Southern Highlands Provincial Government v National Housing Corporation (2001) N2110

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 18 June 2001
• Court: National Court
• Citation: (2001) N2110
• Year: 2001
• Judgement Number: N2110

Full Title: Southern Highlands Provincial Government v National Housing Corporation (2001) N2110

National Court: Davani J

Judgment Delivered: 18 June 2001

N2110

PAPUA NEW GUINEA

[In the National Court of Justice]

OS NO. 91 OF 2001

BETWEEN:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

Plaintiff/Applicant

AND:

NATIONAL HOUSING CORPORATION

Defendant/Respondent

Mt Hagen: Davani,J

2001: 18 May & 18 June 2001

PRACTICE AND PROCEDURE — Plaintiffs application for restraining orders against Defendant will not succeed as Defendant as registered proprietor has indefeasible title to property, exceptions referred to in s.33(1)(a-i) of Land Registration Act, not proven — Plaintiff must specifically plead aspects of illegality in the Statement of Claim to show that it has a legal right or interest in or over a matter — National Court Rules 0.8 r.14, Land Registration Act s.33(1)(a-i).

Cases Cited

Employers Federation of Papua New Guinea Waterside Workers & Seamens Union & Lawrence Titimur & Ors (N393 11 October 1993);

Craftworks Niugini Pty Ltd v Allan Mott (SC 525 27 June 1997);

JT Stratford & Son Limited v Lindley [1964] 3 All ER 102;

American Cyanamid Co. v Ethicon Ltd [1975] AC 396;

National Housing Corporation v Yama Security Services Pty Limited N1985;

Robinson v National Airlines Commission [1983] PNGLR 476;

Phillips v Phillips [1878] 4 QBD, 127;

Paul John v Gerd Lindhardt and Serricom Pty Ltd N1938;

Bruce v Oldhams Press Ltd [1936] 3 All ER 287;

Haro Yamis v Viviso Seravao, Minister for Landsand Ors, unnumbered and unreported judgment of 9th November 1988.

J. Nandape for the Plaintiff/Applicant

H. Kapal for the Defendant/Respondent

DECISION

(Interlocutory Application)

18 June 2001

DAVANI, J: This is an application by the Plaintiff government seeking various interim orders. It's Notice of Motion filed on 20 February, 2001 reads:

"1. An order restraining the Defendant on its servants or agents from having any further dealings or selling or assigning of any interest over State houses described as Ex Army Houses located in the township of Mendi, Southern Highlands Province to former landowners or anybody until the substantive matter in this application is heard.

2. An interim order restraining the former landowner or any body who is not an employee of the State from occupying State Houses described as Ex Army Houses located in the township of Mendi, Southern Highlands Province.

3. An order that the time limited for service of this Notice of Motion pursuant to the Rules of this Honourable Court be abridged and that such provision of such rules as would prevent the orders sought otherwise being made dispensed with.

4. Such further or other orders as this Honourable Court considers fit.

5. Costs be in the cause."

By the Plaintiffs originating summons filed on 20 February 2001, it seeks the same restraining orders as pleaded in paragraph 1 of the Notice of Motion and other Declaratory orders in relation to the Ex Army Houses.

The Plaintiff and the Defendant ('Applicant' and 'Respondent' respectively) have each filed written submissions.

The Respondent filed Notice of Intention to Defend on 8 March 2001. It also filed an affidavit in response to the Applicants affidavits, that of Paul Asukasa sworn on 7 March 2001 and on

The Applicant, in support of its application, filed the affidavit of Mathew Tamutai sworn on 20 February 2001 and the affidavit of Hosea John sworn on 15 February 2001.

Facts

It appears from the affidavit before the court that the undisputed facts are that:

1. The Australian Defence Force ('ADF') whilst based in Mendi in the Southern Highlands Province ('SHP'), had built 15 houses for their personnel to reside in.

2. On the 28th September 1999, the ADF, on completion of its project in the Southern Highlands, by a Deed of Grant of the same date, "returned the land to the Independent State of Papua New Guinea through its statutory agent the National Housing Corporation ('NHC') and

"…….. assigned the Property to the NHC by way of grant".

3. The Land(s) in question are;

· Section 4 Lot 9 Sappers Road Mendi

· Section 4 Lot 1 Sappers Road Mendi

· Section 4 Lot 10 Sappers Road Mendi

· Section 24 Lot 22 Military Road Mendi

· Section 4 Lot 5 Sappers Road Mendi

· Section 24 Lot 2 Military Road Mendi

· Section 4 Lot 3 Military Road Mendi

· Section 24Lot 9 Military Road Mendi

· Section 24 Lot 1 Military Road Mendi

· Section 24Lot 3 Military Road Mendi

· Section 24Lot 5 Military Road Mendi

· Section 24 Lot 13 Military Road Mendi

· Section 24 Lot 2 Military Road Mendi

· Section 4 Lot 2 Suppers Road Mendi

· Section 24 Lot 15 Military Road Mendi

On 2 December 1999, the Defendant executed Memorandum of Understanding with the Susumba Association where it agreed to sell the association four (4) of the houses located on the Susumba customary land.

On 16 February 2001, the Defendant executed another Memorandum of Understanding with the Murumbu Association where it agreed to sell three (3) of the six (6) houses located on the Murumbu customary land.

These properties were:

§ To Susumba - Section 24 Lot 2 Military Road Mendi

- Section 24 Lot 3 Military Road Mendi

- Section 24 Lot 5 Military Road Mendi

- Section 24 Lot 9 Military Road Mendi

§ To Murumbu - Section 4 Lot 1 Sappers Road Mendi

- Section 4 Lot 3 Sappers Road Mendi

- Section 4 Lot 9 Sappers Road Mendi

Application before me

The Applicant government argues that by s.30 of the Organic Law on Provincial and Local Level Government, ('OLP & LLG), the provincial administrator shall carry out the roles and functions of the National Departments and agencies. The Applicant argues that the NHC has breached these provisions by failing to involve the SHP in its dealings with the land in question.

The Applicant further argues that by virtue of s.68 of the National Housing Corporation Act No. 6 of 1990, ('NHC') the purpose of the NHC is a public purposes and as such it should be serving the needs of the public rather than a select few. Ms Nadape for the Applicant argues that there is the dire need for housing in the Southern Highlands province for the public.

The Applicant argues that these are serious issues to be determined and that the balance of convenience is such that an interim order should be granted restraining the Defendant or its servants or agents in the term requested.

The Applicant also requests that the restraining orders should also extend to the landowners and privately employed people who now occupy the houses and that if the trend is to continue, then the occupants will be led to believe that they have unconditional rights to continue to reside in these houses.

The Respondent on the other hand relies on ss.6(1) of , 28(1)(c) and 30 of the NHC Act and submits respectively that;

"The corporation may acquire, hold and dispose property"

"Subject to the Act, the function of the Corporation are to sell houses to illegible persons".

"The Corporation may do all things that re necessary or convenient to be done for or in connection with the performance of its function".

The Respondent submits that the Deed of Grant empowers the National Housing Corporation to conduct dealings on the land(s) in question, as they have effectively been retransfered by the ADF to the NHC.

In relation to the motions before me grounds 1 and 2 will be discussed together.

Ground No.1 - Applicant seeks orders restraining the Respondent from dealing with the ADF houses more specifically dealings with the landowners, until the substantive matter is dealt with.

Ground No. 2 - The Applicant seeks orders restraining the former landowners or others not employees of the state from occupying the ADF Houses.

The law on interim injunctions is settled in Papua New Guinea. An applicant for an interim injunction must satisfy the court on a number of matters before the court grants an interim injunction.

The relevant principles, since the House of Lord's decision in JT Stratford & Son Limited v. Lindley [1964] 3 All ER 102; are laid down in American Cyanamid Co. v. Ethicon Ltd [1975] AC 396; which has been adopted as part of the underlying law in this jurisdiction. These principles are set out by Kapi, DCJ in Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers & Seamens Union & Lawrence Titimur & Ors (N.393, 11th October, 1993, unreported). The Supreme Court in Craftswork Niugini Pty Ltd v. Allan Mott, (SC 525, 27th June, 1997, unreported)...