Tangit v Nongkas [2017] PGDC 41 (14 July 2017)

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

DC: 632 OF 2016

BETWEEN:

JOHN TANGIT
(Complainant)

AND:

GORETHY NONGKAS, as Manager
Property & Accommodation of PNG Power Ltd
(Defendant)

AND:

CATHY SIGAMO, as acting General Manager
Corporate Affairs of PNG Power Ltd
(Defendant)

AND:

CHRIS BAIS, as Acting Chief Executive
Officer for PNG Power Ltd
(Defendant)

AND:

ANDREW OGIL, as Chairman of the Board for
PNG Power Ltd
(Defendant)

AND:

THE PAPUA NEW GUINEA POWER BOARD LTD
(Defendant)

PORT MORESBY : J.TAPAT

Senior Principal Magistrate

2017 : 14^th of July

Basic principle – in application for – interim restraining order and the applicant’s real prospect – to be successful – at the trial – is limited – at the district court.

Relevant Law

1. District Court Act 2. Summary Ejectment Act
a) Section 22
b) Section 25 and
c) Section 21

Cases referred to

❖ Employers Federation of Papua New Guinea –V- Papua New Guinea

Waterside & Seamens Union & Lawrence Titimur & ors (N393), 11^th October 1993, unreported

❖ Gobe Honga Limited –V- The National Executive Council, The Independent State of Papua New Guinea, Barclay Bros (PNG) Limited and Southern Highlands Gulf Highway Limited. (N393) 8^th June 1999

❖ Air Niugini –V- Elizabeth Talam [1992] PNGLR 296;[1992]PGNC 46;N1130 (20 November 1992)

Counsels: Mr. D. Dusava - In house Counsel for PNG Power Ltd.
(Applicant)

Mr Joseph Lai - Ninerah Lawyers
(Respondent)

REASONS FOR THE DECISION

1. TAPAT. J – MAGISTRATE: This is a notice by the Defendants, PNG Power Ltd and its executives to dismiss the entire proceedings for not disclosing any reasonable cause of action. It was filed on the 29^th of August 2016, but was not moved until the matter was transferred to me.
   
2. Mr Dusava, the counsel acting for the defendants brought it, to my attention on the 18^th of May 2017, that there was a pending notice of motion.
   
3. Leave was granted for Mr. Dusava to move his notice of motion, however, on the 1^st of June 2017, Mr Mina of Solawok Salmon- Minak Lawyers had just taken carriage of the matter from the office of the Public Solicitor. Therefore the notice of motion was deferred to the 12^th of June 2017. On the 12^th of June Mr Lai of Ninerah Lawyers appeared.
   
4. It was a little confusing when there were no proper notices to cease and notice to appear were properly administered. How; ever, the court wanted the matter to be expeditiously disposed, allowed Ninerah Lawyers to assist the complainant to be fairly represented and allowed to continue the proceedings.
   
5. The issues before this court are;
   

a) whether the complaint and summons filed before this court does have a cause of action.

b) whether a District Court does have jurisdiction to entertain the complaint and the relief sought.

FACTS OF THE CASE

6. The office of the Public Solicitor filed an urgent exparte application before a brother magistrate, who granted the relief sought, exparte. The exparte interim relief was granted on the 10^th of August 2016 and the reliefs sought are the similar relief sought in the complaint pending determination.
   
7. Mr John Tangit was formerly employed by PNG Power Ltd as an engineer, who worked his way up to be the Chief Executive Officer of the Company.
   
8. Whilst begin employed as the Chief Executive Officer of the Company, he was offered a contract to purchase a property. There was no evidence of the contract. The property as described as Section 09, Allotment 09, PNC 49, Kibe Place, BOROKO, NCD. The value of the property is at K1,566,000.00
   
9. Mr Tangit claimed that he had made initial payment to progress further payment of the property at K1,566,000.00.
   
10. However, according to Mr Dusava, Mr Tangit had failed to comply with the terms of the Agreement, which this court does not have. Therefore, the contract was rescinded and the cheque valued at K120,000.00 paid by Mr John Tangit was reimbursed to him. Copies of the deposit slip paid in and the cheque reimbursed are attached to Ms. Gorethy Nongka’s affidavit filed on the 29^th of August 2016. The cheque copy was addressed to Mr John Tangit, of Bank South Pacific Ltd, Wewak Branch.
    
11. Mr John Tangit counter claimed that the contract was binding and he does have the standing to seek relief from this court.
    

LAW

12. The District Court Act Chapter 40 establishes District Courts and regulates its jurisdictions and guides the practices and procedures.
    
13. When complaints, summons and notice of motions are filed in the District Court, plaintiffs and applicants have to be mindful of District Court Act and its Regulation. The District Court Act and its Regulations are the guides of a District Court and the presiding magistrate in the use of his powers. District Courts are courts of limited jurisdiction as prescribed in the District Court Act Chapter 40.
    

DISTRICT COURT ACTS SECTION 21 – JURISDICTION.

14. Though there are other provisions and legislations which generally inform the District Court magistrates of their limitation, Section 21 of the District Court Act, is one of the first provisions that come to a magistrate. It alerts a magistrate of his/her limitation and where magistrates do not have any jurisdiction.
    
15. Subsection (1) of Section 21-it discusses the limitation of the value of the subject matter and the limitation of the amount of money that can be claimed in a District Court.
    
16. Subsection (2) of Section 21 – had been repealed.
    
17. Subsection (3) – states that a District Court jurisdiction is not limited, if another law or legislation permits a district court to grant orders outside of its limitation.
    
18. An example for such jurisdiction and legislation would be the Fisheries Management Act 1998, PART VI JURISDICTION, PROCEDURE, OFFENCES, PENALTIES AND LIABILITY. Section 60 Liability for loss or damage.
    
19. Subsection (4) of the Section 21 – gives no jurisdiction at all to a District Court. They are all National Court Jurisdiction describe in Subsections (a)(b)(c)(d)(e)and(f).
    
20. Subsection (5) of Section 21 – limits the named District Court’s geographical jurisdiction and the defendant or defendants:
    
    1. residential location, or the place the defendant carries out business, or
    2. the place cause of the action is wholly or partly arising, or
    100. the place the defendant was given engagement, or a written promise to pay a debt, or a sum.
         

within the proximity of the named district court’s jurisdiction for its determination.

DISTRICT COURT ACT SECTION 22 – General ancillary jurisdiction.

21. Mr John Tangit filed a notice of motion under the above provision to seek an interim relief which was granted by a brother magistrate against the executive management and the Board of Management of PNG Power Ltd. They were restrained from evicting the Complainant, his family and relatives.
    
22. The Interim Restraining Order granted reads;
    

1. That pursuant to Section 22 of the District Court Act, the requirements of Service of Court documents from these proceedings is dispensed with.

2. That pursuant to Section 22 of the District Court Act, the Defendants, there servants or agents, shall be restrained from forcefully evicting the Plaintiff/Complainant and his relatives and or families, to the house, Known as Section 09 Allotment 09, PNC 49 Kibe Place, BOROKO, NCD, which currently resides, pending the determination of the substantive case.

3. That pursuant to Section 22 of the District Court Act, the Defendants, their agents, or servant shall be restrain from harassing and or intimidating the Plaintiff/Complaint and his families and/or relatives, in any way, pending the determination of the substantive proceedings;
   
4. The substantive case is made returnable on the 30^th of August, 2016 at 9:30am.
   
5. The Complainant/Applicant shall serve copies of the order and the court documents to the defendants within 72 hours before the hearing date.
   
23. One of the substantive’ reliefs Mr Tangit sought in his complaint had been granted in the application in the urgent interim relief. A restraining Order against their eviction was granted.
    
24. The second relief, Mr Tangit sought was to enforce the agreement of the 10^th March 2016. If there was an agreement, where is the annexure of the agreement?
    
25. But there was a letter of offer dated 10^th March 2016, with the words, “Upon your acceptance of the offer, the contract of sale will be sent for your consideration.”
    
26. The letter of offer is an invitation to the contract of sale of the property described as Section 09 Allotment 09 PNC Kibe Place, BOROKO, NCD. The Contract of Sale is not under consideration yet.
    
27. The property on sale is valued at K1,566,000.00. Is the value of the property within the ambit of a District Court jurisdiction, Section 21(1)(a) of the District Court Act?
    

ISSUES BEFORE THE COURT

28. The Respondent’s counsel Mr Dusava submitted two issues;
    
    • (a) whether, there was a cause of action in the complaint and summons filed in Court at the time, when the interim restraining order was granted; and
      
    • (b) even if there was a cause of action in the complaint and summon, whether a District Court does have the jurisdiction to deal with the matter to grant an interim court order and then to deal with the substantive matter.
      
29. The first point is that there was no annexure of the contract which the applicant in the interim restrain order had asked the court to enforce.
    
30. If Mr Tangit was referring to the letter dated 10^th March 2016, the subject of the letter, clearly states that it was a letter of offer.
    
31. The letter of offer to the contract which is yet to be sent to Mr Tangit for his consideration and acceptance.
    
32. Clearly, there was no contract for this court to enforce in the substantive hearing.
    
33. The second point is, if there was a contract to the property, valued at K1,566,000.00 does this court have the jurisdiction?
    
34. Definitely, District Court does not have the jurisdiction pursuant to Section 21(1)(a) of the District Court Act.
    
35. The third crucial point is, if there was an offer to the sale of the property, who is the owner of the property and who has the right to sell? Is it the Board of Directors or the General Manager – Corporate Services?
    
36. If Mr Tangit is claiming that the letter of offer to the contract is a contract, there was no evidence from the Board of Directors of PNG Power Ltd sanctioning the property for sale annexed to the alleged contract offered to him.
    
37. Therefore it would be quite difficult for this Court to entertain this complaint even if it has the jurisdiction to deal with it.
    
38. The second relief sought by Mr Tangit in his complaint is a restraining order. It is the same relief he had received in the interim restraining order, and he and his family are enjoying.
    
39. This court also noted that Mr Tangit had filed a Writ of Summons in the National Court, the issue of unlawful termination isn’t within the District Court’s ambit.
    
40. Mr Tangit's reason of his unlawful termination and be allowed to continue residing in the property is explained in the Case of Air Niugini –V– Talum [1992]PGNC 46;N1130 (20 November 1992).Brown J held that.
    
    • (a) An employee who occupies accommodation of his employer has no right to remain in occupancy on termination of his service. He may have a right to damages for unlawful dismissal.
      
    • (b) Where an order in an earlier motion for injunction to stay eviction action amounts to a judgement for possession, real prejudice must be shown to warrant deal of the owner’s right to possession. No real prejudice has been shown.
      
41. This Court now turns to the Principles laid down by the National Court for civil practice and procedure of an application for Interim Restraining Orders.
    
42. The National Court Case of Employers Federation of Papua New Guinea –V- Papua New Guinea Waterside & Seamen’s Union & Lawrence Titimur & Others (N393 11^th October, 1993,Unreported) lays down the basic principles to be guided and to grant an Interim Restraining Order, as in this Case.
    
43. The basic principles laid down are the following;
    
    1. Is the action not frivolous or vexations?
       
       1. Is there a serious question to be tried?
          
       2. Is there a real prospect that the applicant will succeed in the claim for an injunction at the trial
          
    2. If there is damage, would there be adequate remedy compensation under the applicant’s application.
       
44. His Honor, late Justice Sevua was in a similar circumstance as this case. He issued an Interlocutory Injunction and had a similar situation to reassess the interim relief given, with the substantive matter filed still on foot in the case of; Gobe Honga Limited –V- The National Executive Council, The Independent State of Papua New Guinea, Barclay Bros (PNG) Limited and Southern Highlands Gulf Highway Limited (N393 8^th June 1999).
    
45. Mr Tangit did make an undertaking in this matter before this Court. Therefore he had met one of the requirements of the principles laid down.
    
46. The hurdle in this case is whether there is a serious question to be tried and whether there is a real possibility that the applicant will succeed in the claim for the injunction that had been issued at the trial?
    
47. The complainant had pleaded a breach of the original agreement to the property at Section 09 Allotment 09 PNC 49 Kibe Place, Boroko.
    
48. The pleading for a breach of the Original agreement can be seen as the breach of the offer made on the 10^th of March 2016.
    
49. The letter of offer dated 10^th March 2016, was received and signed by Mr Tangit on the same day 10^th March 2016.
    
50. The letter states that, “the offer is valid for seven (7) days upon receipt of this letter. A 10% deposit of Sale Price is also required within twenty one (21) days to secure sale, if you do not accept the offer within the 7 days, this property will be offered to another party”.
    
51. Mr Tangit made a deposit of K120,000 in the Bank South Pacific on the 20^th of July 2016. Mr Tangit failed to make the K120,000 within the twenty one (21) days given. He made the deposit actual about three (3) months outside the twenty one (21) days given to him on offer.
    
52. The Complainant Mr Tangit had not met the twenty one (21) days requirement given to him.
    
53. The last point this Court took in consideration is whether the set aside of Interim Restraining Order would cause in convenience in the Contract of Sale of the property to the applicant.
    
54. Mr Tangit had breached the condition of offer sent to him by paying deposit the ten percent (10%) of the purchase price three (3) months late. Therefore the setting aside of the Interim Restraining will not cause any inconvenience to the applicant.
    
55. The unlawful termination matter before the National Court is a matter not within the jurisdiction of this Court and the interim relief was not for that complaint. For that reason, I am not going to cover that area.
    

COURT FINDINGS

56. There was no Sales & Purchased Contract signed by both Parties annexed.
    
57. There was only evidence of a letter of offer of the contract for sale been signed by the complainant which was annexed.
    
58. The letter of offer was breached by the Complainant, himself, when he paid the deposit of K120, 000.00 three (3) months, after the three weeks’ time frame given.
    
59. When applying the basic principles in the case of Employers Federation of Papua New Guinea –V- Seamen’s Union & Lawrence Titimur & Others, the applicant had no serious case to deal with.
    
60. The likelihood of the Applicant in this application to succeed is very limited.
    
61. The undertaking of the Complainant for the damages cannot be assessed, however, he had an undertaking filed in Court.
    
62. The interim restrain Order issued against the Defendants from being intimidated, threatened and been abused, is frivolous and vexations, pursuant to Section 6 of the Summary Ejectment Act.
    
63. The interim restrain Order is bar against the true title holder from enforcing his legal right, as there was no challenge to the title at the National Court.
    
64. This Court makes the following Orders;
    

COURT ORDER

1. There was no agreement for Sale of the Property.
   
2. There is no basis of the Interim Restraining Order.
   

100. The Interim Restraining Order is set aside and the Case is dismissed.
     

4. The cost of these proceedings to be paid by the applicant Mr John Tangit.