DC2014
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

CASE No DCC 100 OF 2010

BETWEEN

TALHUN LALAUS & 2 ORS
Complainant

AND

PATRICK ULAUL
First Defendant

TELOM OLON
Second Defendant

Madang: J Kaumi
2010: 3rd JUNE

SUMMARY CIVIL PRACTICE & PROCEDURE – Complainant -Interlocutory Application for equitable remedy-Prohibitive in nature-Restraining Orders sought against Defendants in dispute over ownership of customary land- General ancillary jurisdiction of the District Court under Section 22 of the District Courts Act-Does District Court have jurisdiction over a matter that is patently a dispute over ownership of customary land.

SUMMARY CIVIL PRACTICE & PROCEDURE-District Court or Magistrate of District Court has no jurisdiction to deal with disputes over ownership of customary land and benefits to be derived from customary land.

SUMMARY CIVIL PRACTICE & PROCEDURE-Jurisdiction to deal with disputes of ownership over customary land and benefits to be derived from customary land is the exclusive jurisdiction of Local Land Court and Provincial Land Court-District Courts Act Application amounts to an abuse of the Court's process-Application therefore struck out. (Ch.No.40)ss.1,5,16,18,21 and 22;Land Dispute Settlement Act (Ch.No.45) ss.1,22,24,26,27,31,35,38,40,41,42,46,47,50,52 and 53(Agalu v Eno [2005] N2904)

SUMMARY CIVIL PRACTICE & PROCEDURE-Substantive matter must be on foot for an Application to subsist.

EVIDENCE- Use of Affidavit in interlocutory proceedings permissible only if it contains facts alone-Arguments, submissions and opinions in an affidavit do not amount to facts.

The complainants seek Restraining Orders against the Defendants in a dispute over ownership of customary land, that are prohibitive in nature in that they be restrained from pursuing their dispute in the District Court and that the matter be referred back to the village for mediation or alternatively that they be included as parties in the separate proceeding that is between the defendants as opposing parties.

Held:

 (1). It would appear on the face of the complainants' affidavit that their interest in the said two portions of land is as customary land owners and nothing more.

 (2) Magistrates of the District Court or a District Court have no jurisdiction in law to adjudicate in a matter that patently involves a dispute over ownership of customary land and benefits to be derived from customary land which is the exclusive jurisdiction of the Local Land Court and Provincial Land Court.(Agalu v Eno [2005] N2904 DCJ.Injia)

 (3). A practice has crept into the civil jurisdiction of the District Court whereby it is used as a substitute or as a surrogate forum in the absence of a functioning Land Court in a Province to entertain such applications concerning customary land disputes and consequently issue 'Preventive or Restraining 'orders as the immediate one before this court. Clearly such a practice is without legal basis and should be discouraged and not entertained or better still immediately stopped.DCJ> Injia's (as he then was) judgment in this matter is a 'must read' for all magistrates.

(4).In the immediate matter I find that the proceedings by the complainants are an abuse of the court's process for the following reasons:-

(i).The District Court lacked jurisdiction to adjudicate in a matter that patently is a dispute over the ownership of customary land;

(ii).There was no substantive matter on foot by which the Notice of Motion could subsist;

(iii).The application was procedurally wrong and an abuse of the court's machinery.

(5).The National Court has been critical of lawyers who fail to clearly plead and argue the appropriate cause of action. On the same token it behoves parties in our jurisdiction to also clearly articulate their causes of action. (See Luke Deukari v Danny Kuglam and The State WS No 615 of 1994, 29.09.06; Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06; Otto Benal Magiten v Rural Development Bank Ltd WS No 938 of 1999, 20.10.06

(6).An affidavit must set out facts to the exclusion of submissions on the law and or other arguments and its purpose is to put relevant facts in a matter before the Court. Section 34 (1) (a) of the Evidence Act provides for this requirement.( See State v Marum [2006] N3068 (8/05/06) Injia.J as he then was.).

(7). The proceedings are misconceived. The application is struck out.

Counsel: 
Complainant in person
First Defendant in person
Mr. J Lai, for the Second Defendant 

3rd June 2010

INTRODUCTION

1. Kaumi, M The matter before me this morning is an application by the complainants seeking Restraining Orders against the Defendants over a dispute over ownership of two portions of land. They seek Court orders that:-

 (i) They be restrained from pursuing their dispute in the District Court and;

 (ii) The matter is referred back to the village for mediation;

 (iii) An order for costs of these proceedings.

RELEVANT BACKGROUND

2. The relevant background to the matter is outlined in chronological order as follows:-

(a). This matter, DCC 100 of 2010 was filed on Wednesday 26th May 2010. This complaint was filed together with a Summons to a person upon complaint, a supporting affidavit of the complainants, Talhun Lalaus, Yaurig Galiu and Edward Galiu. The complainants' complaint is that the defendants are not the rightful owners of portions 809 and 810 and that the defendant, Patrick Ulaul's claim on these portions is wrong and unsubstantiated. That two portions of land belong to the complainants and that they intend to prove this when they appear before the mediation. Further that they request a thorough and comprehensive investigation into the circumstances surrounding Mr. Telom Olon's account in his affidavit regarding Portion 810.

(b) The matter is for mention today.

RELEVANT EVIDENCE

3. The relevant evidence is highlighted here to identify the issue in this matter

4. The evidence provided in this matter from the complainants was in form of their affidavit and it reads as follows:-

"2.We are the genuine traditional landowners of Bagu Village on which lands the Evangelical Lutheran Church of PNG (ELCPNG) obtained from their forefathers previously under Portion 57 for a term of 99 years under an Agriculture Lease.

 3. We have on numerous times through correspondence and in person approached both the ELCPNG Amele Circuit and Lutheran District Office in Madang as well as the Lands Branch of the Madang Provincial Administration to enter into dialogue and discussion on Portion 57, now further subdivided in Portion 809 and 810, but to no avail.

4. Our late father was the genuine principal landowner who took the Suyau Lutheran Mission Trustee Board to task/court over Portion 57 or parts of Portion 57.We the traditional landowners of Bagu village vow to fully accomplish the tasks initially set upon from where our late father had left off, due to his demise.

5. We have learnt only recently that Portion 810, the part of the land that we have been all along been endeavoring to seek redress on has become the subject of court proceedings.

6. Therefore, based on the sworn affidavit by Telom Olan on 27th April 2010, as the defendant in the District Court held in Madang, we the traditional landowners of Bagu call for the following to be effected:

 (i).Regardless am in respect of whether a court decision or ruling has been made or not. Request, that we, the understand be a major key party to this matter now before the court, as Portion 810 covers a large part of our traditional land area whilst also taking into account that the late Mr. Galiu Muleg was the principal landowner who took the Suyau Lutheran Mission Trustee Board to court over Portion 57 and not Portion 56 as Mr Olan states.

 (ii).Immediately, request as a matter of utmost urgency and immediate priority as well as in the interest of all parties concern, that the formal process of land mediation to be convened to determine the genuine traditional landowners of Portion 810. This is the main concern that we have always maintained throughout all our correspondences.

 (iii).We, therefore also request a thorough and comprehensive investigation into the circumstances surrounding Mr.Telom Olan's account in his affidavit regarding Portion 810, of which the investigation is to be extended to cover both the ELCPNG and the Lands Branch of the Madang Provincial Administration and all other concerned and interested parties to the issue.

 (iv).We, therefore in view of the above stated request that this court takes account of all the issues and information provided in order to ensure that real justice be fully dispensed to ensure that the rule of law is seen to benefit the majority of us, the genuine traditional landowners". (Emphasis mine)

RELEVANT ISSUES

5. After a closer scrutiny of the documents filed by the complainants in these proceedings, the main issue that arises at this juncture of proceedings is as follows:-

(i).Does this Court sitting as a District Court have jurisdiction in a matter that is patently a dispute over the ownership of customary land?

6.There are other issues that arise as well though collateral in nature are nevertheless important in so far as the adherence to proper court procedure and the rules of evidence are concerned and I intend to address them later and are as follows:-

 (ii). Was there a substantive matter on foot by which the complainant's matter could subsist?

 (iii).Are the proceedings commenced by the complainant an abuse of process?

RELEVANT LAW

7. There are provisions of certain legislation that are relevant to the relevant issue and are as follows:

Land Dispute Settlement Act 1975

Section1. PURPOSE OF THIS ACT.
The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land by–

(a) encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and

(b) the use of the principles underlying traditional dispute settlement processes.

District Courts Act 1963

Section 21. CIVIL JURISDICTION.
(1) 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 the amount or value of the subject matter of the claim does not exceed–

(a) where the Court consists of one or more Principal Magistrates.–K10,000.00; and

(b) where the Court consists of one or more Magistrates.–K8,000.00.

(c - d) [Repealed.]

(2) [Repealed.]

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

(4) A Court has no jurisdiction in the following cases:–

(a) where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute;

(b) the infringement of trade names;

(c) an action for or in the nature of slander of title;

(d) an action for illegal arrest, false imprisonment or malicious prosecution;

(e) for seduction or breach of promise to marry;

(f) when the title to land is bona fide in dispute.

in the area for which the Court is constituted.

Section 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.

DETERMINATION OF ISSUES

(i).DOES THIS COURT SITTING AS A DISTRICT COURT HAVE JURISDICTION IN A MATTER THAT IS PATENTLY A DISPUTE OVER THE OWNERSHIP OF CUSTOMARY LAND? If the answer is yes, then it can proceed to adjudicate in the matter. If the answer is no, then the matter should be struck out and the complainant be directed to institute proceedings in the correct forum.

8. To highlight this issue the foremost question to be asked is whether or not there is a dispute over ownership of customary land?

9. It would therefore appear on the face of the complainants' affidavit that their interest in the said two portions of land is as customary land owners and nothing more.

10. I note on the periphery that nothing in the complainants' affidavit confirm the exact nature of the tenure of these two portions of land. There is some suggestion by the complainants that the said portions of land were acquired from their forefathers by the Lutheran Church for agricultural purposes but other than this there is an absolute absence of evidence as to their tenure. If the exact nature of the tenure of these two portions of land was clearer and the complainants believed that their ancestors were given a raw deal by some colonial administrator or missionary then their quest for redress could be pursued through other avenues rather than by this clumsy attempt to frustrate the defendants. The complainants have failed to provide exact details of how their rights and title to the two portions of land have been or are to be asserted in this court other than what they have attested to in their affidavits which I find rather presumptuous but this not the issue before this court nor is it the jurisdiction of this court to make declarations about parties' rights to land and I only make these remarks in passing.

11.Therefore on the basis of the documents filed per se and without any evidence to the contrary I am inclined to treat this as patently a dispute over the ownership of customary land and I answer this question in the affirmative (Yes).

12. Having answered this question in the affirmative I now address the issue of whether or not this Court sitting as a District Court has jurisdiction to adjudicate in a matter that is patently, a dispute of ownership of customary land? If the answer is Yes, then it can proceed to adjudicate in the matter. If the answer is No, then the matter should be struck out and the complainants be directed to institute proceedings in the correct forum.

13. Magistrates of the District Court have no jurisdiction to deal with disputes over ownership of customary land and benefits to be derived from customary land which is the exclusive jurisdiction of the Local Land Court and Provincial Land Court.( See Agalu v Eno  DCJ.Injia as he then was )

14. His Honour Injia DCJ in this National Court case stated " The Local Land Court on the one hand and the District Court on the other hand, are established under two different statutes. The Local Land Court (and the Provincial Land Court) is established under the Land Dispute Settlement Act (Ch. No. 45) and the District Court is established under the District Courts Act (Ch. No. 40). Their jurisdiction over subject matter and procedures for dealing with the matters within their respective jurisdictions are distinct and separate and they are prescribed by their own respective statutes".(emphasis mine)

15. His Honour was hearing an appeal against a decision of the Port Moresby District Court made on 6/10/03.

16. I am indebted to His Honour for painstakingly picking out and highlighting the relevant provisions of both the District Courts Act and the Land Dispute Settlement Act which establish and demarcate the parameters of the functions of these two courts and what their jurisdictions are.

17. His Honour in this matter succinctly set out the relevant process of both the Local Land Court and the District Courts for the following reasons:-

"There appears to be some confusion amongst some Magistrates on the two Courts and parties appearing before them. This may be due to the practice of appointing Local and District Court Magistrates to preside in the Land Courts. It is not without significance, therefore to re-state the obvious – to set out the relevant process of the respective status, as to jurisdiction, procedure and Constitution of the two Courts. This is to demonstrate the clear demarcation in establishment of constitution, jurisdiction and procedure of the two Courts ".(emphasis mine)

18. Of interest was the main issue arising out of the four grounds of appeal:-

1. Whether s.22 of the District Court Act, under which the order was made, vests power in the District Court to determine ownership of interest in customary land.

2. Whether the District Court erred in law by determining an issue regarding an interest in customary land when such provision was vested in the Local Land Court by the Land Dispute Settlement Act.

19. I have taken time to highlight parts of this National Court case which are crucial to the issue at hand and further so it can be of assistance to the magistracy.

20. With regard to the use of section 22 of the District Courts Act as the enabling provision for District Courts to deal with issues over use or ownership of customary land His Honour stated:-

"…Section 22 of the District Court Act does not confer jurisdiction on the "District Court" to deal with customary land ownership and related matters. It is an ancillary provision, which must be read subject to the jurisdiction provision in s.21 of the Act. In s.21, the "District Court" is not given jurisdiction to deal with issues of customary land ownership and usage rights. The Land Courts have exclusive jurisdiction on those matters".

21. I again repeat here what I said in my judgment in Ulaul v Telom  that a practice has crept into the civil jurisdiction of the District Court whereby it is used as a substitute or as a surrogate forum in the absence of a functioning Land Court in a Province to entertain such applications and consequently issue 'Preventive or Restraining 'orders as the immediate one before this court seeks. Clearly such a practice is without legal basis and should be discouraged or better still immediately stopped. Chief Justice Injia's judgment  in this matter is a 'must read' for all magistrates

22. I answer Issue (i) in the negative and strike the matter out for those reasons. The correct forum by law to adjudicate in matters that patently involve disputes over the ownership of customary land is the Local Land Court.

23 For argument's sake and completeness I will now address the collateral issues.

(II).WAS THERE A PENDING SUBSTANTIVE MATTER ON FOOT BY WHICH THE COMPLAINANT'S APPLICATION COULD SUBSIST?

24. The complainants in this matter are seeking relief from this court in the form of orders to strike out a separate court proceedings between the defendants or that they be restrained from pursuing their matter in court or alternatively that they be included those proceedings. 

25. I find the complainants' action misconceived and an abuse of process because there was no substantive cause of action on foot. The substantive matter (DCC 22/2010) was effectively dealt with and disposed off on the 27/05/10.

26. The instituting of this new action by the complainants by way of a Complaint was procedurally wrong and an abuse of process of court and court machinery. I find that the complainants' complaint was in fact an application in the alternative to be included as parties in DCC 22/2010, whether this was by design, default or plain ignorance of the niceties of the court procedure leaves much to be desired. If DCC 22/2010 was still subsisting then the correct procedure to have been adopted by the complainants would have been to not only make a properly articulated application to that effect but to also provide good grounds for inclusion as parties which I do not find in this instance. 

27. The provisions of Section 28 of the District Court Act mandate exactly how proceedings are to be commenced in the District Court and that is only by two ways, (a) by way of an information or a complaint, which may be laid by the complainant in person or his legal representative or by other person authorized for the purpose or (b) by way of a Traffic Infringement Summons. 

28. Clearly commencing proceedings in this manner does not come within the ambit of Section 28 and consequently are without legal basis.

(III).ARE THE PROCEEDINGS COMMENCED BY THE COMPLAINANTS AN ABUSE OF PROCESS OF COURT PROCESS?

29. I find that the proceedings by the complainants are an abuse of the court's process for the following reasons:-

(i).The District Court lacked jurisdiction to adjudicate in a matter that patently is a dispute over the ownership of customary land;

(ii).There was no pending substantive matter by which the matter could subsist;

(iii).The application was procedurally wrong and an abuse of the court's machinery.

30.The law on what principles to apply when considering what amounts to an Abuse of process was summarized by the Supreme Court in Anderson Agiru v Electoral Commission and The State ) The Court stated:-

"Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process."

DETERMINATION

31. Complaint is struck out for being misconceived.

REMARKS

32. Finally in passing I make mention of two matters which are of concern to this Court.

33. Firstly, I find that the drafting of the Complaint poor and not well articulated to the extent that it is confusing to understand exactly what the complainants were seeking. 
 
34. The National Court has been critical of lawyers who fail to clearly plead and argue the appropriate cause of action.( See Kerry v The State , Luke Deukari v Danny Kuglam and The State ; Eles Jay Clothing Ltd v The State ; Otto Benal Magiten v Rural Development Bank Ltd  On the same token it behoves litigants in our jurisdiction to also clearly articulate and choose their causes of action before coming to court. The well worn and much abused cliché that because parties are villagers they should not be expected to know the niceties and finesse of the court procedure certainly does not rub well with me especially in this day and age some 34 years after our independence. Citizens are much better educated and the services of both the Public and Private Bar are readily available to those who are in need of them.

35. Secondly, are the contents of the complainants' affidavit of which paragraphs 6 (i),(ii),(iii) and (iv) are I consider, not statements of fact but rather arguments or submissions without the actual foundation for them. 

36. An affidavit must set out facts to the exclusion of submissions on the law and or other arguments and its purpose is to put relevant facts in a matter before the Court. Section 34 (1) (a) of the Evidence Act provides for this requirement.( See State v Marum  ) 

Complainants in person
First Defendant in person
Illaisa Lawyers for the Second Defendant