 2023 and filled of 20th October 2023.

6.	The Jurisdictional bases of Order 12 Rule 1 General is appropriate to the cause here in reliance upon which the applicant is making this application. And supported by Order 14 Rule 10 Preservation of Property fits the facts here. It is aptly the jurisdictional basis for the action here. Because this is as to the subject property in which the evidence here is that the applicant is the State Lease holder. He has the title that is now disputed by the Defendant who has put up structures within. It is appropriate that resort is to this Order to preserve the property. The language of the order is specific: - “10. Preservation of property. (28/2)

(1) In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.
(2) An order under Sub-rule (1) may authorize any person to enter any land or to do any other thing for the purpose of giving effect to the order.
(3) In proceedings concerning the right of any party to a fund, the Court may order that the fund be paid into Court or otherwise secured.”

7.	The facts circumstances posed here are consistent that the subject property section 24 Allotment 3 Kermadec Street Granville Port Moresby must be preserved from any further dealings by the Defendant who has produced no evidence of title in law to the subject property. These proceedings were filed as of the 22nd of September 2023 and service of the documents including physical approaches at the site has brought no response with the titles based on which she has put up a structure on the site. And in direct defiance has put up a fence yet has produced no title document in law. It is serious in law to be acting in this manner towards the plaintiff who has shown here to the requisite balance title in law evidence of a State Lease tested in Court ruled his way, and history as to how it has come to be seized of the subject property. Which is not the same for the defendant. Photographs depicted in the affidavit dated the 17th October 2023 by Allan Donigi show a structure with blue corrugated iron showing a purported building that appears to resemble a tucker shop. Size of which can be simply removed off the property by employees’ agents’ servants of the State Lease holder the plaintiff. The iron sheeting covering the property has been ripped exposing internal wirings encircling the property. It would appear to be recent dealing in the property and in haste. 

8.	If indeed title is in the hands of the defendant, it is not visible in the actions of the defendant. It is as if in haste and undeterred by the plaintiff. Given these facts arising from all the material relied on it is appropriate to secure the property, and to preserve it from further actions at the hands of the defendant, her servants, agents, employees or any other person she is associated with in dealing with the subject property. It would make sense to rebut the intrusions of the plaintiff if defendant was genuinely in law versed with and possessed of the title documents to immediately strengthen the course of being present on the property with it. That has not happened since the servants’ agents and employees of the Plaintiff have visited the site and confronted the defendant. This is a conduct that is inconsistent with a title holder in law. It is more the conduct of a land grabber intent on stifling title out of the grasp of the title holder in law with erecting hasty structures to show presence, rather than title in law. Which Structure because of the haste can be removed in the same fashion it has been erected on the property summarily. The site has been recently cleaned depicted by the photos and is the evidence of the affidavits set out above by those physically at the site. The subject structure is not permanent. It is not complete and appears to be done in haste to claim possession not title. This is evident from the way the fence has been broken into from the side. It is apparent that from this evidence without any title documents produced by the defendant, not even on the day in court service effected particulars set out above.

9.	It would make perfect sense given to preserve the property from further dealings and interference by the defendant her servants’ agents, employees, and associates by application imposition of a property preservation order as pleaded. Here the law is set out firmed by the Supreme Court in Gonjuan v Bank of South Pacific Ltd [2023] PGSC 55; SC2407 (21 June 2023) reinforcing the law set out in an earlier decision Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853 (2 February 2007) reinstating the principles of interlocutory injunctions, and stating, “12. We adopt the principles of interim injunction in Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853 where an interim injunction will be granted if:

(a) there are serious issues to be tried,
(b) balance of convenience favours the granting of an interim injunction,
(c) damages would be an adequate remedy, and
(d) does the interest of justice require the interim injunction to be granted?
(e) has the applicant given an undertaking as to damages.”

10.	The affidavit material of the Plaintiff details the defendant’s claim to title to the property. The affidavit of Allan Donigi, Jerry Luke, Gilbert Iseta all sworn 21st September 2023 filed of the 22nd September 2023, establishes that on the 17th December 2023 about 9.00am the Defendant accompanied by associates and some police personal came onto the property and broke the fence to go into the property. At that time security guards of the Plaintiff were there guarding the property alerting the operations and site coordinator for assistance. That same day the Defendant returned to the property now accompanied by her associates with fencing material and entered the broken fence of the property. And begin to put up the fence poles within.

11.	Legal Counsel of the plaintiff with Property Managers including Pacific Palms Property came to the site on the 18th September 2023 to conduct site inspection and met the defendant. They asked her for the title to the property She did not produce one. And she refused to entertain any discussions on the matter. She was also alerted to the fact that with a forewarning letter that her actions constituted trespass and encroachment on the property. And copies of the plaintiff's title, registered survey plan and identification survey plan were given the defendant. No response has returned from the defendant. 

12.	In my view there is very serious issues to be tried out depicted by all I have set out above discharging this ground in favour of the applicant. By this evidence and the law in particular that title has been tested in court now resting on the applicant who has established business reputation and standing as a corporate citizen well rooted in the life of the Country. It is therefore without doubt asserting the truth by that record in where it stands in the matter. It is therefore beyond the balance of preponderance that damages the undertaking of is adequate, can be easily attained should it come to that fact. Here by what is set out above that is unlikely because the title has been tested in court and rests with the applicant. The balance of convenience, and the interest of Justice rests on the applicant to be granted the plea for interim injunctive orders as set out in his pleadings set out above. Because that is where justice lies, and it will be sufficiently accommodated should it fall adverse by the undertaking of damages filed on the record of the proceedings set out above. I am satisfied that the motion be granted in the terms set out above under the orders pleaded here and pursuant to section 155 (4) of the Constitution.

13.	Further given all set out above I order that by or before Thursday 2nd November 2023 close of business all temporary structures that are erected presently on the site must be removed including the fencing and any other that have come at the hands of the defendant, her servants associate, agents, or employees forthwith. The title has been tested in Court confirmed on the plaintiff. It is indefeasible by that fact pursuant to section 33 of the Land Registration Act. And the defendant is illegally on it without any evidence of title. This removal will be by the defendant forthwith to preserve the property in its original status due the plaintiff. Should there be failure the plaintiff is granted liberty to enforce compliance.

14.	The formal orders of the Court are:

(i)	The Plaintiff is granted the motion in the terms as pleaded set out above.

(ii)	The motion in its terms set out above will remain in force for 21 days expiring on Monday 27th November 2023.

(iii)	Matter will revert to Court Monday 04th December 2023 for Directions.

(iv)	Further the Defendant is directed forthwith to remove all structures on the site State Lease section 24 Allotment 3 Kermadec Street Granville, Port Moresby by or before close of business by or before Thursday 2nd November 2023.

(v)	The Defendant will file appropriate evidence complying with term (ii) by Friday 03rd November 2023.

(vi)	The matter will be called for Directions Monday 06th November 2023 at 9.30am.

(vii)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Dentons PNG: Lawyers for the Plaintiff/Applicant		
Hubert Wally Lawyers: Lawyers for First Defendants