Kikoli v Tropic Timbers Ltd [2008] PGDC 115; DC878 (1 January 2008)

DC878

IN THE DISTRICT COURT OF PAPUA NEW GUINEA
HELD IN MADANG

SW NO 18 of 2008

BETWEEN

SGT. FRANK KIKOLI
(Respondent/Informant)

AND

TROPIC TIMBERS LIMITED
(1st Applicant/ Respondent)

AND

JOHN DAVIDSON
(2nd Applicant/ Respondent)

Criminal: Search warrants; requirement under Section 6; failure to disclose and offence renders the search warrant void

Case Law: Acting Public Prosecutors –v- Richard Sarondou [1988-89] PNGLR 17

Counsel:

B Meten – Narakobi Lawyers for the Respondent/Informant
Y Wadau – Young Wadau Lawyers for the Applicant/Respondent

Introduction

This matter comes by way of an information summons to information and supporting affidavit laid by Sergeant Frank Kiloli to obtain a search warrant to search and seize titles of Portion 1056 – 1061 Milinch of Kranget, Fourmil Madang. The search warrant was obtained on 20 February 2008.

Facts

Selon Ltd was granted a State Lease over portions 1056, 1057, 1058, 1059, 1060, 1061 Milinch of Kranget, Fourmil Madang. The portions had some outstanding arrears amounting to K65,545.00.

Selon Ltd then approached Tropic Timber Ltd for a loan for that amount and was give it. The title were then mortgaged to Tropic Timbers Ltd.

Some time in 2000 Selon Ltd sold part of the land and from the proceeds of the sale paid back Tropic Timber Ltd K83,660.00 which was the loan plus interest

It appears Tropic Timber Ltd did not relinquish the title back to Selon Ltd.

Selon Ltd the commenced proceedings OS No 89 of 2005: Selon Ltd –v- John Davidson and Tropic Timber Ltd in the National court to have the mortgage discharged. On 11 August 2005 orders were made in favor of Selon Ltd:

The order granted were:

THE COURT ORDERS THAT:

1. The mortgage registered against the titles to the following properties be discharged forthwith:

a. Portion 1056 Milinch of Kranget, Fourmil Madang

b. Portion 1057 Milinch of Kranget, Fourmil Madang

c. Portion 1058 Milinch of Kranget, Fourmil Madang

d. Portion 1059 Milinch of Kranget, Fourmil Madang

e. Portion 1060 Milinch of Kranget, Fourmil Madang

f. Portion 1061 Milinch of Kranget, Fourmil Madang

2. John Davidson and Tropic Timber Ltd and their servants and agents be restrained from interfering in the operations, management and control of Selon Ltd and its members and directors

3. Respondents pay the cost of this proceeding

4. The Damages suffered by the plaintiff be assessed if not pursued be a Writ of Summons

Between 11 August 2005 and early December 2007 little happened.

On 4 December 2007 Selon Ltd’s lawyer’s Poro Lawyers in Port Moresby wrote to the Provincial Police Commander here in Madang and lodged a complaint. They instructed police to go and evict Mr. John Davidson and other people in the said portions for illegally squatting on the land.

On 20 February 2008 Sgt Kikoli applied for and successfully obtained a search warrant to search and seize the said titles from Section 57 Allotment 3 Baidal Road, Madang.

On 6 January 2008 at about 2:30pm 2008 the Sgt Kikoli in the company of four other police men fronted up at Tropic Timber Ltd office and served them a copy of the search warrant. They advised Mr. Davidson to hand over the titles before 4:06pm the next day or they would conduct the search.

On the same afternoon Tropic Timber Ltd sought and successfully obtained a stay on the search.

On the 21st of April 2008 Sgt. Kikoli applied to the court and set aside the Court Order dated 6 March 2008 and the matter was set for trial. This was granted and it was listed for trial on the 15 of January 2009.

On the 15 January 2009 the matter was further adjourned to 20 January 2009 for trial, the court directed the lawyers to file prepare and file brief agreed facts and issued.

Issues

On the 20 this was filed. Counsels identified the issues as follows:

1. Whether the search warrant were obtained in accordance with Section 6 of the Search Act.

2. Whether the Police have jurisdiction to investigate civil proceedings and enforce court order by way of a Search Warrant

3. Whether Police have jurisdiction to enforce a National Court orders?

The Law

The preamble of Search Act states

Being an Act—

(a) to regulate or restrict certain rights or freedoms referred to in Subdivision III.3.C (qualified rights) of the Constitution, namely—

(i) the freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and

(ii) the right to privacy conferred by Section 49 of the Constitution, so as to—

(iii) provide for searches of individuals, premises and property in certain cases; and

(iv) confer on persons making searches certain powers and duties; and

(b) to abolish certain rules of common law,

and for related purposes.

Section 6 of the Search Act states this.

6. Issue of warrants.

(1) If a court, other than a Local Court, is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place—

(a) anything with respect to which any offence has been or is believed on reasonable grounds to have been committed; or

(b) any thing as to which there are reasonable grounds for believing it is likely to afford evidence of the commission of any such offence; or

(c) any thing as to which there are reasonable grounds for believing is intended to be used to commit any such offence,

it may issue a warrant to search that building, craft, vehicle or place.

(2) If a court is satisfied by information on oath by a commissioned officer of the Police Force that there are reasonable grounds for suspecting that there is in any building or buildings in a village or in any part of a village or village garden any thing specified in Subsection (1)(a), (b) or (c), it may issue a warrant to search the building, buildings, village, part of the village or village garden.

(3) Where a warrant has been issued under Subsection (2) the person, policeman or policemen to whom the warrant is directed shall, where it is practicable to do so, before executing the warrant, endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued.

(4) Subsection (1) or (2) does not justify the use of greater force than is reasonable in the circumstances.

Issue 1

But was the search warrant obtained within the confines of Section 6 (1) of the Search Act. Sgt Kikoli applied for and obtained a search warrant under Section 6(1).

Mr. Meten submits the warrant was obtained within the requirements if Section 6 of the Act. He lists the requirement that it was made by way of information, the information was on oath or supported by an affidavit on oath

Mr. Meten submits further that an offence was disclose in the information to obtain the search warrant. The offence committed by Tropic Timbers Ltd and John Davidson was withholding titles legally belonging to Selon Ltd. That act is criminal and therefore an offence.

Counsel for Tropic Timbers Ltd and John Davidson submit the search warrant did not comply with Section 6 of the Search Act. Mr Wadau submits the information was declared but not made on oath by a commissioned officer. Sgt. Kikoli is not a commissioned officer, his rank of sergeant falls under the level of commissioned officer.

Further there is not offence stated which is a necessary requirement in order to obtain a search warrant. The enforcement of a court order or retrieving titles given to Selon Ltd and purported to be held by Tropic Timber Ltd and John Davison is not an offence. Further an offence is criminal in nature.

As such the search warrant must be dismissed.

The Search Act

Under Section 6 of the Search Act there are two situations where a search is conducted. These distinctions are made in section 6(1) and 6(2) of the Act. Acting Public Prosecutor –v- Richard Saronduo (1988-89)PNGLR 17

Under Section 6 (1) of the Search Act warrants can be issued for the search of buildings, crafts and vehicles, whereas under Section 6 (2) of the Search Act warrants can be issued for searches of villages and/or buildings in a village.

Subsection (3) of the section only qualifies and restricts how searches are to be conducted under Section 6 (2). That being when conducting searches in villages and houses in villages the police must take into consideration the customs of the village and have regards to the village elders and leaders.

Under Section 6(1) the Search Act, to obtain a search warrant two requirements need to be meet.

The first limb refers to a court on being satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building,

The second limb of Section 6 (1) of the Search Act refers to the offence.

"where an offence is being committed; likely to be committed or it is being intended to being used in the committal of an offence."

There is no requirement under Section 6(1) the Search Act for the information be made on oath by a commissioned officer. This requirement only needs to be met if you are applying for a search warrant under section 6(2).

Further the second limb of section 6(1) requires that .."there is of which any offence has been or is believed on reasonable grounds to have been committed; there are reasonable grounds for believing it is likely to afford evidence of the commission of any such offence; or there are reasonable grounds for believing is intended to be used to commit any such offence,

The court finds that the search warrant obtained by Sgt Kikoli falls short on the second limb of section 6(1). Although it met the requirements as to the form, the information did not disclose and offence.

The offence must be is criminal in nature and an offence created by legislation, either by way of The Summery Offences Act or the Criminal Code of Papua New Guinea or an order of the court.

A search to obtain titles because the National Court granted to one party and the other party being order to return them fails to return it is not an offence in law.

Issues 2 and 3

As stated earlier the two following issues can be dealt with together because the answers are interconnected. I have rephrased the issue below

Whether the Police have jurisdiction to investigate civil proceedings in National Court orders by way of a Search Warrant?

Mr. Meten for Sgt. Kikoli submits that the police have jurisdiction to deal with this matter. It is criminal in nature. Tropic Timber’s have failed to comply with a national court order. Their action of withholding the titles from Selon Ltd is criminal. Therefore it is an offence. That there is no evidence to show that Tropic Timber Ltd are holding the titles lawfully.

Because of this the police have jurisdiction and can act. And the appropriate manner was to search and seize the titles.

Mr Meten further submits that issue in proceeding os 89 of 2005 relate to the mortages not the title.

Mr Wadau for tropic timbers and john Davidson submits that
The function of the police is to lay, prosecute or withdraw in respect of the offence. Therefore it can investigate lay information so long as the complaint lodged to investigate is criminal in nature. If the complaint is civil in nature the mandate of the police falls short.

Can police enforce orders of the nation court by way of a search warrant?

The answer is to a certain degree yes and no. Where the court specifically directs the police to search and seize the titles then that order do such an act then it can act on such orders. Where it does not the police do not have the power to do so. Here we see and order given by The National Court. After a letter from Selon Ltd’s lawyers instructing police to go and arrest the defendants for illegally being on the property. The police went and sought a search warrant. I see no link with the complaint laid by Poro Lawyers and the actions of the police. A probable cause of action the police could have taken was investigating for possible charges for unlawful on premises (Section 20 Summery Offences Act).

In conclusion I agree with Mr. Wadau, in courts of civil jurisdiction when orders are obtained and are not obeyed enforcements procedure available. It requires whichever party orders are made in favour of to go back to the court where the order was obtained from and seek to have that order enforced or seek relief.

In essence this whole saga involving the search warrant is an abuse of process.

I conclude and order:

1. Search Warrant 18/2008 issued of 20 February 2008 be set aside and dismissed

2. I award cost to John Davidson and Tropic Timbers Limited.

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