John Mur as Chairman for and on behalf of Kunjamb Development Corporation Limited v Les Kewa as President of Banz Club (2010) N4016

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 10 May 2010
• Court: National Court
• Citation: (2010) N4016
• Docket Number: OS NO 174 OF 2010
• Year: 2010
• Judgement Number: N4016

Full Title: OS NO 174 OF 2010; John Mur as Chairman for and on behalf of Kunjamb Development Corporation Limited v Les Kewa as President of Banz Club (2010) N4016

National Court: Makail, J

Judgment Delivered: 10 May 2010

N4016

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 174 OF 2010

BETWEEN

JOHN MUR as CHAIRMAN FOR AND ONBEHALF OF KUNJAMB DEVELPOMENT CORPORATION LIMITED

Plaintiff

AND

LES KEWA as PRESIDENT OF BANZ CLUB

Defendant

Mount Hagen: Makail, J

2010: 04th & 10 May

INJUNCTIONS - Interlocutory injunctions - Interlocutory mandatory injunctions - Equitable relief - Grant of - Discretionary - Principles of - National Court Rules - Order 14, rule 10.

REAL PROPERTY - State lease - Title of - Indefeasible title - Allegations of constructive fraud - Revocation of title - Forfeiture of lease - Failure to give notice to show cause - Mandatory - Effect of - Land Act, 1996 - Section 122 - Land Registration Act, Ch 191 - Section 33.

Cases cited:

Rex Kune -v- Michael Kapak & Ors: OS No 147 of 2010 (Unnumbered & Unreported Judgment of 20th April 2010)

Thaddeus Kambanei -v- The National Executive Council & 5 Ors (2006) N3064

Yama Group of Companies Ltd -v- PNG Power Ltd (2005) N2831

Rosemary John -v- James Nomenda & Ors: WS No 1818 of 2005 & OS No 446 of 2005 (Consolidated) (Unnumbered & Unreported Judgment of 18th January 2010)

Mudge -v- Secretary for Lands [1985] PNGLR 387

Emas Estate Development Pty Ltd -v- John Mea & Ors [1993] [PNGLR 215

Steamships Trading Company Limited -v- Garamut Enterprises Limited & Ors (2000) N1959

The Papua Club Inc -v- Nusaum Holdings Limited (No. 2) (2004) N2603

Hi Lift Co Pty Ltd -v- Miri Setae & Ors [2000] PNGLR 80; (2000) N2004

Ramu Nickel Limited & Ors -v- Honourable Dr Puka Temu & Ors (2007) N3252

Elizabeth Kanari -v- Augustine Wiakar & Registrar of Titles (2009) N3589

Koitachi Farms Limited -v- Walter Schnaubelt (2007) SC870

Counsel:

Plaintiff in person

Mr G Anis, for Defendant

INTERLOCUTORY RULING

10th May, 2010

1. MAKAIL, J: This is an application by the plaintiff by notice of motion filed on 13th April 2010 seeking inter-alia an interlocutory mandatory injunction to compel the defendant to vacate a property described as allotment 1, section 18 and registered as a State lease in Volume 15, Folio 235 pursuant to Order 14, rule 10 of the National Court Rules (preservation of property) pending the determination of the substantive proceeding. The dispute arises from a grant of title to the property by the Minister of Lands and Physical Planning to Kunjamb Development Corporation Limited on 20th December 2009.

2. The plaintiff says that the grant of title to Kunjamb Development Corporation Limited was made following the defendant’s failure to pay land rentals to the State for the past 13 years since his occupation. The previous registered proprietor was Waghi Farmers & Settlers Association and has since abandoned the property and the defendant has been illegally occupying it. An investigation was carried out by an officer of the Department of Lands and Physical Planning by the name of William Donump into the status of the property and a report was submitted to the head office in Waigani where the Minister for Lands and Physical Planning upon being satisfied with the report, revoked the title granted to Waghi Farmers & Settlers Association by notice published in the National Gazette on 10th September 2007 and forfeited the property to the State. Subsequently, the property was put up on open tender and he applied for it. He was successful and the Minister for Lands and Physical Planning granted title of the same property to Kunjamb Development Corporation Limited.

3. He says that he will suffer substantial damages because by virtue of the lease, he is obliged to develop or put up improvements on the property up to the value of K300,000.00 within three years and pay an annual rental of K750.00 to the State. He would be in breach of these covenants and suffer these damages if he is not given immediate possession of the property. As for the defendant, he will not suffer any or substantial damages because the property is run down or has not been adequately maintained.

4. The defendant opposes the application. He says that the Court should not grant the interlocutory mandatory injunction because first, the manner in which the plaintiff and Kunjamb Development Corporation Limited went about to obtain title to the property is highly suspicious and questionable. He says that there was fraud involved in the grant of title. This is apparent from the fact that he and other members of Banz Club were not aware of the investigation and preparation of the report by Mr Donump to the Minister for Lands and Physical Planning to revoke the title to Waghi Settlers & Farmers Association. They were also not aware of the subsequent revocation of title to Waghi Farmers & Settlers Association by the Minister for Lands and Physical Planning and grant of title to Kunjamb Development Corporation Limited. All of these were done without their knowledge and he came to know of the grant of title to Kunjamb Development Corporation Limited when the plaintiff served on him copies of the originating summons and supporting documents on 16th April 2010 at Banz station.

5. He and his associates immediately commenced an inquiry into the circumstances surrounding and leading up to the revocation of title and subsequent grant of title to Kunjamb Development Corporation Limited. Councilor Morgan Mombol and Ruth Kaman took part in this investigation and their investigation led them to Mr Donump in his village at Kilip along Fatima road. Mr Donump confided in them that he (Mr Donump) had not carried out a physical inspection of the property before preparing the report to the Minister for Lands and Physical Planning to revoke the title to Waghi Farmers & Settlers Association and further that Mr Mur was the person who had approached him and asked him to prepare the report which he did: see affidavit of Councilor Morgan Mambol sworn on 27th April 2010 and filed on 28th April 2010 and also affidavit of Ruth Kaman sworn on 27th April 2010 and filed on 28th April 2010.

6. Further to the first point, he says that the property was and is not vacant. It was and is presently occupied by the Banz Club of which he is the president. The Minister for Lands and Physical Planning either failed or deliberately ignored to take into account the defendant’s interest and occupation of the property when he revoked the title of Waghi Farmers & Settlers Association and forfeited the property to the State. This is another reason to say that there was fraud in the revocation of title to Waghi Farmers & Settlers Association and subsequent grant of title to Kunjamb Development Corporation Limited.

7. Secondly, the defendant says that he operates a club called Banz Club at the property and has been occupying the property for a long time. The Banz Club is made up of members of Waghi Farmers & Settlers Association and has put up substantial improvements comprising of buildings and so forth to the value of K100,000.00 over the years, hence, it would suffer substantial monetary loss in the event that he and Banz Club were ordered to vacate the property on short notice. Finally, whilst the plaintiff has covenants in the lease of the property to develop or put up improvements on the property to the value of K300,000.00 within three years, and is obliged to pay annual rental of K750.00 to the State, he says that damages would be an adequate remedy for the plaintiff. The plaintiff may sue and recover these damages from him and Banz Club if it turns that Kunjamb Development Corporation Limited is the legitimate registered proprietor of the property.

8. I have considered the arguments in relation to the competing interests of the parties in this case and must weigh them up according to law. As noted above, the plaintiff seeks an interlocutory mandatory injunction against the defendant to deliver up possession of the property. An interlocutory mandatory injunction is an equitable relief and is granted at the discretion of the Court. In the exercise of the discretion, the Court takes into account two maxims of equity. The first one is, “He who seeks equity must do equity” and the second one is, “He who seeks equity must come with clean hands” and the law places on an applicant the onus to show that, first, there is a strong case or real prospect of success at trial in relation to the issue or issues raised in the proceeding and secondly, that there will be less damage or less injustice to the defendant in the event that the applicant is unsuccessful at trial. As to the question of damage or injustice to the defendant, the Court would normally refuse the relief unless it is shown that the prejudice and hardship to the applicant is disproportionate to the prejudice and hardship to be caused to the defendant in performing the order: see Rex Kune -v- Michael Kapak & Ors: OS No 147 of 2010 (Unnumbered & Unreported Judgment of 20th April 2010), Thaddeus Kambanei -v- The National Executive Council & 5 Ors (2006) N3064 and Yama Group of Companies Ltd -v- PNG Power Ltd (2005) N2831.

9. In the present case, it is clear to me that the previous registered proprietor of the property is Waghi Farmers & Settlers Association. It was the registered proprietor until the...