Eagle Supplies Limited v Tom Kanol as agent of Western Highlands Provincial Government and Others

• Jurisdiction: Papua New Guinea
• Judge: Eliakim J
• Judgment Date: 02 May 2024
• Neutral Citation: N10782
• Citation: N10782, 2024-05-02
• Counsel: Mr. H. Pora, for the Plaintiff/ Applicant,Mr. C. Kuira, for the First & Second Defendants
• Docket Number: OS NO. 180 0F 2023
• Hearing Date: 11 December 2023,02 May 2024
• Court: National Court

N10782

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 180 0F 2023

Eagle Supplies Limited

Plaintiff

v.

Tom Kanol as agent of Western Highlands Provincial Government

First Defendant

Western Highlands Provincial Government

Second Defendant

Mt. Hagen: Eliakim J

2023: 11^thDecember

2024: 02^ndMay

PRACTICE AND PROCEDURE — Application for Interim Injunction and preservation of property — O.12 R.1 and O.14 R.10 (1) of the National Court Rules — National Court has inherent jurisdiction to protect the rule of law — No evidence of legal detention of assets — Application granted.

Cases Cited

Chief Collector of Taxes v Bougainville Copper Ltd(2007) SC853

Ewasse Landowners Association Incorporated v Hargy Oil Palms Ltd(2005) N2878

Paikel v Kaiwe Pty Ltd[1997] PNGLR 603

SCR No.2 of 1981[1982] PNGLR 150

Counsel

Mr. H. Pora, for the Plaintiff/ Applicant

Mr. C. Kuira, for the First & Second Defendants

Henry Pora Lawyers: Lawyers for the Plaintiff

Kuira Lawyers: Lawyers for the First & Second Defendants

RULING

2^nd May 2024

1.Eliakim J: The applicant filed a motion seeking the return of the following properties which it claims were illegally seized from its property at Warakum, Mt Hagen, by the defendants with the assistance of the police, on 06 July 2023.

2. In summary, the applicant seeks the following orders:

(i) For immediate return of the applicant's machinery illegally acquired and kept by the defendants;

(ii) The defendants be restrained from interfering with the applicant's property, including its machinery, without formal orders of the court and or final determination of this proceedings.

(iii) And other orders pursuant to Order 12 Rule 1 of the National Court Rules and s.155(4) of the Constitution.

Agreed Facts

3. The following vehicles are duly registered under the plaintiff company name, Eagle Supplies Limited:-

1.	Isuzu Tipper Dump Truck	BDB 651
2	Isuzu Tipper Dump Truck	BDB 619
3.	Isuzu Tipper Dump Truck	BDB 683
4.	Komatsu Excavator	LAT 145
5.	Komatsu Excavator	HAU 786
6.	Caterpillar Loader	HAU 786
7.	Water Drilling Equipment

4. The defendants with the assistance of the police, forcefully removed the machineries from the plaintiff's yard on or about 06 July 2023.

5. No Search Warrant nor any Court Order for Seizure and Detention from any court, was ever obtained against the Plaintiff nor any of its properties.

6. Counsel Kuira for the defendants concedes that his clients have undertaken an administrative investigation only on shareholding of the Western Highlands Development Corporation, who is not a party to this proceeding.

7. Further, that the defendants have never pursued any criminal investigations nor any criminal charges against the plaintiff company or its directors.

Issues for Determination

8. For purposes of the application before me, there are two main issues for this court's determination:-

i. Does the First & Second Defendants have any legal authority to continue detention of the Plaintiff's machineries which were seized on 6th July 2023 without a Search Warrant or a lawful order of a court?

ii. Has the Plaintiff/Applicant satisfied the principles required for the grant of an interim injunction?

9. I will consider the application under each of these two issues separately.

i. Does the First & Second Defendants have any legal authority to continue detention of the Plaintiff's machineries which were seized without a Search Warrant or a lawful order of a court, on 06 July 2023?

10. Order 12 Rule 1 and Order 14 Rule 10 of the National Court Rules provides for general relief and preservation of property, respectively.

11. Section 155(4) of the Constitution confers jurisdiction on the court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute. (SCR No.2 of 1981[1982] PNGLR 150).

12. Order 14 of the National Court Rules deals with miscellaneous powers of this Court. Rule 10 states:-

“(1) In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.

(2) An order under Sub-rule (1) may authorize any person to enter any land or to do any other thing for the purpose of giving effect to the order.

(3) In proceedings concerning the right of any party to a fund, the Court may order that the fund be paid into Court or otherwise secured.”

13. The applicant relies on the definition of a registered owner of a vehicle under the Motor Traffic Act, as adopted in the case of Paikel v Kaiwe Pty Ltd[1997] PNGLR 603, in which his Honor Injia J (as he then was) held that “A motor vehicle is a special good, the conditions for ownership of which are prescribed by statute. The Motor Traffic Act Ch. 243 and the Regulations, and form 9, provide for a system of registration of motor vehicles. The “owner” of a motor vehicle means a “registered owner” whose name is prescribed in the current Certificate of Registration and none other.”

14. The applicant's counsel Mr. Pora further submitted that there was never any evidence then and even now, of a search warrant issued under the Search Act nor a formal order of a court to search and confiscate the machineries, duly registered under the applicant's name. Again, I am reminded that these facts are not in dispute.

15. It is therefore the applicant's submission that the defendants' actions on 06 July 2023 breaches the Search Act as well as section 44 of the Constitution which provides for the freedom from arbitrary search and entry.

16. Counsel Kuira for the defendants, relies on two affidavits deposed to by himself and the other by the first defendant Tom Kanol. The applicants however objected to the affidavits relied on as both deponents are not custodians of the information deposed to, hence they both have given hearsay evidence.

17. I accept the applicant's submissions that both deponents, particularly Tom Kanol, although named as a party to this proceeding as agent of the WH Provincial Administration, has not disclosed anywhere in his affidavit sworn on 05 December 2023, his interest nor clarified his association with the second defendant. The evidence contained therein, is mostly hearsay rather than direct evidence. Further, in the only 1 or 2 paragraphs in which he attempts to give direct evidence, he fails to qualify how the information about the second defendant and its business affairs is within his personal knowledge. In my view therefore, his evidence is far less than reliable. An employee of the second defendant having direct knowledge and information would have been a preferrable witness in this regard.

18. Even if weight was to be given to Mr. Kanol's affidavit, which is not for the reasons mentioned above, he has deposed to a different entity all together who is not a party in this proceeding, where Mr. Kanol alleges carrying out an exercise to reposes vehicles/ machineries. He however has not mentioned anywhere in his affidavit, that he is also investigating the plaintiff company or any of the machineries registered under the plaintiff company nor the seven (7) machineries in issue. He has failed to provide that crucial piece of evidence.

19. In relation to the affidavit sworn on 04 December 2023, by counsel Kuira for and on behalf of his clients, I am somewhat appalled to see the increasing number of lawyers serving as both advocate and witness in a formal court proceeding. This practice is highly improper and unethical to say the least.

20. It will be remiss of me not to remind lawyers to reacquaint themselves with their Professional Conduct Rules 1989 which clearly prescribes the required standards of behavior for members of the legal profession in Papua New Guinea.

21. Section 14 and 15 of the Rules clearly state:-

“(14) A lawyer shall not accept instructions in a case in which he has reason to believe that he is or is likely to be a witness.

(15) A lawyer shall withdraw from representing a client if – (a) it becomes apparent to him that he is or is likely to be a witness on a material question of fact……….…”

22. The applicant's lawyer in this case has properly objected to Mr. Kuira's affidavit in that the combination of roles may easily prejudice a party's rights in the litigation and may...