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
• Court: National Court
• Date: 10 May 2010
• Citation: (2010) N4016
• Docket Number: OS NO 174 OF 2010
• Year: 2010

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

10 May 2010

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 - s122 - Land Registration Act, Ch 191 - s33.

Cases cited:

Councilor Rex Kune v Mr Gokumi Kimen (2010) N4018; Thadeus Kambanei v NEC (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 [1993] PNGLR 215; Steamships Trading Co Ltd v Garamut Enterprises Ltd (2000) N1959; The Papua Club Inc v Nusaum Holdings Ltd (No 2) (2004) N2603; Hi Lift Co Pty Ltd v Miri Setae (2000] PNGLR 80; Ramu Nickel Ltd v The Honourable Dr Puka Temu (2007) N3252; Elizabeth Kanari v Augustine Wiakar (2009) N3589; Koitachi Ltd v Walter Schnaubelt (2007) SC870

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 O14, r10 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...