DC918

PAPUA NEW GUINEA
District Courts Held at Lae

DCPP No 16/06

BETWEEN:

PROMINENCE HOLDINGS LIMITED
(Complainant))

AND:

TIMBERSAWS (1966) LIMITED
(Defendant)

Lae: C Inkisopo
2007: 12th April

District Court Act Chapter 40: - Civil jurisdiction of the District Court under Section 21 and the general ancillary jurisdiction of District Courts under Section 22 of the District Courts Act - claim for release of certain identified batch of timbers from an alleged unlawful retention by Defendant.

Civil Jurisdiction (Practice and Procedure) - of the District Court under the District Courts Act: - Court of limited jurisdiction –section 21 of the Act - whether District Court has jurisdiction to entertain an application seeking an order for the release of certain identified batch of hardwood timbers - where no monetary value is ascribed to it, should the Court require evidence ascribing it a monetary value to help establish the Court’s jurisdiction under Section 21 of the Act -

Cases cited/consulted:

Awabdy vs. Germain [1971-72] PNGLR 68 
Gobe Hongu Ltd vs. NEC & Gulf/Southern Highlands Highway Limited [1990] N1920
Wine vs. Gilmai [1990] PNGLR 462

HELD:

1: By necessary implication, this Court under Section 21(1) of the District Court is obliged to receive and consider evidence in order therefore to establish its jurisdictional ambit in civil claims brought before it where no apparent value in monetary terms are ascribed to the item subject of the proceeding.

2: This Complaint is therefore dismissed as this Court lacks the jurisdiction to entertain it.

Counsel:

1: Mr C Ninawale:  of Counsel for Applicant/Defendant
2: Mr V Uymassuy: of Managing Director for Respondent/Complainant

JUDGMENT

C Inkisopo: The brief facts giving the back ground impetus to this case concerns parties involved in the timber industry. The Complainant is a permitted harvester of timber based in the West New Britain Province whilst Defendant mills, processes and markets timber products and based in Lae. Complainant filed a Complaint before this Court claiming the immediate release to it of 42.529 cubic meters of sawn hard wood timbers of kwila and rosewood currently in the immediate custody of the Defendant. The Defendant immediately put to issue the question of the ownership of the said batch of hard wood timbers. The matter made a number of rounds at the District Courts for mentions during which time the Complainant successfully secured an interim restraining order against the Defendant from removing and dealing with the said timbers pending the determination of the substantive matter as to ownership.

2: Whilst the substantive matter is in due Court process, Defendant filed a Motion dated 03/03/06 in which it sought the immediate dismissal of the matter on grounds of want of lack of jurisdiction by this Court to deal with the matter.

3: Affidavits sworn to by Mr. Athol Smith and Ms L Karre were filed in support of the Applicant’s Notice of Motion. Both affidavits testify to the probable current market value of the 42,529 cubic meters of the timber items in issue. Mr. Athol who is involved in the timber processing and marketing business and with that kind of back ground he musters, he attaches an estimated monetary value of K36, 000.00 to the subject hard wood timber of rosewood and kwila the subject of the proceeding. Ms Karre’s affidavit deposes to the fact of her having have procured written information from the only governmental body that administers the timber and associated forest industry from which she secured a letter setting out the current market value per cubic meter of hard wood timber similar to the ones that are subject of the present proceedings.

4: When the Motion came up for one of its mentions on 23/03/06, the Court invited both parties to address the Court on the issue of the Court’s jurisdiction to deal with the matter. The matter was set for the hearing of the parties’ arguments on the Court’s jurisdictional issue on 28/03/06 with the parties to have before hand filed and served written submissions before the hearing on 28/03/06.

5: By 28/03/06, both parties had already filed and cross- served each of their written submission and on the day of hearing the motion, the parties made oral presentations of their respective cases. After receiving submissions, the Court adjourned to deliver its decision on 27th April, 2006. On 27/03/07, the Court was not quit ready to hand down its decision on the matter and so was further adjourned to 4 May, 2006 at 9:00am. This is that decision in writing.

6: The Defendant/Applicant submitted to the Court that this Court lacks the jurisdiction to entertain this matter whilst the Complainant/Respondent submits to the contrary - that this Court does have jurisdiction to entertain the matter and to deal with same to completion.

7: In its pursuit to establish if it does or lacks jurisdiction to deal with the matter before it, the first area this Court does is to look at its empowering provision in the District Courts Act Chapter 40 which defines and demarcates the District Court’s civil jurisdiction.

 8: Sections 21 and 22 of the District Court Act set out the jurisdiction of the Court and associated jurisdictions particularly Section 21 of that Act.

9: The Complainant/Respondent comes to this Court claiming the release to it of certain identified and described hard wood timbers which it claimed belong to it that the Defendant/Applicant is unlawfully retaining it within its premises. The Defendant/Applicant disputes the Complainant/Respondent’s claim to ownership and the matter was to go for a full hearing on the issue of ownership but for this Motion touching the Court’s jurisdictional question.

10: Section 21 of the District Courts Act in general establishes the civil jurisdiction of the District Court. That provision (Section 21(1) says;-

"Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or amount or value of the subject matter of the claim does not exceed;-

A: where the Court consist of one or more principal magistrates-K10,000, and 
B: where the court consist of one or more magistrates-K8,000.00, and
C: [Repealed]
D: [Repealed]

(2): [Repealed]"

(3): Subsection(1) shall not be taken to limit the jurisdiction of the Courts in case where, by any law, money, irrespective of amount may be recovered before a Court.

(Underlining is my emphasis)

11: As I glean from the parties’ respective submissions in argument, the gist of what the Complainant/Respondent is saying is that it wants the return of those hard wood timbers by the Defendant from unlawful retention. Complainant attaches no monetary value to the said item but claims its return as a blanket item of timbers per se without attaching a money value to it. On the other hand, the Applicant/Defendant putting to serious issue the question of the Court’s jurisdiction, it argued that the Court does not have the jurisdiction to entertain the matter simply because the item as claimed does not have a monetary figure ascribed to it to come within this Court’s jurisdiction. Taking the items as claimed to be returned, Complainant/Respondent argued that the Court should not look beyond and behind what is claimed by attaching a monetary value to it as it did not plead that matter in its claim in the originating process. As it is entitled and limited in law only to a remedy it has actually pleaded in its originating processes. Therefore this Court in trying to find its legs to found its jurisdiction should not extend beyond what it has not pleaded to read in something that has not been pleaded as 'it is trite law’ that a party is not entitled to a remedy he has not pleaded in the originating processes of his claim’.
See Gobe Hongu Ltd vs. National Executive Council & The Gulf/Southern Highlands Highway Limited (1999) N1920. 

12: In presenting this line of argument, the Complainant/Respondent maintains that it has not attached any monetary value to the items of its claim - hence this court should consider its claims as a package item of timbers of its own, hence should not be an issue of the Court’s jurisdiction at all. The Court should not concern itself with enquiring into the value of the subject matter, rather it should look at the subject matter as an item of its own in itself and grant the relief it seeks.

13: In support of its argument, the Complainant/Respondent referred to the case of Wine vs. Gilmai [1990] PNGLR 264. That case concerns a claim for unpaid outstanding rent for a property by the 'apparent landlord of property the documentations of which and other requirements needed to be sorted out with the National Department of Lands were not in order as it was later discovered after the tenant had enjoyed the full benefits of the property whilst occupying it as tenant under the tenancy agreement. The Court in confirming the District Court decision in ordering the payment of the unpaid outstanding rental of K1, 500.00 held that the District Court did have the jurisdiction to determine the matter as it was not dealing with the land but an outstanding rental for the sublease of that property.

14: On the other side of the equation, the Defendant /Applicant argued to say that the Court lacked the jurisdiction to the deal with this matter. Mr Ninawale, Counsel for Defendant argued that Section 21 (1) of the District Court Act should be given its plain meaning when it says;- 

"Subject to this Act, in addition to any jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed …" (Underlining is my emphasis).

15: Counsel for the Applicant/Defendant argued in both his oral and written submissions that this Court had an implied duty under the relevant provision (S.21(1) of the District Courts Act) to enquire into the amount or value of the subject matter of the claim since its jurisdiction is the foundation upon which it dispenses justice. Just because a matter is brought before it should not of itself obligate this Court to assume that it does have jurisdiction over the subject matter when in fact it does not.

16: In my humble view, this line of reasoning and argument seems to me to be more logical and reasonable than arguments contrariwise. Needless to say, this Court feels much indebted to both parties represented by Messrs Uymasuy for Respondent/Complainant and Mr Ninawale for the Applicant/Defendant for their in-depth comprehensive submissions they have prepared for the Court’s invaluable assistance.

17: The primary provision that gives this Court its jurisdiction to deal with cases of this nature is Section 21(1) of the District Court Act and that I need not look further than the provision itself to establish the basis or the foundation of the Court’s jurisdiction. 

18: That provision in my view imposes a duty by necessary implication on the Court particularly by the wording of the provision where it says the "value of the subject matter of the claim". This Court is a Court of limited jurisdiction unlike that of the National Court that has unlimited jurisdiction to deal with almost any matter that comes before it. Giving its plain and natural meaning in the interpretation of the phrase in the latter part of Section 21 of the Act, the phrase "the amount or value of the subject matter of the claim" implies that the subject matter in issue must have to have a value ascribed to it or capable of having a value ascribed to it in order to establish or found the jurisdiction of the Court that is presiding over the matter in issue.

19: I find myself to be generally in agreement with the Applicant/Defendant’s submission and presentation of the principles in this instance. I feel fortified in that line of thought and argument considering the fact that here we are dealing with items of commercial nature and also the matter having have arisen out of a business transaction for the ultimate purpose of commercial gain and so for me now to avoid ascribing a monetary value to a commercial oriented item in my efforts to establish or found the Court’s ultimate jurisdiction, I would be parting company with the realities of matters of this nature.

20: In its arduous task of ascertaining and establishing its jurisdiction, this Court notes from the affidavit of one Athol Smith that the subject 42.529 cubic meters of hardwood timbers would value in excess of K10,000.00 which would exceed the jurisdictional limit of this Court.

21: The Complainant/Respondent raised a valid argument that it has not attached a monetary value on the subject matter of its claim – rather it was claiming a complete blanket item of its own per se minus a money value. By way of an analogy, it raises two (2) scenarios to justify its non-ascription of monetary value to the hardwood timber items it claims to own.

22: Firstly, Mr Uymasuy speaking for the Complainant/Respondent, speaks of a Court "warrant of execution" on account of non-settlement of a Court order and the second scenario being the case of Wine vs. Gilmai [1990] PNGLR 462.

23: With regards to the 'warrant of execution analogy, I’m of the humble view that a 'warrant of execution’ is a due Court process for the attachment of the judgment debtor’s property of value for non-payment of a given judgment order. The purpose of the warrant is to impound or attach the judgment debtor’s property of value which could well be a vehicle valued in excess of K10, 000.00 or a TV set valued at say K600.00 etc. The primary purpose of the 'warrant execution’ is to realize the money from the judgment debtor’s property of value to settle the judgment order and that the process does not generally concern with the exact value of the subject matter belonging to the judgment debtor that is attached to realize into cash to settle the judgment order so long as the attached property belongs to the judgment debtor and that it has some monetary value to it. This is how I understand the primary purpose of a 'warrant of execution’ to be.

24: Accordingly, it is my humble view that this analogy for our purpose is quite misconceived and without substance. I reject this analogy.

25: The case of Wine vs. Gilmai (supra) that was particularly referred to by way of analogy does not in my view lend much assistance to the Respondent’s cause by way of an analogy. In my view, that case was not dealing in the land and the value thereof- rather the Complaint was for the recovery of an unpaid outstanding rental of the property which was later found that it did not belong to the Complainant at all as he was found to be not the registered leaseholder of the subject property. The National Court on appeal confirmed the decision of the District Court in awarding judgment for the payment of the outstanding rental as that subject matter was held to be within the jurisdiction of the District Court.

26: The Respondent’s reference to that case is in my humble view misconceived as in that case the Court was not dealing with the land or its value but for unpaid rental which the Courts held was payable notwithstanding the fact that the ‘apparent land lord’ did not posses the lease title over the property nor was the subject sublease of the property registered as such as the Section 69 Ministerial approval was then pending and not granted as yet.

27: In the final analysis I hold the humble view that the value of the subject matter of this claim exceeds the jurisdictional limit of this Court and accordingly I rule that this Court lacks the jurisdiction to deal with this matter.

COURT ORDERS

Formal orders therefore are that;-

1: These proceeding are dismissed for want of jurisdiction.

2: The question of costs is a matter for judicial discretion and so I order that each party bears its own costs of proceedings.

__________________

Lawyers:

For the Complainant: Mr. Vincent Uymasuy Managing Director in person.
For the Defendants: Messrs Pryke & Jansen Lawyers.