DC5008

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction
DC N0 501 OF 2008

KOITAKI PLANTATIONS LIMITED
- Complainant-

-V –

IMISI SEMERE a.k.a CLAYTON MATABI
- Defendant -

PORT MORESBY:	Pupaka, PM
2008:				12th June

Eviction proceedings – Preliminary application for dismissal of case for non discloser of a lawful cause – Counter application for amendment of pleadings – Motions considered together – Issue of jurisdiction of Court raised over application for leave to amend – Powers of District Court in relation to preliminary applications – Merits of the substantive cause – ‘Interests of justice’ generically discussed – Issue of costs.

Mr. Ketan for the Complainant /Applicant /Respondent
Mr. Tambili for the Defendant Applicant /Respondent

17th June 2008

PUPAKA:	The substantive cause in this proceeding is for eviction orders on the strength of exclusive title. The complainant sought eviction orders saying it owns the land described as “Portion 49, Milinch Granville, Central Province”, over which the defendant is in unlawful occupation.

By a defence he filed and served, the defendant raised issue with the substantive relief sought on the bases that he does not trespass upon lands belonging to the complainant, but rather he occupies customary land, unconnected to the complainant’s leasehold lands.

Defendant’s Notice of Motion

After having served his defence, the defendant applied, by motion, to have the complainant’s case dismissed on the bases that it is “vexation frivolous and discloses no reasonable cause of action pursuant to section 21 of the District Court Act” (sic). In his supporting affidavit the defendant repeats the claim contained in his formal defence, which is that whilst the complainant does own the leasehold referred to in the complaint, the defendant neither occupies any part nor trespasses upon any part thereof. The defendant iterates his claim that he only occupies customary lands.

Contrary to what the defendant thinks, I think it is his application which is vexatious and frivolous. It may easily amount to an abuse of the process too! I would have thought that the defendant, after having raised a lawful defence in relation to the very serious allegation of trespass and illegal occupation, namely a denial that he resides upon the complainant’s land, would do well to force the complainant to proof on the latter’s assertions. The defendant must know that the last thing the Court would permit is needless circumvention of judicial enquiry into a legitimate complaint in a case the complainant says is costing it continuing losses. The cardinal requirement underpinning the principles of natural justice is the right to be heard. The complainant is entitled to it. I say no more than that in relation to the defendant’s motion dated 1st May 2008, except to add that I must dismiss his preliminary application therein as being entirely misconceived.
Complainant’s Notice of Motion

For its part the complainant, perhaps after reviewing its pleadings in light of the defence raised and perhaps realizing it had pleaded an erroneous reference to the land, applied to amend the pleadings by deleting reference to the original portion number, “49”, and replace it with “110”.

It is clear why the amendment is sought. Hearing Mr. Ketan of counsel for the complainant, it does seem the complainant owns adjoining portions too. Yet the defendant objected to the motion. Mr. Tambili of counsel for the defendant says that the error in pleading was evidence of the frivolous nature of the eviction proceedings. Mr. Tambili also seems to be saying something about the District Court lacking powers to order amendment or to grant leave to amend or permit or sanction amendment. What exactly Mr. Tambili contends is unclear but it does seem he raises a jurisdictional issue that, if it is made out, will prevent the grant of leave to amend.

The substantive case herein is an eviction proceeding, so in order to quicken matters a bit I intimated to both counsel that perhaps they need to agree to some things, including costs issues, and agree to progress the substantive matter to the next level, for an expedited resolution of the core issues. Obviously this did not find common acceptance. Ergo, considering the stance adopted particularly by the defendant, I had to adjourn for a formal ruling. I needed to consult the law, which I have, and this judgment is the Court’s ruling on the preliminary issues raised, particularly in relation to the issue of jurisdiction of the District Court to deal with preliminary matters.

Ruling

I have already ruled definitively and conclusively above in relation to the defendant’s notice of motion and I need not revisit that again.

However, were it not for the issue of jurisdiction, the complainant’s application is merely functional and not purposive. It seeks to rectify an error in pleading, only so far as to give meaning to the overall case or cause pleaded or outlined in proceeding. The amendment, to my mind, is not one that is intended to introduce a new case or concept or issue, which might replace or indistinguishably alter the existing case.

The defendant, having pleaded a defence unrelated to the error in pleading, cannot have been prejudiced by the error. Also the amendment sought will not affect his defence in any way shape or form. In short, apart from the added issue of Court’s jurisdiction, the amendment asked for by the complainant is not prejudicial to the defendant. Therefore, if it was not for the jurisdictional issue, I would grant the order sought as a matter of course.

District Court’s Jurisdiction

To deal with this issue, it is necessary to note for the record the source of the District Court’s powers, i.e., power to dealt with disputes of whatever nature and the extend as well as limitations of such powers.

The primary source of power of the District Court is the District Courts Act 1963. The District Court is a creature of this statute. The Act spells out the Court’s powers and sets out the limitations of those powers. It has often been said that the District Court is a court of limited jurisdiction. That is true because its powers are limited to the powers granted by law, whether it is the District Courts Act or any other law. On the other hand the National Court is often said to be a court of unlimited powers, mainly because of its so-called inherent powers. Nevertheless the powers available to the District Court or the presiding magistrate of a District Court, within the general constraints of any express limitations, are wide and sufficient for most purposes. 

The general powers and the limits of the jurisdiction of the District Court are set out in Section 21 and 22. Powers given under other provisions are either generic, limited by category, or specific, with limited scope and application. It is fair to say the provisions of the Act adequately cater for most situations.

It is not necessary to set out Section 21 of the Act here. In my view it has no specific application in this matter before me. However Section 22 applies here as the pivotal provision and it reads:

“22.	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 defence or counterclaim, 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 a manner.
This provision speaks for itself. It is apparent that the District Court is vested and possessed with wider powers than those granted specifically by the Act. It seems that the Court can also avail itself of relief granting powers that are available to the National Court.

Moreover there are any number of precedents that say that the courts have power to entertain and where appropriate, grant permission to amend pleadings, inclusive of statements of claim and defenses. There are also cases, binding upon this Court, wherein decisions were made with the obvious assumption or presumption that amendments to pleadings are permissible and possible and allowable at any stage of a court proceeding.

For instance in the case of Komboro George –v- Motor Vehicles (Insurance) PNG Trust [1993] PNGLR 447 (N1186), Woods J permitted the statement of claim to be amended long after close of evidence. By contrast this instant matter before me has not even been set down for a hearing as yet. In any event Justice Woods pointed out in that case (supra) that the National Court Rules, Order 8 Rule 50, allowed or permitted the National Court to amend the pleadings at any stage of a trial. The judge did say though that leave to amend should be sought as early as possible after the need has arisen and that a court must only allow pleadings to be amended if the other party is not prejudiced.

As I said there are any number of cases that have, in one way or other, confirmed the fact that amendments to pleadings are permissible at any time before decision, so much so that the proposition is now trite.

I only add that the defendant is not evidently prejudiced by the grant of leave to amend here. The defendant’s defence will not be affected or prejudiced in any way by the proposed amendment. 

Conclusion

The complainant is therefore granted leave to amend its pleadings as proposed. Further, for the reasons given above, I find no merit in the defendant’s application for summary dismissal of proceedings and I refuse to grant the order sought by the defendant.

Costs of these motions shall, for the time being, remain costs in the cause.

_____________________________________________

Ketan Lawyers for the Complainant /Applicant /Respondent
Patterson Lawyers for the Defendant /Applicant /Respondent