DC341

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 180 OF 2000

Jeffrey Kaumba
Complainant/Applicant

V

Thomas James
Defendant/Respondent

Goroka: Manue F
2000: 21, 26, June

Counsels
D. Umba For The Complainant/Applicant
Respondent Appeared On His Own Behalf.

INTERLOCUTORY APPLICATION

26 JUNE 2000.

The applicant applies to this Court by Notice of Motion seeking the following orders:

1. That the vehicle Toyota Hilux registration number MAA.117 be kept in the custody of the Police until this proceeding is determined.
2. Defendant pays the costs of this application.
3. Such further or other orders as this Honorable Court deems meet.

The powers of this Court to hear and make Interlocutory or interim orders are derive from section 21 of the District Court.

The provision is as follows:

72. General ancillary Jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall in proceedings before it

(a) grant such relief, redress or remedy or combination of remedies whether absolute or conditional; and

(b) give the same effect to every ground of defense or counter claim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample manner.

The court may only exercise its general ancillary powers where there is a cause of action pending in the Court.

I am satisfied that there is a substantial dispute pending in this court- complaint no.180 of 2000. The question now is whether the orders sought should be granted.

In moving this motion the applicant an affidavit of Jeffrey Kaumba filed on the 26th day of May 2000. The relevant paragraphs in the affidavit that directly relate to the subject of the application are reproduced here under:

2. In respect the vehicle in issue, I negotiated directly with the owner of the said vehicle prior to his death and we agreed to the purchase price of K15,000.00 and further agreed that I will pay him K8,000.00 and the balance of K7,000.00 later we signed a Statutory Declaration to that effect.

Annexed hereto and marked with the letter "A" is a copy of the Statutory Declaration.

3. At the outset the Defendant was never a party to the negotiations. Further he is not a blood relative to the Deceased. He claims that the Deceased is his uncle is totally false.

4. The Defendant also do not have any interest in the vehicle in that he is not a part owner nor did he assist the Deceased in purchasing the said vehicle.

5. The Defendant then instigated proceeding in this Court against me per complaint no. 99 of 1999. 

As a result the Court ordered the vehicle to be kept in Police custody.

6. While the proceedings were pending the Defendant without my consent withdrew the said proceedings and on the 8th of March 2000 took possession of the vehicle from Police custody. To-date he is using the vehicle. It appears that the defendant has ulterior motives in the previous case and that is he waited to take possession of the vehicle unlawfully.

7. On the basis of matters stated herein, I ask this Court to grant the orders sought as per the Notice of Motion.

Background of the Case.

As shown on Paragraphs 3 and 4 of the Applicant, the matter had been registered with the Court prior to re-registering it.

In the former complaint, the present Defendant was the complainant. The complaint was lodged on the 16th December 1999 alleging that the Complainant/Defendant was using the said vehicle unlawfully as no payment had been made.

Whilst the substantial matter was pending in Court, the Complainant/Defendant filed a Notice of Motion in the District Court to withdraw the complaint. The motion was heard on the 23rd February 2000.

The motion was granted and the said Toyota Hilux Red in colour, Registration No.MAA.117 was released from Police custody to the Defendant/Complainant.

The orders sought for are a relief and remedial in nature thus it is not this Court’s concern in deciding the ownership nor whether the Defendant was a party to the sale negotiation or agreement of the said vehicle.

The counsel for the applicant submitter that his client has some interest on the vehicle and therefore the vehicle should be placed in Police custody. Further to that, the Defendant has no locus standi, as he was not a party to the sale agreement of the vehicle. It should therefore be bounded at the Police Station for safe keeping.

The Defendant in his submission rebutted in detail the affidavit in support of this motion. He submitted that the vehicle was released to him by a lawful method and that he has an interest in the property in question. He also insisted that the parts put into the vehicle by the applicant are a separate issue to the vehicle as a whole.

After hearing arguments I inquired whether there was any other safe place, other then the Police Station for the safe keeping of the property in issue. This was raised in view of the case Eastern Highlands Provincial Government and AITA IVARATO No. 1828 of 1998. In that case Mr. Ivarato had applied for an Interlocutory order. The orders sought inter alia- was that the Interim order obtained on 19th June 1988 impounding a motor vehicle, a Toyota Land Cruiser VX Station Wagon registration EAC.313 entered on 7th July 1988 and further extended indefinitely until substantive issues is determined be stayed forthwith.

The basis of his application was that since police impounded the vehicle, parts of the vehicle have gone missing. Although the police station is the safest place in Goroka town for the vehicle to be kept under the order of the court pending final disposition of the case, is not safe.

This then raises doubts of whether the court should impound the vehicle. The subject of the dispute in court, in view of scenario raised in ITA IVARATO’s case.

His Honour expressed in that case that "the court is equally concerned about the allegations raised because in reality the subject matter of the dispute strictly speaking has become the property of this court pending determination" (ibid at p 7).

I am of the same view and am determined to have the property preserved without any further deterioration, wear, and tear of the property. 

In the motion sought, I am satisfied that both parties have a cause of action pending in this court. It is only fair to preserve the property when both parties are at stake over ownership of the property. I am empowered to make any such orders as sought.

I make the following orders:

1. The vehicle shall be kept by the Defendant at his home, in Goroka and shall be restrained from using the vehicle until the substantive issues pending in this Honorable Court are determined.

2. The Defendant shall deliver possession of the vehicle keys to the Clerk of Court for safe keeping forthwith.

3. The Defendant shall once a week take the keys from the Clerk of Court for the purpose of running the engine.

4. The above 3 are interim orders pending the final determination of this action.

By way of summary, the Court issues the orders to preserve the property so it is in good condition until the final determination of the matter. Without the property the parties would not be in court. The court thus exercises its discretionary powers under section 22 of the District Court Act.