DC1083
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 33/2009

ARON KAUMA ARIKU
Applicant/Defendant

V

JOB SOGASOG
First Respondent/Complainant

KAUMAF TENG
Second Respondent

MADANG: J KAUMI

2010: 26th, May 9th, 18th, 25th June 9th, 22nd July 6th August

NOTICE OF MOTION

SUMMARY CIVIL PRACTICE & PROCEDURE –Applicant/ Defendant -Interlocutory Application for equitable remedy-Continuity of Restraining Orders in dispute over ownership of customary land- General ancillary jurisdiction of the District Court under Section 22 of the District Courts Act

SUMMARY CIVIL PRACTICE & PROCEDURE –Defendant/Applicant -Application for enforcement of Court orders- Proceedings are misconceived.

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-The Court must be satisfied that there is a serious question of law or fact raised in the substantive claim- The balance of convenience must favour a grant or continuity of such a relief to maintain the status quo- If damages could adequately compensate the applicant, then an injunctive order should not be granted - There have been a few exceptions to the requirement for an undertaking for damages -It has been dispensed with in the interest of doing justice.

SUMMARY CIVIL PRACTISE & PROCEDURE-He who asserts must prove-failure to do so is to his peril

PRACTISE AND PROCEDURE-Strict application of the rules of evidence and of the acceptance of documents into evidence not applicable when a decision of Village Court under appeal or review.

The applicant seeks continuity of Restraining orders issued in previous proceedings if those orders have been subsequently breached by either party in those previous proceeding. The orders made by the District Court in an appeal on the 9/02/10 were that, firstly, that the matter was referred back to the Wagi Village Court, secondly, that both parties were restrained from working on the land until the Wagi V.Ct mediates the matter, and thirdly, any breach of this restraining order is to be dealt with in accordance with law. 

Held:

(1). At the outset let me say that I find this action to be misconceived for the reason that this Court sitting as a District Court has no jurisdiction in a matter that is patently a dispute over the ownership of customary land .(See .Agalu v Eno (1) [2005] N2904 DCJ.Injia ).

(2).For arguments sake and completeness however, I will deal with this application as if I was sitting as a Local Land Court with the intention of making both parties aware of the consequences of rushing to Court with misconceived applications in what essentially has been a 'tit for tat' exercise in close to two decades resulting in the dispute not being brought to a finality any earlier and therefore I find that:-

(a). The Court's function is not to agitate but to adjudicate a dispute

(b). This application should be treated as an application for continuation of the interim injunctive order restraining both parties from working on the said disputed land.

(c)The Court must be satisfied that there is a serious question of law or fact raised in the substantive claim- The balance of convenience must favour a grant or continuity of such a relief to maintain the status quo- If damages could adequately compensate the applicant, then an injunctive order should not be granted. Golobadana No.35 v Bank of South Pacific (formerly Papua New Guinea Banking Corporation) (2002) Unreported N2309 (11/11/02)

(d) There have been a few exceptions to the requirement for an undertaking for damages .It has been dispensed with in the interest of doing justice. Mauga Logging Pty Ltd v South Pacific Oil Palm [1977] PNGLR 80 & Kurt Reimann & Ors v George Skell & Kimbe Soccer Association (21/03/01) N2093

(e).It was incumbent on the applicant to provide independent evidence to support his assertions, this he hasn't done and this was to his peril. The law is on 'he who asserts' to prove See Shaw vs. the Commonwealth of Australia Shaw vs. The C'Wealth of Australia [1963] PNGLR 119, Supreme court Ref. No.4 of 1980 (No 2) [1982] PNGLR 65, Kolta Development Pty Ltd + others vs. The State + Ors N1470 and Bank of Hawaii (PNG) Limited vs. Papua New Guinea Banking Corporation + others[2001] N2095

 (3).I strike out the notice of motion for being misconceived.

Cases cited:

The following cases are cited in the judgment:

Agalu v Eno (1) [2005] N2904 DCJ.Injia
Chief Collector of Taxes v Bougainville Copper Limited [2007] SC853 (2 February 2007)
Golobadana No 35 Ltd v Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation)
Mt Hagen Airport Hotel Pty Ltd v. Gibbs and Anor 1976 PNGLR 216
Public Employees Association v Public Service Commission [1988-89] PNGLR 585
Markal Limited & Robert Needham v Mineral Resources Development Co. Pty Ltd (1996) Unreported N1472 (5/09/96) 
AGK Pacific (NG) Ltd v William Brad Anderson Karson Construction (PNG) Ltd & Downer Construction (PNG) Ltd Unreported (4/12/99 or 00) N2062
Gobe Hongu Ltd v National Executive Council and Others N9120 of 2000
National Housing Corporation v Yama Security Pty Ltd N1985
Shaw vs. The C'Wealth of Australia [1963] PNGLR 119
Supreme Court Ref.No.4 of 1980 (No 2) [1982] PNGLR 65
Bank of Hawaii (PNG) Limited vs. Papua New Guinea Banking Corporation & Ors [2001] N2095
Kolta Development Pty Ltd& Ors vs. The State & Ors N1470
Robinson v National Airline Commission (15) [1983] PNGLR 476 (28 May 1983) Andrew.J)
Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80
Kurt Reimann & Ors v George Skell and Kimbe Soccer Association (21/03/01) N2093 
Hubbard v. Vosper (20) [1972] 2 W.L.R. 389 at 396
Legislations

District Courts Act

Village Court Act 1989

Abbreviations:
The following abbreviations appear in the judgment:
Anor Another
CJ Chief Justice
C'wealth Commonwealth
DCJ Deputy Chief Justice
J Justice
N National Court judgment
No number 
Ors Others
PEA Public Employees Association
PNG Papua New Guinea
PNGLR Papua New Guinea Law Reports
PTY Propriety
PSC Public Services Commission
LTD Limited
S Section
SC Supreme Court
VS Versus
V.CT Village Court

MOTION

This is an application for continuity of Court orders for restraint if there has been a breach by either party.

Representation:
Appellant in person
Respondents, in person

INTRODUCTION

1. Kaumi. J This Court on the 9th February 2010 made certain orders that firstly, a dispute over ownership of customary land be referred back to the Wagi V.C; secondly that interim orders be issued, restraining both parties to the dispute from working on the disputed land until the Wagi V.Ct mediated the dispute and thirdly, that any breach of this restraining order be dealt with in accordance with law. 

2. The Wagi V.Ct in compliance with the above orders mediated the dispute on 31/03/10 and issued two orders that firstly, that both disputing parties be allowed to harvest what food crops had been planted already and secondly, that both disputing parties do not plant any cash crops like coconuts, cocoa and fruit trees. 

3. Following the issuance of these orders by the Wagi V.Ct on the 31/03/10, on notice of motion, the complainant/applicant sought orders that if the said orders of the District Court of the 9/02/10 had been breached by either party that this Court enforces its orders pending the adjudication of the substantive issue. 

MOTION TO DISTRICT COURT

4. At the outset let me say that I find this action to be misconceived for the reason that this Court sitting as a District Court has no jurisdiction in a matter that is patently a dispute over the ownership of customary land .( See .Agalu v Eno  DCJ.Injia ).

5. For arguments sake and completeness, however, I will deal with this application as if I were sitting as a Local Land Court with the intention of making both parties aware of the consequences of rushing to Court with misconceived applications in what essentially has been a 'tit for tat' exercise in close to two decades resulting in the dispute not being brought to finality any earlier.

6. I must say at the outset that the complainant/applicant has not articulated his cause of action well enough to be understood clearly as to what he was claiming and leaving nothing to guesswork. What he has done in his application is to attempt to shift the onus of proving his allegation of a breach of the said orders on to the court. The Court's function is not to agitate but to adjudicate a dispute and this has legal implications which I will address later. However it would appear that what he is applying for is a continuity of the orders.

7. This application should be treated as an application for continuation of the interim injunctive order restraining both parties from working on the said disputed land.

RELEVANT BACKGROUND TO THE MOTION

8. The applicant, Aron Kauma Ariku is the brother-in-law of the first respondent Job Sogasog. The matter giving rise to the issue at hand as far as I can ascertain from the documents filed by the Applicant are orders issued by the Wagi Village Court after it mediated a land dispute in compliance with orders I made in an earlier matter between them on 9/02/10.

VILLAGE COURT PROCEEDINGS

9. On 31st March, 2010 the Wagi Village Court caused a mediation session to be conducted in compliance with an order of the District Court of 9/02/10 and the mediation team comprised of Mr. Micah Mer-Provincial Customary Lands Officer, Senior Sergeant Dumok-Staff Officer to the Provincial Police Commander,Mr Rudolf Kaumaf Teng-Senior Provincial Land Mediator, Mr. Madai Baye and Komony Aup-Ad Hoc Mediators, Mr. Nitu Aninat-Wagi Village Court Chairman and other magistrates and Mr. Henry Itob Makul-Ward 2 Ambenob LLG member.

10. On 31st March 2010, after the mediation session the Wagi Village Court through their Mediation Chairman Mr Kaumaf Teng (Second Respondent) issued certain " Orders" to both parties in the following manner:-

(a). Yutupela paties ken usim o kisim ol olpela samting yutupela planim antap long dispela giraun;

(b).Na noken tru planim ol strongpela samting olsem, kokonas, kakau diwai o narapela fruits.

SUBMISSIONS

APPLICANT'S SUBMISSIONS

 11. The applicant's submissions was contained in three documents, an affidavit in support of the Notice of Motion filed on 20/05/10, a document titled submission filed on 15/06/10 and a document titled Final Submission filed on 19/07/10.

 12. I make following observations about these documents:-

(i). firstly, the affidavit filed on 20/05/10 in general covered the basis for the motion; 
(ii).secondly, the document titled 'Submission' filed on 15/06/10, summarized the history of the dispute between the parties and in paragraph 2.2 only makes reference to an allegation of bias by the second respondent;
(iii).thirdly, the document titled 'Final Summary Submission' filed on 19/07/10 contained out of eight paragraphs only one at paragraph 2 made any mention of the events of 31/03/10, and the rest of the document covered the history of the dispute and allegations of defamation

RESPONDENTS' SUBMISSIONS

13. The respondent's submission were contained in four documents, on 31/05/10 filed three documents titled "The Respond-Statement on notice of motion", an affidavit sworn and filed on 26/06/10, a document titled 'Bekim Steitment bilong Notis of Motion' and a document titled 'The submission before Court Orders' filed on the 2/08/10 by the first respondent.

14. I note in respect of the documents filed by both respondents that in general they contain responses to the matters raised by the applicant in his documents and in support of their cause.

RELEVANT LAW

15. The principles relevantly applicable to injunctive reliefs in our jurisdiction are well settled and the Supreme Court in Chief Collector of Taxes v Bougainville Copper Limited  pointed out that Kandakasi.J in Golobadana No 35 Ltd v Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation)  had reviewed all case authorities on point from the earliest ones of Mt.Hagen Airport v Gibbs  and Public Employees Association v Public Service Commission  to subsequent ones like those in Markal Limited & Robert Needham v Mineral Resources Development Co. Pty Ltd  and AGK Pacific (NG) Ltd v William Brad Anderson Karson Construction (PNG) Ltd & Downer Construction (PNG) Ltd  and his Honour's conclusion was as follows:

"A reading of these authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is a discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant, then an injunctive order should not be granted." 

16.There is ample authority in our jurisdiction that, before the Court could grant an interim injunctive relief, the applicant must provide an undertaking as to damages and the Supreme Court in Chief Collector of Taxes v Bougainville Copper Limited  [2007] adopted Sevua.J's discussion on the law and practice on undertaking as to damages in the cases of Gobe Hongu Ltd v National Executive Council and Others  and National Housing Corporation v Yama Security Pty Ltd  The usual undertaking as to damages is a condition precedent to the granting of an interlocutory injunction.

RELEVANT ISSUE

17. The relevant issue is whether the orders of this Court of 9/02/10 have been breached by either party so as to allow for the said restraining order to be continued and its breach dealt with according to law.

18. I highlight this issue by posing the following relevant questions as follows:-

QUESTION ONE (1) 

Is there a serious question of law or fact to be determined on the substantive proceedings?

19. The substantive issue in this matter is a dispute over ownership of customary land and in these proceedings there have been a lot of evidence of this provided for by both parties. It is a dispute that has spanned decades and for some reason or rather it has not been adjudicated by the appropriate forum .The matter has come to the District Court in the past for deliberation of issues relative to the substantive issue and orders issued but an outcome to the substantive issue has remained elusive. The Applicant/Defendant who is from the Autonomous Region of Bougainville is adamant that he paid for the land in dispute on 19th July 1975 and bought it of his in-laws who are now deceased and that he has built his residence on this land and developed parts of it and has been derived of the benefits of his labours by the actions of the Respondent/Complainant over the last eighteen (18) years or so. The Respondent/Complainant argues that this is not true and asks for proof of this purchase and argues that it is not their custom to sell land to outsiders. The parties are brother-in-laws, the Applicant/Defendant being married to the Respondent/Complainant's sister and their relationship has been acrimonious to say the least. Times have passed on and in its passing witnesses in this matter have passed away hence the need for this dispute to be adjudicated is ever more pressing. I appreciate that this issue is for the substantive trial but on the same token I hold the view that it is equally relevant and pertinent to the question of balance of convenience.

20. It is for these reasons that I find that there is a serious question of law and fact to be decided.

QUESTION TWO (2)

Does the balance of convenience favour a continuity of such a relief to maintain the status quo?

21.To answer this question I consider what transpired in the Village Court proceedings.

22. On the 19/05/10 the appellant filed a Notice of Motion, seeking to move the Court for enforcement of its orders. I have further scrutinized his affidavit in support of the Notice of Motion filed on the 20/05/10 and note that the main basis for his Motion can be summarized as:- 

(i).firstly, that the mediation Coram was not legally composed; 
(ii).secondly, that the order made by the Wagi V.Ct mediation team was in contravention of the District Court order No.2 of 9/02/10;
(iii).thirdly, that the chairman of the mediation, Mr. Kaumaf Teng (Second Respondent) did not conduct the mediation in a fair manner.

WAS THE MEDIATION CORAM NOT LEGALLY CONSTITUTED?

23. On the basis of the documents filed by both parties it is clear that the Coram of the Wagi V.Ct on the 31/03/10 was comprised of the Chairman of the Wagi V.Ct, Mr. Nitu Aninat and other village magistrates and assisted by Mr. Micah Mer-Provincial Customary Lands Officer, Senior Sergeant Dumok-Staff Officer to the Provincial Police Commander,Mr. Rudolf Kaumaf Teng-Senior Provincial Land Mediator, Mr. Madai Baye and Komony Aup-Ad Hoc Mediators and Mr. Henry Itob Makul-Ward 2 Ambenob LLG member. Senior Sergeant Dumok was invited by the applicant to attend these mediation proceedings.

24. Section 37 provid es that the jurisdiction of a Village Court may be exercised by a number of V.Ct magistrates notwithstanding that the jurisdiction is being exercised at the same time by other village magistrates.

 Section 37. CONCURRENT JURISDICTION OF VILLAGE MAGISTRATES.

The jurisdiction of a Village Court may be exercised by a number of Village Magistrates notwithstanding that the jurisdiction is being exercised at the same time by other Village Magistrates.

25. I find on the basis of Sections 37 of the Village Courts Act that the Coram was legally constituted. The mediation was initiated by the Wagi V.Ct Chairman Mr Nitu Aninat and other village magistrates in compliance with the District Court orders of 9/02/10 and they in turn appointed the Senior Provincial Land Mediator, Mr. Kaumaf Teng to lead the mediation proceedings due to fact that this dispute was a very long and acrimonious one spanning decades between these in-laws and also because of his vast experience in mediating land disputes.

26. I find as well that the mediation team only assisted the Wagi V.Ct magistrates in mediating this dispute.

WAS THE ORDER BY THE WAGI V.CT OF THE 31/03/10 MADE IN CONTRAVENTION OF THE DISTRICT COURT ORDER NO.2 OF 9/02/10?

27. I find that the order made by the Wagi V.Ct on 31/03/10 did not contravene the District Court order No.2 of 9/02/10 for two reasons.

28. Firstly, I find that the Order made was in line with the primary function of a V.Ct which is to ensure peace and harmony in the area for which it was established by mediating in and endeavouring to obtain a just and amicable settlement.( Section 52-Village Courts Act ).

Section 52. PRIMARY FUNCTION OF VILLAGE COURTS.

The primary function of a Village Court is to ensure peace and harmony in the area for which it is established by mediating in, and endeavouring to obtain just and amicable settlements of disputes.

29. Secondly, I find that the Order did not contravene the District Court's Order No.2 of 9/02/10 but rather it accommodated it in allowing both parties to harvest what they had already planted on the disputed land and more importantly, it gave more effect to the District Court Order by specifically prohibiting both parties from planting any cash crops such as coconut, cocoa or fruit trees etc.( Section 43-Village Courts Act )

Section 43. DISPUTES IN RESPECT OF LAND.

A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to–

(a) its ownership by custom; or
(b) the right by custom to its use,
may, on the application of a party to the dispute, make an order–
(c) authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and
(d) where appropriate, prohibiting the use or occupation of the land referred to in Paragraph (c) except in accordance with an order referred to in that paragraph; and
(e) restraining the other party to the dispute from interfering with the authorized use or occupation,
or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court.

30.A last note I wish to make in respect of the said Wagi V.Ct Order is that I find it to be a very humane one especially in light of the current extended dry season and the fear that any order otherwise might result in negative outcomes whilst the substantive issue is still outstanding.

DID THE CHAIRMAN OF THE MEDIATION, MR KAUMAF TENG MEDIATE THE DISPUTE IN A MANNER THAT WAS UNFAIR TO THE APPLICANT?

31. There is an absence of evidence provided by the applicant to substantiate his assertions of bias on part of Mr. Teng other than what he has provided in one or two paragraphs of the documents he filed in support of his motion.

32. It was incumbent on him to provide independent evidence to support his assertions, this he hasn't done and this was to his peril. The law is on 'he who asserts' to prove See Shaw vs. the Commonwealth of Australia , Supreme court Ref. No.4 of 1980 (No 2), Kolta Development Pty Ltd + others vs. The State + Ors  and Bank of Hawaii (PNG) Limited vs. Papua New Guinea Banking Corporation + others .

33..I find therefore that Mr. Teng did not mediate the dispute in a manner unfair to the applicant and further that he was only part and parcel of whole mediation Coram and therefore did not mediate on his own.

34. What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardized if no interlocutory relief were granted. Then it becomes a matter of seeing if, in all the circumstances of the case the court should nonetheless exercise its discretion by declining to issue an interlocutory injunction. (See Robinson v National Airline Commission  )

35. In view of these circumstances I am of the opinion that not only has there been no breach of the said restraining order but that the Applicant/Defendant has misconceived his application in that after the failed mediation Mr. Teng advised both parties that since the dispute could not be resolved amicably thru mediation in the Village Court it was being referred to the formal stage of adjudication of customary land disputes, that being the Local Land Court and therefore this application has served no purpose other than to further prolong and frustrate an outcome to this dispute.

36. Secondly, the Applicant/Defendant has misconceived his application in that his application would have been properly made before the appropriate forum, the Local Land Court and not the District Court. (See .Agalu v Eno  DCJ.Injia )

37. Consequently though the Applicant/Defendant has an arguable case, the balance of convenience does not favour him on the above basis and the current restraining order in place against both parties be sustained until an outcome is reached by the appropriate forum, the Local Land Court.

ISSUE THREE (3)

Do the damages adequately compensate the applicant so that an injunctive order should not be granted?

38. The grant of an injunctive relief is an equitable remedy and it is a discretionary matter. This court must weigh up the interest of the Applicant/Defendant against that of the Respondent/Complainant. This court must also apply a fundamental principle on injunction and that is to consider whether it is reasonable to impose a restraint on the Respondent, or whether damages would be an adequate compensation.

39. There have been a few exceptions to the requirement for an undertaking for damages has been dispensed with. In Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No.1) Frost C.J found that the applicant was under receivership and was in no position to give any undertaking as to damage and deciding that it was not necessary to require such an undertaking in the interest of doing justice in the case. In the case of Kurt Reimann & Ors v George Skell and Kimbe Soccer Association  Kandakasi.J decided to dispense with the requirements for an undertaking as to damages as he was persuaded that no damages were likely to be suffered.

40. In the immediate matter I am of the opinion that no damages were likely to be suffered by either party from the time of filing of this application to its hearing, hence in the interest of doing justice I have dispensed with the requirement for an undertaking as to damages.

 DETERMINATION
 
 41. Finally in determination of this application I take note of the comments of Frost CJ in Mt Hagen Airport Hotel Pty Ltd v Gibbs & Anor :-

"The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action "where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo". No real principles can be laid down as to when they should or should not be granted except they are granted when "just or convenient" and what falls within that description must differ substantially from case to case. As Lord Denning M.R. said in Hubbard v. Vosper  

"In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead ... The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules."

42. In consideration of all the matters relevant to the balance of convenience, and the relative strength of each party's case, I tip the balance in favour of the Respondent/Complainant.

43. I strike out the notice of motion for being misconceived.

REMARKS

44. I find that the applicant is aggrieved by the Wagi V.Ct Order of 31/03/10 but he must realize that this is only a mediation order and it is temporal only in effect pending outcome of the substantive issue which is one of ownership of customary land and which can only be decided by a Local Land Court

45. In the Madang Province there is currently no functioning Land Court and the likelihood of one in the near future is dependent on the establishment of the Provincial Land Dispute Settlement Committee.

46. This is largely an administrative process that to date has already started being effected and I make these comments at this juncture in time as there are so many outstanding customary land disputes awaiting resolution in this Province by the Local Land Court.

47. In short the applicant still has an avenue provided in law to seek redress for his grievance and that is the Local Land Court.

Applicant in person
Respondents in person