DC951

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CIVIL JURISDICTION

CASE No 42 OF 2010

BETWEEN:

KELLY SALUNG
Complainant

AND:

EREGIRIN SINGIN
As the Executive Director of Madang Visitor’s and Cultural Bureau
First Defendant

MADANG VISITOR’S AND CULTURAL BUREAU
Second Defendant

Madang: J Kaumi

2010: 12th/19th APRIL

SUMMARY CIVIL PRACTICE & PROCEDURE –Complainant has cause of action but cause of action has not arisen as yet-Proceedings are premature, misconceived and verge on an abuse of process.

PRACTISE AND PROCEDURE-Complainant cannot use Complaint or Restraining Orders to prevent other party’s Constitutional right to institute action in Court.

PRACTISE AND PROCEDURE- AS much as the Constitution and laws of this country guarantee a party to have his/her case heard in a manner prompt and fair on the same token, and this right is not to be taken lightly, for the sake of justice, the National Court Rules prohibit the abuse of the court process.

Cases Cited: 

PNG Forest Products v The State [1992] PNGLR 85
Manufacturers Council of PNG Inc v Commissioner General Internal Revenue Commission & the Independent State of Papua New Guinea.[2003] N2441 (17/04/03)
Kiee Toap v. The State & Ors (26/11/04) N2731 
Nec v Nelson [2004] SC766
Lerro v Stagg (2006) N3050
Newsat Ltd v Telikom PNG LTD [2007] N3448 (3/05/07).

Counsel: 

Mr. J Lai, for the Complainant
Defendant in person

19th April 2010

INTRODUCTION

1. Kaumi M. The matter before me this morning is a summons upon complaint by the complainant claiming K9800.00 being monies he spent renovating the house he currently occupies which he claims the defendants are trying to evict him from and that the defendants do not own the said house.

RELEVANT BACKGROUND

2. This matter, DC No 42 of 2010 was filed on Friday 9th April 2010. This Complaint was filed along with Summons to a Person upon Complaint, Statement of Claim, Supporting Affidavit and a Notice of Motion. The Court on Monday 12th April 2010 granted the restraining orders sought by the Complainant and the matter was returnable today. 

PRELIMINARY ISSUE

3. After a closer scrutiny of these proceedings, post notice of motion proceedings, a preliminary issue arises at this juncture of proceedings and that is, whether the complainants Summons to a person upon Complaint is premature and misconceived and therefore should be struck out pursuant to Section 22 of the District Court Act.

RELEVANT LAW

DISTRICT COURT ACT 1983

4. The District Court is a court of Summary Jurisdiction and with limited jurisdiction. Section 22 of the District Court Act is in the following terms:

Sec 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.

5. The District Court must receive and register a Complaint and the cause of action must be within its jurisdiction (Section 21 of The District Court Act) and having satisfied itself it can grant relief, redress or remedy or any other combinations whether absolute or conditional, whether legal or equitable and in a manner as the National Court would have granted.

National Court Rules

O 12 r 40 reads:

"(1).Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a). no reasonable cause of action is disclosed;

(b).the proceedings are frivolous or vexatious; or

(c). the proceedings are an abuse of the process of the Court,

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule."

PREMATURE PROCEEDINGS 

Previous cases

6. The rule in Order12 rule 40 on causes of action or the lack of it and the prematurity of proceedings has been well canvassed in numerous cases such as:-

PNG FOREST PRODUCTS v THE STATE [1]: KIEE TOAP v THE STATE & ORS [2]; LERRO v STAGG [3]; NEWSAT LTD v TELEKOM PNG LTD [4]; MANUFACTURERS COUNCIL OF PNG INC v COMMISSIONER GENERAL INTERNAL REVENUE COMMISSION & THE INDEP.PNG [5]; NEC v NELSON [6]

7. Some of the principles emerging from these cases are as follows:-

a. Our judicial system should never permit a plaintiff or a defendant to be "driven from the judgment seat" in a summary way, "without a Court having considered his right to be heard." [7] A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.[8] 

b. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.

THE PRESENT CASE

8. In application of these rules and principles to the case before me, I ask the question; Should the complainant summons be struck out for begin premature and misconceived and thereby verging on an abuse of process?

9. The complainant’s rights are protected under the Constitution. If as he claims his right to reside in the house is being infringed upon, he has recourse in law to defend his rights pursuant to section 37 (11).

10. The complainant has a cause of action to sue for the cost of the renovations he claims to have expanded in renovating the subject property. However his cause of action has not yet arisen simply because the defendants have not exercised their right to institute eviction proceedings against the complainant under the Summary Ejectment Act. In the event of such an action being instituted the complainant will have every opportunity to challenge the defendant’s title of ownership over the subject property as well.

11. In an eviction matter a person may only be legally evicted from a premises pursuant to an order issued by a court of law under section 3, 4, 5 or 6 of the Summary Ejectment Act and certainly not by any verbal instruction by Police unless of course it is in execution of a court order and I have not sighted such an order issued by a Court of law in respect of the subject property.

12. If and until legal proceedings are instituted to evict the defendant from the said premises pursuant to the Summary Ejectment Act it cannot be said that his cause of action has arisen and whilst in the same vein I have not sighted anything in his affidavit suggestive of any negotiations he may have had with the defendants where he has put forward his claim for the renovations he said he did to the premises.

13. I have had time to properly canvass the contents of the complainant’s affidavit and statement of complainant and I now realize that what the defendant is seeking to obtain is rather premature.

14. The complainant has jumped the gun and his complaint is rather preemptive in nature. I find that these proceedings are premature and misconceived and therefore verge on an abuse of process and I refuse to deal with the matter any further at this stage of proceedings. I find that it verges on an abuse of process in that not only is it premature but I find that it seeks to prevent the defendant’s right to have its case heard in court and this is not what justice is all about. The notion of fairness dictates that all parties have an equal opportunity to be heard and indeed sections 37 (11) and 59 of the constitution of this country guarantees this. If and when an action is instituted in court to evict the complainant from the subject premises, this I believe would be the proper time where all parties would have an equal opportunity to have their respective sides of the story heard and whether they stand up under scrutiny and testing through the evidentiary process is another matter for another day.

DETERMINATION

15. In view of the above I strike out the matter for the reasons that I find it to be premature, misconceived and verging on an abuse of the process. Corollary to this, the restraining orders the Court issued on the 12th April 2010 are revoked as well.

16. No orders for costs are made.

17. It is incumbent on lawyers as practitioners of the law not only to advice clients as to the correct course of action in law to take but also and just as importantly, the right timing for any such action in law especially when the cost of instituting legal action comes into play.

Illaisa Lawyers for the Complainant
Defendant in Person

_______________________
1. [1992] PNGLR 85
2. (26/11/04) N2731
3. [2006] N3050 (21/12/06)
4. [2007] N3448 (3/05/07)
5. [2003] N2441 (17/04/03)
6. [2004] SC766
7. Supra Note 1
8. Supra Note 1