DC946

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

COMPLAINT No. 3 OF 2010

BETWEEN:

KEVIN KARIKA, WILLIAM ASIN, MOSES BUTMO and MAX MANABA
Complainant

AND:

SONG HO CHEOL
Defendant

Madang: J Kaumi
2010: 26th April 3rd 17th 24th 31st May

SUMMARY CIVIL PRACTICE & PROCEDURE –Complainant -Application for equitable remedy-Restraining Orders sought against Mining Lease Joint Venture Partner-Claim for costs incurred in transporting witnesses in a previous Summary prosecution of defendant-Proceedings are misconceived.

The complainants seek Restraining Orders against their Joint Venture Partner in a Mining Lease and costs incurred in the transportation of witnesses in a previous summary criminal prosecution against their partner the defendant.

Held:

1. It is a matter of public policy that the State is responsible for any expenses incurred by the State instrumentalities in the discharge of their constitutional functions and responsibilities. Costs incurred in bringing witnesses to testify in contested matters are a matter for the State to settle, not the individual complainant or victim.

2. However this is easier said than done, in reality some complainants or victims will go out of their way to meet costs simply because the State does not have the capacity to do so.

3. The National Parliament has not legislated into the District Court Act specifically on this subject and the only two sections which give an appearance or which inference can be drawn granting some kind of power to the District Court in relation to these types of costs sought by the complainants are ss.66 and 68(2) of the District Court Act.

4. The mandates of ss.66 and 68(2) are applicable in contested cases where witnesses are summoned or warrants issued for their appearance to testify of what he / she knows concerning a matter and it can be inferred that the complainant or victim can claim for costs incurred in transporting such witnesses where the State does not have the capacity to enforce such court orders.

5. In the immediate matter, the defendant had pleaded guilty in the previous summary matter the subject of the complainant’s application omitting the need for calling of witnesses had it been a trial, therefore the operation of ss.66 and 68(2) do not apply to the complainants and they were not entitled to claim for money they spent on their own accord in travelling to Madang when there was no need for them to appear in court.

6. A District Court’s geographical jurisdiction in civil matters is determined by the residence or place of business of a defendant or where the course of action arose. Section 13(2) and 21(5) of the District Courts Act specify the limits on the geographical jurisdiction of the Court.

7. The District Court does not have jurisdiction in a matter involving an application for an equitable injunction such as a Restraining Order of a Joint Venture Partner in a Mining Lease where the value of the subject matter of the claim is likely to exceed K10,000 and therefore no jurisdiction under s.21(1) (a). 

8. The subject matter is a Mining Lease that was granted by the Mining Minister Dr. Puka Temu under the Mining Act 1992, and this governing Act dictates, inter alia, the application proposals for Mining Leases, the granting for Mining Leases and the variation Approved Proposals. The Mining Act 1992 covers all aspects of a Mining Lease be it an Alluvial Mine or any other kind.

9. The Mining Act 1992 provides the necessary administrative mechanism under s.45 for dissatisfied land owners to follow in the event that they want to vary the Approved Proposal.

10. The tedious process provided by s.45 acts to protect the interest of the landowner, joint venture partners, the State, financial implications and ultimately acts as a filter against mischievous applications.

11. The upshot of the whole process enacted by the National Parliament is to ensure the Constitutional guarantees of ss.37 and 59 are complied with.

12. The District Court cannot act on the application of the complainants as that would be tantamount to acting ultra vires as the Mining Act 1992 was enacted by the National Parliament to cater for such situations as the complainants find themselves in and the right avenue for their redress is under the relevant Act, the Mining Act 1992 and the process is a quasi administrative one.

Relevant Legislation

Constitution of Papua New Guinea
District Courts Act
Mining Act 1992

Counsel: 

Mr. TM Illaisa, for the Complainant
No appearance of the Defendant

31st May, 2010

INTRODUCTION

1. Kaumi, M: The matter before me this morning is an application for costs incurred by the Complainants in transporting witnesses in a previous summary criminal prosecution matter in which the defendant was the defendant, and secondly an application for an equitable remedy in the form of Restraining Orders sought by the complainants against their Mining Lease Joint Venture Partner, the defendant.

RELEVANT BACKGROUND

2. The relevant background to the matter is outlined in chronological order as follows:-

(a). This matter, DCC 3 of 2010 was filed on Tuesday 19th January 2010. This complaint was filed together with a Summons to a person upon complaint, a statement of claim, a Notice of Motion and supporting affidavits of Kevin Karika, William Asin, Moses Butno and Max Manaba. The complainants’ prayer was firstly, for Restraining Orders against the defendants from returning to Tamo village and its surrounding areas secondly, that the defendant meet the costs of this application and all costs incurred by the Complainant in successfully convicting him for criminal offences on 14th January 2010 inclusive him for-costs for this proceedings at K2, 820:00. 

(b). On 21/01/10 the Notice of Motion was moved and the SPM, Mr. Seneka granted the Restraining Orders sought in the following manner:-

(i). The defendant be restrained from entering Tamo village areas within three hundred mile radius of Tamo village and the Alluvial Gold Mining Lease areas of Tamo, until 22/03/10 for further Review.

(ii). Police are empowered to enforce these orders in the event of Braech.

(iii). Service of the Notice be abridged to be effective from the date of settlement which shall be effective forthwith.

(iv). Costs be in the course.

(c) On 23/03/10 Magistrate Wilmot granted leave for the defendant to be served with all the relevant Court documents through substitute service by posting the documents by registered mail to the Defendant’s employer’s known address in Port Moresby viz Brothers & Togather (PNG) Ltd P O 174 Port Moresby. Costs be in the course. Matter returnable on 26/04/10.

(d) On 6/04/10 Proof of Service filed of this substituted service.

(e) On 26/04/10 there was non appearance of both parties and matter further adjourned to 3/05/10 for mention.

(f) On 3/05/10 there non appearance by both parties again and matter further adjourned to 17/05/10 for mention.

(g) On 17/05/10 Mr. Illaisa of counsel appeared and made an application for default judgment to be entered against the defendant for the amounts claimed in the summons and for further orders that the defendant, his company and agents to be restrained from entering the Tamo area. The matter was adjourned to 24/05/10 for Ruling.

(h) On 24/05/10 the Court further adjourned the matter to 31/05/10 for Ruling.

(g) On 14/01/10 in the matter of DCR 48/10 the defendant pleaded guilty to one count of contravening Section 60(1) of the Firearms Act and was convicted by the Madang District Court and sentenced to a term of imprisonment of six (6) months and fined K300:00 and the term of imprisonment was suspended and he was placed on a two (2) years Good Behaviour Bond.

RELEVANT EVIDENCE

3.The only evidence provided in this matter come from the complainants in form of their affidavits from Kevin Karika, William Asin, Moses Butno and Max Manaba and they all attest to the following:-

(a). The defendant is an employee of the Korean company based in Port Moresby known as Brothers and Togather(PNG) Limited and it is registered with the Investment Promotion Authority in PNG.

(b). That Kevin Karika is the Chairman of a 100% local company, Maka Alluvial Gold Mining Ltd and that it is owned by the Resources Owners of Tamo inland areas of Madang Province;

(c). That Maka owns an Alluvial Gold Mining Lease issued by the Mining Development Authority;

(d). That on or about their company entered into a Joint Venture Agreement with the foreign company called Brothers and Togather(PNG) Ltd to do alluvial mining in their area, Tamo, in Madang Province.

(e). That they were hoping that this Joint Venture would assist in develop their resources and bring services to their inland area of Madang Province.

(f). That contrary to their expectations the foreign company did not assist in the development of their resources and bring services to their area for the last several years since they came to their area for alluvial mining.

(g). That this foreign company not only unscrupulously exploited their resources but it with the knowledge and or approval of the Management of our so called Joint Venture Partners, authorized its employee, Mr Song Ho Cheol to shoot the complainants with a 5 round pump action rifle owned by their cpmpany.

(h). That Mr Song Ho Cheol was subsequently arrested, charged for 5 counts of Firearms offences under the Firearms Act, convicted and sentenced to 6 months imprisonment on each count by the Madang District Court SPM, Mr Seneka.

(i). That they do not want trigger happy foreigners going to their village. 

(j). Two annexure were attached to their affidavits, namely, “Alluvial Gold Mining Lease” and “Certificate of Conviction”.

There was no evidence provided by the defendant in response neither did he make any appearance at all.

RELEVANT ISSUE

4. The issues that arise here for determination by the Court are twofold:-

(a). Should the complainant be awarded the costs he claims to have incurred in successfully convicting the defendant of the offences on 14/01/10?

(b). Does this court has the jurisdiction to grant the Restraining Orders to restrain the defendant from entering anywhere near Tamo area particularly the Alluvial Mining Lease area and the Exploration Lease areas of Tamo?

RELEVANT LAW

5. I refer to certain pieces of legislation pertinent to the resolution of these issues. They are as follows:-

DISTRICT COURT ACT

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.

66. MAGISTRATE MAY SUMMON WITNESSES.

A Magistrate may issue his summons to a person within his jurisdiction who is likely to have material evidence in relation to the matter of an information or complaint, or to a matter in connection with the information or complaint, requiring him to be and appear before a Court at a time and place specified in the summons to testify what he knows concerning that matter.

67. SERVICE, ETC., OF SUMMONS ON WITNESS.

A summons to a witness shall be served, and a memorandum of service shall be endorsed on the summons, and proof of service may be given, in the same manner and within the same time as specified in Section 47 in the case of a summons to a defendant.

68. WARRANT TO ATTEND.

(1) If a person summoned as a witness refuses or neglects to appear at the time and place appointed by the summons, and no just excuse is offered for the refusal or neglect, then, after proof on oath that the summons was duly served on him and, except in the case of indictable offences, that a reasonable sum was paid or tendered to him for his costs and expenses of attendance, the Court before which he should have appeared may then and there impose on him in his absence a penalty of a fine not exceeding K200.00 which may be recovered in the same manner as that in which penalties imposed on a summary conviction may be recovered under Section 167.

(2) In addition to, or in substitution for, action under Subsection (1), a Court may issue its warrant to bring and have a person referred to in that subsection before the Court to testify at a time and place specified in the warrant.

MINING ACT 1992

38. GRANT OF A MINING LEASE.

(1)[17] [18]Subject to this section the Minister may, on the application of–

(a) the holder of an exploration license, in respect of the land the subject of the exploration license; or

(b) the exploration license holder and any other person to whom the holder of the exploration license at the time of application for a mining lease applies to transfer his interest in the application under Section 118, in respect of land the subject of the exploration license; or

(c) any person, in respect of land that is not the subject of an exploration license, a special mining lease, a mining lease or an alluvial mining lease,

after considering a recommendation from the Board, grant to the applicant a mining lease.

(2) A mining lease which is for the sole purpose of mining alluvial minerals may be held only by–

(a) a citizen; or

(b) a company of which at least 51% of the issued ordinary shares are beneficially owned by citizens; or

(c) an unincorporated joint venture at least 51% of the interest in which is beneficially owned by citizens.

(3) A mining lease–

(a) shall be on the prescribed form; and

(b) shall require that as a condition of the lease the holder complies with the approved proposals; and

(c) may include such other conditions as the Minister determines.

(4)[19] [20]The Minister shall not grant a mining lease under this section in relation to a Mining Project unless he has first given to the Company written notice.

45. VARIATION OF APPROVED PROPOSALS.

(1) The holder of a mining lease may at any time apply to the Minister for a variation of the approved proposals.

(2) An application under Subsection (1) shall–

(a) be made in writing; and

(b) specify one or more of the following bases on which a variation is sought:–

(i) that events beyond the reasonable control of the holder of the mining lease prevent him from carrying out the approved proposals;

(ii) that the holder of the mining lease wishes to develop the mine or conduct mining operations or conduct operations ancillary to mining in a manner different from that originally proposed;

(iii) that the holder wishes to reduce or suspend production because–

(A) at the time economic or marketing conditions are such that the mining operation is not viable; or

(B) difficulties in obtaining requisite approvals prevent mining or restrict it in a manner that is, or subject it to conditions that are, for the time being impracticable.

(3) The Minister, after considering a recommendation of the Board, shall consider an application for variation under this section and–

(a) may require the applicant to provide further information or to amend any revised proposals submitted with the variation; or

(b) may approve the variation requested which–

(i) shall be substituted for the previously approved proposals; and

(ii) may include such further conditions as the Minister considers necessary; or

(c) may, after due consultation with the applicant, refuse the variation.

(4) Where the Minister refuses an application for variation under this section he shall give notice in writing to the applicant of the reasons for his refusal.

EXTRACTS FROM THE MAGISTRATES MANUAL OF PNG

14.2 CONSIDERATIONS RELATING TO JURISDICTION IN THE DISTRICT COURT

Before a Magistrate presides over any civil matter in the District Court, he or she must be satisfied that the court has jurisdiction to hear the matter and make an order. Although s 9 of the District Courts Act creates a presumption of jurisdiction with respect to a District Court Magistrate, this is a presumption only, and does not relieve a Magistrate of the duty to ensure that he or she is acting within the jurisdiction of the District Court. The following are some of the important considerations in this regard.

14.2.1 Geographic jurisdiction

Unlike the National and Supreme Courts, which have jurisdiction throughout the entire country, the District Courts have geographical jurisdiction only over the areas specifically provided for by statute. With respect to civil cases, geographic jurisdiction is determined mainly by the residence or place of business of a defendant or the place where the cause of action arose. Sections 13(2)(a) and (b) and 21(5) of the District Courts Act specify limits on the geographic jurisdiction of the court in relation to these matters.

(a). SHOULD THE COMPLAINANT BE AWARDED THE COSTS HE CLAIMS TO HAVE INCURRED IN SUCCESSFULLY CONVICTING THE DEFENDANT OF THE OFFENCES ON 14/01/10?

6. It is a matter of public policy that the State is responsible for any expenses incurred by the State instrumentalities in the discharge of their constitutional functions and responsibilities. Costs incurred in bringing witnesses to testify in contested matters are a matter for the State to settle, not the individual complainant or victim. However this is easier said than done, because in reality some complainants or victims will go out of their way to meet costs simply because the State does not have the capacity to do so. This scenario therefore begs the question, what happens in those cases? Should the State be responsible or the defendant? To answer this question we need to consider the circumstances of individual cases.

7. The District Court is a "creature of stature" and does not enjoy the power the National Court has of inherent powers under the Constitution (s.155(3) and subs.4) and therefore limited to the parameters of its enabling legislation, the District Court Act. 

8. The National Parliament has not legislated specifically on this subject of the awarding of costs in summary criminal prosecution to complainants or victims in this enabling legislation. 

9. The only sections in my opinion which gives an appearance or which inference can be drawn granting some kind of power to the District Court in relation to these type of costs sought by the complainant are s.66 and 68 (2).

10. These two provisions provide for the summoning or issuance of warrants by the District Court Magistrate for the appearance of witnesses in circumstances where a person is within his jurisdiction who is likely to have material evidence in relation to the matter of an information or complaint…to appear before a Court at a time and place specified in the summons to testify what he knows concerning the matter. A warrant can be issued by a Magistrate when a summoned person refuses or neglects to appear at the time and place appointed in the summons, and no just excuse is offered for the refusal or neglect.

11. In a situation where a person has been summoned or a warrant issued for him/her and the complainant or victim incurs cost in ensuring the appearance of such a person because of the State’s lack of capacity to enforce the Magistrate’s orders it can be inferred that ss.66 and 68(2) allows such a complainant or victim to claim the costs incurred. This scenario is applicable in contested cases or where the defendant enters a plea of not guilty and a date set for trial and the necessity for witnesses arises.

12. Now even if the District Court can award costs pursuant to ss.66 and 68(2), the Court has to consider whether the immediate case warrants such an award.

13. To decide this the Court has to look at the judgment of DCR 48/10 on the 14/01/10 which has been attached to the affidavit of Kevin Karika and the proceedings of this matter reveal that the defendant pleaded guilty and was convicted after consideration of the Statement of facts which was read out and understood by the Defendant and maintained his plea of guilty

14. This was therefore a guilty plea matter or a short matter as it is sometimes called and there was no requirement for Police witnesses to be called, summoned or have warrants issued for their appearance had it been a trial.

15. Therefore on the foregoing the complainant was not required or obliged by law to transport any witnesses in from Tamo. If as he attests that he expanded K2, 820.00 then he did so on his own volition, the matter was only a fresh matter before the District Court and for the defendant to be asked to take a plea (arraignment) in Court. In the context of the complainant’s application he should have waited for the defendant’s plea to taken and if he had pleaded not guilty then he should have obtained the trial date from the Police Prosecutor then made arrangements for the witnesses if the Police did not have the capacity to transport them in. However the defendant pleaded guilty so there was no trial and no need for witnesses and so consequently the complainants have no basis in law or fact for asking the Court to order the Defendant to reimburse the use of his money on his own freewill. Indeed to make such an order would border on absurdity.

16. I therefore answer Question (a) in the negative (no).

(b)Does this court have the jurisdiction to grant the Restraining Orders to restrain the defendant from entering anywhere near Tamo area particularly the Alluvial Mining Lease area and the Exploration Lease areas of Tamo?

17. To highlight this issue I pose two questions:-

(i). Does the Madang District Court have geographical jurisdiction in a matter that is patently in the East Sepik Province? If the answer is Yes, then the next question should be addressed. If the answer is No, then the matter must be dismissed.

(ii). Does the District Court have jurisdiction in a matter involving a Mining Lease granted under ss.38 and 48 of the Mining Act 1992? If the answer is Yes, then the application of s.22 of the District Court Act should be considered. If the answer is No, then the matter must be dismissed. 

18. The Madang District Court’s geographical jurisdiction in civil matters is determined by the residence or place of business of a defendant or the place where the cause of action arose Sections 13(2)(a) and (b) and 21(5) of the District Court Act specify the limits on the geographical jurisdiction of the Court.

19. I note that the affidavits of all complainants attest that Tamo is situated in the hinterlands or the inland of Madang Province.

20. I further note that the Mining Lease No.503 that was issued by the Mining Minister Dr Puka Temu on 25/03/09 and referred to as Annexure A in all the complainants’ affidavit was granted to Maka Alluvial Gold Mining Ltd & Brothers & Togather (PNG) Ltd over land situated at Tamo in the Angoram District of the East Sepik Province for a Term of twenty (20) years.

21. What is of concern to this Court is the change of geographical location of Tamo from Angoram in the East Sepik Province to the hinterlands of Madang by the defendants just a little over a year after Dr Temu granted the Mining lease. What has happened here, has there been a monumental shifting of the tectonic plates so Tamo has shifted in so far as its geographical location is concerned. This Court has not been made none the wiser by the absence of at least a map of this part of the country to show where Tamo actually is save what the complainants attest to.

22. The only credible evidence before this Court as to the exact location of Tamo is contained in the locality description in the said Mining Lease and that is unambiguous in its description that is it is situated in the Angoram District of the East Sepik Province. I make these comments in light of the process involved in the application process for a Mining Lease under the Mining Act 1992 which is tedious one which has to go before the Board for the screening and examination of the Proposal before it meanders its way to the Minister who has to conduct a mandatory examination of the Proposal yet again. What I am trying to say here is that because of the tedious and rigid screening process involved in the granting of Mining Leases the chances of mistaking Tamo to be in Madang, Alotau or elsewhere is almost nil. 

23. What I find is that the complainants have conveniently placed Tamo as being in the hinterlands of Madang for reasons best known to themselves and this Court was led to believe that it was, whether this was by design or otherwise is a matter I choose not to pursue suffice to say I am disappointed with all concerned. 

24. I note that when the defendant was prosecuted for the Firearms offence in January of this year he consented to having the matter being heard in Madang after he was asked by the Court due to the geographical implications on its jurisdiction. In the immediate matter the defendant is not present so the Court could have the benefit of seeking his views on the subject.

25. I would therefore answer question (i) in the negative (no) and though I am not obliged to answer the second question but I will do so for completeness sake. It would be advisable for the complainants to go to the Angoram District Court or the Wewak District Court in the future for their complaints. 

(ii)Does the District Court have jurisdiction in a matter involving a Mining Lease granted under ss.38 and 48 of the Mining Act 1992? If the answer is Yes, then the application of s.22 of the District Court Act should be considered. If the answer is No, then the matter must be dismissed. 

26. Firstly, this is a claim in equity in that the complainants seek an injunction in the form of a restraining order against the defendant and the value of subject matter of the claim is likely to exceed K10,000.00 and therefore there is no jurisdiction under s.21(1)(a).

27. Secondly, the subject matter is a Mining Lease that was granted by the Mining Minister Dr Temu under the Mining Act 1992 and this is the Statute that governs inter alia, the application proposals for mining leases, the granting of mining leases and the variation of Approved Proposals in other words it is the Act that covers all aspects of a Mining Lease be it an alluvial mine or any other kind.

28. This Act therefore provides the necessary administrative mechanism under s.45 for dissatisfied landowners to follow in the event that they want to vary the approved proposal.

29. What this entails is for the holder of a mining lease to apply at any time to the Minister for a variation of the approved proposal:-

(a) be made in writing; and

(b) specify one or more of the following bases on which a variation is sought:–

(i) that events beyond the reasonable control of the holder of the mining lease prevent him from carrying out the approved proposals;

(ii) that the holder of the mining lease wishes to develop the mine or conduct mining operations or conduct operations ancillary to mining in a manner different from that originally proposed;

(iii) that the holder wishes to reduce or suspend production because–

(A) at the time economic or marketing conditions are such that the mining operation is not viable; or

(B) difficulties in obtaining requisite approvals prevent mining or restrict it in a manner that is, or subject it to conditions that are, for the time being impracticable.

(3) The Minister, after considering a recommendation of the Board, shall consider an application for variation under this section and–

(a) may require the applicant to provide further information or to amend any revised proposals submitted with the variation; or

(b) may approve the variation requested which–

(i) shall be substituted for the previously approved proposals; and

(ii) may include such further conditions as the Minister considers necessary; or

(c) may, after due consultation with the applicant, refuse the variation.

(4) Where the Minister refuses an application for variation under this section he shall give notice in writing to the applicant of the reasons for his refusal.

30. It is a tedious task that has to be complied with by holders of mining leases and there is no shortcuts as the essence of it is that it allows the Board and then the Minister to scrutinize very thoroughly all applications for mining leases or for their variation because of considerations for inter alia the well-being of landowners, the joint venture partner, the State and the financial implications. The process acts as a filter against mischievous applications.

31. It is there incumbent upon the complainants to comply with the provisions of the Mining Act 1992 which provides the correct avenue in law to address their grievances. It is a misconception that they can use the provisions of the District Court Act for redress. The complainants are legally obliged to go back to the Minister for a variation to the approved proposal for that is what they seek. 

32. The upshot of this is that the whole process was enacted by National Parliament to allow for fairness to be applied indeed the defendant will being allowed an opportunity to respond to the complainants application for variation of the Approved Proposal and consequently the mandates of ss. 37 and 59 of the Constitution being complied with.

33. For this Court to act on the application of the complainants would be tantamount to acting ultra vires as the Mining Act was enacted by the National Parliament to cater for such situations as the complainants find themselves in and the right avenue for their redress is under the relevant Act, the Mining Act 1992 and the process is a quasi administrative one.

34. I answer Question (ii) in the negative (no) the District Court does not have the jurisdiction in a matter involving a Mining Lease granted under ss.38 and 48 of the Mining Act 1992.

35. Therefore I answer the issue (b) in the following manner, the District Court does not have the jurisdiction under s.22 of the District Court Act to grant the Restraining Orders to restrain the defendant from entering anywhere near Tamo particularly the Alluvial Mining Lease area and the Exploration lease area of Tamo.

DETERMINATION 

36. In consideration of the above reasons I find that the application of the complainants is misconceived and therefore it is dismissed in its entirety.

37. I make no order as to costs.

Lawyer for the Complainant Thomas Moore Ilaisa Lawyers
Lawyer for the Defendant None