Tumbi v Curtain (SHP) Brothers Ltd, Project Manager [2011] PGDC 50; DC2064 (21 July 2011)

DC2064

PAPUA NEW GUINEA

{In the Civil Jurisdictions of the District Court}

Held at Mendi

DC No. 158/2011

BETWEEN:

PAUL TUMBI
(Applicant/Complainant)

AND:

THE PROJECT MANAGER (SHP) CURTAIN BROTHERS
LIMITED
(First Respondents/Defendants)

AND:

CURTAIN BROTHERS LIMITED
(Second Respondents/Defendants)

Mendi: C Inkisopo
2011: 21st July,

District Courts Act Chapter 40 - District Court practice & procedures defined by Act -jurisdiction and powers defined and parameter of application demarcated by Act-

District Courts Act Chapter 40 - general ancillary jurisdiction of District Courts – interim reliefs under Section 22 available only upon proper substantive causes of action on foot and pending-

District Courts (Practice & Procedure) - primary relief sought in originating process simultaneously moved by way of Notice of Motion is an abuse of process –

Authorities/Legislations/Rules/Regulations consulted.

1. The Constitution of the Independent State of Papua New Guinea
2. District Courts Act Chapter # 40
3. The National Court Rules (NCR)

Cases cited & referred.

1. John Momis & 3 Ors -vs- Attorney General & 1 Or [2000] PNGLR 109 applied.
2. Herman Gawi -vs- png Ready-Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74n considered.

Journals & Materials consulted.

Doug Tennent - Equitable Estoppel and the Rights of Squatter Settlement Residents [1998-99] 26 MLJ 115 (1st January, 1998)

Appearances:

1: Mr Edward K Wamp, Counsel for the Applicant/Complainant.

2: Mr Jeffrey Kennedy, Counsel for the Respondents/Defendants

HELD:

1. Application for further adjournment is refused as being without merit.
2. The whole of the proceedings before this Court are dismissed for being an abuse of process.
3. Each party bears own costs of proceedings.

21st July, 2011

JUDGMENT

C INKISOPO – This matter came before me by way of Notice of Motion in which the Applicant/Complainant (hereinafter called "Applicant)" seeks a certain restraining order against the Defendants from progressing any further construction work onto the Applicant's land "until his improvements are settled pursuant to Section 22 of the District Courts Act, Chapter 40".

2: The terms of the Applicant's Notice of Motion verbatim are;-

"(a) An interim order that Defendants be restrained from progressing any further work onto the Complainant's land until (albeit) pending the determination of the substantive proceedings pursuant to section 22 of the District Courts Act.

(b) Costs of this action,

(c) Such further or other orders the Court deems fit."

3: The facts giving the background impetus to this application concerns a certain portion of land in Tari Township that Applicant claims to have settled on for a long time since 1992 and had put up improvements thereon and called it 'his land' that is now a subject of demolition for road construction purposes. The said portion of land apparently is a State land more described as Section 30, Allotment 6, Township of Tari, in the Southern Highlands/Hela Province. On this portion of land, Applicant claims to have made improvements such as carrying out land refills and putting up permanent structures to an estimated value of K50, 000.00.

4: As it transpired, the Defendants who apparently are contracted to carry out road construction work into the PNG LNG project area in the Hela Province gave notice to Applicant to remove his properties and relocate as they needed to progress road works on to the subject land as it apparently is in the way of the road project plan. It was at this initial notice to vacate, that Applicant wrote to the Defendants asking to be compensated for his exertions in carrying out improvements; appended with actual written computations of his claim.

5: The Defendants seemingly did not respond to his Claim - instead they gave him a definite deadline of 18th July, 2011 to vacate the subject land and relocate as they would continue progression of their construction work onto the subject land.

6: It was at this notice; Applicant filed these proceedings (Complaint/Summons) dated 12th July, 2011 seeking an immediate "restraining order" against the Defendants from progressing further works onto the subject land "until Applicant's improvement values have been settled."

7: At the same time of filing his Complaint and Summons, he filed a Notice of Motion in which he seeks a "restraining order" that the Defendants be restrained from progressing further works onto the Applicant's land pending the determination of the 'substantive proceedings' pursuant to Section 22 of the District Courts Act."

8: This Motion came on for its first mention on 19th July, 2011 at 9.00am during which both Counsels made appearances for each of their respective clients; - Mr. Edward Wamp of Mt Hagen's Kunai & Co. Lawyers appeared for the Applicant whilst Mr. Jeffrey Kennedy of Port Moresby's Young & Williams Lawyers did for the Respondents.

9: At the commencement of hearing of the Motion, Mr. Kennedy, applied for leave of Court to appear for the Defendants on grounds that he was short-instructed as a result of which he had not filed a formal appearance to appear for his Clients including the Defence. Leave was thus granted Mr. Kennedy to appear for his Clients.

10: At the grant of leave, it became obvious to the Court that both Counsels appearing for their respective clients had not filed their respective Notices of Appearance.

11: After Mr. Kennedy was granted leave, Mr. Wamp for the Applicant announced his appearance for the Applicant and intimated to the Court that he wished to make an application. The Court supposing he to apply for leave likewise Mr. Kennedy, allowed Mr Wamp to advance his application.

12: Mr. Wamp instead asked for an adjournment of this matter to a later date to enable him file further documents that Applicant, being a lay person, had failed to file certain documents - such as;-

➢ Undertaking as to damages, and
➢ Supplementary affidavits etc.,

13: I'd wish to address an issue that impinges upon the question of appearance by both Counsels without their respective formal appearances having been filed before-hand. Mr. Kennedy specifically applied for leave whilst Mr. Wamp did not. Yet the Court accorded Mr Wamp an audience and heard him. Needless to say Mr. Kennedy raised no objections on Mr. Wamp's such appearance!

14: Be that as it may; the Court nonetheless entertained Mr. Wamp's application –even though his appearance without leave would ordinarily have been denied; but the fact of the matter remains that; when the Court entertained Mr. Wamp's application; by that fact, it would, in my view, be by 'implied leave'. Accordingly, I held that Mr. Wamp appeared by implied leave for his Client. (I considered it necessary to address this issue at this juncture in some detail; though Mr. Kennedy raised no objection because I deemed it appropriate to do so to ensure that due Court processes have been followed especially when legal Counsels are involved).

15: Mr. Wamp's application for further adjournment was immediately objected to by opposing counsel, Mr. Kennedy on grounds that there is neither good reason nor sound basis advanced supporting the Application. He contended that Applicant should have prepared well and taken all steps necessary to have such a matter brought before the Court and then issue proceedings that would naturally 'force' the Defendants to attend Court at costs. Mr. Kennedy in objecting however proffered a "leeway" to the Applicant by proposing a 'consent' to adjournment if Applicant should meet the Defendants' costs of appearance through Counsel that day .This offer - though well-intentioned - was not taken up; hence; the objection remained to be adjudicated upon by the Court.

16: In the course of his objection, Mr. Kennedy raised an issue that in my humble view critically impacts on the proceeding in its entirety.

17: Mr. Kennedy argued that there was no identifiably lawful or reasonable cause of action presently on foot before any Court or tribunal upon which the "restraining order" as sought could be founded. He further argued that in both the originating process (Complaint/ summons) and the Notice of Motion the Applicant filed, there is no known nor identifiable cause of action pleaded upon which the motion seeking "restraining order" as a relief was to be founded under Section 22 of the District Court Act. He therefore argued that the application for adjournment even to begin with is a mischief and should be refused; with the entire proceedings dismissed!

18: I understood Mr. Kennedy to be saying that the entire proceeding lacks the basis upon which to progress to considering the question of whether an immediate "restraining order" was feasible or not in all of the circumstances.

19: Mr. Wamp speaking for the Applicant, whilst conceding that his client may have neither legal right nor title to the subject portion of land (Section 30, Allotment 6, Tari, Southern Highlands/Hela Province) emphatically submitted that whilst his client may not have strict legal rights nor entitlements over the subject land to instigate the sort of action he took to protect against adverse interferences, he possessed an "equitable right and/or interest" to take steps to protect that right by way of obtaining "restraining orders" to stop the Defendants from carrying out further road construction work until he was duly compensated of or for all his exertions and improvements.

20: I understood Counsel to be contending that; his Client had an "equitable right" to protect from adverse interferences by the Defendants; and that this Court should recognize such "equitable right" as equity is part of the underlying law of PNG as adopted under Schedule 2 of the National Constitution. He cited in support of this contention the oft–cited case of Herman Gawi & Ors -vs- png Ready-Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74. This case stands for the proposition that even though one may not have the strict legal right nor entitlement to remain on a particular portion of land (when the Proprietor moved to evict) on which he would have settled for a long period of time without objection, the Court would recognize that he would have acquired some level of 'equitable rights' that entitled him to enjoy some level of reprieves from immediate eviction.

21: Whilst I do appreciate Counsel's point as advanced in response to the objection; in my humble view, I do not consider this case to be a question of interference of Applicant's rights – whether legal or otherwise to the subject portion of land that is about to be interfered with or threatened to be interfered with. The pressing question I consider to beset this Court is; - whether there is a substantive cause of a matter on foot before this Court or any other tribunal that forms the foundation upon which the application for a "restraining order" can issue.

23: This in my view is crucial because, this Court in considering any preliminary matters or issues such as to grant or otherwise of 'restraining orders' or other interim reliefs, derives its jurisdiction to dispense justice from Section 22 of the District Courts Act Chapter 40.

24: Section 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 reliefs, redress or remedy or combination of remedies, whether absolute or conditional; and

b: give the same effect to every ground of defence or counter-claim, 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".

25: This provision is very clear in its terms in that the District Court's powers under this provision is ancillary only and plays a secondary role to a more primary substantive cause of action for the time being before it upon which such reliefs or a combination of it may lie.

26: Whilst Applicant may or may not have a right to the subject land - whether strictly legal or equitable - in this proceeding, he has sadly not asserted any of that right in any form such as a claim for monetary compensation or the like against the Respondents/Defendants thereby laying the legal foundation upon which to seek the "restraining order". Applicant has claimed none!

27: He came to this Court seeking a "restraining order" per se as a claim of its own which I consider to be improper and incompetent. This is a Court of limited jurisdiction that draws such jurisdiction from Section 22 of the District Courts Act unlike that of the National Court which has inherent jurisdiction under Section 155 of the National Constitution to grant orders where the justice of the case demands or militates.

28: Applicant made only a bare mention of what he ought to have been claiming as his main relief as set out in paragraph #8 of his Complaint/Summons as - "[T]he Complainant's only request for settlement be reached for the payment of all the improvements put up on the subject land and compensation for hardships and suffering and economic loss before work progresses to remove the Complainant's property over the subject land." (Sic)

29: In that statement of his Complaint, Applicant is not seeking compensatory relief as a primary cause of action as his main relief upon which to found the "restraining order" application; rather he seeks a direct "restraining order" per se as his only primary relief.

30: This is a Court of limited jurisdiction and its powers are prescribed/defined and the parameters of application of these powers are clearly demarcated by its enabling statute, the District Courts Act Chapter #40.

31: Section 22 of the Act effectively gives this Court its jurisdiction to consider and grant temporary reliefs in or over such matters that come before it; either conditional or absolute. In my humble view, this provision is saying that upon any substantive cause of action before it, the Court can consider and grant other reliefs whether conditional or absolute. This, in my view, is somewhat limited in nature unlike that of the National Court that enjoys an inherent jurisdiction under Section 155 of the National Constitution.

32: Hence, in our present case, the Applicant has not pleaded any other substantive claims such as compensatory or other reliefs against the Defendants registered and pending before any Court, tribunal etc., upon which to found a "restraining order" application. Seeking a "restraining order" per se as his only primary substantive relief in my humble view is grossly misconceived and untenable as a claim of its own to pass before this Court.

33: An aspect of this case that agitates the concerns of this Court is the fact of simultaneously filing a Motion to move claims in exactly the same terms of the originating process of Complaint/Summons. This tendency of moving motions seeking reliefs in exactly the same nature and terms as that in the substantive originating process is held to be abuse of the Court process. See John Momis –vs- Attorney General & 1 Or [2000] PNGLR 109, a National Court case in which the Plaintiff filed a Notice of Motion seeking orders in exactly the same terms as that of the originating summons to determine the issues raised therein in a "speedy manner" was held to be an abuse of the Court process.

34: In our instant case, it is abundantly clear that Applicant filed a Notice of Motion seeking reliefs in exactly the same terms as that of his Complaint/Summons which under the John Momis case (supra), is an abuse of the Court process.
35: Even then, this Court is a Court of limited jurisdiction and that it would in my humble view lack the jurisdiction and the power to grant "restraining order" as a relief of its own in somewhat a vacuum. In my view, it only exercises that power upon a proper cause of action or matter addressing substantive issues already on foot before it and pending; and only upon that basis can an application for a "restraining order" lie.

36: Accordingly, I make the following findings;-

(a) There is no substantive cause of action on foot and pending upon which to issue a "restraining order".

(b) The Applicant's Notice of Motion presently on foot dated 12th July, 2011 is an improper attempt at dealing with the issue of the case in a "speedy manner".

37: This Court therefore makes the following orders;

1. The Applicant's application for a further adjournment of the hearing of his Notice of Motion is refused as being without merit.

2. The whole of the proceedings are dismissed as being incompetent and an abuse of the Court process.

3. Each party to meet own costs of proceedings.

_____________________________________

Lawyers:

(1) Messrs Kunai & Co. Lawyers (Mt Hagen) for the Complainant/Applicant

2. Messrs Young & Williams Lawyers (Port Moresby) for Respondents/Defendants