Kaipare v Clement [2016] PGDC 9; DC2079 (7 April 2016)

DC2079

PAPUA NEW GUINEA

[In the Civil Jurisdictions of the District Court Act at Wabag]

DC No 68 of 2013

Between:
ANNA KAIPARE
(Applicant/Complainant)

And:
KAMESO CLEMENT
(Respondent/Defendant)

Wabag: C Inkisopo

2015: 16^th December
2016:26^th January, 29^th March & 7^th April

District Courts Act: practice & procedure at District set out by Act and other empowering& enabling legislations – application for enforcement of eviction order under the Summary Ejectment Act –

Summary Ejectment Act – Act purposed to provide quick remedy topersons in possession of clear legal leasehold titles–not available where title is in dispute or unclear -
Practice & procedure relating to appeals to National Court – no stay of order appealed against by mere filing of Notice of Appeal of itself without more after 40 days –

Legislations

1: District Courts Act, Chapter 40
2: Summary Ejectment Act

PNG Cases cited& consulted

1: Sunga Andrew -vs- Helen John (2001) N2031
2: Herman Gawi -vs- png Ready Mixed Concrete (PNG) P/L [1984] PNGLR 74
3 William Moses -vs- Otto Benal Magiten (2000) N2023
4: Sangam Mote -vs- Alkan Tololo [1996] PNGPR 40
5: Mudge & Mudge -vs- Secretary for Lands & Delta Development Co Pty Ltd [1985] PNGLR 387
Appearances:

1: Mr Isaac Justine for Applicant/Complainant
2: Respondent/Defendant Self in person

7^th April, 2016

JUDGMENT

C Inkisopo: Applicant acting through Counsel Mr Isaac Justine of Messrs Lavana Lawyers of Port Moresby moved a Motion that had some time earlier been filed seeking the following orders;-

(a) That a Warrant under s 6(2) of the Summary Ejectment Act be issued
(b) And further, a warrant for arrest be issued against the Defendant/Respondent for breaching the Wabag District Court Order of 25/07/2014
(c) And such other Order this honourable Court deems fit.

2: The background facts surrounding this matter are;

➢ Applicant/Complainant is the surviving widow of the deceased proprietor of the subject State Lease property more described as Section 4, Lot 2, Wabag Town, Enga Province.

➢ The deceased Epekali Kaipale was the registered title holder of the subject property. The deceased died intestate and the widow being the next immediate next of kin took over the deceased’s estates including the subject property. The subject property appears to be a prime commercial property located in the heart of Wabag Township.

➢ The Respondent/Defendant is currently occupying the subject property and has reportedly notcomplied withan existingCourt Order to voluntarily vacate thesame.

3: The Respondent/Defendant in his defencecontended that the subject property is located on customary land and as the traditional customary land owner, he claims the property to being his.I supposethe Defendant takes this stance probably,and may be, because he knewthe registered proprietor Epekali Kaipale to be dead.

4: The matter earlier proceeded to Court at the behest of the Applicant/Complainant seeking Eviction Orders against the Respondent/Defendant under the provisions of the Summary Ejectment Act. During that earlier proceeding, the Respondent/Defendant in his defence raised fraud in obtaining the title over the subject property under the deceased’s name. It is trite lawunder s 33(1) of the Land Registration Act, 1996that fraud is a ground to upset a registered title.

5: In my humble view, the Respondent/Defendant cannot have just alleged fraud and not take appropriate Court action to challenge the title; if he did have a genuine and a valid basis for his concern in the subject matter. He should have backed his allegation of fraud with a National Court proceeding to upset the titleas fraud is a groundunder s 33(1)(a) of the Land Registration Act, 1996 to upset registered titles. Otherwise, the registered proprietor enjoys indefeasibility of titleover the property(Mudge -vs- Secretary for Lands &andAnother [1985] PNGLR 387)and is guaranteed complete protection againstcompeting interests.No other causes than those set out under s 33(1)of the Land Registration Act may be raisedto upset a registered title.

5: Instead it appears clear from records on file thatthe Respondent/Defendant seemed to have been content only in allegingfraudin the way the title was obtained and transmitted to the deceased proprietor, in defending the original eviction claim against him that afforded him no defence at all to the eviction claim.

6: The Wabag District Court heard the eviction case and considered all that the parties put before the Court; Complainant’s claim and her supporting evidence that included the deceased’s title deed document over the subject property as well as the Defendant’s defence wherein he alleged and maintained fraud as his defenceto the Complainant’s claim for eviction.

7: The Court subsequently on 25^th July, 2014 returned a finding in favour of the Complainant and issued an eviction order against the Defendant.I consider the Court decision and the subsequent order of the Wabag District Court of 25/07/2014 for eviction to being sound at law.Claims for eviction arereadily available to personsin possession of clearlegal titles to properties. See Herman Gawi -vs- png Read-Mixed Concrete (PNG) Pty Ltd[1984] PNGLR 74

8: Then on file, I note a sealed copy of a Notice of Appeal dated 5^th August, 2014 but entered by the Wabag National Court Registry as Document No 1 and given the filing date as 30^th June, 2014 against a certainorder for eviction bythe Wabag District Court through the Offices of Messrs Yallon & Associates Lawyers. I do also notice from copy of the said Notice of Appeal that it was an appeal against a certain purported order for eviction by the Wabag District Courtsaid to be dated 20^th June, 2014.

9: Intrigued by this apparent dichotomy in the Court decision dates (20/06/2014 and 25/07/2014), I went through the original Court file several times to be sure my eyes were not playing games on me and even asked the District Court Civil Clerk involved with this matter from day-one Mr Simon Lapet to help establish and confirm with me what the actual date of the decision on the eviction claimbetween the parties and he went through the file with me and confirmed to me that the information on file are correct and are exactly as they are.

10: The facts confirmed are;-

➢ Applicant/Complainant’s original Complaint No 68/2013 is for eviction only against one Kameso Clement that was subject of that initial appeal the subject of discussion in this judgment
➢ The only eviction Order by Wabag District against Kameso Clement in DC No 68/2013 is clearly and legibly dated25^th July, 2014and that is the only one on file for case No 68/2013 and no other eviction Order dated 20^th June, 2014 as Kameso Clement’s Notice of Appeal shows. I have checked and re-checked the original Court file and just can’t establish an eviction Order by Wabag District Court in DC No 68/2013 for20^th June, 2014. This purported decision date seemingly is non-existent!

➢ The only type-written order together with corresponding hand-written transcripts of evidence taken and reasons for decision by the presiding Magistrate on file is an Order for eviction against one Kameso Clement in DC No 68/2013 is very legibly and clearly stated as being 25^th July, 2014 and none other like 20^thJune, 2014 that Kameso Clement’sappeal notice document stipulates.

➢ From all relevant materials on file as at present, I confirm the following state of facts:

≥ 25/07/2014 – date eviction Order made in DC No 68/2013

≥ 30/06/2014 – date Notice of Appeal filed in DC No 68/2013

The conclusion apparent from this scenario is that: The Appeal would seem to have been filed about three (3) weeks before the decision was handed down. This is something for the appellate Court to resolve. But for me, I will deal with and resolve what is before me as an enforcement application of an eviction Order of this Court.

11: The significance of why I am taking the pains to discuss these are because of glaring differences that is confirmed to be apparent on the filing date shown in Kameso Clement’s Notice of Appeal (30/6/2014) in co-relation to the date of eviction Order in DC No 68/13 shown in Notice of Appeal (20/6/2014) while the original Court file record discloses the eviction Order date in DC No 68/2013 to being 25^th July, 2014. To my humble mind, these differences are quite significant as it impacts on the question of competency and regularity of Kameso Clement’s Notice of Appeal and related processes and requirements under Part XI of the District Courts Act; including the question of whether the Notice of Appeal would have beendonewithin time. If what I have discovered are anything to go by, the National Court dealing with Appeal (No 62 of 2014 could well consider these issues in its deliberations and elicit from the parties themselves (particularly the Appellant) answers to these mysteries to assist it determine the appeal!

12: Also on file I find is a duly signed but unsealed Recognizance on Appeal that does little to help shed light as to how far the process of appealin this matter has gone.It does not also show if the Recognizance on Appeal (copy only on file) has duly been filed at the National Court as it does not have a National Court seal impression on it signifying suchhaving been duly filed. What is shown on file are; a duly filed and sealed Notice of Appeal under s 221 of the District Courts Act and a signed but an unsealed copy of a Recognizance on Appealso required under s 222 of the Act.

13: During the hearing of the Applicant/Complainant’s Motion on Notice on 16^th December, 2015 Mr Isaac Justine of Counsel of Lavana Lawyers of Port Moresby appearing for the Applicant/Complainant submitted that since there is no stay order from the National Court stopping this Court from enforcing its own order of 25^th July, 2014; hence this Court should grant the reliefs sought in the Notice of Motion.

11: He submitted emphatically that the Respondent/Defendant’s Notice of Appeal of itself does not operate as an automaticstay of the District Court from enforcing its own orders as the 40 day grace period has long run out. Counsel in his submission citedSunga Andrew-vs- Helen John(2001) N2031 per Kandakasi J as authority supporting his submission. This case supports the proposition that a potential appeal that does not comply with the required provisions of appeal under Part XI of the District Courts Actespecially s 226 runs the risk of having his appeal rendered non-existent (s 227); thus opening the way for the Order appealed against to be enforced. The bare fact of an appeal having been lodged does not of that fact stop the District Court from enforcing its orders. Here in the instant case, the Appellant has duly filed his Notice of Appeal(s 221) but has only a signed but an un-filed Recognizance on Appeal(s 222)and has further failed to file an Entry of Appeal for Hearing under s 226 of the Act.

13: Instead during submissions, the Respondent/Defendant submitted strongly (visibly in an agitated tone) that since he has appealed the District Court decision already - so he contended - the lawyer should leave everything alone until the appeal has been determined or he (lawyer) was instigating trouble amongst the parties when he said; “You should leave the matter as it is or you are bringing trouble onto us.” Sensing a veiled personal attack on Counsel, I immediately stepped in and explained to the Respondent/Defendant what the lawyer was doing as his job foremost to the Court and then to his client.

14: I explained all that he needed to know and the implication of what the lawyer was doing basically asking the Court to go ahead and do its job of enforcing its orders as there was nothing stopping it from doing so; like a National Court order ordering a stay of any of its enforcement processes.

15: The Respondent/Defendant seems to me to have nothing plausible against the Application both in law and equity. His responding submissions to the Court and his direct exchanges with Counsel was a cause for concern though!

16: Notwithstanding the exchanges alluded to above, the Court considered and assessed the arguments for and against the Application for warrant to give possession and noted thefollowing facts to exist;

(1) The Applicant/Complainant is the wife of the registered lease title proprietor, late Epekali Kaipale and the immediate next of kin asthe surviving spouse

(2) The Respondent/Defendant has shown or demonstrated no legal or equitable entitlement to the subject property – all he raised and continues to raise is “fraud” - but has sadly failed to translate his claim of fraud by taking legal action inan appropriate forum for redress.

(3) An eviction proceeding under the Summary Ejectment Actat the Wabag District Court entered an order in favour of the Applicant/Complainant against the Respondent/Defendantordering him to voluntarily vacate the property.

17: The higher Courts seem to agree that when a potential appellant after filing a Notice of Appeal defaults in progressing further appeal processes such as filing Recognisance on Appeal (s 222),Entering the appeal (s 226) to the National Court etc, the gate is left wide open for the District Court to proceed to enforce its orders. On the other hand, if further appeal processes have progressed to s 226 of the Act this very fact of entering the Appeal to the National Court (s 226) acts as a complete stay of the Order of the District Court appealed against.

18: The base question for resolution here is:

Is the District Court Orderautomatically stayed from beingenforced by virtue of the fact that the subject order has been appealed against under the relevant provisions of the District Courts Act?

19: The Sunga Andrew -vs- Helen John case (supra) exemplifies that a mere fact of filing a Notice of Appeal without more does not of itself operate automatically as a stay of the District Court Order appealed against but runs for a grace period of only 40 days. The Higher Courts in this jurisdiction have interpreted and established what steps and procedures needed to be undertaken by potential appellants after a Notice of Appeal has been filed against a certain District Court adjudication under Part XI of the District Courts Act, Chapter 40

20: After a notice of appeal has been lodged (s 221) a recognizance on appeal (s 222)needs be filed both of which within a month of the day the decision/order appealed against is pronounced and then within 40 days thereof, get the appeal ready and set it down for hearing(s 226). The higher Courts are agreed that the daythe Notice of Appeal is filed runs only as a grace period for 40 days (Injia J as he then was in Sangam Mote -vs-Alkan Tololo and Kandakasi J in Sunga Andrew -vs- Helen John (supra))from the day of filing the appeal to settingit down for hearing (s 226).

This, I believe, is premised on the presumption that the appellant will within 40 days of the appeal having been instituted,get all the appeal requirements complied with and set it down for hearing (s 226). If the 40 day period runs out without the appeal becoming ready to be set down for hearing, the gate is then left wide open for s 227 of the Act to come in to play; which provision has the effect of essentially rendering the appeal non-existent (Kanadakasi J in SungaAndrew -vs- Helen John (supra)). If the appeal is not anywhere near readiness tobe set down for hearing; then that is when a stay order application is necessary toforestall the enforcement processes of the Court Order appealed against.

As his honour Kandakasi J succinctly put it inSunga Andrew -vs- HelenJohn (supra);

“... if for whatever reason an appellant is unable to get the appeal ready for hearing within the 40 days limit, he has the onus of providing reasonable explanation for the delay. It is also incumbent upon him to apply to the National Court for a stay of the orders or judgment appealed against. He should make such an application the moment he comes to know that he will not get the appeal ready and file an entry within the 40 days. If the appellant fails to take such steps, he does so at his own risk.”

21: The Respondent/Defendant here in our instant case openly demonstrated his agitation withApplicant’s Counsel for making the Application;strongly stating that the lawyer should leave the matter alone until the appeal has been determined. I sympathized with the Respondent/Defendant as he obviously held aclear misconception of his case and position and harboured a false assumption that the notice of appeal of itself actedas an automatic stay of the Order he appealed against; and therefore allowed himself to be lulled into a false sense of security;that everything regarding the District Court Order the subject of his Appeal was under control and put on-hold pending the appeal. That was his conception, mistaken though!

With that misconception, the Respondent/Defendant failed to appreciate that he has already failed to have compliedwith the required provisions of sections 222 and 226 and in the process laying himself wide open to the ignominious application of the weightand force of s 227 of the District Court Act thateffectively operated to render his appeal non-existent; or as if he had not filed an appeal at all; if s 226 is not complied with.

As it were, this Court is not by the mere fact of a Notice of Appeal having been filed and the 40 days grace period having have run out; stayed or barred from proceeding to enforce its own orders under the provisions of the District Courts Actin conjunction with the Summary Ejectment Act.

22: Even then, there is no evidence on file of any a Court order staying the effect and force of the District Court Order that has been appealed against under s 221 without further compliances with ss 222 and 226 of the District Courts Act. The fact of simply filing a bare Notice of Appealwithout more does not of itself operate as an automatic stay of the Order of the District Court.

Findings of Fact

23: in the particular circumstance of this case, I make the following findings as facts from materials on file;-

(1) A District Court order for eviction under s 6 of the Summary Ejectment Act by way of DC No 68/2013 granted in favour of Anna Kaipare, the Applicant/Complainant.

(2) Respondent/Defendant lodged an Appeal against that Order for eviction but had undertaken no further required processes like for instance;-

A: No Recognizance on Appeal (s 223) taken and duly filed at the National Court.

B: No Entry of Appealmade to the National Court (s 226) having been filed.

C: Respondent/Defendant has not voluntarily vacated the subject property described as Section 4, Allotment 7, Wabag Town, Enga Province in accord with the eviction order of this Court of 25^th July, 2014.

Conclusions

24: From the above discussions, it is clear to this Court that there is absolutely nothing preventing or staying this Court from enforcing its orders of 25/07/2014 pursuant to 6(2) of the Summary Ejectment Act.

Consequently, the Applicant/Complainant is entitled to the relief she seeks in the terms of her Motion on Notice with appropriate changes effected accordingly.

Formal Court Orders

1: That a warrant under s 6(2) of the Summary Ejectment Act be issued to take immediate effect after twenty-one (21) days from the date of this Order

2: Relief (b) seeking to arrest the Respondent/Defendant for alleged breach of the Court Order is turned down as it is deemed unconscionable to have the Respondent/Defendant arrested and dealt with when he is already facing the serious ignominy of being forcefully ejected from the subject property as the first above order demonstrates.

3: Each party bears own costs of this Application.

1: Lavana Lawyers for Applicant/Complainant

2: Respondent/Defendant in Person