Kale v Dorum [2013] PGDC 1; DC2042 (30 September 2013)

DC2042

IN THE DISTRICT COURT OF PAPUA NEW GUINEA
HELD IN KUNDIAWA

DC NO 15 of 2013

BETWEEN

ANDREW KALE
(Defendant/Applicant)

AND

MARK ALKAN DORUM
(Plaintiff/Respondent)

Magistrate: Josephine Kilage, Kundiawa
30th September 2013

Civil Court: In laws- verbal agreement involving sale of a property. The Defendant alleged that he had made payment in lieu of purchasing the property. While the Plaintiff stated that any money given to him was rent and not part payment of the property.

The substantive matter was heard and the decision was made that the Applicant was given two months to vacate the premises. The matter before this court is a Notice of Motion to have the decision to evict the Defendant stayed and the Defendants be allowed to stay on the premises for a further three months.

Procedural Issues: Can a notice of motion be made to stay or extend an order pending the prosecution of a related case in the National Court when the applicant has failed to use all legal recourse available to him?

Case Law: None cited.
Parties to the proceeding:
Mr Peter Tamagle- Warner Shand Lawyers: For Applicant
Mr Wisil Wapip –Public Solicitor's Office: For Respondent

Corum: Kilage-Bal

I had declared my interest in being related by marriage to the Applicant to both Counsels. I informed them that there were no other magistrates in Kundiawa and I was the only one present. I asked them if they intended to adjourn the matter for another magistrate to hear. Both counsel had no objections of me presiding over the matter and requested that I proceed to hear the notice of motion.

Mr Tamagle on behalf of the Applicant stated that the Notice of Motion dated and filed on 24th September 2013 requested the court to stay the order of eviction granted by Senior Provincial Magistrate Seneka on 28th June 2013.

He relied on the affidavit the applicant's wife Rose Kale of 24 September 2013 which stated:

➢ I am the wife of the Defendant/Applicant in this matter.

➢ Since the Court Order of 28th June 203 we have not decided to appeal. We accept the decision.

➢ However, we have filed a National Court Summons for the large amount of money taken by the Complainant through receipts and Mobile.

➢ Due to the absence of a Judge our National Court matter dragged on beyond the two months the District Court allowed is to stay on the Premises

➢ The Defendant Mark Alkan has not filed a Defendant in the National Court Case.

➢ Our case is likely to be won. So far these reasons we ask for the Court to Stay the Order for Evictions, and extend the time for me and children to stay on until our case is completed.

➢ The Complainant in this case and Defendant in the National Court is not likely to pay us anything if we do not stay on premises.

➢ We are likely to win the National Court Case. Attached in the National Court Notice of Motion for Judgment papers marked "A"

➢ So therefore our request is a reasonable one. The other party Mark Alkan will not be unduly disadvantaged by this request.

➢ I am deposing for this affidavit as my husband is away at work and we have been asked by the Police today 23rd September to vacate the premises.

The Mr Tamagle stated that the National Court proceedings WS No 398 of 2013 were delayed by two months. He submitted that no defense was filed in the National Court and that he had a notice of motion on foot in the National Court to have judgment made in is client's favour. He requested that in the interest of Justice to let the applicant's wife and children remain on the premises as there was a real likelihood that the respondent would not pay if judgment was made in the National Court against him. That was the application made by Mr Tamagle.

In response Counsel for the Respondent Mr Yawip stated that the warrant of eviction was executed on Saturday on 28th September 2013. He stated that the applicant's family are no longer on the premises and therefore the notice of motion was superseded by events. I cannot understand how Mr Tamagle in his submission before the court failed to disclose this pertinent point to the court. This omission is unacceptable is failure to disclose this material point is a blatant act of misleading the court.

Mr Yawip then submitted that in relation to the application to stay the District Court order the applicant had the avenue to appeal. Thay have not appealed. The Respondent has now effected the order through execution of the warrant. He submitted that to come by way of a Notice of Motion is an abuse of process as the matter has already been executed.

Mr Tamagle then stated that the Notice of Motion was filed on 24th September 203 and served on the same day. He stated that the execution of the order was done on the weekend. He stated that the respondent had prior knowledge that a Notice of Motion was on foot before they executed the order.

I have considered the notice of motion and the arguments put to this court by the applicant and the respondent's lawyers. I note that the Senior Provincial Magistrate in his judgement in June 2013 had given the Applicant/Respondent two months to remove himself and his family from the disputed property.

I note that in the affidavit of Rose Kale she stated that they decided not to appeal the decision. So why are they now requesting for a stay on the eviction process and an extension on their residence on that property? They had initiated civil proceedings in the National Court seeking orders for the recoup of the monies given to the Respondent as rent.

I am of the view that the more appropriate course they should have taken was to appeal the decision of the District Court before initiating proceedings in the National Court for personal damages. In deed all their concerns would have still have been brought to the National Court by way of appeal and this in effect would have given them the stay they are now asking the court for. An appeal would have maintained the status quo for both parties and there would have been no need for the Defendant to file this Notice of Motion.

The Notice of Motion to stay an eviction that has already occurred is like an impossible task. How can you undo a legal execution of a warrant? The Respondent waited two months for the Applicant to either appeal or move. He has chosen not to appeal and not to move. He has denied himself the very remedies is now seeking from this court.

The Notice of Motion is irregular and is an abuse of process because the substantive matter before the District Court was heard and determined and executed. The District Court Act allows 30 days for appeal. There is no appeal on foot.

Also the Defendant has chosen to accept the decision of the District Court and has decided to file a new proceeding in the National Court for personal damage. The defendant had a matter already on foot in the National Court. The correct procedure should have been the defendant filing an application for an interlocutory injunction to stay the enforcement of the District Court order until the National Court dealt with the matter before it.

The Defendant cannot come back to the District Court at this juncture. He has burnt his bridges and cannot come back to get the remedy he seeks. In relation to the argument that if they do not remain on the land they will not get their money back. This argument cannot stand. The whole notice of motion is based on suppositions on what the National Court will do. The matter has not been concluded in the National Court and therefore a Notice of Motion cannot be based on conjunctures. If the National Court does award judgment to the Applicant then Respondent is bound by that order to comply. No one is above the law.

The defendant had one month to appeal. He did not appeal or seek a review on the District Court Order of 28 June 2013. Therefore the District Court Order of 28 June 2013 stands and was rightly executed.

The defendant had two months to remove himself from the property. He did not do so and at the last minute seeks the assistance of the courts to extend his stay. This would be in contempt to the orders made by the District Court and therefore will not be entertained.

The defendant had a pending matter in the National Court. He should have filed a notice of motion in the National Court for an interlocutory injunction restraining the eviction. Whether or not such application would have been considered is questionable.

On the face of it seems that the defendant has not exercised the legal right to appeal and he now is abusing review process to remain on the property. This cannot be allowed. The whole notice of motion is frivolous and vexatious. Therefore for the above reasons the notice of motion filed by the applicant is refused.

Held:

➢ The Complainant is not entitled to the redress he seeks.
➢ This Notice of Motion is dismissed.

For the above reasons I make the following order.

Order:

1. The Complainants notice of motion is refused for being frivolous and vexatious and for being an abuse of process.
   
2. Matter should have gone before the National Court by way of interlocutory injunction.
   

Mrs J.Kilage-Bal
Magistrate