Fulleborn Plantations Ltd v Pepi Kimas as Secretary for Department of Lands & Physical Planning and The Independent State of Papua New Guinea (2007) N3209

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 03 August 2007
• Court: National Court
• Citation: (2007) N3209
• Docket Number: WS 359 OF 2007
• Year: 2007
• Judgement Number: N3209

Full Title: WS 359 OF 2007; Fulleborn Plantations Ltd v Pepi Kimas as Secretary for Department of Lands & Physical Planning and The Independent State of Papua New Guinea (2007) N3209

National Court: Davani J

Judgment Delivered: 3 August 2007

N3209

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 359 OF 2007

BETWEEN:

FULLEBORN PLANTATIONS LTD

Plaintiff

AND:

PEPI KIMAS as SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Davani .J

2007: 31 July

3 August

INJUNCTIONS – must be specifically sought and pleaded.

INJUNCTIONS – Undertaking as to Damages by a Corporate Entity – sealed with company seal.

Cases cited:

Gobe Hongu Limited v the National Executive Council and the Independent State of Papua New Guinea and Barclay Bros (PNG) Limited and Southern Highlands Gulf Highway Limited (1999) N1920;

Golobadana No. 35 Ltd v Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation) (2002) N2309;

Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited WS 1599 of 2006, dated 22nd June, 2007;

Chief Collector of Taxes v Bougainville Copper Limited SC853

Counsel

J. Bokomi, for plaintiff/applicant

V. Mauta, for first and second defendant

DECISION

3 August, 2007

1. DAVANI .J: Returnable before me are interim orders I made on 4 June, 2007 which were returnable on 6 June, 2007, 18 July, 2007 and finally today for hearing. The interim orders were made on 4 June, 2007, and were to the effect that an undertaking be given by lawyer Ms Tindiwi, that defendants will not in any manner, way or form deal with Portions 14 and 616 (Consolidated) Milinch Fulleborn Fourmil Gasmata West New Britain Province (the ‘property’) until the application or Notice of Motion filed by the Rageau Manua and Kikira Lawyers for and on behalf of the defendants on 16 April, 2007 is fully heard and determined. Also on 18 July, 2007, due to non- attendance by Ms Tindiwi of the Solicitor-General’s office, the court ordered that Ms Tindiwi personally pay the plaintiffs costs of 18 July, 2007, the sum of K200.00. Ms Mauta of the Solicitor-General’s office who appeared before me on 31 July, 2007 informed the court that Ms Tindiwi had paid the ordered costs.

2. Notice of Motion filed by the defendants lawyer seek that the first and second defendants, together with their servants, agents and or officers including the Registrar of Titles at the Land Titles Registry Office of the Department of Lands and Physical Planning, be restrained from dealing with or registering any dealing in any manner whatsoever and howsoever at all with respect to the Agricultural Lease described and registered as Portions 14 and 616 (Consolidated) Milinch Fulleborn, Fourmil Gasmata West New Britain Province and contained in State Lease Vol. 58 Folio 147 (the ‘property’) pending the determination of these proceedings which involves the legality or otherwise of the revocation and forfeiture of the property.

3. The writ of summons and statement of claim pleads amongst others, fraud and negligence by the defendants.

4. On 31 July, 2007, I heard both counsel in relation to the Notice of Motion and dismissed the application. I informed counsel that I will give full written reasons. This I now do.

Background

5. On 29 October, 1979 the plaintiff was granted an Agricultural Lease to the property for 59 years and 236 days for agricultural purposes. The lease would be held by the plaintiff until its expiration in the year 2035 unless forfeited, revoked or annulled in accordance with the laws of Papua New Guinea. In mid 2002, the plaintiff became aware that the lease was to be forfeited by the Department of Lands as it had failed to pay outstanding land rent.

6. The plaintiff alleges that the Notice to Show Cause issued by the Department of Lands advising that forfeiture action will be taken unless the plaintiff paid its outstanding rent, was addressed to the wrong postal address in Bulolo, Morobe Province. Notwithstanding, the plaintiff paid outstanding rent of K8185.00. However, despite its payment of land rent, the plaintiff later became aware that the lease was the subject of an advertisement for a grant of a lease in National Gazette G. E127 of the 25 August, 2005. On conduct of a title search at the Department of Lands on 11 January, 2007, the plaintiff noted that it was still registered as the Lease Holder. However, a later search conducted on the Land Titles file revealed that the land was forfeited and forfeiture was completed on 7 January, 2005, gazetted in National Gazette G12 dated 3 February, 2005.

7. The plaintiff’s allegations are that there was fraud involved in the forfeiture of the lease, fraud occasioned by servants and agents of the first defendant and further that the first defendants, servants and agents have breached a duty of care to the plaintiff by allowing forfeiture and revocation of the plaintiff’s lease.

The application

8. The plaintiff relies on several affidavits. On 6 June, 2007, I had ordered that no further affidavit materials were to be filed and that was to be the final adjournment. However, on the morning of the hearing on 31 July, 2007, Mr Bokomi sought to file a further affidavit on which to rely. I refused that application.

This application

9. Mr Bokomi’s submissions on the facts are basically what I set out above under the part on background. But the plaintiff did not seek injunctive orders in its statement of claim.

10. As to the form of its Undertaking as to Damages, this was signed by a Vijay Raghaven, Chief Financial and Group Secretary of the plaintiff.

I asked Mr Bokomi for submissions on whether the plaintiff should have pleaded or made a claim for injunctive orders in its statement of claim and as to whether the Undertaking as to Damages before the court is in its proper form. Mr Bokomi conceded that there must be a claim for injunctive orders in its statement of claim. As to the form of the Undertaking as to Damages and the signatory thereon, Mr Bokomi submitted that the person to sign has the authority to sign as he is the Chief Financial Officer and Group Secretary of the plaintiffs group of companies.

11. Ms...