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Ninkama v Loko [2005] PGDC 96; DC337 (20 July 2005)

DC337

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 2558 OF 2005

BETWEEN

Jack Ninkama & 150 Others
Complainants

V

Peter Loko
City Manager
First Defendant

National Capital District Commission
Second Defendant

Port Moresby: Bidar, Pm
2005: 20th July.

District Court - Practice and Procedure - Notice of Motion seeking inter alia Restraining Orders - Substantive cause of action - Whether reasonable - Jurisdiction - Whether Court is vested with jurisdiction to grant Orders sought - District Court Act (Ch No. 40) s.22.

RULING

20th July 2005.

BIDAR, PM: Complainants by Notice of Motion filed on 18th July 2005 seek the following orders.

"1. The requirement of service of the Court process under the District Court Act be disposed with and the complainants be granted leave to proceed ex-parte.

2. The defendants, its agents or servants be restrained from removing or evicting the complainants from trading at Manu Autoport market until further or other orders of the Court.

3. Such other Orders the Court deems fit."

Complainants filed Summons upon Complaint on the same day claiming that they are all vendors of various products under the Informal Sector Act on a parcel of government reserve land and along the road opposite Manu Autoport Shell Service Station. The vendors have been trading on this portion of land for over 12 months without any major problems.

The applicants have made representations to the defendants to recognize Manu Autoport market as an Informal Sector Market but the defendants have either refused and / or neglected to give such recognition and have instead elected to evict the vendors from their current site of trading without making any adequate arrangements for them to continue to trade.

1. A declaration that the acts and / or .............. by the defendants in seeking to evict them from the current premises is harsh and oppressive and amounts to a act within 41 of the Constitution.

2. An Order compelling the defendants to designate or recognize Manu Autoport market as an Informal Sector market.

3. An injunction restraining the defendants, its agents or servants or to whosoever acting under their authority to evict the complainants from trading on the site of trading at Manu Autoport market.

4. Such other Orders the Court deems fit.

The complainants’ Notice of Motion is supported by Jack Ninkama’s affidavit sworn and filed on 19th July 2005.

Mr. Ninkama deposed that he is a resident of Manu Autoport area and represents other complaints. He filed this proceedings to get defendants to recognize or designate the Manu Autoport market as an Informal Sector market. In the notices published in the newspapers the defendants designated certain locations in the city for purposes of Informal Sector Act recently passed by Parliament. In doing so, they have failed to or neglected to recognize Manu Autoport market. This was despite complainants’ correspondence putting their case to the defendants.

In deciding this matter ie, whether or not orders sought should be granted, Court must first consider whether or not it is vested with jurisdiction. District Court is a creature of an Act of Parliament. District Court Act is the legislation establishing the Court and as such its powers and functions are derived from that legislation.

Section 22 which provides for general ancillary jurisdiction is in these terms:

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in the 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 counter-claim 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".

The general ancillary jurisdiction of this Court under s.22 is subject to the provisions of the rest of the Act and cause of action or claim filed, is within the jurisdiction of the Court. Putting it differently, in my view, when a cause of action or claim must come within the jurisdiction of Court, so as to entitle a party to seek ancillary relief as in this case.

Looking at the complainants’ cause of action or claim, first of all, a constitutional issue is raised. Public authority’s (NCDC) decision to evict complainants from the premises appear to be harsh and oppressive and therefore accounts to proscribed act under s.41 of the Constitution clearly, this Court lacks jurisdiction to deal with any constitutional issue.

Secondly, complainants are asking this Court to order a public authority (NCDC) to designate or recognize Manu Autoport as an Informal Sector market. The public authority had made its decision to designate certain areas of the city for purposes of Informal Sector Act. If certain areas have been left out or should have been included and there are people affected by that decision by the public authority, in my view, the proper procedure is to file for judicial review of administrative action or decision in the National Court.

In my view this Court lacks jurisdiction to review such an administrative decision of a public authority.

Based on the reasons given, I refuse the motion by complainants. As to the cause of action before this Court, the Court lacks jurisdiction. On basis of the reasons given, the proceedings are therefore dismissed. I order no costs.

Rules accordingly.

Mr. Francis Alua: Complainant
In Person: Defendant