Kamang v Madang Provincial Government [2011] PGNC 122; N4394 (23 September 2011)

N4394

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 203 0F 2010

PAUL KAMANG
Appellant

V

MADANG PROVINCIAL GOVERNMENT
Respondent

Madang: Cannings J
2011: 19 August, 23 September

INJUNCTIONS – whether District Court erred in restraining appellant from interfering in respondents' occupation and enjoyment of land – whether District Court erred by granting injunction based on same evidence used in criminal proceedings against defendant, which were dismissed.

The respondent, which was occupier of Government land commenced proceedings in the District Court against the appellant alleging that the appellant and his associates unlawfully entered the land and threatened contractors engaged by the respondent to construct houses on it. The District Court granted an injunction, restraining the appellant and others from entering the land. The appellant appealed to the National Court on the grounds that: (1) the District Court lacked jurisdiction as there was a bona fide dispute about title to the land; (2) the District Court ignored the appellant's tribe's ownership of the land, confirmed in 1932 by a court decision, which was still in force; (3) the land was customary land, not State land; and (4) the respondent's case was based on the same evidence relied on in criminal proceedings brought against the appellant, which the District Court had dismissed.

Held:

(1) There was no bona fide dispute as to title to the land as there was no formal, legal process initiated by the appellant challenging the second respondent's ownership of the land that was pending at the time the District Court made its decision.

(2) The District Court was not obliged to hear argument as to whether the respondent's occupation of the land was in conflict with the 1932 court decision.

(3) The land in question was no longer customary land. It was Government land.

(4) The fact that the same evidence was used in the District Court proceedings that led to the injunction, which had been used in prior criminal proceedings in which the appellant had been acquitted, is of no consequence. The same evidence can be used in different proceedings. The result of criminal proceedings does not dictate the result of civil proceedings concerning the same subject matter or evidence; and vice-versa.

(5) All grounds of appeal were dismissed, there was no miscarriage of justice and the appeal was dismissed.

Cases cited

The following cases are cited in the judgment:

Aloysius Gabe (Informant) v Paul Kamang, COM No 340 of 2009, 21.04.10, Madang District Court, unreported
Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501
Dalin More v The State (1998) N1736
Jack Amu v Kingiko Kokowa (2008) N3703
John Kul v The State (2010) N3898
Nakun Pipoi v Viviso Seravo (2008) SC909
Paul Kamang v Namba Tumu (2011) N4313
The State v Douglas Jogioba (2007) N4085
Tony Yandu v Peter Waiyu (2005) N2894

APPEAL

This was an appeal from a decision of the District Court restraining the appellant from entering the respondent's land.

Counsel

P Kamang, the appellant, in person

23 September, 2011

1. CANNINGS J: This is an appeal against an order of the Madang District Court (Mr W Seneka SPM presiding) which was granted against the appellant, Paul Kamang. The order was made on 10 December 2010 in proceedings commenced by the respondent, the Madang Provincial Government. It restrains Mr Kamang and his servants and agents from entering a block of land in Madang town, Section 58, Allotment 6, and from touching or tampering with equipment belonging to Appap Contractors Ltd, a company the respondent had engaged to build houses on the land, and from assaulting or intimidating the company's employees. The land is near the Madang Provincial Government headquarters and the houses are intended for occupation of officers of the new District Treasury.

2. Mr Kamang believes that the land is customary land belonging to his tribe, the Matulon Tribe. He says that his tribe's right of customary ownership was confirmed by a decision of the Central Court of the Territory of New Guinea, constituted by Justice Phillips, on 25 May 1932, which has been reported as Custodian of Expropriated Property v Commissioner of Native Affairs (Re Jomba Plain) [1971-72] PNGLR 501. He put that argument to the District Court, to no avail, and it is the argument that underpins his three grounds of appeal to the National Court.

ISSUES

3. The three grounds of appeal set out in the notice of appeal run together. They all make the argument that the District Court erred by failing to have regard to the 1932 decision of Justice Phillips. That decision is said to have confirmed that members of the Matulon Tribe have free and unrestricted rights of ownership over the land that is now covered by Section 58, Allotment 6. The 1932 decision has never been appealed against or set aside. The land, it is argued, has remained customary land ever since. It does not fall within the area of Madang town land that was declared by the Minister for Lands in 1988 under the National Land Registration Act to be National Land, which became the subject of the Supreme Court case of Nakun Pipoi v Viviso Seravo (2008) SC909. To the extent that it might appear to have fallen within that area of land, there was a corrigendum published in National Gazette No G142 of 30 October 2003 that makes it clear that it is not National Land.

4. Mr Kamang raised an additional argument at the appeal hearing, which was not included in the notice of appeal. It is an interesting point. As the Provincial Government did not make an appearance there was no opposition to it being raised and I have granted leave for it to be an additional ground of appeal. It is: that the Provincial Government's case was based on the same evidence relied on in earlier criminal proceedings brought against Mr Kamang, which the District Court dismissed. The appeal thus raises four issues. Did the District Court err by:

1. exercising jurisdiction despite there being a bona fide dispute as to title to the land?
   
2. failing to have regard to the 1932 decision of Justice Phillips?
   
3. regarding the land as Government land, when it was customary land?
   
4. granting the injunction on the basis of the same evidence relied on in earlier criminal proceedings against the appellant, which the District Court dismissed?
   

5. Similar arguments, except No (4), were made by Mr Kamang in a recent appeal against an order of the Madang District Court in a similar case, Paul Kamang v Namba Tumu (2011) N4313. The land in question was different but the nature of the District Court order was the same as the one now being appealed against. That appeal was dismissed, as the present one will be, as explained below, though for slightly different reasons.

1. FAILURE TO RECOGNISE BONA FIDE DISPUTE ABOUT TITLE
   

6. Mr Kamang argues that the District Court had no jurisdiction to make an order concerning Section 58, Allotment 6 in view of Section 21(4)(f) of the District Courts Act, which states:

A [District] Court has no jurisdiction in the following cases: ...

when the title to land is bona fide in dispute.

7. He argues that there is a bona fide (ie genuine) dispute over title to the land as he and his tribe have been maintaining for years that Section 58, Allotment 6 is not Government land or National Land: it is and always has been customary land. There is no doubt that Mr Kamang genuinely believes that. But that does not mean that title to the land is bona fide in dispute for the purposes of Section 21(4)(f). For there to be such a dispute one of the parties to the District Court proceedings or some other person with an interest in the land must have taken some distinct, formal, legal step to challenge the registered proprietor's title and that challenge must be unresolved at the time that the District Court exercises jurisdiction (Tony Yandu v Peter Waiyu (2005) N2894, Jack Amu v Kingiko Kokowa (2008) N3703). There is no evidence of such a challenge in the present case. Therefore Section 21(4)(f) of the District Courts Act did not prevent the District Court from exercising jurisdiction.

2 FAILURE TO HAVE REGARD TO THE 1932 DECISION OF JUSTICE PHILLIPS

8. It is true that the District Court failed to have regard to the 1932 decision but it is not correct to say that that was an error of law. It was not necessary for the District Court to have regard to the 1932 decision and it would have been wrong in law for the District Court to have enquired into that issue. The only matter of which the District Court had to be satisfied was that the land was Government land. It clearly was. This means that it was no longer customary land.

3 FAILURE TO REGARD THE LAND AS CUSTOMARY LAND

9. This ground of appeal has already been dealt with in ground (2). The land is Government land. Customary land is by definition, as set out in Section 2 (interpretation) of the Land Act, not Government land.

4. FAILING TO CONSIDER PRIOR CRIMINAL PROCEEDINGS
   

10. Mr Kamang points out that the same evidence that was presented to the District Court in the proceedings, DCC No 323 of 2010, that led to the order now being appealed against, was used against him in a criminal case, COM No 340 of 2009, in which he was charged under Section 444 of the Criminal Code with wilful and unlawful damage to property at Section 58, Allotment 6. He claims that the criminal proceedings against him were dismissed by Magistrate Mr J Kami in the Madang District Court on 21 April 2010. Mr Kamang is partially correct. I have examined Mr Kami's judgment, a copy of which appears in the appeal book as Aloysius Gabe (Informant) v Paul Kamang, COM No 340 of 2009, 21.04.10. The proceedings were committal proceedings. His Worship decided under Section 95(2) of the District Courts Act that the evidence was not sufficient to put the defendant, Mr Kamang, on trial; so he was discharged. He was not acquitted.

11. Not that it makes any difference whether Mr Kamang was acquitted (ie found not guilty) or whether there was simply a decision not to commit him for trial. Whatever happened in the District Court in the criminal proceedings was irrelevant to how the civil proceedings, which resulted in the injunction now under appeal, were dealt with. There is no rule of law that says that evidence used in criminal proceedings cannot be used in civil proceedings. The same facts can give rise to criminal and/or civil liability. The fact that the same evidence was used in the District Court proceedings that led to the injunction, which had been used in prior criminal proceedings in which the appellant had been discharged, is of no consequence. The same evidence can be used in different proceedings. The result of criminal proceedings does not dictate the result of civil proceedings concerning the same subject matter or evidence; and vice-versa. Numerous cases have been decided that illustrate the notion that the same facts can give rise to different types of legal liability, including Dalin More v The State (1998) N1736, The State v Douglas Jogioba (2007) N4085 and John Kul v The State (2010) N3898.

12. Even if Mr Kamang had faced trial in the National Court and been found not guilty, the evidence used at the criminal trial could have been used in the District Court and formed the basis of the sort of injunction that was granted in the present case. The fourth ground of appeal is dismissed.

CONCLUSION

13. All grounds of appeal have been dismissed. There has been no miscarriage of justice so I will under Section 230(1)(c) of the District Courts Act affirm the decision appealed against.

14. As to costs, it is not appropriate to award costs of the appeal to the successful party, as it did not attend the appeal hearing and offered no assistance to the Court. I have noted that more often than not the Madang Provincial Government, despite being given due notice, makes no appearance in proceedings in the National Court at Madang in which it is a defendant or respondent. This is a dangerous and irresponsible attitude to take as the Provincial Government runs the risk of having orders made against it without having its position clearly put to the court by competent counsel. It is also discourteous to the Court. I trust that the attitude of the Madang Provincial Government will change for the better in the near future.

ORDER

(1) The appeal is dismissed.

(2) The order of the Madang District Court of 10 December 2010 in DCC No 323 of 2010 is confirmed and shall be respected and enforced.

(3) The parties shall bear their own costs.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

__________________

Lawyers for the appellant : Nil
Solicitor-General: Lawyer for the respondent