Katumani Dandove Land Group (Inc.) v Katumani Land Group (Inc.) [2017] PGDC 25; DC3038 (28 March 2017)

DC3038

PAPUA NEW GUINEA

[In the Civil jurisdiction of the District Court Held at Bulolo]

DC No 78 of 2014

BETWEEN:
KATUMANI DANDOVE LAND GROUP (Inc.)
(Complainant)

AND:
KATUMANI LAND GROUP (Inc.)
(Defendant)

Bulolo & Wabag: C Inkisopo

2014: 9^th September & 9^th December
2017: 28^th March

District Courts Act Chapter 40 – District Court a creature of statute with its powers, practice & procedure defined& demarcated by Act -

Civil jurisdictions of DistrictCourts under ss 21& 22 of Act - jurisdictional injunction under s 21(4) (f)of Act – District Court lacks jurisdiction in matters where titles to lands are bona fide in dispute -

Practice & procedure at District Court –District Court revisiting own extemporeruling with view to remedying same where such grounded on gross misapprehension of material fact -

Practice & procedure – common law principle res judicata–applicability of principleto extempore order for transfer under s 24 of Act – whetherextempore ruling concluded fully and extinguishedthe foundation of Complainant’s claimorright to set up action–existence offeatures and applicabilityissue of principle–

Legislations/Rules & Regulations

1: Constitution of the Independent State of Papua New Guinea
2: District Court Act, Chapter No 40
3: National Court Motions (Amendment) Rules, 2005

PNG Cases cited

1: Herman Gawi -vs- png Ready-Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74

2: John Momis & Ors -vs- Attorney General & Ors [2000] PNGLR 109

3: PNG Harbours Board -vs- Breni Kora (2005) N2834

Appearances:

1: MrDjohn B Kele; Spokesman of and for the Complainant

2: MrSteven Kesno of Counsel of Warner Shand Lawyers, Lae for the Defendant

28^th March, 2017

JUDGMENT

C Inkisopo: The Complainant filed proceedings dated 23^rd June, 2014 against the Defendant claiming;-

“The Defendant is a registered group owning customary land in the Watut Local-Level Government area in the Morobe Province and are settling on the Complainant’s customary land and are illegally claiming ownership over the land

The Complainant is a registered proprietor of the land described as Portion 482C, Milinch of Bulolo, Formil of Wau in the Morobe Province

The Defendant ILG had totally abused our naming rights and our customary rights

The customary land is legally owned by the Katumani people of Buang and not from Watut as the Defendants claimed

The Complainant therefore seeks orders that;-

(a) Vacant possession of the land pursuant to s 6 of the Summary Ejectment Act.
(b) The Defendant be restrained fromharassing, threatening, abusing or assaulting the Complainant and its members.
(c) Costs of the proceedings
(d) Such other orders the honourable Court deems fit”.(sic)

2: In support of the claim, the Complainant filed an affidavit sworn to by one Djohn BKele, the Complainant’s spokesman. In it, Mr Kele deposed to the following (paraphrased);-

1: The Complainant is a registered land group owning a leasehold over a certain property described as Portion 482C, Millinch of Bulolo, Formil Wau, Morobe Province, Papua New Guinea;

2: The Complainant proceeded and attempted to develop the subject property in keeping with the lease terms and conditions; which attempts it (Complainant) laments were blocked and frustrated by the Defendants.

3: This witness attaches a copy of a National Gazette notice marked Annexure “B” which depicts the Defendants to be an ILG owning customary lands in the Watut Local-Level Government area of the Morobe Province.

4: The Defendants ILG had abused Complainant’s naming rights for they are the Katumani Buang people owning customary lands in the Buang and Mumeng LLG areas of the Morobe Province.

5: That the Defendants then on 12^th February, 2009 made an application to the Secretary for the Department of Lands and Physical Planning asking for a 99 year lease over the then current and existing 50 year lease by amendment from 50 years to 99 year lease which they did not have; and annexes copy of a letter marked “D”. (Sic)

Complainant’s Case

6: The Complainant through its spokesman Mr Kele went further and deposed to a claim that the Defendants “abducted” its legal documents and later applied for their ILG without their concern (consent?) and later in 2007 cheated the Court with false allegation. He annexes copies of a Complaint and Summons upon Complaint issued against the Complainant by the Defendant for an alleged illegalpossession and use of its (Defendant’s) documents and sought the return of same that are all lumped up and marked Annexure “E”

7: The Complainant pressed for and claimed that the Defendant should only be dealing with and talking about land that is located within the Watut Local-Level Government area.

8: This witness next talked about a proceeding he initiated at the Bulolo District Office Mediation Table chaired by the BuloloDistrict Mediator Mr Cass Anduari with Mr Dominic Walmi and annexes a copy of the minute of that proceeding which is marked as Annexure “F”. He said that Mr Philip Siling of the Defendants’ was in attendance at that time.

9: Mr Kele deposed to and claimed that “the Defendants have caused multitudes of damages on the land and are stealing royalties and rental fees from us for decades now”.(sic)

Complainant’s Claim

10: The Complainant therefore seeks the following orders of the Court;-

(1) Vacant possession of the land pursuant to s 6 of the Summary Ejectment Act,

(2) The Defendants be restrain(ed) from harassing, threatening, abusing and or assaulting the Complainant and its members (sic)

(3) Costs of proceedings,

(4) Such other orders the honourable Court deems fit.

11: On the 7^th of October, 2014 the Complainant filed a Notice of Motion in which it sought the following orders;-

(a) The Respondents are restrained from claiming the land and royalty payments from the PNG Forest Products Ltd, Digicel Communicationsand/or other invested over the usage of the Complainant’s property known as Portion 482C (sic).

(b) The Respondent to vacant possession of the land within 14 days (sic).

(c) The Respondent be restrained from harassing, threatening, abusing or assaulting the Complainant and its members.

(d) The Members of the Police Force are empowered to give effect and arrest the breach of Honourable Court order clauses(a), (b) and (c)

(e) And bring before this Court and be further dealt with.

(f) Costs of proceedings

(g) Such other orders the honourable Court deems fit.

Defendant’s Case

12: The Defendant through its lawyers of Messrs Warner Shand Lawyers of Lae acting through Mr Steven Kesno of counsel filed their Notice of Intention to defend and Defence dated 2^nd July, 2014. The Defendant says by way of its Defence, that it is a registered land group representing customary owners of the Katumani land in the Buang/Watut area of the Bulolo District of Morobe Province. It further claims that it is the registered proprietor of Portion 482C, Milinch of Bulolo, Formil Wau, Morobe Province. The Defendant denies abusing the Complainant’s naming and customary rights. It also claims that its members are from the Buang area of the Bulolo District.

13: The Defendant further claims the proceeding to be an abuseof the Court process as the Bulolo District Court had dealt with this matter in earlier proceedings namely;-

- DC No 388 of 2007 Between Katumani Incorporated Land Group -vs- Katumani Dandove Clan Incorporated Land Group
- DC No 338 of 2007 Between Djohn Burai Kele of Katumani BayenDandov Clan ILG No 9897 -vs- Katumani ILG No 778

And the Defendant therefore claimed that the Complainant is barred by the principleres judicata from initiating this proceeding; hence an abuse of the process of the Court. I do not agree with and accept Defendant’s plea ofres judicata in this part of the proceeding simply because these two (2) previous cases were dealing withdifferent issues and oneof them involving different parties though loosely connected. See below a detailed discussion of this principle; res judicataand the issueof itsapplicability.

14: On the back of the above statements of Defence, Mr Kesno filed a Notice of Motion dated 30th July, 2014seeking the following reliefs:

1: The dismissal of the entire proceeding for;

(a) Being an abuse of the process of the Court
(b) Being lack of jurisdiction by the Court

2: The Complainant pays the costs of the application.

3: Such other orders the Court deems fit.

15: On August 5th, 2014 both the Complainant’s Notice of Motion and the Defendant’s came before the Court when the Complainant was ordered to file and serve its response to the Defendant’s Notice of Motion which is termed Defendant’s Cross-Motion as it was filed and served after the Complainant had first filed and served its.

16: The parties’ respective applications were accordingly fixed for hearing to 9^th September, 2014 with orders for the Complainant to file and serve its responding affidavit well before the hearing date of 9/9/14.

Hearing of both Applications

17: Mr Kele for the Complainant and Mr Kesno for the Defendant presented their respective cases. The Court considered both applications and returned an ex tempore ruling that day; 9/9/14.

18: The Court dismissed the Complainant’s application as being an abuse of the process in that; the Complainant was effectivelymoving a Motion to obtain its substantive relief for evictioninter alia in a “speedy manner”.The law and the procedureissettled in this jurisdiction regarding such applications. Interim applications by way of Notice of Motion seeking reliefs in similar or identical terms as that sought in the originating process are held to be abuse of the process of the Court. See John Momis & Ors -vs- Attorney General & Anor [2000] PNGLR 109which proposition of the law is codified and embodied into rules of practice and procedure as being the correct principle of law in this jurisdiction as set out in s 5(f) of the Motions (Amendment) Rules, 2005of the National Court Rules.

19: As respects the Defendant’s Cross Motion seeking to have the entire proceeding dismissed for want of jurisdiction of this Court, the Court noted on file in the supporting affidavit of Djohn B Kele of 24^th June, 2014denoted as Annexure “A” being what seems to be an “Owner’s Copy” of a “Special Agricultural and Business Lease” (SABL) Title -Volume 12, Folio162 in the name of Katumani Dandow LandGroup (Inc.)dated 7^th February, 2005for a period of 50 years.

20: On the date of the extempore ruling on 9/9/2014 when considering and making its extemporeruling, the Court noticed there to being two SABL titles for the same portion of landrespectively entered in each party’s names; the Complainant’s for 50 years whilst the Defendant’s for 99 years. As a result of this fact, the Court formed theinitial impression that the partiesseemed to have valid lease titles over the same and one portion of land (Portion 482C) seemingly issued at different intervals to each other. This then immediately brought to bear onthe Court’s mind that there obviously cannot have been two (2) lease titles issued for varying periods over the one and same property to two (2) competing parties; so it seemed acutely clear in this case!

21: Intrigued by this scenario, the Court in making the extempore ruling to refer same to the National Court held the view that there have beenseparate lease titles issued over the one and same portion of land. That scenario meant to this Court that the opposing parties before the Court seem to hold a valid lease titleeach to the one and same property to the exclusion of each other.

22: On that first sight, that scenario posed the impression on the Court’s mind that there obviously exists a bona fide dispute as to the titlespossessed by the parties;in that this Court by virtue of the jurisdictional injunction imposed on it by s 21(4) (f) of theDistrict Courts Act found itself lackingthe jurisdiction to presiding over same.

23: It was for this reason that the Court made theextempore ruling to refer the matter to the National Court in pursuance of s 24 of the Act. In making the order for referral, the Court advised both parties that it will reduce itsextempore ruling into writing and issue a formal sealed order effecting the transfer for hearing upstairs.

24: In keeping with that extempore order, I began perusing and studying the fileto put my judgment together;during the course of which I made a startling discovery. In one of the Defendant’s affidavit materials from one of its witnesses namely Giame Katu, a copy of an SABL title issued to oneKatumani Dandow Land Group (Inc.) over a portion of land described as Portion 482C to have been clearly marked and shown to have been cancelled by way of a ‘CANCELLD’ seal impression impressed diagonally across the face of all the pages of the SABL title document.

24: This discovery immediately put to serious question the validity and the legal basis for the Court’s earlier extemporeorder for referral. It was markedly obvious to the Court from that discoverythat there really are no two valid competing titlesafter all as previously thought;because it has become an established factthat one of them belonging to the Complainantis cancelled and no longer legally in existence. In the face of that discovery, the Court found it practically impossible to legally justify and complete its earlier extempore ruling for referral upstairsand formalized into writing.

25: As a result thereof, I re-called the partiesinto Court to deal with thematter of the referral following the said discovery and revelation. Accordingly the Court re-convened and the parties each wasaccordingly advised of the discovery and invited to address the Court on what they each thought the Court should do to legally deal with the issue of the referral in view of the dilemma besetting the Court following that discovery.

26: Mr Kele for the Complainant was advised to seek appropriate legal advice and file a Submission as to what he thought the Court should do and the appropriate legal options available to it. The Defendant through Mr Kesno was likewise directed to file Submissions addressing the Court on the legal options available to it in the light of its earlier extempore order for referral in the face of the discovery.

27: On December 9^th, 2014 the Court heard both Messrs Kele and Kesno with their respective oral presentations on the issue of the referral as a result of the discovery: namely the “cancelled” lease title of the Complainant’s together withall the relatedquestions spawned thereby;whether the Court can under those circumstance legally revisit or go back on its earlier extempore order for referral and vary the same in accord with the dictates of the evidence discovered later andimmediately on hand.

28: Messrs Kele and Kesno later filed written submissions eachin addition to their respective oral presentations of 9^th December, 2014; with Mr Kele filing his on 15^th January, 2015 and Mr Kesno on 17^th December, 2014.These submissions greatly assisted the Court in dealing with the immediate issue besetting it(Court)in particular Mr Kesno’s; as he discussed legal principles relevant to the issue so identified, that is;the question of whether or not the Court could lawfully revisit its earlier extempore rulingwith the view to varying it in accord with evidence.

29: In order to attempta plausible answer as well as to having a fuller appreciation of the questionposed, it becomes necessary for this Court to consider what factors were existing or perceived to immediately exist that prompted the subject extempore referral Order. The following are theprimary facts that in this Court’s view immediately existed leading to the extemporeruling and the consequentialOrder for referral;-

- Present on file before the Court then were two separate Owner’s Copies of Special Agricultural and Business Lease (SABL)Titles over only one portion of land - Portion 482C;-

A: One for a period of 50 years granted and issued to the Complainant Katumani Dandow Land Group Inc.

B: And the other for a period of 99 years granted and issued totheDefendant Katumani Land Group Inc.

30: On 9^thSeptember, 2014 when the Court made that extempore ruling referring the matter to the National Court, it made that order for referral with reasons for the extempore ruling to be reduced to writing as well as issuing a sealed formal Orderseffecting the transferin due course of time to the National Court.

31: During my task of perusing and studying the file forthe purpose of doing up my reasons, I made a startlingdiscovery in the Affidavit of one Giame Katu’s deposing for the Defendants. That affidavit annexed copies of an SABL Title deeddocumentthat clearlyshowed on every pages of the SABL title pages the custom-made CANCELLED seal impression together with copy of an accompanying letter from the DeputyRegistrar of Titles, a Mr Benjamin Samson dated 23^rd of February, 2010 explaining the reasons for the SABL title cancellation addressed specifically to the Complainant.

32: There is no evidence before this Court demonstrating if the Complainant has challenged or has taken steps to challenge the cancellation of its SABL) title at the National Court or appropriate other avenues and/or authorities.

33: All that the Court is able to gauge from Mr Djohn B Kele’s responding affidavit of 1^stSeptember, 2014 on this particular point is this ratherbarestatement:

“The cancellation of the title deed for Portion 482C is illegal and in subject to fraud and anticorruption.” (Sic)

34: This cancellation remains valid and effective to this point and despite Mr Kele’s naked statementas quoted above, there is no evidence to demonstrate a challenge to that cancellation. The end result therefore is; for the purpose of the extempore ruling for referral, there would seem to be no question of two competing valid titles over the same and one Portion 482C as there is no legal basis for that conclusion. Hence the earlier extempore ruling and the consequentialorder for referral would have no sound legal basis to sustain and to legally proceed as previously ordered.

35: I am of the humble view that this Court has a duty to rectify this flaw and flow with and dictated to by what available evidentiary material there is before it. This then spawns theimmediate questions of:-

1: Can this Court lawfully go back on its earlier extempore ruling to remedy it as being founded ona gross misapprehension offact?

2: And/or is this Court barred from doing so by the common law doctrinesres judicataand functus officio?

36: On the first question, one has to consider it in light of how and on what premise that extempore ruling was made. In the humble view of this Court, the referral order had not yet completed and finalized when the so-called startling discovery was made. The matter was still effectively within the hands of theDistrict Court and not completely concluded and out of its hands. It is therefore safeto conclude that the matter is still formally and lawfully within the hands of the Court and it is therefore entitled to deal with it and dispose of same according to the dictates of the available admissible evidencethere is before it including the so-called startling discovery.

37: Accordingly, to my mind, the answer to question number #1 above would be as follows:

Yes it can; because the matter is not concluded to its finality as yet but is a continuing matter that is still in the hands of the Court to deal with and make appropriate determinations thereon based onfacts and evidence”.

38: Thenext connected question that looms is whether the common law principleres judicata applies to bar the Court from going back on its earlier extempore order for referral. The maxim res judicatais a common lawprinciple that has been adopted as part of the underlying law in this jurisdiction under Schedule 2 of the National Constitution. This principle stands basically for the proposition that a matter that hasbeen adjudicated upon and concluded by a Court of competent jurisdiction cannot be re-litigated or re-opened later in another Court, ‘Its justification is the need for finality in litigation’ (Oxford Dictionary of Law, New-Edition, Market House Books Ltd 1997).

39: In PNG Harbours Board -vs- Breni Kora [2005] N2834 Injia DCJ (as he then was) correctly set out the application of this principle in the following terms;

“For the Defence of res judicata to succeed, the party relying on it must show;-

(a) The Parties in both cases are the same,
(b) The issues in both cases are the same,
(c) The previous judgment extinguished the foundation of the action. The result is final and conclusive and it binds every other Court,
(d) A Court of competent jurisdiction made the first decision.”

39: This Court feels much indebted to Counsel for the Defendant Mr Kesno for his comprehensive written Submissions; in which he discussed this principle and the question of its applicability that lends much assistance to this Court in its arduous task of dealing with this matter with the issues it spawned.

40: I note that the higher Courts in this jurisdiction have had occasions insuch cases as the above PNG Harbours Board -vs- Breni Kora (supra) where the principle(res judicata)has been considered, discussed and set out factorsthat must exist for the principle to apply.

41: To my mind, res judicata has no application to the instant case for the reason that: the Court’s extempore order of 9^th September, 2014 did not signal the conclusive finality of the matter concluded by that extempore order for referral. To my mind, that extempore order did not in any way extinguish the foundation of the Complainant’s claim or its right to set up the action. See PNG Harbours Board -vs- Breni Kora (supra). Notwithstanding the Court’s pronouncement of itsextemporereferral order in Court, the actual act and the reasoning for the transfer had yet to be effectedand the formal order and reasons for the referral order yet to be put in place; in other words, the matter was still effectively within the hands of the Court and not concluded and out of its hands. I therefore find that res judicata has no application in this case.

42: The next follow on issue to this is; has the Court become functus officio and cannot go back on a function that it has already fully discharged? The Osborne’sConcise Law DictionarySeventh Edition by Roger Bird says of this principle as...having discharged his duty....Thus once a Magistrate has convicted a person charged with an offence before him. He is functus officio, and cannot rescind the sentence and re-try the case. My answer would be that; the matter was still in the hands of the Court and not fully and completely discharged so the Court in this case cannot be renderedfunctus officiothereby.In my humble view therefore,functus officiodoes not apply.

Conclusion & Finding

42: For these reasons I hold the humble view that the matter is still in my hands and not fully concluded. I was still in the act of writing up my reasons for the extemporeruling when the startling discovery was made. As the matter is still in my hands undergoing further appropriate processespreparatory to formal transfer and not fully and finally concluded,I find that I am not barred from going back on my earlier extempore order in light of the discovery; as I find that it isa continuing matter properly in my hands and not brought to a complete finality for res judicata to have any application nor does the maxim functus officio for the reasons given above.

Consideration of the Complainant’s Claim for eviction against the Defendant

44: I now revert to the original substantive cause of the Complainant’s claim. Here, the Complainant’s substantive eviction claim against the Defendant initiated under the Summary Ejectment Actremains the residualissue to settle. The law on eviction from properties are clear andwell settled in this jurisdiction. Such claimsare readily available to persons in possessionof clear legal titles to lands and properties. Conversely, it isnot available where the title is in dispute or is unclear. Herman Gawi -vs- png Ready Mixed Concrete (PNG) PtyLtd [1984] PNGLR 74.

45: The Complainant’s claim for eviction against the Defendant fromPortion 482Cin this instancecannot succeed but must fail; for thebase reason that Complainant does not possess a valid legal title to the property to be legally entitled to its claim; and besidesand more ironically, the Defendant seems to be the one who is in possession of a valid legal title to the very propertythe Complainant seeks to haveDefendant evicted from!

Finding & Conclusion

45: From all of the above discussions, I am able to make the following findings peculiar to this case;-

1: Complainant had actual prior knowledge of its 50 year SABL Title having been cancelled which fact it conveniently concealed and produced only its Owner’s Copytherebymisleading the Court in initiating its initial eviction claim.

2: Complainant knew about its SABL Title cancellation but failed to challenge the cancellation by the Deputy Registrar of Titles.

3: The Defendant ironically possesses a valid SABL Title overPortion 482C in Bulolo District, Morobe Province.

4: The Complainantlacks locus standi to maintain its claim against the Defendant.

Court Order

46: This matter therefore comes down primarily on the above findings:-

(A) The Complainant’sclaim lacks legal basis to maintain against the Defendant.

(B) The Complainant’s claim for eviction is dismissed as being without merit.

(C) The Complainant shall pay the Defendant’s costs of proceedings to be agreed; if not theybe taxed.

Lawyers:

1: Mr Djohn Burai Kele; Chairman &Spokesman for the Complainant.

2: Messrs Warner Shand Lawyers of Lae; Lawyers for the Defendant.