DC551

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 11 OF 2006

BETWEEN

ORAMA GAITU
Complainant

AND

ANDREW ILU
1st Defendant

MOROBE PROVINCIAL GOVERNMENT
2nd Defendant

Lae: C Inkisopo
2006: 21 February, 23 March

CIVIL - Application for Restraining Orders – general ancillary powers of the District Court under Section 22 of the District Courts Act Chapter 40 – application seeking orders to restrain third parties from interfering with portion of land subject of a customary ownership dispute pending determination at Local Land Court – whether balance of convenience does or does not favour the Complainant in continuing the interim order for restraint issued previously – 

Practice and Procedure - General ancillary powers of District Court under Section 22 of District Courts Act empower this Court to issue restraint orders even against third parties from interfering with land the subject of ownership disputes at Local Land Court hearings – subject portion of land required for public purposes by governmental authorities whilst ownership dispute pending –

Practice and procedure – whether the Complainant has complied with the requirements necessary for instituting this action;- whether or not he has filed a written undertaking as to damages, whether or not he has shown that he has an arguable case of serious question to be tried, whether or not the action he brings is frivolous or vexatious, whether or not he has a real prospects of succeeding in his claim – whether or not balance of convenience favours Complainant as against the Defendants -

Cases Cited
Craft works Niugini P/L –v-Allan Mott Section 527 of 1997
Employers’Federation of PNG –v-PNG Waterside Workers & Seamen’s Union & Lawrence Titimur & Ors.
Gobe Hongu Ltd –v- NEC, State, Barclay Bros & Southern Highlands/Gulf Highway Ltd N9120 of 2000.
Haro Yamis –v-Viviso Seravo Minister for Lands & Ors –WS 713 of 1998
Mauga Logging Co. Ltd –v-SP Oil Palm [1977] PNGLR 80
Mt Hagen Airport Hotel P/L –v-Gibbes & Anor [1976] PNGLR 216
Nabura Morris & Ors –v-John Anis & Ors Appeal CIA 210 of 2001
Robinson –v-National Air Lines Commission [1983] PNGLR 476

References

Counsel
Mr S Togo, Counsel of Habuka Lawyers for Complainant 
Mr E Sihil, Counsel of MPA Legal Service Unit for Defendant

21 February, 23 March 2006

DECISION

C Inkisopo: On the 09 of February, 2006 this Court granted an interim ex parte order of restraint against the Defendants from setting up a ‘base camp’ on or dealing with a particular portion of land called “Garasa’ land located in Garaina District of Morobe Province. The ex parte order was made returnable on 16 February, 2006 at 9:00am and for service also to be effected on the Defendants for them to make representations and to be heard if they have to respond.

2. When the matter returned in Court on 16 February, 2006, Mr E Sihil, the Morobe Provincial Legal Officer appeared on behalf of the Defendants. He intimated to the Court that Defendants will be defending the claim and filed an Affidavit sworn to by one Utika Siserta, the President of the Waria Local-Level Government in which he sets out the basis of their Defence.

3. On the 16 February, 2006 when the matter returned for mention, Counsel for the defence raised two preliminary matters for the court to rule on and these were;- 

(a)	Mr. Toggo to be disqualified from making representations
for the Complainant as he is from the same clan as the Complainant’s and

(b)	the question of jurisdiction of the Court to entertain this 
matter that involves land and land related issues.

4. On the first issue, the Court made an extempore ruling that there is no conflict of interest situation in the case to warrant the disqualification of Mr Toggo from acting for the Complainant - simply because, he is not being called upon to adjudicate on the matter but merely acting as Counsel for one party. This Court was of the view that it was up to Counsel’s individual choice whether to act or not to act for the Complainant as a clans-member of the Complainant’s clan of Garaina, Morobe Province. I ruled that I saw no problem with Mr Toggo acting for the Complainant. He was perfectly free to do so and the objection was accordingly overruled.

5. On the second aspect of the Court’s jurisdictional issue, I have already delivered a written ruling on this issue in which I held the view that this Court does have the jurisdiction to deal with this case.

6. With the two preliminary issues out of the way resolved, I now proceed to deal with the substantive issue of whether or not the interim restraint orders issued on 09 February, 2006 should continue or discharge. That issue was adjourned further to 21 February, 2006 at 9:00am to hear Counsel’s arguments/submissions. The Court heard both Counsel’s submissions presenting their respective client’s cases and adjourned the matter for decision to 23 March, 2006 at 9:00am.

7. This is that decision.

The principles from case laws governing restraining orders, injunctive orders etc. are well covered in this jurisdiction. Mt Hagen Airport Hotel P/L –vs- Gibbes & Anor [1976]PNGLR 216, MAUGA logging Co. Ltd –vs- SP Oil Palm [1977] PNGLR 86, Employers’ Federation of PNG –vs- PNG Waterside Workers and Seamen’s Union & Lawrence Titimur & Ors N393 0f 1993.

The relevant principles set out in the Employers’ Federation (supra) are;-

> whether or not the action is vexatious or frivolous

> whether there is a serious question to be tried

>is there a real prospect for success in the claim for injunction at trial.

8. There are also procedural requirements to be met that have more or less become conditions precedent to applications of this nature one of which is the question of filing written undertaking as to damages on or before the hearing of the application itself.

Facts of this Case

9. The Complainant for himself and on behalf of the Enepa Clan of Garaina filed the action seeking an order of restraint against the Defendants from setting up a ‘base camp’ at the “Garasa land” for purposes of putting up the District Government Station as well as the Headquarter for Waria Local Level Government. As a matter of fact, this portion of land is a subject of a protracted Local Land Court hearing into a dispute as to customary ownership between the Enepa Clan of Wakaia Village and the Sakidza Clan of Au Village both of Garaina District, Morobe Province.

10. The dispute over the customary ownership of this portion of land called “Garasa land” was dealt with in Wau by the Local Land Court. The Local Land Court found in favour of the Sakidza Clan of Au Village. The Enepa Clan of Wakaia, the Clan of the Complainant herein lodged an appeal to the Provincial Land Court and that Court sitting at Bulolo on 21-22/05/1997 and 13th June, 1997 allowed the appeal and remitted the matter back to the Local Land Court for a fresh hearing before another Magistrate with the Appellants’ K500.00 deposit ordered refunded. Since then this hearing has yet to take place before the Local Land Court before another Magistrate.

11. The Defendants in this case have now taken steps to interfere with this “disputed” land to establish infrastructure for public purposes. For instance, the Waria Local Level Government wishes to establish its Head Office there whilst the Morobe Provincial Government intends to relocate the problematic Garaina Government Station to this disputed land. It is to be noted here that the Defendants herein are not parties to the Local Land Court customary ownership dispute that is now pending. So they are third parties who are interfering with a land that is subject of a Local Land Court hearing. This fact begs an immediate question – Does this Court have jurisdiction in this case to deal with third (3rd) parties as opposed to the disputing parties themselves? I think I have dealt with this issue when dealing with the preliminary matter of the court’s jurisdictional issue. The National Court in Nabura Morris & Ors –v- John Anis & Ors App. CIA 210 of 2001 per Kirriwom, J dealing with a similar issue dealing with the ancillary power of the District under S.22 of the District Courts Act Chapter No. 40 held that the general jurisdiction of the District Court encompass powers not only to restrain parties to the dispute or any other person from interfering with the authorized use or occupation of the land by the party but also power to restrain third parties from doing anything or taking any action that has a direct bearing on the land in dispute such that could inflame further unrests or adversely affect peaceful settlement (emphasis added) (see p.4 of judgment). Accordingly, it has been my humble view that this Court has powers to deal with this case that includes the Defendants who are all considered third parties to the Local Land Court hearing. This is one reason I considered why the current interim order for restraint was on 09 February, 2006 issued against them.

12. There is currently a proper Land Court hearing pending determination of customary ownership dispute and that fact in itself lends greater weight on the scale to tilt the balance in favour of sustaining the order for restraint until this Local Land Court proceeding is finalized. At this present point in time, the ownership of this land called “Garasa Land” is not determined as yet. The question as with whose consent, or if you like, whose behest are the Defendants herein interfering with this disputed land to set up this ‘base camp’. Certainly, it can not have been any one of disputing parties as the ownership issue is still up in the balance with the Local Land Court hearing into the ownership dispute still pending.

13. In all the circumstances, I am of the humble view that the current restraining order in place against the Defendants should sustain and to continue until the Local Land Court hearing into the customary ownership dispute has been finally determined.

14. Before passing, I’d like to touch on related issues pertinent in the case raised by the Defence Counsel.

15. Firstly, they say that for the good of the District and its people, the Garaina Government Station with its infrastructure and governmental services having have deteriorated as of late and the people are missing out on much needed government services including public servants not performing as a result of breakdown in law and order and the need for this portion of land to be used for this public purpose should be given eminence. So they say, the Garaina Station is marked for relocation to this disputed land. There are provincial government assembly submissions and resolutions in place and in order paving way for that process. This process though, however good intentioned it may be, must wait until the ownership issue has been determined. Just because of this public need, the Defendants can not be justified in going onto this portion of land and do as they wish as it is a subject of dispute as to customary ownership.

16. The balance of convenience favours the Complainant as against the Defendants. If Compensation is paid, under this environment it will not reverse the issue of customary ownership supposing or assuming that the Local Land Court awards the land to the Complainant’s clan.

17. The Defendants raised another issue saying the disputed land is a State land leased to it long ago by clan leaders of both the disputing parties. On the material presented before this court, I am not at all satisfied that it is a State land so that the Defendants can do what they wish to do on the land. It is not a State land as such and I refuse to buy that argument as there is no clear evidence before this Court to show that condition.

18. All in all, I am satisfied that the Complainant has an arguable case in that the Local Land Court hearing into the customary ownership issue is still pending. Corollary to this contention is the question that if compensation is to be paid by the Defendants for the land, to whom of the disputing clans will the compensation go with the Local Land Court still pending. If however, the Defendants were to be allowed to do what they intend doing on the disputed land and compensation is paid, apart from the question of who to pay compensation to, it is a fact of life that no amount of compensation paid will reverse the situation of ownership especially when the ownership dispute between the two (2) customary clans is up in the air unresolved.

19. The Complainant has complied with the condition precedent to applying to seek such relieves by filing an undertaking as to damages dated 09February, 2006. Further, the balance of convenience favours him more than the Defendants. Even though, the Defendant’s efforts are good intentioned, the justice of the case and the balance of convenience favouring the Complainant dictates that the Defendants with their good intentioned activities can wait until the Local Land Court ownership dispute proceeding has been determined and they can deal directly with whoever clan the land is awarded to.

20. Two final matters raised by the Defendants need to be addressed-

Defendants say that the First Defendant Andrew Ilu named as Executive Officer of Waria Local Level Government is not so. He is not the Executive Officer but the Projects Officer. My humble answer to this question is – If he is holding himself out as such and taking active part in facilitating steps that this proceeding is trying to curtail, then he should be so named and brought before the Court in whatever capacity he is holding himself out and should be made to answer appropriately. I dismiss this claim.

21. The next issue relates to the first part of the interim restraining order that drags one Utika Siserta into the picture to bind him by the order when he is not named as a party. Whilst I do appreciate that to being so, evidence show that he is the President of the Waria Local Level Government and in that capacity, he is currently the man actively behind the push to establish this ‘base camp’ and knows the whole intention behind it and knows all about this matter more than anyone else for that matter as borne out in his affidavit which alone forms the basis of the Defendant’s case. As the head of Waria Local-Level Government which is a named Defendant, I don’t consider it inappropriate to bind him by that order even as a third party. Rather, I hold that it is in order. (see Nabura Morris & Ors –vs- John Anis & Ors APP CIA 210 of 2001 (supra).

22. On the basis of these discussions, I am satisfied that the interim restraining orders issued by this Court dated 09 February, 2006 is sustained and should remain in force and full virtue until the customary ownership dispute pending before the Local Land Court is finally and fully determined.

COURT ORDER

(1)	The interim restraining order issue by this court dated 09 February, 2006 is sustained and is to continue.

(2)	Defendants are to bear the Complainant’s costs of proceedings, if 	not agreed they are to be taxed.

Orama Gaitu Complainant 
Andrew Ilu 1st Respondent 
Morobe Provincial Government 2nd Defendnat