Otang v Nipogo [2009] PGDC 119; DC2058 (4 June 2009)

DC2058

PAPUA NEW GUINEA

[In the Civil Jurisdiction of the District Court Held at Lae]

Complaint No. 87/09

BETWEEN:

GURING OTANG

(Applicant)

AND:

NICK NIPOGO

(Respondent)

Lae & Mendi: C Inkisopo

2009: 28th May & 4th June

District Courts Act Chapter No 40 – District Court a creature of Statute – powers, practice and procedure defined and jurisdiction demarcated by statute – no authority or power to 'quash' other District Court Order – power to quash District Court order under appellate jurisdiction – District Court a Court of limited jurisdiction –

District Courts (Practice and Procedure) – one District Court has no power to 'quash' another District Court order – nil equivalent provision in Act to 'quash' as Section 25 for setting aside other District Court order -

Legislations referred to:

1: District Courts Act Chapter No 40
2: Land Dispute Settlement Act, 1975

Cases cited & referred to:

1: ABCO Transport Pty Ltd -vs- Sakaip (1997) N1577
2: Gobe Hongu Ltd -vs- NEC & 3 Ors (1999) N1920
3: Peter Rose -vs- Yamu Samuel [1987] PNGLR 1

Appearances:

1: Mr Guring Otang in person -Applicant

2: Mr Nick Nipogo in person -Respondent

HELD:

1: This Court does not have the power to quash another District Court Order

2: Application is without merit and an abuse of the process and is dismissed forthwith.

4th June, 2009

JUDGMENT

C INKISOPO: The Applicant applies to have the order of the Finshafen District Court dated 17th October, 2008 quashed on grounds of lack of jurisdiction. The background facts giving rise to this Application are that certain villages in the Finschafen area namely Butala, Muigisung and Yambon had a land related issue which seemingly was mediated and an Agreement reached which was reduced down to the prescribed Form 10 of the Land Dispute Settlement Act, 1975 and subsequently approved by the Local Land Court at Lae on 30th March, 2007.The nature of the issue in that case was not so much a dispute as to land ownership but one of common boundary between Yambon, Muigisung and Butala that the formal Mediation process resolved and Form 10 filled out and approved as the formal order of the Local Land Court under the provisions of s 28 of the Land Disputes Settlement Act, 1975.

2: Then, it seems, the Applicant Mr Guring Otang seemingly being aggrieved by that mediated agreement lodged a Notice of Appeal to the District Land Court bearing the date of 22nd May, 2007 raising three (3) grounds against one Zaung Nipogo of Bunom Tongone Clan (Promise Land).

3: Then seemingly on the back of that Notice of Appeal, as is often the case in such matters to maintain the status quo, the Local Land Court at Lae on 8th September, 2008 issued a Temporary Order ordering: "Any royalty payments are restrained and be withheld until the Provincial Land Court determines the ownership."(Sic)

4: Then the Finshafen District Court on 17th October, 2008 on an application by the Respondent set aside the Temporary Order issued by the Local Land Court of 8th September 2008. There is no written reason furnished for that Order by the Finschafen District Court in order to gauge the rationale for that Order. It is this order that the Applicant now wants quashed by this Court. The Applicant initiates this application by way of Notice of Motion dated 3rd of April, 2009 the full texts of which (Notice of Motion) are;-

1: That the requirements for service be dispensed with and this application proceeds ex parte;

2: That the Court Order of 17th October, 2008 issued by the Finshafen District Court be quashed due to lack of jurisdiction by that Court to issue the said Order pursuant to the Land Dispute Settlement Act;

3: That the Temporary order of the 8th September, 2008 issued by the Local Land Court at Lae be in force until determination of the ownership of the land in dispute by a Court of competent jurisdiction.

5: I have set out the full text of the application by the Applicant because of the nature of the type of order this Court is being asked to grant if the application is successful. This application is asking me to quash another District Court order. The catchword here in my view that will make or break or have a direct bearing on the fate of this application is the word "quash" as being the specific relief Applicant seeks in this application. The Longman's English Dictionary defines the word "quash" as 'to officially refuse to accept something already done; for instance like a higher Court judge refusing to accept a lower Court decision. In accord with that meaning this Court is being asked not only to refuse to accept the Finshafen District Court order of 17th October, 2008 but, in my view, to nullify and invalidate that order.

6: I had initially assumed this Application to be one of an application to set aside a previous ex parte order of an other District Court but upon a closer reading of the Notice of Motion filed by the Applicant; it became clearer that Applicant was particular in specifically asking this Court to quash that earlier Finshafen District Court Order of 17th October, 2008 on the ground of want of jurisdiction. That is the Applicant's specific relief in this application.

7: This Court will therefore confine itself to dealing with and considering that which the Applicant has specifically claimed as his relief in this Application as there are no alternative reliefs claimed that would have allowed this Court a leeway to consider other relieves considered permissible under the given circumstance. This Court likewise will not alter or tailor the Applicant's particular relief to something acceptable to come within jurisdiction and of particular relevance under the particular circumstance of this case. It is trite law that a Complainant is entitled to or limited to what he has claimed or pleaded in his originating claim; in that the Complainant is not entitled to a relief he has not pleaded nor claimed. See Gobe Hongu Ltd -v- NEC & 3Ors [1999] N1920, a judgment of Mr Justice Sevua – a case that emphasizes this notion of a party not being entitled to a relief that he has not claimed nor pleaded in his originating process. This Court has no authority to alter or cure the relief sought to become compatible with the circumstance at hand. It therefore remains a sublime fact that this Court is being asked to quash another District Court's order; and this is where I find myself to being stuck!

8: This then begs the immediate question; does this Court have the power to do exactly that? In order to answer this important question, we shall have to first consider the Court's enabling legislation; the District Courts Act to identify the source of it powers.

9: This Court is a creature of an Act of Parliament namely the District Courts Act Chapter No 40 that establishes it (District Court) and defines the parameter of its application and also demarcates its jurisdiction. "The District Court is a creature of statute whose practice and procedure is prescribed by statute." Per Injia J (as he then was) in Abco Transport Pty Ltd -vs- Sakaip (1997) N1577. The only exception being Section 25 which permits of a District Court setting aside a previous order of another District Court on proper application according to established legal principles. In the instant case; it is not being asked to invoke the Court's set aside powers under Section 25 of the Act, but asked specifically to "quash" a previous District Court Order. The power to 'quash' a District Court order in my view lies solely in the appellate powers of the National Court through the process of appeal under Section 230(1)(c) of the District Courts Act; and nowhere in the District Courts Act is that privilege extended to an other District Court excepting the only power under Section 25 (of the Act) relating to setting aside previous ex parte orders of other District Courts.

10: For this reason alone, this application must fail - however; several other important matters were raised and argued strongly by the parties that I feel it imperative to address them in order therefore to render complete the over-all picture in this case. These relate to the questions of;-

> Applicant Guring Otang's locus standi in the entire proceedings from the Mediation stage to Approval of Mediation Agreement by the Local Land Court at Lae to the stage of the lodgment of appeal;

> Dichotomy of parties/subjects on Mediation Agreement Form 10 to parties/subjects on Notice of Appeal to parties/subjects on the Temporary Order Form 12 that is the primary subject of this Application.

> The Respondent's contention that this application by way of Notice of Motion was improper and an abuse of process in that it should have been appealed if Applicant grieved 'lack of jurisdiction'.

11: Respondent took serious issue with the question of Applicant's locus standi contending that Applicant had neither authority nor right to act on behalf of or for Bunom Tongone Clan. He said the Applicant filed this Application in his own individual capacity and named as such; as opposed to being in a representative capacity and in his supporting affidavit, Applicant identifies and claims himself to being the Chairman of Bunom Tongone One Clan (Refer to paragraph No #1 of Applicant's affidavit of 3rd April, 2009). However, from the evidentiary material on file so far, Applicant seems to be a complete stranger to the entire matter of boundary issue between the parties at the initial mediation stages as borne out from paragraphs #3 and #4 of the Respondent's responding affidavit dated 6th April, 2009 wherein he annexes a crucial piece of documentary material presented in the form of Annexure "B" showing what seems to be copy of an ILG Certificate.

12: This Annexure appears to be copy of a Certificate of Recognition of Incorporated Land Group (ILG) with the Certificate No ILG 1598 for WOMBO LAND GROUP (Inc). The Applicant Guring Otang is named in this certificate as the Deputy Chairman and also holding the position as a member of that ILG's "Dispute Settlement Authority".

13: During the examination of this Applicant at hearing he was asked of this fact by the Court; that he is the deputy Chairman and a member of the Dispute Settlement Authority of this ILG, Wombo Land Group (Inc.) and he denied the claim. He was infact shown a copy of this ILG Certificate and asked about it but he could not offer any plausible explanation but denying any knowledge of this ILG certificate completely.

14: In any event, the said ILG Certificate appears authentic to me in that it bears the signature of the Registrar of the Incorporated Land Groups superimposed by and with his (the Registrar's) official seal.
15: For Applicant to deny in the face of that hard evidence and not proffering any plausible explanations against that documentary evidence renders the Applicant's case somewhat difficult to reconcile; and at the least acceptable.

16: In the final upshot and on the basis of the available evidence I find that Applicant Guring Otang is not what he tries to have the Court believe; meaning Guring Otang is not the Chairman of Bunong Tongone One as there is no evidence to support that claim. Accordingly, I hold the humble view that Applicant does not have the authority nor does he have the locus standi to pursue this application as he does.

17: The next consideration is the Party/Subject difference at the Mediation, the Notice of Appeal stage and the Temporary Order stage. It appears clear that the original parties as well as the subjects were all completely different at each level. For instance; the original parties in and at the Mediation and Approval stage were Butala, Muigisung and Yambon Villages dealing with a Common Boundary issue that was resolved through mediation. This seemed to me to be only a common boundary issue and NOT a 'land ownership dispute' as such. Then at the Notice of Appeal stage, one Zaung Nipogo is introduced and named as the Respondent and then, who the Appellant was is neither so clear nor shown!

18: Other corollary questions arise;-

i: Is Zaung Nipogo of Bunom Tongone one of the original parties in the mediated settlement which was approved by the Local Land Court at Lae which is the subject of the Notice of Appeal to the Provincial Land Court?

ii: What is the subject of the Temporary Order and who are the Parties bound by the Temporary Order of the Local Land Court that was set aside by the Finschafen District Court which gave rise to this present Application?

19: Let me analyze a few facts here and attempt answers to the two (2) questions posed immediately above. The original parties to this issue had been Butala, Muigisung and Yambon Villages over their common boundary which seemed to have been settled through mediation and the Local Land Court at Lae having have approved same as a formal Local Land Court Order. Then it seems some one completely new who was not a party to the original issue by the name of Guring Otang came along and filed a Notice of Appeal to the Provincial Land Court against that mediated settlement approval naming as his respondent one Zaung Nipogo whom was awarded the Bunom Tongone clan leadership to act on behalf of the (Bunom Tongone) Clan members which was found through the mediation to have shared a common boundary with Butala Village.

20: Then in the Temporary Order, it names Bunom Tongone One and Bunom Tongone Two and one other namely 'PNG National Forest Authority' as the disputing parties over a completely new and fresh subject of "SET UP19, 28, 29, 30 AND 32". The original common boundary issue having have been successfully settled through mediation had nothing to do with disputes over SET UP 19, 28, 29 etc, etc which appear to be a completely new and foreign to the original issue.

21: It seems obvious to this Court that the Applicant has in his appeal notice made extensions to introduce unilaterally new facts and subjects; and making further extensions in the Temporary Order to give the matter a completely different outlook and complexion to the original issues and subjects.

22: I therefore answer the first question as NO; Zaung Nipogo was not an original party as such, but became the subject of the Mediation finding; that he was found as the leader of the Bunom Tongone Clan and authorized to act on behalf of the Clan members; but not a party to the original common boundary issue of a village to village matter.

23: I answer the second question in two (2) parts;-

1: Temporary order over interests in land known as "SET UP 19, 28, 29, 30 AND 32" is a far fetched extension by the Applicant, Mr Guring Otang. It is abundantly clear that the original mediated issue is one of 'common boundary' and what this thing about SET UP 19, 28 etc.,is, is so confusing and is sort of wandering away from the original subjects and issue. It can now safely be implied that the Applicant concocted and conjured up these new subjects presumably to procure this Temporary Order that the Land Court has, it seems, quite gullibly issued without checking on the relevance, substance and the propriety of it. It seems Applicant has made extensions in leaps and bounds to include matters and issues that are not subjects and issues at all and misleading the Local Land Court at Lae in procuring the Temporary Order thereby causing confusions, frustrations and inconveniences to the Respondent and other third parties who have needlessly been dragged in and unnecessarily bound by the Temporary Order such as the PNG National Forests Authority.

2: The parties are Bunom Tongone One and Bunom Tongone Two and PNG Forest Authority. Applicant has also made grave extensions to name these parties as disputing when they are simply not as there is no evidence; as well as binding parties who are not even parties to the original issue; and quite interestingly excluding the original parties from the latter processes altogether. Applicant should be held answerable for all these confusions and not allowed to get away with what confusions he has created so far.

24: From these findings, this Court reaches the formal view that Applicant Mr Guring Otang is a stranger to this matter that has already been successfully settled through mediation with the Lae Local Land Court giving its approval thus sealing the fate of the original common boundary issue; but Applicant somehow has made it his concern to unnecessarily protract the matter by delving on matters that are not and never issues at all thereby, in the humble view of this Court, making issues over nothing and causing nuisances and inconveniences to third parties particularly the PNG National Forest Authority.

25: On the basis of the above discussion, I find this proceeding to be an abuse of the process, and I must say, it is without merit; and for this and the above reason of lack of jurisdiction (to quash another District Court Order); this Application is dismissed forthwith as being wholly misconceived, without merit and a gross abuse of the process.

26: In fact it appears very obvious to this Court at this stage that the Applicant should have been ordered to bear the Respondent's costs of defending this Application as he (the Respondent) "has been forced to the Court unnecessarily" (to use the words of Woods J in Peter Rose -vs- Yamu Samuel [1987] PNGLR 1 at p.3) but for the fact that the initial order has been for 'each party to bear own costs'; and this is where I will begrudgingly let the buck stop!

27: The Court's formal orders therefore are;-

a: Application is dismissed as being without merit and an abuse of the process;

b: Each party bears own costs of this Application.

LAWYERS:

1: Nil – Guring Otang himself in person
2: Nil – Nick Nipogo himself in person