Pacific Construction Group Ltd v Assemblies of God Boroko Association Inc

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 29 November 2017
• Citation: (2017) N7060
• Court: National Court
• Year: 2017
• Judgement Number: N7060

Full : WS No 245 of 2016; Pacific Construction Group Limited v Assemblies of God Boroko Association Inc and Assemblies of God Papua New Guinea Incorporated and Dynamic Development Limited and Trinco No 6 Limited (2017) N7060

National Court: David, J

Judgment Delivered: 29 November 2017

N7060

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No.245 of 2016

BETWEEN:

PACIFIC CONSTRUCTION GROUP LIMITED

Plaintiff

AND:

ASSEMBLIES OF GOD BOROKO ASSOCIATION INC.

First Defendant

AND:

ASSEMBLIES OF GOD PAPUA NEW GUINEA INCORPORATED

Second Defendant

AND:

DYNAMIC DEVELOPMENT LIMITED

Third Defendant

AND:

TRINCO NO.6 LIMITED

Fourth Defendant

Waigani: David, J

2017: 20 & 29 November

PRACTICE AND PROCEDURE – application to dismiss proceedings - for not disclosing a reasonable cause of action or for being vexatious or frivolous or for being an abuse of the process of the Court – National Court Rules Order 12 Rule 40(1).

INJUNCTIONS – interim injunction – application for continuation of interim injunction - principles governing grant or refusal of injunction – hearing inter partes – application refused.

Cases Cited:

Associated Plumbing Installation Ltd v Air Niugini (2011) SC1127

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

Kerry Lerro v Philip Stagg (2006) N3050

Philip Takori v Simon Yagari (2008) SC905

Robinson v National Airlines Commission [1983] PNGLR 476

Counsel:

Simon Dewe, for the Plaintiff

Martin Kombri, for the first Defendant

Herbert Best Wally, for the Second Defendant

Bill Frizzell, for the Third and Fourth Defendant

RULING

29th November, 2017

1. DAVID, J: INTRODUCTION: The proceedings commenced by the plaintiff against the defendants by writ of summons endorsed with a statement of claim filed on 22 March 2016 and subsequently amended by amended writ of summons filed on 5 May 2016 (the writ) concern land described as; Allotment 3 Section 389 Hohola in the National Capital District, State Lease Volume 28 Folio 69; Allotment 4 Section 389 Hohola in the National Capital District, State Lease Volume 28 Folio 70; Allotment 5 Section 389 Hohola in the National Capital District, State Lease Volume 28 Folio 71; and Allotment 6 Section 389 Hohola in the National Capital District, State Lease Volume 28 Folio 72 (the properties). In the substantive proceedings, the plaintiff claims orders in the nature of negative and mandatory injunctions, declarations and in the alternative, an order for specific performance of a contract for sale and purchase of two of the allotments comprising the properties namely Allotments 3 and 4 at the purchase price of K3,865,000.00 entered into between the first defendant as vendor and the plaintiff as purchaser dated 19 February 2010 (the contract) and to take all steps necessary to transfer the titles to those allotments including obtaining Ministerial approval of the contract. The first defendant filed its defence by way of an amended defence on 21 April 2016. The second defendant filed its defence on 20 November 2017. The third and fourth defendants filed their defence on 1 September 2016. This is a ruling on three motions moved by the plaintiff, first defendant and the third and fourth defendants.

2. The plaintiff’s application returned for hearing inter partes in which it seeks an order for the continuation of the interim orders made by the Court on 23 March 2016 (the ex parte orders) which were obtained upon the plaintiff moving its notice of motion filed on 22 March 2016 ex parte. In that motion, the plaintiff relying on Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution seeks interim restraining orders against the first and second defendants who were the only defendants at the time, the Registrar of Titles and the PNG Land Board and all their agents or servants from deliberating on the dealing with State Leases described as Volume 28 Folio 70, Section 389 Hohola and Volume 28 Folio 69 Allotment 4 Section 389 Hohola in any manner or form whatsoever pending the determination of these proceedings or until further orders of the Court.

3. In support of the plaintiff’s motion, it relied on the following materials:

1. Affidavit of Kenneth Korakali sworn on 21 March 2016 and filed on 22 March 2016; and

2. Undertaking as to Damages provided by the plaintiff executed by Kenneth Korakali, Managing Director of the plaintiff executed under the common seal of the plaintiff dated 21 March 2016 and filed on 22 March 2016.

4. The first defendant’s application was moved pursuant to a notice of motion dated 13 September 2016 and filed on 14 September 2016. It essentially seeks an order to set aside the ex parte orders relying on Order 12 Rule 8(4) of the National Court Rules.

5. In support of the first defendant’s application, it relied on the:

1. Affidavit of Ps. Phanuel Woyengu sworn and filed on 5 May 2016 (first affidavit);

2. Affidavit of Ps. Phanuel Woyengu sworn on 13 September 2016 and filed on 19 September 2016 (second affidavit); and

3. Affidavit of Ps. Phanuel Woyengu sworn and filed on 21 September 2016 (third affidavit).

6. The third and fourth defendants’ application was moved pursuant to a notice of motion filed on 11 November 2016 seeking an order to dismiss the amended statement of claim as against the third and fourth defendants relying on all the grounds specified under Order 12 Rule 40(1) and/or under Order 10 Rule 9A(15)(2)(d) of the National Court Rules.

7. In support of the third and fourth defendants’ application, they relied on the:

1. Affidavit of Ching Hieng Ho sworn on 10 November 2016 and filed on 11 November 2016 (first affidavit);

2. Affidavit of Teck Kong Lee filed on 11 November 2016 (first affidavit);

3. Affidavit of Ching Hieng Ho sworn and filed on 22 November 2016 (second affidavit); and

4. Affidavit of Teck Kong Lee sworn and filed on 22 November 2016 (second affidavit).

8. The second defendant did not rely on any affidavit.

9. The applications were contested.

SUMMARY OF PLAINTIFF’S EVIDENCE

10. Kenneth Korakali is the Managing Director of the plaintiff company, a company registered pursuant to the Companies Act: annexure KK1. He is an elder and member of the second defendant, Assemblies of God Papua New Guinea Incorporated.

11. The first defendant is a member of the second defendant and it is located within the Boroko area.

12. The second defendant is the national body that represents the Assemblies of God church and has a Constitution: annexure KK2. Under Article 17 of the Constitution of the second defendant, all land and properties including those registered under member Assemblies including the first defendant are vested in the second defendant.

13. The first defendant was granted 99 year State Leases over the properties all commencing on 23 October 2003 and ending on 22 October 2102: annexure KK3. At the time of their grant, the first defendant was not a registered legal entity. It was only registered under the Associations Incorporation Act on 29 October 2008. By necessary implication or inference, since 23 October 2003, the properties were and are vested in the second defendant by virtue of Articles 5 and 15 of the second defendant’s Constitution.

14. By a letter of offer dated 27 November 2009, he wrote to the General Superintendent of the Assemblies of God Church of PNG (the AOG Church) offering to purchase two of the allotments comprising the properties namely, Allotments 3 and 4 (the disputed land). By a letter of acceptance dated 19 January 2010, the AOG Church informed him about the acceptance of his offer to purchase the disputed land for K3,865,000.00 and to formalise the transaction with a contract: annexure KK4.

15. On 19 February 2010, the first defendant and the plaintiff executed the contract: part of annexure KK5. The second defendant sanctioned the execution of the contract. The plaintiff then paid the 10% deposit of K386,500.00. A copy of the instrument of transfer for allotment 4 is annexed as forming part of annexure KK5. Since the execution of the contract, the first and second defendants have failed to take all necessary steps to attain completion and their conduct is dilatory.

16. He believes that the first defendant through its agents and servants has made various attempts to sell the disputed land to other persons.

17. He is also aware that the first defendant has instituted an action for judicial review against the State and others including the third and fourth defendants by OS No.41 of 2011 for the alleged forfeiture of the State Leases over the properties inclusive of the dispute land by the Department of Lands & Physical Planning and the subsequent granting of State Leases to the third and fourth defendants: annexures KK6 to KK9.

18. He is aware that applications made under Section 119 of the Land Act for variation of purpose and relaxation of covenants lodged by the third and fourth defendants in connection with Urban Development Leases specified in State Leases granted over the disputed land were listed as Items 171 and 172 in National Gazette No.80 dated 24 February 2016 for deliberation...