N5373

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 470 OF 2013

BETWEEN

JOE SAPORO
Plaintiff

AND

FRANCIS TAVONGA
Defendant

(No 2)

Kimbe: Geita AJ
2013: 11th & 25th September

PRACTICE & PROCEDURE – Motion – Parties heard inter-parte -Seeking to overturn order on grounds of competency and jurisdiction – Argument misconceived.
PRACTICE & PROCEDURE – Courts exercise of inherent jurisdiction s.155 (3) & (4) Constitution paramount – Serious Constitutional breaches detected – Abuse of Land Court powers detected - Orders for resolution by Mediation S.5 (2) ADR Rules - Land Dispute Settlement Act ss. 21, 1 and 19 (6).

Case cited:

Mt.Hagen Airport Hotel v Gibbs [1976] PNGLR 316)
John Kembu v Fred Tangole Vuho and Ors, unreported, OS No.107 of 2011 
Victor Golpak v Patrick Karea Kali [1993] PNGLR 491

Counsel:

Ms. Josephine Waiwai, for the Plaintiff 
Mr. Gerard Linge, for the Defendant 

REASONS FOR DECISION
 25th September, 2013.
1. GEITA AJ: I granted urgent interim ex-parte orders on 6th September 2013 around 5 pm that day. For ease of reference I reproduce the orders hereunder: 

1) That the entire proceedings in DLC No. 13 between the Plaintiff and the Defendant be stayed;

2) That the execution and enforcement of the following District Land Court Proceedings at Kimbe registered as DLC No. 13 of 2013 be stayed: Ex-parte temporary order dated 25 April 2013; Ex-parte order dated 8 August 2013; Ex-parte order dated 13 August 2013; Ex-parte order dated 14 August 2013; Warrant of arrest dated 13 August 2013; Ex-parte Garnishee Notice dated 22 August 2013; Court order dated 6 September 2013.

3) That the defendant, his servants and or agents and relatives be restrained from harassing, intimidating or demanding any party who is to effect the Court Orders by the District Land Court.

 4) That any persons in breach of the order be imprisoned.

2. The brief facts as I understand them from the plaintiff's affidavit and supporting annexures are these: The plaintiff and the defendant together with their respective supporters appear to have an ongoing difference as to who should be the principal beneficiary of timber royalty monies for their people in the Cape Glouster area, Kimbe, West New Britain Province. A trail of ex-parte and temporary orders made in favour of both parties at different times with varying outcomes have complicated all early resolution attempts to this ongoing dispute. The most recent District Land Court Order delivered on the morning of 6th September by His Worship Mr. Paul N'Dranoh gave specific orders directing Mr. David Sui to pay to the defendants more than one million kina from Lolo Development Corporation Ltd account within 24 hours or be imprisoned for two months. Mr. David Sui is the Managing Director of the plaintiffs Management Company. The 24 hours direction expired 11.20am Saturday 7 September 2013 hence the urgency of this application. His Worships most recent order delivered inter-party as of 6th September 2013 endorsed his own ex-parte orders made on 8th August 2013; the new orders read in part as follows:

1. The reasons given by David Sui for his failure to comply with the Court Order dated the 08th of August, 2013 and subsequent amendments is unreasonable and or unsatisfactory.

 2. Lolo Development Corporation Limited for which David Sui is the Managing Director has or did have sufficient means to satisfy the Order but has refused or neglected to do so.

 3. David Sui is found guilty and convicted for refusing to comply with the Court Orders of the Court.

 4. David Sui is sentenced to imprisonment at Lakiamata for two (2) months in hard labour.

5. One (1) week is deducted from the two (2) months for time spent in custody.

6. The balance of one (1) month and three (3) weeks is suspended on the conditions; that he pays the amount of K37,1068.14 due and owing for the period January, 2013 to July, 2013 be paid to Francis Tovonga for himself and his Pereka Clan within twenty four (24) hours from 10.00 am today.

7. Warrant of Arrest and Warrant of Commitment be issued for the arrest and imprisonment of David Sui in the event that he still fails to comply with the Court Orders at the expiry of the twenty-four hours.

8. The Land Dispute (if any) between Joe Saporo and Francis Tovonga is to continue.

9. The issue relating to the previous payments which may have been wrongly paid to Joe Saporo is to be returned to Court on the 26th September, 2013 for mention.

 10. Joe Saporo is directed to file and serve a break-up of how he distributed the amount of K439,727.43 for January, 2011 to December, 2011 and K561,047.59 for the period January, 2012 to December, 2012

Ordered this O6 day of September, 2013

3. The plaintiffs relied on the same set of affidavit evidence filed during the urgent application save for two more affidavits which I did not consider relevant at this stage of proceedings. They include the affidavits of Francis Minei who is the Company Secretary of Uni Rise Limited and Mr. Joe Demi, landowner and resource owner in the Aria Vanu Block 3 Local Forest Area. 

4. The defendant relied on his brief affidavit filed on 10 September 2013. The gist of his argument is that the National Court lacked jurisdiction save the District Land Court under the Lands Dispute Settlement Act as the dispute was customary lands related per se.

5. Mr. Linge's argument for the defendant was two pronged: Issue of competency and jurisdiction. He argued that the stay order granted to the Plaintiff pursuant on 6 September 2013 was incompetent and misconceived. He said it is misconceived as it effectively stayed an order granted by the court of competent jurisdiction which is the District Land Court and of which, the National Court is not a competent court for the purpose of determination of matters under the jurisdiction of the Land Disputes Settlement Act.

6. Although he conceded that National Court may invoke this rule to grant an injunction, habeas corpus, custody of minors or to appoint a receiver, the rule should not be invoked to stay an order regularly obtained in a lower court or another court of competent jurisdiction. The law relating to stay orders is settled and it seeks to preserve status quo until the full hearing by suspending the operation of a particular decision. The full hearing if allowed would be requiring the National Court to hear the Plaintiffs claim in the Originating Summons and to make certain declarations which the court is not a competent one for the purpose. 

7. While the National Court has a wide discretion and had used it to grant the stay, he submitted that the substantive cause of action is incompetent, viz-a -viz requiring the court to make a declaration when it has no jurisdiction, this court must not cure the defect but act now to dismiss the stay order of 6 September 2013. 

8. Also, the stay order of the National court of 6 September 2013 staying the order of the District Land Court of 6 September 2013 went far beyond and stayed the entire proceedings including orders commenced as DEC No.13 of 2013. Mr. Linge submitted that as far as the whole proceeding filed as DLC No.13 of 2013 the National Court cannot stay or interfere because it is not a court of competent jurisdiction.

9. This is due to the reason that deal with a number of declarations highlighted in the facts above including endorsement by the Court of an approval of Agreement dated 3rd June 2011 by the District Land Court endorsing the Mediation Agreement between Joe Saporo and Philip Agoi which has the effect of an Order pursuant to Section 19 (6) of the Land Dispute Settlement Act, Chapter No.45.

8. In support of his arguments Mr Linge referred the court to two case precedents: They include John Kembu v Fred Tangole Vuho and Ors, unreported, OS No.107 of 2011 and Victor Golpak v Patrick Karea Kali [1993] PNGLR 491. 

9. Mr Linge's arguments of National Court lacking jurisdiction and incompetence in my respectful view is misconceived. The court has not permanently removed or stayed the original proceedings before the District Court nor has it denied both parties an opportunity to be properly heard at the appropriate time and at the appropriate forum. Any disputes relating to the plaintiff's originating summons likewise are not the concern of this court for the time being. They remain to be argued at the proper forum.

10. Furthermore any suggestions of the court exceeding its jurisdiction is also misconceived and misleading. The granting of interlocutory orders are discretionary by the National Court pursuant to section 155 (3) (4) of the Constitution and Order 16, rules 1 & 9 of the National Court Rules. The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action (Frost CJ in Mt.Hagen Airport Hotel v Gibbs [1976] PNGLR 316). That is all the stay order of 6 September 2013 did, no more no less with both parties to be heard inter parte as has now happened in this case. Neither side is prejudiced. 

11. Referring to the two cases referred to in this court, two factual came to the fore namely the question of interest and ownership of certain lands surfaced which prompted the court to correctly rule that National Courts lacked jurisdiction save District or Local Land Courts by virtue of Section 26 of the Lands Disputes Settlement Act. In my view the two cases are easily distinguished as the gist of the matter before me during the first notice of motion and the current is seeking National Court intervention to preserve the status quo until the full hearing.

12. May I reiterate here that ex parte orders are not readily given by courts save for urgent situations and the reasons why service of the Motion is not necessary and that it is impractical to serve the documents. 

13. At the day of grant of the plaintiff's motion courts intervention was warranted in that serious Constitutional breaches were about to be committed, ie person(s) were ordered to be arrested and detained, grave jurisdictional breaches were detected in that the court below ordered substantial amounts of monies amounting to thousands of Kina to be paid, jurisdiction it lacked etc. According to Section 21 of the District Courts Act, the District Courts civil jurisdiction, is limited:

(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed—

(a) where the Court consists of one or more Principal Magistrates—K10,000.00; and

(b) where the Court consists of one or more Magistrates—K8,000.00.

Furthermore Section 1 the Lands Disputes Settlement Act spells out in no uncertain terms the purpose of the Act:

"The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by—

(a) encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and

(b) the use of the principles underlying traditional dispute settlement processes.

It appears to me that the His Worship at the District Land Court has assumed jurisdiction which he termed as civil jurisdiction, powers he does not have and not mandated by the Land Disputes Settlement Act in making those strings of orders. (emphasis mine).

14. For the reasons given above I am of the view that I still have an inherent jurisdiction given to me by the Constitution and will exercise it here accordingly in order to get this matter on the correct course. I now make orders in the following:

1.	The interim order made on 6th September is reviewed and varied as follows the entire proceedings in DLC No 13 of 2013 is reinstated; save for all ex-parte temporary orders, warrant of arrests and court orders per se,

2.	Pursuant to Rule 5 (2) of the ADR Rules the parties shall consider having these proceedings resolved by Mediation.

3.	The parties shall immediately and in any case no later than seven (7) days contact the Assistant Registrar ADR Service in Port Moresby for assistance and compliance of these orders.

Orders accordingly.
______________________________________________
M.S Wagambie Lawyers: Lawyer for the Plaintiff
Linge & Associates Lawyers: Lawyer for the Defendant