Tutura v Dama [2021] PGDC 193; DC7050 (1 July 2021)

DC7050

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 76/2021.

IN THE MATTER BETWEEN:

BRIAN TUTURA
Complainant.
.
AND.

RODNEY PATSON DAMA

Defendant/Applicant.

Popondetta: Michael W. Apie’e

2021: JULY 01^st.

CIVIL PROCEEDINGS. Seeking Orders of Contempt of Court under section 277 of the District Courts Act.
CIVIL PROCEEDINGS. Claim for Ejectment under Section 6 of Summary Ejectment Act against title holder to property.

Cases Cited:

Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Summary Ejectment Act

Representation:
Brian Tutura in person
Patson Dama in person.

RULING ON NOTICE OF MOTION.
.

Background.

1. This Court on the 27^th of April 2021 issued certain preliminary orders regarding a Specific Performance Application relating to a Contract of Sale of Land Known as Wopa Sorovi Land Portions 968 Milinch Sangara Fourmil Buna Popondetta Ijivitari.
   
2. The Parties had contracted for the Defendant to sell and the Complainant to purchase that Property for K50,000.00, and after the money changed hands and the Contract of sale is signed, sealed and delivered the Defendant showed an intention to avoid that Contract.
   
3. The Complainant filed suit before the District Court in DC 34 of 2021.
   
4. The matter came before me and in refusing to substantially deal with the matter after finding that this court had no Jurisdiction to deal with the Specific Performance aspect of the Case directed that this matter be referred to the National Court on the question of Specific Performance given the value of property involved and also it being related to a contract of Sale of Titled Land.
   
5. I also issued a Three Months (Ninety days) Restraining Order on the Defendant and his Servants, Agents and family including Third Parties (Intended new Purchasers) from coming near or illegally encroaching and entering the concerned Portion 969 until the Application for Specific Performance is resolved before the National Court or the 90 days lapses, whichever occurs first.
   

Applicants case.

6. In pressing this current Notice of Motion before this Court the Applicant/Complainant seeks the following orders Against the Defendant as follows
   
   1. Pursuant to Section 277 and Section 22 of the District Courts Act, the Defendant and his relatives, servants and third Parties be charged with Contempt of Court.
      
   2. Pursuant to Section 6(2) (a) (c) and (d) of the Summary Ejectment Act 1952, the Police Force be issued with Warrant to enter the Premises with reasonable force and evict the Defendant and third Party (New Buyer) with the removal of fencing and other developments from the Land in question Portion 968.
      
   100. The Defendant and his Relatives, Servants and Third Parties (New Buyers) be arrested and punished Accordingly.
        
7. The General allegations by the Complainant is that;
   
   1. After the Orders of 27^th April 2021 were issued on the Defendants by 2.00pm on 30^th April 2021, After the service of this order, still on the 01/05/21, the Defendant and his people were still working on the Property.
      
   2. This amounted to breach and contempt of Court Order and ought to be accordingly punished.
      
8. The Defendant sought reliance on his Affidavit of 15^th June 2021 and having gone through it I note that he unwittingly included extracts of Section 277 of the District Court Act and I will also do likewise.
   
9. Section 277 of the District Courts Act Reads;
   

277. CONTEMPT OF COURT. (1) A person who–

(a) wilfully interrupts the proceedings of a Court; or

(b) conducts himself disrespectfully to the Court during the sittings of the Court; or

(c) obstructs or assaults a person in attendance, or an officer of the Court, in view of the Court; or

(d) wilfully disobeys an order made by the Court under Section 63, may be excluded from the Court and is guilty of an offence.

Penalty: A fine not exceeding K200.00.

(2) A person who, in the opinion of the Court, wilfully prevaricates in giving evidence is guilty of an offence. Penalty: A fine not exceeding K100.00.

(3) The Court in the presence of which an offence under this section is committed may immediately convict the person guilty of the offence, on its own view or on the oath of some credible witness.

(4) If a person convicted of an offence against Subsection (1) makes to the Court, before its rising, such apology as it considers satisfactory, the Court may remit the fine wholly or in part.

10. Section 22 of the District Court on the other hand reads;
    

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 relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, 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.

11. Section 6 of the Summary Ejectment Act reads;
    

6. RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.

(1) Where a person without right, title or license is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.

(2) Where the person summoned under Subsection (1)–

(a) does not appear before the District Court at the time named in the summons; or

(b) appears and does not show reasonable cause why possession of the premises should not be given, the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant–

(c) to enter, by force and with assistants if necessary, into the premises; and

(d) to give possession of the premises to the complainant.

12. Observations /Assessments. Having heard the submissions in this matter, I make the following observations and assessments;
    
    1. The Defendant has not surrendered his title to the Complainant and or any other person and entity and thereby holds indefeasible title over the Property Portion 968, and that fact is not lost on this Court.
       
    2. The Complainants reliance on Section 6 of the Summary Ejectment Act to seek ejection of the Defendant from the Property, as juxtaposed against the background of the Defendant still being the holder of Indefeasible title to the Property Portion 968 makes his application in this regard untenable at law. Section 6 does not and cannot be utilized to eject people with Lawful and Indefeasible from Properties to which they have title.
       
    3. Section 277 of the District Courts Act relates to Contempt committed in the face of the Court only ie; during the currency of Proceedings and Processes of Court and not after Orders are issued.
       
       1. For example, insulting or disturbing a Court in Progress or assaulting Court Attendants or insulting or harassing a Judicial Officer whilst he is presiding over a court session. Section 277 covers that.
          
       2. Section 277 does not cater for disobedience to Court Orders, per se, hence the Applicants reliance on this Provision in the circumstance of this case is misguided.
          
    4. Section 22 of the District Courts Act gives the Court general powers and as this Proceeding is currently before this Court, Section 22 of the District Courts Act has application to the case.
       
       1. Section 22 (a) allows for grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional as the dictates of the case may require.
          
       2. This mean the Court has Discretion to a certain extent in granting such remedies and reliefs as it deems appropriate in the circumstance of the case in respect of the matters raised before it.
          
       100. The Court by virtue of Section 22 can grant such redress or relief or a combination of both as it deems appropriate to do ample justice in the circumstance of cases before it.
            
       4. It is the assessment of this Court that Section 22 of the District Court Act plays an important role in filling a gap/loop hole in enforcements of Court Orders in just such a situation such as this, wherein Contempt of Court Charges cannot be legally held against breaches of Court Orders and even Ejectment Proceedings cannot be held against title-holders to Property.
          
       5. This Observation is made on the basis that even though the Defendant did not Commit Contempt in the face of the Court as per section 277 of the District Court Act, neither can he be Lawfully evicted or Ejected from Property over which he currently holds title, he ought to be made to realize that a Court Order is a Court Order, and that it ought to be respected.
          
       6. What Good would a Court Order be if it can be disrespected and ignored by people? What type of a society would that result in?
          
       7. The Court has a right to protect its integrity and respect against people who would act in ‘Disrespect or even Contempt of the process and Orders of the Court!’
          
       8. It is on that premise that I believe section 22 gives the Court that extra leverage in just such a situation as this.
          
    5. The Breaches Complained of is that;
       
       1. On the 30^th of April 2021, two hours after the Orders of 2th April 2021 were served on him, the Defendant and his people were still working on the Land Portion 968 contrary to specific orders issued.
          
       2. That also on the 01/05/21, the Defendant and his people were seen working again on the Land contrary to specific orders of the Court.
          
       100. Whether work carried out was substantial to the extent of changing or affecting the appearance and value of the Property is not said or led by the Applicant.
            
    6. However, I being resident in Popondetta myself have had occasion to observe the Property and apart from the changes to the fencing, I have not seen any major changes that might affect the value or general appearance of the Property.
       
    7. The Order of 27^th April 2021 especially Order (3) was intended to maintain the Property’s status quo until the lapse of 90 days or until National Court Proceeding on Specific Performance is determined, whichever occurs first.
       
    8. Currently there is no more work being done or major structural adjustments being carried out to alter the Land as it is so as to become a concern insofar as Order (3) of the 27^th of April 2021.
       
    9. Apart from the Applicants need to expedite the filing of National Court Proceeding for Specific Performance within the remaining 26 days of so until the 27^th of July 2021, this court does not see the 2 hours spent on the 20^th April 2021 and whatever duration spent on the 1^st of May 2021 working on the Property by the Defendant as being concerning enough to take out punitive measures against him.
       
    10. The Status Quo of the Land has not been seriously affected and so far it remains intact, apart from the fencing working that could easily be remedied with appropriate orders if and when the Specific Performance case comes through.
        
    11. The Defendant as stated earlier Still has indefeasible title to the property.
        
13. In the final Analysis, the Court finds and Rules as follows that;
    
    1. On the basis of the Evidence presented the Defendant cannot be held in contempt under section 277 of the District Court as whatever is alleged is not committed in the face of the Court.
       
    2. Section 6 of the Summary Ejectment Act cannot be invoked against the Defendant as he still holds Indefeasible title to the Property at Portion 968. The Adjudication of M. Kapi DCJ as he then was in the Gawi v. PNG Ready Mix case wherein he elaborated in the reverse that when title is clear Section 6 can be invoked but if not it ought not to be invoked. This means that Brian Tutura has no clear title to the property in issue, the Defendant does still hold title so he cannot possible be ejected from his own titled property.
       
    3. The Breaches Complained for 2 hours on the 30/04/21, and also on the 01/05/21 also have not being proven to have substantially alter the status quo of the Property to cause a concern, as the Defendant had being working on the property when the Orders were issue and served on him on the 30/04/21.
       
    4. Even the use of section 22 in the circumstance of this case to impose penalties on the Defendant in the circumstance of this case would be overreaching and not justified.
       
14. Accordingly, the Court will order as follows;
    
    1. The Application for a Finding of Contempt of Court Against the Defendant is not sustainable under Section 277 of the District Court.
       
    2. The Application for Punitive measures against the Defendant and his Friends, Relatives and agents under section 22 of the District Court Act is also not justified and so is also refused.
       
    3. The Application for Ejectment of the Defendant from Property Portion 968 is also misguided as the Defendant has indefeasible title to that property and so cannot be ejected from it under that provision and law. Besides there is no evidence he has taken up residency on the property since the Orders of 27/04/21 were issue.
       
    4. The Parties are further reminded to leave the Property Portion 968 as it is until either the 90 days period lapse on the 27^th of July 2021, or until the National Court determination of the ‘Specific Performance Application of the Complainant is finalized, whichever occurs first.
       
    5. Parties to bear own costs.
       

Complainant in person.

Defendant in Person.