DC2080
PAPUA NEW GUINEA

[In the Civil Jurisdiction of the District Court at Wabag]

DC No 60 of 2015

Between:
ENGA PROVINCIAL GOVERNMENT
(Complainant)

And:
MATHEW MINAPI
(Defendant)

Wabag: C Inkisopo

2015:	16th December

District Courts Act Chapter 40 – District Court, creature of statute and Court of limited jurisdiction – power/jurisdiction and parameter of their application clearly defined and demarcated –

Practice & procedure – application for dismissal of proceeding for being res judicata– common law principle res judicata – facts &circumstances constituting &applicability–

Land Act, 1996 – reservation of land for specified public purpose under s 49 of Act – legal effect of reservation – s 49 Reservation -vs-State Lease Title -

Land Act, 1996 - land subject of reservation under s 49later issued as State lease –– question of title issued overlandsubject of Reservation under s 49 –such an act foundinga bona fide disputeas to title -District Court’s jurisdictional injunctions under s 21 (4) (f) ofDistrict Courts Act –appropriate course for action wherebona fide dispute orissue as to title arises–

Practice & procedure at District Court defined and demarcated by Act – invocation of s 24(1) of Act to transfer matterto National Court for hearing and determination–

Practice & procedure – where matter deemed appropriate for transfer under s 24(1) of Act - extension of interim orders to maintainstatus quo –

Acts/Legislations/Rules/Authorities

1:	District Courts Act, Chapter 40
2:	Land Act, 1996

Case Authorities cited:

1:	PNG Harbours Board -vs-Breni Kora ([2005) N2634
2:	Southern Highlands Provincial & Local-Level Governments -vs- Kapipi &Embisi [1996] N1486

Appearances

1:	Mr Michael Kambao for the Complainant/Respondent
2:	Mr Joe Yapao for the Defendant/Applicant

16th December, 2015
JUDGMENT

C Inkisopo:	Applicant/Defendant Mathew Minapi (hereinafter called “the Applicant” filed an Application before this Court by way of a Notice of Motion seeking the following reliefs;-

(a)	Pursuant to s 22 of the District Courts Act, the entire proceedings be dismissed for being res judicata; in that the same Court haspreviously made orders in favour of the Applicant/Defendant regarding the same portion of land

(b)	Alternatively, the entire proceedings be dismissed for showing no reasonable cause of action in law

(c)	Costs be paid by the Complainant

(d)	Any other Orders the Court deems fit.

Existing Facts& subsequent Order giving rise to Application

2:	The Respondent/Complainant (hereinafter called “the Respondent”), the Enga Provincial Government took out from this Court (presided over by the Porgera based Magistrate) a certain restraining order against the Applicant from carrying out further ground works of earth removal etc to put up developments on a certain portion of land within the township of Wabag; more described as Section 19, Allotment 47located near the Wabag General Hospital grounds.

3:	The Complainant took out the action it did based on a Certificate of Reservation granted under s 49 of the Land Act granted in favour of the Department of Health for specified purposes; albeit for hospital extension & related purposes as the subject portion of land is located proximately adjacent to and nearest the Wabag General Hospital Grounds. Under theparticular circumstance of this case, the scenario or impetus of the Respondenthaving have initiated Court proceedings concerning a subject it would seem to havehad no conspicuous connection norrelation to in view of the fact that the subject s 49 Reservationwas made out to the National Department of Health of Boroko, National Capital District and clearly notto the Respondent; theEnga Provincial Government. Thisthen would seem to put to serious issue the immediate question of the Respondent’slocus standi in initiating this proceeding in the first place under its own name as opposed to being in a representative capacity. Though Applicant did not raise it, I do so of my own volition as I deem it to be inherently a relevant consideration in this case.

4:	Being that as it may however, I consider this question to beingquite negligible or of no serious consequence to the Respondent’s cause asit enjoys a special privilege of apresumption as to title in its favour as agent of the National Government in the Province. I therefore accept that Respondentdid possess thenecessary locus standito have taken the action it took in the instant case. See Southern Highlands Provincial & Local-LevelGovernments -vs- Kapipi & Embisi(1996) N1486, per Injia J (as he then was). Though the facts in that case with the instant are substantially different, I consider the principle(Provincial Governments being agents of National Government in the Provinces) to being relevant and applicable to the instant caseso I adopt the principle as being applicable herein; accordingly I consider locus standi to be a non-issue here.

5:	The Respondentsuccessfully secured a restraining order against the Applicant who was using machinery to cut open the hilly sloped portion of land and removing soil, dirt and rocks with the view to putting up developments. That developmental activity ceased as a result of the subject order for restraint.

6: Applicant is now in Court seeking to have that restraining order along with the substantive proceeding dismissed altogether for two base reasons;

	1:	Entire proceedingsbarred forbeingres judicata

	2:	Claim disclosing no reasonable cause of action

7:	In support of the Application, Applicant filed an Affidavit dated 17th November, 2015 sworn to by one Andrew Minapi who claimed to act for the Applicant Mathew Minapi under a Power of Attorney. This Deponent says he is the elder brother to the Applicant Mathew Minapi and annexed four (4) sets of documents to his Affidavit which are; 

•	A copy of Statutory Declaration duly signed before a Commissioner for Oaths by Mathew Minapi at Lae on 13th May 2014

•	A copy of a Wabag District Court Summons upon A Complaint titled DC No 73 of 2014

•	A copy of a 99 year AgricultureState Lease dated 18/11/2005 entered in the name of Mathew Minape

•	A copy of Wabag District Court Order dated 12th July, 2014

8:	The Respondent filed nothing in response to the Application. The Application first came before this Court on 26th November where both counsels appeared; Mr Joe Yapao of Mackenzie Lawyers appearing for the Applicant whilst Michael Kambau, the Provincial Legal Officer (PLO) did for the Respondent.	The Applicant’s Notice of Motion was with the consent of both Counsels fixed for hearing to 15th December, 2015 at 9am.

9:	This Application was the first business of the Court on that day when both Counsels were heard of their argumentsfor their respective clients.

Applicant’s case

10:	Mr Yapao for the Applicant argued that:

•	The entire proceeding instigated by the Respondent wasres judicata: in that, this matter has already been dealt with by this Court and a formal order issued in the Applicant’s favour as being the registered lease holder. He referred to Annexures “B” and “D” of Andrew Minapi’s Affidavit in support of his pleadingres judicata. Annexure “B” is copy of a District Court Summons Upon a Complaint and Statement of Claimsub nom DC No 73 0f 2014 taken out by one Andrew Minapi for and on behalf of Mathew Minapi against Pisara Pambai, Minjuk Pambai, Imbuni Pambai, Nilini Pambai and Sangapen Leketam seeking restraining orders from threatening and interfering with the development of the subject property by the Applicant.

•	Mr Yapao next argued that the Respondent’s claim did not and could not show a reasonable cause of action in law; as his client Mathew Minapi is the registered leaseholder of the subject portion of land and referred the Court to Annexure “C” of Andrew Minapi’sAffidavit which is copy of a 99 year Agricultural State Lease entered in the name of Mathew Minape. He argued that his client was the lease holder to the subject portion of land and that Respondent’s Claim cannot and should not constitute a reasonable cause for action at law such as in this case.

Respondent’s Case

11:	Mr Kambau speaking for the Respondentresponded by contending;

•	Firstly;res judicata did not apply;as Respondent was not a party to that earlier Court proceedingApplicant was talking about. Applicant’s targeted Defendants in that case were separate private individuals who were all sued in their own individual names and in theirpersonal capacities and did not involve the Respondent at all in any form, manner and capacity. Respondent was not bound by that earlier District Court adjudgment andtherefore res judicata cannot apply to bar the Respondent from taking out that initial restraining order which triggered this Application.

•	He next argued that the Respondent as the local State Authority possessed a valid Reservation grantedto a recognized State Agency under s 49 of the Land Actover the subject portion of land; which he argued was somewhat an equivalent toor higher authority thanan ordinary State Lease normally issued to private and corporate individuals. He referred the Court to Annexure “C” of the Affidavit of Melepai Yakili dated 17th July, 2015 which is copy of a certificateof Reservation Grant made under s 49 of the Land Act, 1996 granted to the Department of Healthfor specified purpose(dated 22/12/2003) by a Romily Kilapat, the Delegate of the Minister for Lands & Physical Planning.

Assessment of Parties’ respective cases

12:	During submissions, both Counsels made oral submission but each did not refer me toany case law authorities to support their respective cases, even though I thought they should have, as the issues they were raising touched important legal questions that this Court has had to resolve. In any case, both Counsels provedof little helpto the Court; rather leavingall of their legal baggage at my front door to sort out. And doing my best under the circumstance and given the limited legal resource material available to me here at Wabag, I willattempt to give my best todiscuss the legal issues apparent herein and attempt as best I can to resolve them.

13:	Applicant through Mr Yapao argued strongly that this proceeding by the Respondent was barred for beingres judicata; in that a previous Wabag District Court Order regarding the same portion of land had already been decided in favour of his client (the Applicant) as being the Registered Lease title holder. For that contention; Iwas expecting Counsel to take his arguments further with supporting case authorities butCounsel did notgo further. He seemed to be content with just referring to his client’s earlier Wabag District Court proceeding; copies of which were duly furnished.

14:	Opposing Counsel was not of much help either; let alone arguing that his client was not a party to that earlier Wabag District Court proceeding,so he argued; res judicata did not apply asa bar to the Respondent’s current claim.

The law

15:	Res judicata as a common law principle applies in appropriate cases in this jurisdiction as part of the underlying laws of Papua New Guinea under Schedule 2 of the National Constitution. The Latin maximres judicata is defined by Osborne’s Concise Law Dictionary 7th edition (1983) by Roger Bird as being: “A judicial decision is conclusive until reserved and its verity cannot be controverted. Res judicata presupposes that there are two opposing parties, that there is a definite issue between them, that there is a tribunal competent to decide the issue, and that within its competence the tribunal has done so. Once a matter or issue between parties has been litigated and decided, it cannot be raised again between the same parties, but other parties are not so bound”.This principle would seem to operate asa bar toabuses in protracting litigations by re-litigating matters already previously heard and dealt with fully by Courts of competent jurisdiction. The Oxford Dictionary of Law 4th edition (1997) provides the justification for the principle’s existence in the English common law as: -“Its justification is the need for finality in litigation.”

16:	In our jurisdiction, the higher Courts have had occasions in a few cases where the principle has been considered and pronunciations made and the circumstances as toits applicabilityhaving been established. A lucid statement of the law on thisprinciple and its applicability was succinctly expounded by Injia DCJ (as he then was) in PNG HarboursBoard -vs- Breni Kora [2005] N2834 where the learned Deputy Chief Justice elucidated the principle as follows;-

“For the Defence of res judicata to succeed, the party relying on it must show:

(a)	The Parties in both cases are the same,
(b)	The issues in both cases are the same,
(c)	The previous judgment extinguished the foundation of the action. The result is final and conclusive and it binds every other Court,
(d)	A Court of competent jurisdiction made the first decision.” 

17:	Mr Yapao of Mackenzie Lawyers speaking for the Applicant raised this principle as one of his client’s main grounds for the Application. However, he did not take the argument further with any case authority in support to any greater height but made onlya perfunctory reference to it during submissions by referring the Court to Annexures “B” and “D” of Andrew Minapi’s affidavit of 17/11/2015 which were copies of Wabag District Court proceedings and a formal Court Order on same.

18:	The discussion below on the question of the applicability of the principle here as I find it in this case will show that this current Application does notmeet any of the above required features for Applicant to takeavail of.  Of significant note is the fact that, the Respondent was not a party to that earlier District Court proceeding. The issue involved in that earlier proceeding was a Restraining Orderclaim from threatening and interference against several named individuals other than the Respondent whilst the present case concerns a Restraining Order claim against the Applicant from carrying out earth removal from the subject portion of land.

19:	Next, the partiesto the previous case that Applicant was referring to involved completely different; Applicant instigating Court proceeding against five (5) separately named individuals from threatening and interfering with his efforts to developing the subject property.Secondly. The issue concerned in both cases were both Restraining Order claims but involving completely different people and different types and nature of restraining orders.

20:	From the above contrasting exercise, it will become clearerthatApplicant’s claimthatres judicataapplied in this case cannot hold; as the parties are completely different in both cases; hence res judicatacannot and does not apply to our instant case to bar the Respondent’s present Court action.

I therefore find thatres judicatadoes not applyin this case;and accordingly,I dismiss Applicant’s contention ofRespondent’s claimbeing barredbyres judicata.

Section 49 Reservations as against State Leases under the Land Act, 1996

21:	Counsel for Applicant next emphatically argued that his client is the legally registered lease title holder to the subject portion of State land and;consequently the Respondent’s claim cannot have disclosednor shown any reasonable cause for action at law; and therefore the entire proceeding initiated by the Respondent should be dismissed.

22:	In putting forth that argument, Counsel referred to Annexure “C” of the affidavit of Andrew Minapi of 17/11/2015 which is copy of a State Agriculture Lease entered on 18/11/2005 for a period of 99 years in the name of Mathew Minape. I understood and very much appreciated Counsel’s point in making the submissions he made, thereby prompting an irresistible question; on what legal basis was the Respondent able to secure an Eviction Order ironically against the very title holder. In pressing that submission, Counsel for Applicant argued strongly that his client’s registered lease title took precedence over all other interests and rights short of actual legal title including s 49 Reservations under the Land Act, 1996

23:	Applicant’ssuch emphaticsubmissions, prompted me to peruse both sets of the documents carefully and took notes of the following information peculiar to each set of documents before me;

(i)	The s 49 Reservation wasmade for the subject portion of landand entered on 22/12/2003 in favour of the Department of Health of P O Box 3991, BOROKO, National Capital District

(ii)	The State Agriculture Lease title was issued over the subject portion of land on the other hand is shown to have been entered in the name of Mathew Minape for 99 years and dated18/11/2005

24:	In order to have a better grasp and a fuller appreciation of this concept of Reservations under s 49 of the Land Act, 1996 I have looked and relookedat the Act itself under Part V of the Act andhave noted the texts of that provision to beingin the following terms;

Section 49	Reservation of State land from lease or further lease

	“The Minister may, by notice in the National Gazette, reserve from lease or further lease 

(a)	Government land; or
(b)	Land that is the subject of a State Lease,

that he considers is or may be required for a purpose specified in the notice.”

25:	Given the limited access to legal resource material available to me here at Wabag to help me better discuss the argument that Counsel for the Applicant put forth; (that his client’s legal State Lease Title took precedence over all other interests including s 49 Reservations) the only resource material immediately available to enable me consider the issue is just the Act itself. I am also greatly disadvantaged in not being favoured with any case authorities cited and referred to me by any one or both Counsels (if any decided and existingon point in this jurisdiction) touching the legal effects of State Leases as against s 49 Reservations; whether a State Lease takes priority over s 49 Reservations as Applicant through his Counsel claimed. Counsel made only a bare mention of it in submission that his client’s lease title took priority over other interests did little to lend me much guide.

26:	Doing my level best under the circumstance, I’ve read and re-read s 49 of the Act and do take note of the following;

The Minister may, by notice in the National Gazette, reservefrom lease or further lease
•	Government land or 
•	Land subject of State Lease for a specified purpose
…

27:	I am made to understand from my reading of the phrase “The Minister may reserve from lease to mean the Minister may reserve a government land from later being granted as a State Lease; in that a Reservation under s 49 over a portion of land could not become subject of a subsequent State Lease; the antithesis being, it may not be lawful to later grant the land subject of s 49 Reservation subsequentlyas a State lease. In other words, s 49 Reservation would seem to take precedence over State Leases simply because the statement of the Act is very clear where it says, the Minister may… reserve from lease or further lease… which in my view effectively means to be reserved or set aside from being issued subsequently as a State Lease. That is how I understand the legal effect of this provision to be; in the absence of decided case law authority on this point to the contrary; and if a case on point does exist that I am ignorant of at the time of my writing this report, I seek leave to stand corrected on that point. 

28:	But until such time I am shown to be in error, I will proceed on thepremise that s 49 Reservationsgranted to the State itself and its Agencies for specified and public purposes in my humble view must take precedence over State Lease Titles issued over State lands to private and/or corporate individuals. Hence for security of occupation, entitlementand indefeasibility of title purposes, I hold the humble view that where a s 49 Reservation is granted over a portion of land, that particular portion of land may not lawfully and legally become subject of a subsequent State Lease. In other words, any subsequent lease title issuedover a portion of State land that has already beenrendered subject of a previous s 49 Reservation wouldin my view be legally improper and against the intent of the Legislature to give s 49 Reservations preference over all other interests.

29:	Hence, in my view, a s 49 Reservation granted over any portion of State land may not becomelegally available to being subject of subsequent grants as State Leases because the provisionof the Land Act explicitly provides that such a land subject of s 49 Reservation is reserved from lease or further lease; meaning it is set aside for specified purposes and not available for subsequent issue as State Leases.

30:	 On the strength of the above discussion, I reject Mr Yapao’s argument that his client’s State Lease title took precedence over the s 49 Reservation.From the above discussions, in my humble view, serious questions are bound to be laid on the Applicant’s front door, questions such as;

•	How would Applicanthave been granted a 99 year State Agriculture Lease title over a property that is subject of an existing s 49 Reservation granted on 22/12/2003 whilst the 99 year State Agriculture Lease seemingly was issued two (2) years later on 18/11/2005.

•	This discussion leads me to another crucial issue in as far as questions impinging upon my jurisdictional limitationas a District Courtunder s 21 (4) (f) of the District Court Act is concerned.

•	How would Applicant have been granted a State Agriculture Lease Title when the subject portion of land (I take judicial notice of the subject land from my own personal knowledge and my own physical observation of it) isclearly a rock faced hilly portion of land that to my mind isnot suitable for any agriculturepurpose at all; and besides the subject portion of land is located within the township of Wabag.

31:	 My above discussion on the legal effect dichotomy between the s 49 Reservation anda State Lease Title is already dragging me into the realm of the jurisdictional injunction imposed on me by s 21 (4)(f) of the District Courts Act Chapter No 40. It seemsclear to my mindthat I have here before me a case rendered having a bona fide dispute as to title which renders this Courtjurisdictionally devoid in dealing further with this matter. I say this because of several pertinent questions I deem apparent in this case flowing from the above discussions - questions such as;-

•	The question of s 49 Reservation having been granted over the subject portion of land on 22/12/2003 andasubsequent StateLease issued over the very same portionof land two (2) years later on 18/11/2005

•	And the corollaryand connected question arises:how would a State Agriculture Lease Title have been legally issued and transmitted to Applicant over the verysame portion of State land that has two (2) years previously been made subject of a Reservation Grant madeunder s 49 of the Land Act for a specified purpose; ostensibly for public health purposes as the Wabag General Hospital is locatedproximately adjacent to the subject State land. 

32:	A further question looms in this case; thatonly the National Court alone can consider and resolve any a question that impinges on the type ofState Lease Applicant was issued with. On the face of the title deed, the lease is a 99 year State Agriculture Lease. To someone knowledgeable and well-versed with the subject portion of land within the township of Wabag, the immediate irresistible question arises;how would this portion of land have become subject of a State Agriculture Lease when it is not in any way suitable for any agriculture purposeat all.

33:	This is one of a number of issues that in my view is necessarily spawnedby this case that only the National Court can address and resolve. As I have already found on the question of the jurisdictional limitation of this Court, it is only proper and appropriate that this Court invokes its transfer powers under s 24(1)of the District Courts Act to transfer same up to the National Court for that Court to deal with and determine the matter and the associated issues involved to a complete finality.

Transfer Order under s 24(1) of District Courts Act Chapter 40

34:	On the back of the above discussion, I consider it necessary and more appropriate that this matter be transferred to the National Court as the proceedings and the attendant issues spawned by itare such that they could have been instituted before the National Court in the first instance.

Ancillary Orders to preserve & maintain the Status quo
				
35:	At the instance of the order for transfer, Mr Kambau speaking for the Respondent pressed for the existing interim restraining Orders of this Court dated 22nd July 2015 to be extended while the proceeding is transferred to the higher Court. Opposing Counsel counter-argued emphatically that the interim order be discharged forthwith as the matter is effectively leaving the hands of this Court and going upstairs where this Court no longer assumes and maintains any jurisdiction over.

36:	While I appreciate Mr Yapao’s point;in my view s 24(1) of the District Courts Act empowers this Court making such orders to stay proceedings on such terms asto it seem just.In my view, that provision gives this Court powers to make appropriate orders where it deems appropriate in the circumstance.I do not accept that this Court is automatically made devoid of its residual powers to make appropriate orders just because the matter was leaving its handsby virtue of its order for transfer under s 24(1) of the District Courts Act.

Furthermore, the balance of convenience favours the extension of the interim restraining order of this Court for the reason simplybeing to preserving and maintaining the status quo while the matter goes upstairs for resolution. For if the interim restraining orders were to lift, the Applicant will likely cause irreversible changes and undertakesubstantial developmental projects on the subject portion of land such that if the National Court is to determine against the Applicant, it will likely result in avery uncomfortable scenariothat no amount of money or compensation paid will reverse what would likely have taken place between now and the date of the National Court determination. 

37:	I therefore consider it sensible and more appropriate to take a neutral ground for both parties’ benefit and interest byway of extending the Interim Orders until the matter is fully and finally dealt with and determined by the National Courton thematterand the attendant issues so transferred for appropriate determination.

Formal Orders of the Court;

1:	Pursuant to s 24 (1) of the District Courts Act Chapter No 40, the entire matter of this proceeding together with the several attendant issues so identified spawnedby it shallbe wholly transferred to the National Courtfor hearing and determinationas the proceedingsare such that theycould have been instituted before the National Court in the first instance

2:	The whole of the proceedingsin this matter before this Court are stayed forthwith.

3:	The Interim Restraining Orders of this Court of 22nd July, 2015 are hereby extended so as to preserve and maintain the status quo whilst the matter and the attendant issues so spawned are dealt with and determined upstairs.

4:	Costs shall be in the cause.

_______________________________________
Lawyers:

1:	Mackenzie Lawyers - Lawyers for the Applicant/Defendant

2:	Enga Provincial Administration Legal Services Unit - Lawyers for the Respondent/Complainant

****************