Nohou v Paki [2007] PGDC 110; DC652 (16 November 2007)

DC652

PAPUA NEW GUINEA
[IN THE DISTRICT COURT
SITTING IN IT'S CIVIL JURISDICTION]

DCCi. 421 OF 2003

BETWEEN

BILL NOHOU
Respondent/Complainant

AND

REX PAKI
(Interim Liquidator)
First Applicant/First Defendant

AND:

PNG COCONUT COMMODITIES LTD
(in Interim Liquidation)
Second Applicant/Second Defendant

Madang : M Selefkariu, PM
2007 : November 16

MOTION : Leave to include Coconut Oil Madang Ltd as third defendant - ex parte Order dated 5 December 2003 be set aside - second and third defendants have vacant possession of the property at Section 59 Allotment 9. Belmon St, Madang Town.

SETTING ASIDE EX PARTE ORDERS:

Principles of law as in the leading cases of Barker v. PNG (supra) and Green & Co. Pty Ltd v. Green (supra): (a) There must be an affidavit stating facts showing a defence on the merits, (b) There must be a reasonable explanation why judgment was allowed to go by default, and (c) The application must be made promptly and within a reasonable time.

INJUCTION : Interlocutory injunction is a temporary measure taken at an earlier stage in proceedings before the Court has had the opportunity to hear and weigh fully the evidence on both sides. It is generally expressed to continue in force "until the trial of the substantive action or complaint".

DISTRICT COURTS ACT:

Section 22 – Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it grant such relief, redress or remedy or combination of remedies, whether absolute or conditional, and 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.

CASES CITED:
1. Barker v. The Government of PNG & Ors [1996] PNGLR 340.
2. Green & Co. Pty Ltd v. Green [1976] PNGLR 73
3. Mt. Hagen Airport Hotel Pty Ltd v. Gibbs [1976] PNGLR 216

LEGISLATION:
District Courts Act, Chapter 40

SELEFKARIU (PM): This is an application by way of a notice of motion, inter alia seeks the following orders:- (a) Leave of Court to join Coconut Oil Madang Ltd as a Third Defendant in this proceedings. (b) The ex parte order of 5 December 2003 be set aside (c) The second and third defendants have vacant possession to the property described as Section 59 Allotment 9, situated at Belmon Street Madang.

1. In support of the motion the applicants filed and relied upon the affidavit of Goiye Gileng, a lawyer with Blake Dawson Waldron Lawyers who act for the applicants. Mr Gileng’s affidavit was sworn on 10 October 2006 and filed on 13 February 2007.

2. On the respondent’s side the respondent himself swore and filed an affidavit on 21 March 2007. Then both sides filed written submissions which were filed on 4 July and 27 July 2007 respectively.

BACKGROUND

3. This Court intends to adopt wholesale the information contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16 & 17 of Mr. Gileng’s affidavit as they succinctly deal with the chronology of events leading to the District Court order the subject of this proceedings.

4. The Complainant was formerly employed as a Deputy General Manager for Kokonas Indastri Koporesen ("KKK") formerly known as Copra Marketing Board of Papua New Guinea.

5. The Complainant was transferred to Madang in 1999 and he was given a property described as Section 59 Allotment 9, Belmon Street Madang ("the property") owned by the second defendant to reside in.

6. The Second Defendant is a subsidiary of KIK. Whilst the Complainant was in Madang, he was terminated following a dispute with KIK.

7. The Complainant commenced proceedings at the National Court under OS 511 of 1999 for orders, among other things that he was made redundant by KIK and that he did not resign from his employment.

8. In August 1999, the Complainant obtained an ex parte order against KIK retaining it from evicting him from the property.

9. On 6 September 1999, the ex parte order was returned before Woods J. as he then was. After hearing submissions, His Honour held that the Complainant’s entitlement, if any, lies in damages and that he should not be allowed to continue to reside in the property as the corporation as a going concern must continue to function without undue constrains. His Honour therefore dissolved the ex parte order.

10. In September 2000, KIK applied to the court by way of a motion for among other things, an order that the Complainant give vacant possession of the property.

11. On 19 September 2000, the application went before Sheehan J. After hearing the submissions, His Honour declined the application for vacant possession but ordered that the other properties such as the car mobile phone and computer laptop be returned to KIK. His Honour further commented that any damages suffered by KIK as a result of the continuing occupation by the Complainant can be recovered from his entitlements.

12. On 2 October 2001, the Second Defendant applied to the court under OS 608 of 2001 for an order that the Complainant give vacant possession of the property. His Honour Kandakasi heard the application on 8 March 2001 and declined to grant the orders sought therein. His Honour reasoned that PNGCC is a subsidiary of KIK and that the interlocutory order in OS 511 of 1999 is subject to an appeal. The court further suggested that the parties must attempt to settle quickly to avoid further damage being suffered by KIK.

13. On 20 August 2001, His Honour, Justice Sheehan as he then was considered the substantive issue in OS 511 of 1999 and held that the Complainant was made redundant by KIK and ordered that his final entitlements be calculated in accordance with the formula for redundancy.

14. In all the above orders there was no specific order that the Complainant continue to stay on the property.

15. The parties entered into negotiations to settle on a "without prejudice" basis on how much the Complainant should be paid following the Court Order dated 20 August 2001.

16. On 5 December 2003, the Complainant applied to this Court and obtained Ex-parte Order restraining the Second Defendant from evicting the Complainant or to dispose of the property.

17. On 31 January 2005, the first defendant through his lawyers, Narokobi Lawyers applied to the District Court inter alia to set aside the ex parte order entered against him and to remove his name as a party to the proceedings. This application was struck out for want of prosecution on 16 August 2005.

18. The present application was filed on 13 February 2007 and pending judgment of this Court.

19. ISSUES

In these type of proceedings the legal issues are:

1. There must be an affidavit stating facts showing defence on the merits,

2. There must be a reasonable explanation why judgment was allowed to go by default, and

3. The application must be made promptly and within a reasonable time.

20. According to the previous court depositions the respondent who was then the complainant/applicant filed an affidavit of service dated 26 November 2003 and deposed that he served the first and second defendants copies of these documents; complaint, application and affidavit in support of application by hand delivering them to the defendants on 17 November 2003 at the second defendant’s office along the Modilon Road, Madang at 2.45pm and later served the defendants notice of hearing and notice to amend application for ex parte hearing again by hand at the second defendant’s office long Modilon Road, Madang at 3.00pm on 26 November 2003.

21. At the close of evidence there is no evidence given by the applicants to explain why judgment was allowed to go by default. There is no contest on the nature of service as to whether it was proper. The order was made on 5 December 2003 and the present application was only filed into court on 13 February 2007. On the face of it the application was not prompt.

22. According to the evidence, there have been pieces of correspondence entered into and exchanged between the two law firms representing the second applicant and the respondent. In the evidence there is no clear evidence as to when service of the order the subject of this proceedings was made on the second applicant’s lawyers. There is also no explanation from when the second applicant’s lawyers were served the order up until 13 February 2007 for the filing of the present application as to the cause of delay.

23. On the third issue the evidence before Court is by a lawyer having carriage over the matter. Such that he is only relying on information or instructions briefed to him.

24. The pieces of documents purporting to be the title over the property at Section 59, Allotment 9, Belmon Street Madang are not properly put before court by authorized person acting for the company, second applicant such that it raises question on their authenticity and admissibility.

25. Based on the best evidence rule, in my opinion, a company secretary should have been a proper person to attest to such evidence. Without which I think it to be improper and renders such evidence to lack credibility and weight.

26. Even annexure "L" of Goiye Gileng’s affidavit identify the property as Section 64 Allotment 9 whilst the property described in the motion is Section 59 Allotment 9. I wonder if they are the same property. In relation to the part of the motion to set aside the order dated 5 December 2003, the subject of this proceedings I am not satisfied with the present evidence as alluded to above.

27. In relation to the part seeking leave to include Coconut Oil Madang Ltd as a party and to join as third defendant, I find that there is not a shred of evidence to prove their interest so as to join them in this proceedings.

28. In relation to the part where the applicants have asked for vacant possession of Section 59 Allotment 9, Belmon Street, Madang to the second and third defendants again there is no evidence.

29. Even if there were evidence I think the proper process is to lay a complain pursuant to Summary Ejectment Act after a successful motion setting aside the interlocutory order the subject of this proceedings. No doubt the property, its value would have been well over K10,000.00, which exceeds the monetary jurisdiction of the District Court. The only way to bring the Court into jurisdiction is to proceed under the Summary Ejectment Act as per Section 21 of the District Courts Act.

30. In the submissions the applicants discussed the law on injunctions. Injunctions are equitable remedies and are classified as follows:

1. Mandatory or prohibitory
2. Interlocutory or perpetual
3. Mareva or Anton Piller.
   

31. The present injunctive order given by this Court on 5 December 2003 and subject of this proceedings in an interlocutory injunction. This injunction is a temporary measure taken at an earlier stage in proceedings before the Court has had the opportunity to hear and weight fully the evidence. Such is generally expressed to continue in force "until the trial of the substantive action or compliant".

32. I agree the law on injunction is now settled law in this jurisdiction. But I think the argument before Court and put forward by the applicants is misconceived. It is misconceived because this issue should have been argued before the first instance Court on 5 December 2003 to determine whether to grant or to refuse the grant of the interlocutory injunction that forms the subject of the present proceeding.

33. We must bear in mind that this Court is not an appeal Court nor a court of review. But as for obiter I tend to make some observations inview of the laws governing the practice and procedure of Court when dealing with such issues.

34. According to the records of the depositions the respondent who then was applicant/complainant filed together into Court a complaint and an application on 18 November 2003. This I believed was made after similar orders for restrainment made by National Court in August 1999 was not allowed to continue by National Court on 6 September 1999 as the presiding Judge held that the respondent’s remedy lies in damages.

35. The process laid appear proper pursuant to the forms, practice and procedures of the District Court. But what the Court did not realized was that the complaint was for entitlements whose value were well over the monetary jurisdiction of the District Court, Section 21 of District Courts Act. The District Court when accepting the complaint and dealing with the application acted ultra virus its jurisdiction as it could not come back to determine the substantive complaint. We ought to remind ourselves that the District Court is a court of summary jurisdiction and with limited jurisdiction. Section 22 of District Courts Act is in the following terms:

"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 grant such relief, redress or remedy, or combination of remedies, whether absolute or conditionals, and 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." (underline mine).

This provision in a number of cases have been used mischievously by the litigants.

36. In my view the District Court must receive and register a cause of action (a complaint) and the cause of action must be within its jurisdiction (Section 21 of District Courts Act) and having satisfied itself it can then grant such relief, redress, or remedy or any of their combinations whether absolute or conditional, whether legal or equitable and in a manner as the National Court would have granted.

37. If the complaint is for a cause of action that exceeds the jurisdictional requirement of s. 21 of the District Courts Act then the Court has acted ultra virus and the order incidental is void.

38. In my opinion I think it is procedurally wrong for the District Court to make orders concerning a matter before the National Court. However we ought to consider the level of National Court service to remote areas where only the District Court services are provided. And so in some quarters certain conditional orders may be entered into mischievously by the District Court but in the practical situation it may appear reasonable. However at the earliest opportunity the party in whose favour the order was made ought to cure it before the competent court.

39. In the present case it is other than that. The respondent had done the correct thing to file an originating summons before the National Court and had been granted similar orders but than the National Court refused to extend the orders for reason that his remedy lies in damages. But till now it appears the parties are still at loggerheads over the amount of payable damages to the respondent.

40. The respondent complained about unpaid repatriation cost to enable him to vacate the property and I wonder if it has been paid. Even though the current interlocutory orders maybe void I refused to set aside for lack of evidence.

41. I think the National Court reluctance to deal with the vacant possession of the property clearly shows that the court demands that the parties get on with their negotiations and have it settled quickly to avoid inconvenience and cost.

42. In summary and in relation to the present motion this Court rules as follows:-

1. Leave be granted to the Coconut Oil Madang Ltd to be joined as a Third Defendant is refused.

2. The ex parte order dated 5 December 2003 be set aside is refused.

3. The second and third defendants have vacant possession to the property described as Section 59 Allotment 9, situated at Belmon Street Madang within 3 days from the date of this order is refused.

43. Having considered the issues pleaded and those contested on the hearing or the ones considered in judgment I have decided that no order should be made on either sides as to costs.

For the Applicants, B Waipek of Blake Dawson Waldron Lawyers
For the Respondents, In person.