Andma v Morasa [2013] PGNC 124; N5224 (24 May 2013)

N5224

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 145 0F 2011

JOHN YULA ANDMA
Appellant

V

TIMOTHY A MORASA
Respondent

Madang: Cannings, J
2013: 10, 24 May

COURTS – DISTRICT COURT – duty to observe natural justice – no jurisdiction where title to land bona fide in dispute: District Courts Act, Section 21(4)(f).

The respondent filed a complaint against the appellant in the District Court claiming that the appellant was erecting a house on land belonging to the respondent. The District Court restrained the appellant from doing any further improvement on the land and ordered him to deliver peaceful possession of the land to the respondent. The appellant appealed to the National Court on two grounds: (1) failure of the District Court to give him a fair hearing and (2) excess of jurisdiction as there was a bona fide dispute as to title to the land.

Held:

(1) The District Courts Act sets out a procedural code for dealing with civil cases. It cannot be presumed that the same rules of practice and procedure that apply in the National Court apply in the District Court. The District Court is obliged to decide cases in accordance with the principles of natural justice, the minimum requirement of which is to act fairly and in principle to be seen to act fairly.

(2) The District Court has by virtue of Section 21(4)(f) of the District Courts Act no jurisdiction when the title to land is bona fide in dispute.

(3) Here, the procedure followed from the laying of the complaint to determination of the complaint did not breach any of the requirements of the District Courts Act. The District Court did not act unfairly as the appellant was served with a summons on complaint and given four days notice of the hearing and appeared in court and was afforded an opportunity to be heard. The District Court was seen to act fairly. Ground 1 of the appeal was dismissed.

(4) For there to be a bona fide dispute as to title 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. 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. Ground 2 of the appeal was dismissed.

(5) There was no miscarriage of justice so the appeal was dismissed and the order of the District Court affirmed.

Cases cited

The following cases are cited in the judgment:

Bernard Steven Philipae v Atio Igaso (2011) N4366
Jack Amu v Kingiko Kokowa (2008) N3703
NCDC v Yama Security Services Pty Ltd (2003) SC707
Paul Kamang v Madang Provincial Government (2011) N4384)
Tony Yandu v Peter Waiyu (2005) N2894

APPEAL

This was an appeal from a decision of the District Court.

Counsel

D Wa'au for the appellant

1. Cannings J: John Yula Andma appeals against an order of the Madang District Court (Mr M Samala presiding) that restrained him from doing any further improvement on a residential block of land in Madang described as Section 66, Allotment 22, Taleo St, Newtown, and ordered him to deliver peaceful possession of the land to the respondent, Timothy A Morasa.

2. The respondent had commenced proceedings in the District Court claiming that he had title to the land and that the appellant was in the process of erecting posts and intended to build a house on it without having any lawful authority to do so. The District Court was satisfied that the land belonged to the respondent and that the appellant had no right to occupy it. The appellant relies on two grounds of appeal (a third ground was set out in the notice of appeal but it has not been pursued):

(1) failure of the District Court to give him a fair hearing;

(2) excess of jurisdiction as there was a bona fide dispute as to title to the land.

GROUND 1: FAILURE TO GIVE A FAIR HEARING

3. Mr Wa'au for the appellant submitted that his client was denied a fair hearing as he was not given the opportunity to file a defence and produce any evidence to support his claim that there was a bona fide dispute as to title to the land. He submits that the District Court dealt with the matter too quickly in that:

• on 6 September 2011 the respondent filed his complaint, together with a notice of motion and supporting affidavit, and on the same day a 'summons to a person upon complaint' addressed to the appellant was issued;
  
• on 15 September 2011 the summons, the notice of motion and the supporting affidavit were served at the appellant's residence;
  
• on 19 September 2011 the complaint and the motion were heard and determined.
  

4. Mr Wa'au submitted that the District Court short-circuited proper processes and allowed an abuse of process to occur by granting substantive relief in what should have only been an interlocutory hearing. It is not permissible for the National Court to grant substantive relief at an interlocutory hearing (NCDC v Yama Security Services Pty Ltd (2003) SC707); and the same rules of practice and procedure apply in the District Court, he submitted.

5. Before dealing with these submissions there are two general propositions to note. First, the District Courts Act sets out a procedural code for dealing with civil cases. It cannot be presumed that the same rules of practice and procedure that apply in the National Court apply in the District Court. The District Court procedure is much simpler than in the National Court. There are just four steps to be followed:

Step 1: commencement of proceedings by laying a complaint

This is done under Section 28 (in particular under Section 28(1)(a)), which states:

Proceedings before a Court shall be commenced ... by an information or a complaint, which may be laid by the complainant in person, or by his legal representative or other person authorized for the purpose.

Step 2: obtaining a 'summons to answer to a complaint'

A summons is issued by a Magistrate or Clerk in accordance with Sections 41 to 46. It must under Section 42(2):

(a) be directed to the person named in the complaint as the person against whom the complaint is made; and

(b) require that person to appear, at a time and place specified in the summons, before a Court to answer to the complaint; and

(c) before the hearing is proceeded with—be lodged with the Clerk of the Court at the place at which the defendant is to appear, to be kept and preserved by the Clerk.

Step 3: service of summons

The summons must (unless an order for substituted service is made under Section 48) be served in accordance with Section 47, which states:

(1) A summons shall be served at least 72 hours before the time appointed in the summons for the hearing—

(a) in the case of a natural person—on the person to whom it is directed by delivering a copy of the summons to him personally or, if he cannot be found, by leaving it at his last known place of abode with some other person apparently an inmate and apparently not less than 16 years of age; and

(b) in the case of a company incorporated under the Companies Act—on the company in accordance with the provisions of that Act; or

(c) in the case of any other corporation—

(i) by delivering a copy of the summons to the secretary or public officer or other chief officer of the corporation in the country; or

(ii) by sending it by post to the secretary, public officer or other chief officer at the last known address of the corporation in the country,

or in any other manner provided by law.

(2) Within seven days after service, a person who serves a summons shall make an affidavit, endorsed on the original summons, stating the day and place of service and shall immediately transmit the original summons to the Clerk for production at the time and place and before the Court specified in the summons.

(3) A document purporting to be an affidavit of service under Subsection (2) is prima facie evidence of the service of the summons.

Step 4: the hearing

Hearings to determine complaints are conducted in accordance with Part V of the District Courts Act, consisting of Sections 57 to 92. The constitutional requirements for the hearing to be in open court and for determination of civil rights and obligations to be heard within a reasonable time are reinforced by Sections 57(1) and 61(1), which state:

57(1) Subject to this Act and to any other law, the room or place in which a Court sits to hear and determine an information or complaint shall be an open and public court, to which all persons may have access so far as the room or place can conveniently contain them.

61(1) If both parties appear, personally or by their legal representatives before the Court which is to hear and determine the information or complaint, the Court, subject to this Act, shall proceed to hear and determine the information or complaint with all due speed.

6. The second general proposition is that the District Court is subject to an overriding duty to hear and determine complaints in accordance with the principles of natural justice, the minimum requirement of which is under Section 59(2) (principles of natural justice) of the Constitution to act fairly and in principle to be seen to act fairly (Bernard Steven Philipae v Atio Igaso (2011) N4366). Giving all parties to a court case proper notice of the hearing is a fundamental component of any court's duty to observe natural justice or procedural fairness. Anybody joined as a party to a civil court case has a right to be dealt with fairly in open court under Sections 37(11) and (12) (protection of the law) of the Constitution, which state:

(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

7. Returning now to Mr Wa'au's submissions I find no evidence of the District Court short-circuiting the necessary procedure for determining the respondent's complaint. The respondent laid the complaint on 6 September 2011 and the summons was issued the same day. There was nothing wrong with that.

8. The summons was served on 15 September 2011, giving four days notice to the appellant (the defendant in the District Court) that the hearing would be on 19 September 2011. The appellant appeared in person. There is no suggestion that he asked for an adjournment. He was heard. He claimed that the land was not the respondent's land, it belonged to the National Housing Corporation which had through its officers given him verbal approval to build a house on the land. The learned Magistrate considered that submission but found that such evidence carried no weight when set against the respondent's copy of a State Lease over the land granted to him in 2008, showing the respondent as the registered proprietor. His Worship then made the order the subject of appeal on the same day as the hearing.

9. The procedure followed from the laying of the complaint to determination of the complaint did not breach any of the requirements of the District Courts Act. There was no necessity to allow the defendant to file a defence and there was no prohibition against allowing substantive relief in light of the fact that the respondent had filed a notice of motion. Such rules of practice and procedure do not apply in the District Court. The District Court might in a particular case give directions under Section 185 of the Constitution for filing a defence or a notice of motion. Section 185 (lack of procedural provision) states:

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

10. However, unless directions are given to file a defence or a notice of motion such procedures do not have to be followed.

11. There was no breach by the District Court of the obligation to comply with the principles of natural justice. I am satisfied that the hearing on 19 September 2011 was conducted fairly and that it was seen to be conducted fairly and that determination of the parties' civil rights and obligations was conducted within a reasonable time and in public in accordance with the constitutional requirements. Ground 1 of the appeal is dismissed.

GROUND 2: EXCESS OF JURISDICTION

12. Mr Wa'au submitted that the District Court had no jurisdiction to make an order concerning the land 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.

13. He submitted that there was a bona fide (genuine) dispute over title to the land due to the appellant's contention that the land was not the respondent's, it belonged to the National Housing Corporation which had given him verbal authority to build a house on it.

14. I reject that submission. An unsupported assertion by a person that he has a valid interest in land, even if based on a genuine belief, does not give rise to a bona fide dispute for the purposes of Section 21(4)(f) (Paul Kamang v Madang Provincial Government (2011) N4384). 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. Ground 2 of the appeal is dismissed.

CONCLUSION

15. Both grounds of appeal are dismissed. There has been no miscarriage of justice so the appeal must be dismissed and I will under Section 230(1)(c) of the District Courts Act affirm the decision appealed against. The respondent did not attend the hearing of this appeal so he will not get costs.

ORDER

(1) The appeal is dismissed.

(2) The order of the Madang District Court of 19 September 2011 in DCC No 129 of 2011 is affirmed and shall be respected and enforced.

(3) The parties will bear their own costs of the appeal.

Judgment accordingly.

_______________________

Meten Lawyers : Lawyers for the appellant