Asivo v Bank South Pacific Ltd [2008] PGDC 117; DC873 (13 April 2008)

DC873

PAPUA NEW GUINEA
[In the District Court of Madang]
Civil Jurisdiction

Case Number DCC 385 of 2008

BETWEEN:

STEVEN ASIVO
(Complainant)

AND:

BANK SOUTH PACIFIC LIMITED
(Defendants)

MADANG: ERNEST WILMOT (DCM)
2008: 13 April 2009

CASES CITED:

Regione –v- Palm Tavern PTY LTD [1988-89] PNGLR 150
Chief Tax Collector –v- Kila Kupi
COECON LTD –V– JOHN ROBERT STEELE (2004) N2532

LEGISLATION CITED:
DISTRICT COURTS ACT 1963

RULING

EWILMOT (DCM): This application was filed on 11 march 2009seeking orders from this court to dismiss the entire proceedings for want of jurisdiction.

The substantive matter was also filed on the same date. The matter was listed The interim stay was give and the matter was adjourned for trial on ................. On the 11 march 2009 the Defendant BSP Limited through Mr. Koimo filed an application seeking to ste aside the orders of this court staying the eviction of the complainant from the property known as Section 124, Allotment 35 Madang The hearing of the application was set for 13 March 2009

Facts:

On 25 July 2006 Steven Asivo was granted a loan from Banl South Pacific to purchase property known as Section 124, Allotment 35 Madang The agreement the agreement was two limbed.... First to purchase the property and secondly they were to fund the maintenance of the property. when he went back to obtain the balance of the loan he was told that he would not receive the balance. The bank declined and claimed he was a bad client.

Mr. Asivo filed proceedings in the district court seeking the bank to pay the balance owing by the bank. In the meantime the bank came in and took step to repossess the property under its default clause.

On 11 march 2009 the defendants filed an application to dismiss the preceding.

This is the hearing of the defendant’s application to dismiss

Hearing

The hearing of the application was conducted on 13 March 2009.

The application of Mr. Koimo submitted the following,

The applicant defendant submitted the district court did not have jurisdiction to here the matter per section 21(1) of the District court act, subsequent orders sought

Steven Asivo got restraining order obtain on December 2008. As such Steven sought order to esstop the bank from evicting him. Last Feb.

Mr. Koimo relies on two affidavits one of Mr. Albert Alo dated 9 may and Mr Koimo’s own affidavit dated 11 March 2009, in which the Bank attested to the amount being well over K10,000. Further the amount the bank owes is well beyond 10,000.00

Mr. Koimo relies on affidavit of Mr. Alo that there was a default on Mr. Asivo account as a result the bank used the default clauses in the agreement to issue eviction notices were issued and as such there are default clauses in the agreement which the bank has used due to the default.

Section 21 DCA submit what is before the court the defendants is in arrear well above K10,000. Counsel refers the court to the decision of Regione –v- Palm Tavern Pty Ltd [1988-89] PNGLR 150; N702. The case basically defined that amounts exceeding is in the realm of National Court.

Chief Collector of Taxes –v Kila Kapa and Associates Lawyers [1990] PNGLR 140; N819 This court further states that even amounts less then K10,000 can be held in the national court.

That district court is a creature of statute and thus it draws its powers from enabling legislation. As such they sought to have the matter be dismissed and orders per the application.

In reply to the submissions of Bank south pacific, Mr. Asivo claims that the substantive matter is a claim for the reimbursement of K10,000 which he paid to builders to renovate property he bought.

Mr. Asivo response was as follows; that the agreement was two limbed.... First to purchase the property and secondly they were to fund the maintenance of the property. The agreement was signed and executed by both the bank and Mr. Asivo.

Maintenance inspection was made by Paul Kalai and Philip Yepiapia and certified by these officers of the bank. The substantive matter is for the balance of the loan or about the value of the loan but for the reimbursement of the K10,000 I spent which the bank agree initially to maintain but the bank did not honour it that felt him to pay for it myself. Further he states that he is willing top forgo the balance.

This action was no for the balance of the loan which in any respect was not paid to him. This is supported by the affidavit of M Koimo himself.

That in relation to default Mr. Asivo states he is not in default... that according to his calculation he is in fact ahead of his payments. That he is about K640.00

In conclusion Mr. Asivo submitted that the application be dismissed and matter be set for hearing

Decision

It is a magistrates duty that prior to hearing of any matter he must satisfy himself with these some preliminary issues, one being that of

Whether the District Court have jurisdiction to hear the matter?

Section 21 of the District Court Act does refer specifically to the jurisdiction of the District Court, but does not go far enough so as to deprive the National Court of its jurisdiction. From my reading of section 21 it give this Court to a limit of K10,000.) and other courts namely the national court jurisdiction up of amounts less then K10000. It does not say "only" a District Court has jurisdiction. It allows for recovery of amounts up to K10,000 in the District Court as well as the National Court .

The intention behind the increase of the District Court’s civil jurisdiction to K10,000 was to make it easier for the people to make a civil claim in the District Court and not to deprive the people of their right to seek redress in any court they consider appropriate.

I Quote Justice Jalina in Chief Collector of Taxes –v Kila Kapa and Associates Lawyers (supra)".....s 21 is permissive and does not prohibitive a litigant to bring matters to the district court even if he can bring the matter to the National court. It is his prerogative to bring the matter to a court of his choosing. This is supported by subs (3) which say that subs (1) shall not be taken to limit the jurisdiction of Courts in cases where, by any law, money, irrespective of amount, may be recovered from a Court....." Chief Collector of Taxes –v Kila Kapa and Associates Lawyers [1990] PNGLR 140; N819

I noted the cases of Regione –v- Palm Tavern Pty Ltd [1988-89] and Coecon Ltd –v- John Robert Steele 2004) N2532 however I find no relivance to this case. the issues in those cases relates to the right of landlord over his property, which differs from this case where the relationship is that of mortagee and mortgagor and their actions are governed by the intentions of the loan agreement.

The complainant then came to court seeking reimbuirsment for the balance of the loan subsequently a restraining order was obtained to stop the bank from evicting him. The reasons for the eviction was that the bank is now raising a claimed he defaulted in repaying his loan which stands now at K31000. This he denies stating that he has overpaid by K640.00. the issue of the value of the property being over K10.000.00 is not the substantive issue. The substantive issue as I have stated is the amount the complainant is seeking from the bank to reimburse to him.

The complainant raise the issue of the amount being sought in this matter is that of the bank failing to reimburse K10,000.. The substantive issue has been that of reimbursement of monies that the complainant spent for the building of a house wind, which came to about K10,000.00. And this is within the jurisdiction of this court.

However the claim for the reimbursement of the K10000 relates to the property. And the value of the property is estimated to be in the vicinity of K60,000. This is six time over the jurisdiction of this court. It raises the issue of jurisdiction. It is established law and I agree with Mr. Koimo, where personal actions at law or equity where the claim or amount or the value of the subject matter exceed K10000 this court has no jurisdiction to hear it. If it did this court would be acting ultra vires its jurisdiction.

The applicant contends that the property’s value well exceeds the jurisdiction of the court and is outside the jurisdiction of this court. Though this is not the main issues the question of jurisdiction is fundamental in any district court sitting. Only after issue of jurisdiction is determined can the court proceed to hear a substantive issue. If Orders were granted it would be outside the courts jurisdiction is ultra vires thus null and void.

I find for the applicant dismiss this matter in its entirety for want of jurisdiction pursuant to section 21(1) district courts act.

I grant cost of this application to the applicant where not agreed it be taxed

Ewilmot

_________________________

In House Lawyer for Applicant
Respondent appearing in person