N10811

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.261 OF 2021

BETWEEN:
CARPENTER AGRICULTURAL & MANUFACTURING LIMITED trading as COCONUT PRODUCTS
Plaintiff

AND:
LAWRENCE ANTON in his capacity as Chairman of the POGAN CLAN
First Defendant

AND:
BOBBY MEKANJI and members of the POGAN CLAN
Second Defendant

AND:
MJ BALSA LIMITED
Second Defendant

Kokopo:   David, J
2023:   12th & 21st October

COMPANY LAW – amalgamation of companies – issue of certificate of amalgamation by Registrar of Companies – amalgamation effective on date shown in certificate of amalgamation – amalgamated company succeeds to all property, rights, powers, and privileges of each of the amalgamating companies – another company incorporated in the name of former company – a company shall not be registered by a name that is identical or almost identical to the name of another company - Companies Act 1997, s. 22, Part XIV (ss.232-240).

DECLARATIONS – applications for declaratory relief - factors to be considered – there must be a controversy between the parties – the proceedings must involve a right – the proceedings must be brought by a person who has a proper or tangible interest in obtaining the order – the controversy must be subject to the court’s jurisdiction – the defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim – the issue must be a real one, not merely of academic interest, hypothetical or one whose resolution would be of no practical utility – applications granted.   

INJUNCTIONS – application for permanent injunctions – principles governing grant or refusal – in all cases it is a matter of discretion - application granted. 

Cases Cited:

Papua New Guinean Cases
Mudge v Secretary for Lands [1985] PNGLR 387
National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135
Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No.2) [1988-89] PNGLR 425
AGC (Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100
AGK Pacific (NG) Ltd v Anderson [2000] N2062
TS Tan v Elcom (2002) SC683
Brothers Rugby Football Union Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537
Placer Dome (PNG) Ltd v Yako (2011) N4691
Independent State of Papua New Guinea v Central Provincial Government (2009) SC977 
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Dr. Onne Rageau v Kina Finance Ltd (2015) N6175
National Fisheries Authority v New Britain Resources Development Ltd (2009) N4068
Amos Ere v National Housing Corporation (2016) N6515
Shengtai Investments Ltd v Chen Jing (2017) N6753
Waigani Heights Development Ltd v Benjamin Mul (2018) N7162

Overseas Cases
The Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Treatise Cited:
Young, Croft and Smith, On Equity, Lawbook Co, 2009

Counsel:
Samantha Margaret Kiene, for the Plaintiff
No appearance for the First and Second Defendants
Paul Pori Yange, for the Third Defendant

JUDGMENT

21st October 2023

1.	DAVID, J:	 By originating summons filed on 9 August 2021, the Plaintiff claims a number of declarations and permanent injunctions and these are:

1.	A declaration that the Plaintiff is the registered proprietor of the property known as Portion 233 contained in Certificate of Title Volume 4 Folio 16.
2.	A declaration that the balsa trees planted within the property known as Portion 233 contained in Certificate of Title Volume 4 Folio 16 are the sole property of the Plaintiff. 
3.	An order that the First, Second and Third Defendants, their relatives and or servants and agents, members of the Pogan Clan and employees be permanently restrained from trespassing and harvesting balsa wood planted by the Plaintiff on the property known as Portion 233 contained in Certificate of Title Volume 4 Folio 16.
4.	An order that the First, Second and Third Defendants, their relatives and or servants and agents, members of the Pogan Clan and employees be permanently restrained from trespassing and interfering with the activities of the Plaintiff in harvesting balsa wood planted by the Plaintiff on property known as Portion 233 contained in Certificate of Title Volume 4 Folio 16.

2.	I allowed the hearing to proceed in the absence of the First and Second Defendants or their lawyer as the Court’s records show that they have been represented by Paisat Lawyers while the matter was being processed through directions hearing including the listing of the matter for hearing on 12 October 2023 at 09:30 am.   

EVIDENCE

3.	The plaintiff relies on the following affidavits:

1.	Affidavit of Gavin Simatap filed on 9 August 2021 (Exhibit A); and
2.	Affidavit of Nisala Sanjeeva Jayawardena sworn on 5 August 2021 filed on 9 August 2021 (Exhibit B); and
3.	Affidavit of Sheila Sukwianomb sworn and filed on 13 July 2021 (Exhibit C).

4.	The Third Defendant relies on the Affidavit of Bongire Lehe sworn and filed on 18 September 2023 (Exhibit D31).

5.	All affidavits were tendered and admitted into evidence without objection.  

6.	No cross-examination of the deponents of the respective affidavits was conducted. 

BRIEF BACKGROUND

7.	The plaintiff claims that it is the sole proprietor or owner of all that piece or parcel of land called Vunabug Plantation consisting of 500 hectares and 90 ares described as Portion 233, New Britain in Certificate of Title Volume 4 and Folio 16 (the Disputed Land).  The Plaintiff has planted balsa trees on the Disputed Land.  The First and Second Defendants are members of the Pogan Clan of Vunabaur Ward, Sulka area, Bitapaka LLG, East New Britain Province (Pogan Clan).  The Plaintiff claims that the First, Second and Third Defendants, their relatives and or servants and agents and employees have illegally trespassed on the Disputed Land and engaged themselves in the illegal harvesting of its balsa trees.   The defendants deny the Plaintiff’s claims.  The First and Second Defendants assert that the Disputed Land is customary land, they own it and therefore are entitled to harvest the balsa trees growing on the Disputed Land without any interference from the Plaintiff.   The Third Defendant does not dispute the Plaintiff’s claim to ownership of the Disputed Land, but denies any involvement of its vehicles or equipment in the alleged illegal harvesting of the Plaintiff’s balsa trees. 

LEGAL ISSUES

8.	The main issues that are raised in the relief sought, the evidence presented and submissions of counsel for my determination are:

1.	Whether the Plaintiff is entitled to a declaration that it is the owner of the Disputed Land?
2.	Whether the Plaintiff is entitled to a declaration that it solely owns the balsa trees planted within the Disputed Land? 
3.	Whether the Plaintiff is entitled to a permanent injunction sought against the First, Second and Third Defendants by themselves and their relatives, employees, servants, agents and members of the Pogan Clan from trespassing and harvesting balsa trees planted within the Disputed Land?
4.	Whether the Plaintiff is entitled to a permanent injunction sought against the First, Second and Third Defendants by themselves and their relatives, employees, servants, agents and members of the Pogan Clan from trespassing and interfering with the activities of the Plaintiff in harvesting balsa trees planted within the Disputed Land?  

9.	The first and second issues will be addressed together.  I will also address third and fourth issues together. 

10.	During the presentation of submissions at the hearing, Mr. Yange for the Third Defendant raised a preliminary matter regarding the standing of the Plaintiff to take out these proceedings.  I will address the preliminary matter first.

PRELIMINARY MATTER
Submissions

11.	Mr. Yange submitted that the proceedings were initiated under an unregistered business name, the Certificate of Title was not in the name of the Plaintiff and therefore they were a nullity and should be dismissed with costs to the defendants.

12.	Ms. Kiene for the Plaintiff submitted that the Third Defendant’s contention on standing is belatedly made, but in any event, it should be rejected as:

1.	The issue of standing should have been raised much earlier before the hearing;
2.	The Plaintiff is a company incorporated under the Companies Act 1997 and has its registered office at WR Carpenter PNG Group of Companies, Head Office, Boroko Motors Building, Gordon’s, National Capital District, Papua New Guinea;  
3.	The name of the Plaintiff is adequately canvassed and explained by Ms. Sukwianomb in her affidavit; and
4.	The Third Defendant did not file a conditional notice of intention to defend.

Consideration

13.	A Certificate of Title Volume 4 Folio 16 was issued over Portion 233 in the Administrative District of New Britain, Territory of New Guinea on 22 October 1931 (annexure NSJ2, affidavit of Nisala Sanjeeva Jayawardena).   Following a number of transactions noted on the Certificate of Title, in 1937, the Disputed Land was purchased by WR Carpenter & Company Limited.   In 1948, the Disputed Land was transferred by WR Carpenter & Company Limited to New Guinea Company Limited, the title produced for registration on 3 October 1950 and registered in March 1951.  In 1951, the Disputed Land was transferred from New Guinea Company Limited to Coconut Products Limited, the title produced for registration in July 1951.

14.	According to the Company Extract for WRC Limited issued as at 27 July 2017, Coconut Products Limited (1-146) was incorporated on 23 August 1930.  It changed its name to WRC Limited on 19 July 1982:  see annexure SS2 to Ms. Sukwianomb’s affidavit.  The registered office of WRC Limited was at WR Carpenter PNG Group of Companies, Head Office, Boroko Motors Building, Allotments 10, 11 and 12 Section 38, Corner Waigani Road and Cameron Road, Gordon’s, National Capital District, Papua New Guinea.

15.	Another company called Coconut Products Limited (1-43672) was incorporated under the Companies Act on 27 August 2001.  see Company Extract of Coconut Products Limited, annexure NSJ1 to affidavit of Nisala Sanjeeva Jayawardena.   This appears to be a distinct and separate company from WRC Limited with a different company registration number within the WR Carpenter PNG Group of Companies using the name of a company which had changed its name to WRC Limited on 19 July 1982. According to s.22(2)(b) of the Companies Act, a company shall not be registered by a name that is identical or almost identical to the name of another company.  That does not apply here because the company initially registered in the name that is identical or almost identical with this company changed its name to WRC Limited about nineteen years before the incorporation of this company. This is in congruence with the notation in the Company Extract corresponding with the item “Previous Names”  that “There are no previous names for this company recorded.”  This company’s registered office is at WR Carpenter PNG Group of Companies, Head Office, Boroko Motors Building, Allotments 10, 11 and 12 Section 38, Corner Waigani Road and Cameron Road, Gordon’s, National Capital District, Papua New Guinea.  This is not the company that owns the Disputed Land as its date of incorporation was about fifty years subsequent to the date of acquisition of the Disputed Land by the then Coconut Products Limited which took place in or about July 1951.

16.	Part XIV (ss.232-240) of the Companies Act 1997 regulates amalgamations of companies.  Under s.232, two or more companies may amalgamate and continue as one company which may be one of the amalgamating companies or be a new company.    

17.	On 31 December 2017, WRC Limited (1-146), was one of ten of WR Carpenter (PNG) Ltd’s subsidiaries that were amalgamated to form an amalgamated company called Carpenter Agricultural & Manufacturing Limited.  The other nine subsidiaries were; Bunom Wo Estate Limited (1-666), Minjigina Estates Limited (1-1292), Tovarur Plantations Limited (1-883), Island Estates Limited (1-140), Pacific Trading Company Limited (1-1362), Merchant Limited (1-2), Globe Manufacturing Limited (1-10113), J Barnes Packaging Limited (1-21499) and J Gadsden (South Pacific) Limited (1-10112).  A Certificate of Amalgamation was issued pursuant to s.237 of the Companies Act by Harriet Kokiva, Acting Registrar of Companies with company registration number 1-146 dated 8 December 2017 specifying 31 December 2017 as the date on which the amalgamation was intended to become effective:  see copy of Certificate of Amalgamation, annexure SS1 to the affidavit of Ms. Sukwianomb.

18.	Sections 238 and 239 of the Companies Act state the effect of a Certificate of Amalgamation and where an amalgamation becomes effective on registers. 

19.	Section 238 states:

“EFFECT OF CERTIFICATE OF AMALGAMATION.

On the date shown in a certificate of amalgamation–

(a) 	the amalgamation is effective; and
(b) 	where it is the same as a name of one of the amalgamating companies, the amalgamated company has the name specified in the amalgamation proposal; and
(c) 	the Registrar shall remove the amalgamating companies, other than the amalgamated company, from the register, and otherwise give effect to the amalgamation; and
(d) 	the amalgamated company succeeds to all the property, rights, powers, and privileges of each of the amalgamating companies; and
(e)	 the amalgamated company succeeds to all the liabilities and obligations of each of the amalgamating companies; and
(f) 	proceedings pending by, or against, an amalgamating company may be continued by, or against, the amalgamated company; and
(g) 	a conviction, ruling, order, or judgment in favour of, or against, an amalgamating company may be enforced by, or against, the amalgamated company; and
(h) 	any provisions of the amalgamation proposal that provide for the conversion of shares or rights of shareholders in the amalgamating companies have effect according to their tenor.”

20.	Section 239 states:

“EFFECT ON REGISTERS.

(1) 	Where an amalgamation becomes effective, no person charged with the keeping of any books or registers shall be obliged, solely by reason of the amalgamation becoming effective, to change the name of an amalgamating company to that of the amalgamated company in those books or registers or in any documents.
(2) 	The presentation to any person of any instrument (whether or not comprising an instrument of transfer) by the amalgamated company–
(a) 	executed or purporting to be executed by the amalgamated company; and
(b) 	relating to any property held immediately before the amalgamation by an amalgamating company; and
(c) 	stating that the property has become the property of the amalgamated company by virtue of this Part,
shall, in the absence of evidence to the contrary, be sufficient evidence that the property has become the property of the amalgamated company.
(3) 	Without limiting Subsection (1) or (2), where any security issued by any person or any rights or interests in property of any person become, by virtue of this Part, the property of an amalgamated company, that person, on the presentation of a certificate signed on behalf of the board of the amalgamated company, stating that that security or any such rights or interests have, by virtue of this Part, become the property of the amalgamated company, shall, notwithstanding any other law or the provisions of any instrument, register the amalgamated company as the holder of that security or as the person entitled to such rights or interests, as the case may be.
(4) 	Except as provided in this section, nothing in this Part derogates from the provisions of the Land Registration Act 1981.”

21.	The amalgamation is effective on the date shown in a Certificate of Amalgamation:  ss.237 and 238(1)(a).  Otherwise, pursuant to s.237(2), where an amalgamation proposal specifies a date on which the amalgamation is intended to become effective, and that date is the same as, or later than, the date on which the Registrar receives the documents, the certificate of amalgamation, and any certificate of incorporation shall be expressed to have effect on the date specified in the amalgamation proposal.

22.	Pursuant to s.238(1)(d), on the date shown in a certificate of amalgamation, the amalgamated company succeeds to all the property, rights, powers, and privileges of each of the amalgamating companies.  Carpenter Agricultural & Manufacturing Limited succeeded to all the property, rights, powers, and privileges of WRC Limited on 31 December 2017.

23.	The phrase “business name” is defined under s.1 of the Business Names Act 1963.  It ‘means a name, style, title or designation under which a business is carried on.’  

24.	The phrase “business name” is also defined under Order 5 Rule 33 of the National Court Rules.  It ‘means a name, style, title or designation under which a person carries on business, not being a name consisting of the name of that person and the name of each of each other person (if any) in association with whom that person carries on business, without any addition.’  

25.	Proceedings in business names are regulated by Order 5 Rule 34 of the National Court Rules and it states: 

“Proceedings in business names. (64/2)

Where a claim for relief is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within Papua New Guinea by that person under a business name and that business name is not, on the date on which proceedings in the Court for that relief are commenced, registered under and for the purposes of the Act, in relation to that person, then, subject to this Division-

(a) 	the proceedings may be commenced and prosecuted against that person in that business name; and
(b) 	that business name shall, for the purpose of the proceedings, be a sufficient designation of that person in any process or other legal document or instrument; and
(c)	any judgement given or order made in the proceedings may be enforced against that person or, where there are two or more such persons, against any of them.”

26.	Order 5 Rule 34 appears to regulate actions against any person carrying on business under a business name that is not, on the date on which proceedings in the Court are commenced, registered under the Business Names Act.   

27.	In the present case, the Plaintiff is named in the originating summons as Carpenter Agricultural & Manufacturing Limited trading as Coconut Products.   Pursuant to s.16 of the Companies Act, a company is a legal entity on its own.    The naming of the plaintiff in its corporate name with the additional notation “trading as Coconut Products”, to my mind, does not mean that it is suing in a business name.  I reject the Third Defendant’s submission in that regard as it is misconceived.

28.	Given this and applying the proper plaintiff rule, I am satisfied that the plaintiff as named is the proper plaintiff in commencing these proceedings. The proper plaintiff rule is explained in AGC (Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100 at 107 where Sakora AJ said:
“The point is further illustrated by looking closely at one of the essential attributes or characteristics of a company as a corporate entity or body. And this is its capacity to sue and liability to be sued: s 18(4) Companies Act. When a wrong is done to the company, the company is the proper plaintiff to maintain, in its own name, an action for redress. Members, as such, have generally no standing to sue on behalf of the company. Similarly, if a company commits a wrong or incurs a liability in the course of its operations, it (and not the members or officials) is the proper defendant. This is sometimes referred to as the "proper plaintiff" rule or the rule in Foss v Harbottle [1843] Eng R 478; (1843) 2 Hare 461, Ch 12 LJ 319. And the wrong obviously is the wrong (liability) committed by the officers and employees of the company. That a company is capable of suing and is liable to be sued in its corporate name is not merely an administrative convenience; it follows logically from the concept of separate legal entity and principles of agency. Thus, civil liability and criminal responsibility of the company arise from a myriad of situations through the acts and omissions of its servants and agents.”
29.	It is therefore unnecessary to consider other arguments advanced by counsel.

DECLARATIONS
Submissions

30.	Ms. Kiene for the Plaintiff submits that the declarations sought in the originating summons should be granted as the plaintiff’s evidence shows that the Plaintiff is the registered proprietor of the Disputed Land.  She stated that there is no real challenge to ownership of the Disputed Land although the First and Second Defendants claim customary ownership of the Disputed Land. 

31.	Mr. Yange for the Third Defendant states that the Third Defendant does not contest ownership of the Disputed Land by the Plaintiff.

Consideration

32.	A declaratory relief is a primary relief that must be pleaded first in the originating summons before any consequential relief is pleaded:  Brothers Rugby Football Union Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537.

33.	 The Court has power to make declaratory orders according to the principles of equity adopted under Schedule 2.2 of the Constitution, such powers deriving from Section 155(4) of the Constitution: National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135.

34.	The power of the Court to make declaratory orders involves a wide discretion:  National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135.
35.	The factors that are required to be established before a declaratory order can be made are set out in The Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438. This case has been referred to in numerous cases in this jurisdiction and some of these are; Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No.2) [1988-89] PNGLR 425; Independent State of Papua New Guinea v Central Provincial Government (2009) SC977; Placer Dome (PNG) Ltd v Yako (2011) N4691; Dr. Onne Rageau v Kina Finance Ltd (2015) N6175; National Fisheries Authority v New Britain Resources Development Ltd (2009) N4068; Amos Ere v National Housing Corporation (2016) N6515; and Waigani Heights Development Ltd v Benjamin Mul (2018) N7162.  These factors are:
	1.	There must exist a controversy between the parties;
	2.	The proceedings must involve a right;
	3.	The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;
	4.	The controversy must be subject to the court’s jurisdiction;
	5.	The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim; and
	6.	The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.
36. 	It will be an abuse of the process of the Court where declaratory relief sought will not resolve all of the issues between the parties or relief that will not finally settle the real dispute between the parties: National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135; Ok Tedi Mining Ltd v Niugini Insurance Corporation and Ors (No.2) [1988-89] PNGLR 425; TS Tan v Elcom (2002) SC683; Shengtai Investments Ltd v. Chen Jing (2017) N6753; and Waigani Heights Development Ltd v Benjamin Mul (2018) N7162.
37.	Evidence adduced by the Plaintiff principally is this.
38.	It is involved in buying, processing and exporting balsa timber.
39.	It is the sole registered proprietor or owner of the Disputed Land which is evidenced by the Certificate of Title Volume 4 Folio 16 (annexure NSJ2, affidavit of Nisala Sanjeeva Jayawardena).  
40.	The Disputed Land was purchased by the then Coconut Products Limited in July 1951 (annexure NSJ2, affidavit of Nisala Sanjeeva Jayawardena).
41.	In or about 2015, the Plaintiff started planting balsa trees on the Disputed Land spanning over 115.56 hectares and in August 2021 were about six years old and ready for harvesting.
42.	The balsa trees were planted over a number of years in stages to ensure a sustainable harvest to meet demands of overseas customers.
43.	Owing to the fact that the Disputed Land covers a vast expanse of land, there were certain areas of the Disputed Land that until recently were not accessible by motor vehicles.
44.	In recent years the Plaintiff has built new access roads to enable it to safely harvest all the balsa trees planted in 2016.
45.	Between fifteen to twenty private security guards are usually stationed in their plantations to secure them and in dangerous situations beyond their control, they engage the services of Insight Security Services (ISS). 
46.	The Plaintiff did not grant permission to the First and Second Defendants or their relatives, servants, agents and or members of the Pogan Clan to plant balsa trees on the Disputed Land.
47.	In or about April 2021, it was alerted by plantation security of the illegal trespass and balsa harvesting activities of the First and Second Defendants and members of the Pogan Clan within the Disputed Land.
48.	On four occasions in 2021, the First and Second Defendants including members of the Pogan Clan attended the Disputed Land and conducted illegal harvesting of balsa trees details of which are tabulated below.
Date	Logs	Cubic Meters	Value of Logs @ K400.00	
24/04/2021	127	9.96	3,984.00	
30/04/2021	85	8.11	3,244.00	
05/07/2021	47	6.20	2,480.00	
19/07/2021	83	10.50	4,200.00	
TOTAL LOSS	342	34.77	13,908.00	

49.	On each of those occasions, the persons involved in the illegal harvesting activities returned the harvested logs to the Plaintiff’s balsa processing factory at Gunanur. 
50.	The instances of illegal harvesting of balsa trees occur under the shroud of darkness at night at the southern part of the Disputed Land bordering the next privately owned plantation called Warrenula Plantation. 
51.	On or about 4 July 2021, another instance of illegal harvesting activity was brought to the attention of Nisala Sanjeeva Jayawardena (Nisala), Plantation Division Manager of the Plaintiff company, Kokopo.  Nisala immediately arranged for ISS to attend the scene, secure the illegally harvested logs and file an official complaint with the Kenabot Police. 
52.	On 5 July 2021, Gavin Simatap, Security Operations Supervisor, ISS, Kokopo attended Vunabug Plantation at the location of the alleged illegal harvesting activity with a Police Officer from Kenabot Police Station.  This area did not have an access road through the plantation so it was being accessed from Warrenula Plantation. A They found a tractor that was either owned or contracted to the Third Defendant and a large truck named “Out of Ash”.  The truck was loaded with 47 logs.  Both vehicles were brought to the Kenabot Police Station to be impounded.   Members or representatives of the Pogan Clan were requested to attend the Kenabot Police Station to resolve the matter.  
53.	On or about 6 July 2021 at around 02:00 pm, Nisala and a person called George Kautu and Gavin Simatap attended the Kenabot Police Station to lay a formal complaint on behalf of the Plaintiff against a man who had identified himself as Bobby Mekanji and who had been brought to the Police Station by ISS for questioning in relation to the illegal harvesting of balsa trees.
54.	On 7 July 2021, at the continuation of efforts to resolve the issue at the Kenabot Police Station, a copy of the Plaintiff’s title to the Disputed Land was shown to members of the Pogan Clan who were in attendance as evidence of ownership.
55.	On the morning of Wednesday, 14 July 2021, a letter dated 13 July 2021 written by the First Defendant for and on behalf of the Pogan Clan addressed to the General Manager, Coconut Products Ltd, Kokopo was delivered to Nisala’s office (annexure NSJ3 of Nisala’’s affidavit).  In the letter, the First Defendant advised that he was the Chairman of the Pogan Clan within the Vunabaur Ward, Sulka, Bitapaka LLG.  He said he was advised by his nephew that the Plaintiff had arranged for security to attend on what he claimed to be their customary land and ‘disturbed our workers who were harvesting balsa trees.  This event occurred on the 6th July 2021.’ He also advised that the title produced and shown to members or representatives of the Pogan Clan at the Kenabot Police Station was neither valid nor conclusive evidence of ownership.    He attached a copy of a Kokopo Local Land Court decision dated 29 October 1993 made in relation to a dispute over ownership of the Sulka Native Reserve and demanded that the Plaintiff not interfere with the activities of the Pogan Clan and its peaceful enjoyment of their customary land.  
56.	A letter from the Plaintiff’s Group Legal Officer/Company Secretary to the Pogan Clan dated 19 July 2021 written in response to the First Defendant’s letter of 13 July 2021 advised that the Disputed Land was freehold land and the Plaintiff had indefeasible title over the land (annexure NNSJ4, of Nisala’s affidavit).   The letter also advised that the Local Land Court decision made in 1993 conflicted with the Plaintiff’s title and any grievance regarding the Plaintiff’s title to or interest in the Disputed Land should be brought before the Land Titles Commission for determination pursuant to s.15 of the Land Titles Commission Act 1962 which had jurisdiction to deliberate on disputes over whether any land was or was not customary land.     
57.	Despite the meetings of 6 and 7 July 2021 to resolve the issue amicably, the First and Second Defendants and their relatives, servants, agents and members of the Pogan Clan continue to assert ownership over the Disputed Land and balsa trees planted there and they continue to harass and intimidate the Plaintiff’s employees or security personnel engaged to protect the Plaintiff’s balsa trees from being illegally harvested.    
58.	By their non-participation at the hearing and resulting in offering no evidence in rebuttal, there is no contest by the First and Second Defendants in relation to the two declaratory relief sought by the Plaintiff in its originating summons.  
59.	Clearly, there is a controversy between the Plaintiff and the First and Second Defendants as to the title to or interest in the Disputed Land.  The Third Defendant does not contest the Plaintiff’s claim to ownership of the Disputed Land.   The proceedings involve a right to ownership of the Disputed Land.  The proceedings are brought by a person who has a proper or tangible interest in obtaining the substantive orders sought.   The controversy is subject to the Court’s jurisdiction.  The First and Second Defendants are persons having a proper or tangible interest in opposing the Plaintiff’s claim.  The issue is a real one.
60.	I am satisfied on the balance of probabilities that the Plaintiff has an indefeasible title over the Disputed Land.
61.	I am also satisfied on the balance of probabilities that the balsa trees planted within the Disputed Land are the sole property of the Plaintiff.
62.	In the result, the Plaintiff is entitled to the declarations sought.
PERMANENT INJUNCTION
Submissions

63.	Ms. Kiene for the Plaintiff submits that the permanent injunctive orders claimed should be granted as:

1.	The Plaintiff holds an indefeasible title to the Disputed Land and the grant of the injunctive relief sought was necessary to protect its legal interest to the Disputed Land and the balsa trees planted within it.
2.	The Plaintiff being the registered proprietor of the Disputed Land is dealing with a serious issue of stealing by the First and Second Defendants who have illegally harvested balsa trees planted on the Disputed Land and sold them to the Third Defendant, another company involved in the balsa export industry.
3.	The matter was reported to the police, however the First and Second Defendants assert that the Disputed Land is their customary land so they have a right to harvest the balsa trees. 
4.	The injunctive relief sought was necessary to do justice in the circumstances of the present case.
5.	The Plaintiff has shown that damages are an inadequate remedy because the First and Second Defendants continue to assert customary ownership of the Disputed Land when the Plaintiff holds a clear title.   

64.	Mr. Yange submitted that the claim and orders sought against the Third Defendant should be dismissed or refused on the basis that the Plaintiff has failed to prove on the balance of probabilities that the Third Defendant was indeed involved or connected in any way with the illegal harvesting of balsa trees within the Disputed Land.  He stated that the Third Defendant through the evidence of Bongire Lehe, Senior Project Officer of the Third Defendant who was in charge of the daily operations of the Third Defendant vehemently denied the Third Defendant’s involvement in the illegal harvesting of balsa trees planted within the Disputed Land as:

1.	The Third Defendant is not involved in the business of harvesting balsa; and
2.	The Third Defendant did not engage a truck for use in the illegal harvesting of balsa trees within the Disputed Land; and
3.	The Third Defendant did not own the truck or any other machinery including the tractor found at the scene where illegal harvesting activity of balsa trees was being conducted.

Consideration

65.	As with all equitable remedies, the grant of an injunction is discretionary.  In AGK Pacific (NG) Ltd v Anderson [2000] N2062, Injia, J observed that ‘The grant of injunctive relief, interim or permanent, mandatory or otherwise, is an equitable remedy and it is discretionary.’  An applicant must persuade the Court to exercise its discretion in their favour.  

66.	Permanent injunctions are divided into prohibitory injunctions, which prevent the doing of an act, and mandatory injunctions, which compel the performance of an act:  Young, Croft and Smith, On Equity, Lawbook Co, 2009 at 16.40.   They can be granted in a diverse range of circumstances. 

67.	In Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144, Davani, J in her dissenting judgment discussed the law on permanent injunction at [58] and [59] as follows:
“58. 	The law in relation to the grant of permanent injunctions is summarised in the text Spry, Equitable Remedies, Injunctions and Specific Performance, Seventh Edition (1980). At pg.392, Spry (supra) states;
"In all cases, it is a matter of discretion whether an injunction will or will not be granted; but the manner of exercise of that discretion depends on the precise nature of the particular rights that it is sought to protect and on all other material circumstances." 

59. 	Spry (supra) quotes further at pg.393 from the case Pride of Derby and Derbyshire Angling Association Ltd v. British Celanese Ltd [1953] ch.149 at 189, which states;

"An injunction may nonetheless, be refused, as a matter of discretion, should it appear to be unjust or 'highly unreasonable' to grant it, by reference to established equitable considerations such as laches, hardship, acquiescence, the absence of clean hands or such other matters. Further, statutory rights must be taken into account by the Court." 

68.	In the present case the Plaintiff is the registered proprietor or owner of the Disputed Land.  Under the Torrens system of land registration codified in s.33 of the Land Registration Act, the Plaintiff has an indefeasible title and holds it absolutely free from all encumbrances unless one of the exceptions specified under s.33(1) including fraud is established:  Mudge v Secretary for Lands (1985) PNGLR 387.  The Plaintiff is entitled to the peaceful use of the Disputed Land.  If the First and Second Defendants insist on the Disputed Land being their customary land, the dispute whether the Disputed Land is customary land or not should be taken up with the Land Titles Commission which has exclusive jurisdiction to hear and determine all disputes concerning claims to ownership by custom of land under the provisions of the Land Titles Commission Act 1962. 

69.	In the exercise of Court’s discretion, I am persuaded by the Plaintiff that the circumstances of the present case warrant the grant of the permanent injunctions sought against the First and Second Defendants.

70.	There is no direct, strong, cogent or convincing evidence linking the Third Defendant to the illegal harvesting of balsa trees within the Disputed Land.  The evidence brought by the Plaintiff in relation to the ownership or control of or engagement of the truck and tractor found at the location of illegal harvesting of balsa trees within the Disputed Land by the Third Defendant is inadequate and in my view does not meet the civil standard of proof on the balance of probabilities.  The claim against the Third Defendant is therefore dismissed in its entirety. 

COSTS

71.	As to costs, it is a discretionary matter.  A successful party is usually awarded costs.  In the present case, the Plaintiff has been successful against the First and Second Defendants so its costs of an incidental to the proceedings should be borne by them.  On the other hand, the Plaintiff has not been successful against the Third Defendant so it should bear the Third Defendant’s costs of and incidental to the proceedings. 

ORDERS

72.	The formal orders of the Court are:

1.	A declaration that the Plaintiff is the registered proprietor or owner of the property described as Portion 233, New Britain in Certificate of Title Volume 4 Folio 16.
2.	A declaration that the balsa trees planted within the property described as Portion 233, New Britain in Certificate of Title Volume 4 Folio 16 are the sole property of the Plaintiff. 
3.	The First and Second Defendants, their relatives and or servants and agents, members of the Pogan Clan and employees are permanently restrained from trespassing and harvesting balsa trees duly planted by the Plaintiff on property described as Portion 233, New Britain in Certificate of Title Volume 4 Folio 16.
4.	The First and Second Defendants, their relatives and or servants and agents, members of the Pogan Clan and employees be permanently restrained from trespassing and interfering with the activities of the Plaintiff in harvesting balsa trees duly planted by the Plaintiff on property described as Portion 233, New Britain in Certificate of Title Volume 4 Folio 16.
5.	The claim against the Third Defendant is dismissed in its entirety. 
6.	The First and Second Defendants shall bear the Plaintiff’s costs of and incidental to the proceedings, which shall, if not agreed, be taxed.
7.	The Plaintiff shall bear the Third Defendant’s costs of and incidental to the proceedings, which shall, if not agreed, be taxed.
8.	Time is abridged.

Judgment and orders accordingly.
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Cornerstone Legal Services: Lawyers for the Plaintiff			
Islands Legal Services: Lawyers for the Third Defendant