Kinawa v Angope [2007] PGDC 8; DC501 (28 May 2007)

DC501

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 910 OF 2007

BETWEEN

DR SALI KINAWA FOR AND ON BEHALF OF JOSEPH KINAWA
Complainant

AND

MALINGA ANGOPE
Defendant

PORT MORESBY: C BIDAR, PM
2007: 28 May

District Court – Practice and Procedure -
Application to set aside orders made interpartes – Principles
District Court – Jurisdiction – Value of property exceeds K10, 000.00

Real Property – Deceased estate
Deceased died- Interstate
– Wills Probate and Administration Acts s 79
District Court Act s 21(4)(a)
Public Curators Act s 14

Cases Cited
There are no cases cited in the Judgment.

Counsel
Dr S Kinawa, for Complainant/Applicant (with leave of Court)
A M Ona, for Defendant/Respondent

RULING

28 May 2007

BIDAR C PM: The Defendant (applicant) filed an application by way of Notice of Motion on 25 May 2007 which seeks the following orders.

"1. Leave be granted for requirement of service to be dispensed with.

2. The District Court Orders of 26 September 2005 be set aside pursuant to s 2(1)(a) of the District Court Act, in that the District Court lacks jurisdiction as the subject monetary value in the sale of the subject property as K60, 000.00.

3. Alternatively the District Court Orders of 26 September 2005 be set aside pursuant to s 21(4)(a) and (f) of the District Court Act.

4. In the alternative the District Court orders of 26 September 2005 be set aside pursuant to s 79 of Wills Probate and Administration Act for want of jurisdiction.

5. Proceedings brought under the present action be dismissed for duplication and abuse of court process.

6. Consequently orders on the grant of orders in terms 1, 2 and 3 is to discharge and withdraw the warrant of arrest issued by the District Court on the 18 May 2007 executed on 23 May 2007.

7. Costs of and incidental to this application be borne by the Complainant.

8. Any further orders the court deems proper.

2. To understand the basis of the orders sought it is necessary to state briefly the background to these proceedings.

3. In 2005 a District Court proceedings DC 2922 of 2005 was filed by Joseph Kinawa against the defendants Malingi Angope, Abu Palugo, Michael Jesuri and others on 25 August 2005.

4. The claim was for trespass on a portion of land described as portion 2276 Bomana, turn off, National Capital District. On 26 September 2005, this court found the defendants to be trespassers on portion 2276 and ordered for them to be evicted from the said portion.

5. Defendants filed an appeal to the National Court. On the 16 February 2006, the appeal was withdrawn with costs to the respondent. The effect of this that the District court order of 26 September 2005 is in tact, and enforceable.

6. On 2 May 2007, the Complainant filed new District Court proceedings bearing DC 910 of 2007 (DC 910/07) basically to enforce the District Court orders of 26 September 2005. Complainant perhaps did not have benefit of counsel, when he filed the recent District Court proceedings. In any event, in my view, it is not completely a new proceedings, but an enforcement proceedings, due to the defendants continuous refusal to comply with the District court orders to vacate the property in question. Defendant was served summons to appear which he failed to do so on 16 May 2007, which resulted in warrant of arrest being issued for his apprehension. On the 23 May 2007, he was arrested.

7. Reverting to the defendant’s application which is supported by an affidavit sworn on 24 May filed on 25 May by his counsel Mr Anave Megaraka Ona. Counsel deposed to various facts including commencement of the proceeding in August 2005.

8. The principles governing setting aside of ex-parte orders or Default Judgments are, well established in our jurisdiction. There are a string of case law which state clearly what the principles are for instance Green and Company v Green, Baker v Government of Papua New Guinea.

9. Basically, the principles are these, in a case where judgment is regularly entered, an application to set aside must be made promptly, a reasonable explanation as to why judgment was entered ex-parte or by default and there must be affidavit material setting out a defence on merit.

10. For Judgments which are irregularly entered, as a matter of law should be set aside on application.

11. The present proceedings does not involve an ex-parte set of orders or default judgment.

12. The orders of this court dated 26 September 2005, were made inter-partes. In other words both the complainant and the defendant were represented in court when the orders were made.

13. Right from the beginning of this application it is misconceived, should be refused on that ground alone.

14. Secondly, the application raises the issue of jurisdiction of the court which dealt with initial complaint in 2005 and made the orders. The defendant in this application asks this court to set aside the orders of another District Court, which this court is not vested with such powers to dose. The arguments relied on which go to jurisdiction of the District Court, would have been a proper argument before the appellant Court. The orders made on 26 September 2005, by the District court were made inter-partes.

15. As to filing of proceedings DC 910/07 on the face of it, it appears to be a new proceedings but the substance of the proceeding is merely an attempt to enforce the orders of this court dated 26 September 2005.

16. Based on the reasons given this application fails.

17. The application filed by the Defendant on 25 May 2007, is refused with costs.

_______________________________

Lomai and Lomai Attorney, for the Applicant/Defendant
Dr S Kinawa with leave of Court, for the Complainant/Respondent