Korarome v Hatefa [2017] PGDC 17; DC3045 (6 September 2017)

DC3045
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCi115 OF 2017

BETWEEN

ANDREW KORAROME

First Complainant

AND

JANET HATEFA

First Defendant

National Computer Resource and Vocational Training Centre Limited

Second Complainant

AND

NOSI MOTORS LIMITED.

Second Defendant

Goroka: P KAUMBA, Magistrate

2017: August 24, 6^th of September

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CIVIL: APPLICATION FOR STAY ORDER UNDER SECTION 22 OF THE DISTRICT COURT ACT.

Cases Cited:

District Court Act.
Schedule 2.2 PNG Constitution

References:

Gawi –vs- PNG Ready Mixed Concrete Pty Ltd (1984) PNGLR 74.

Counsels

Lawyer for the Complainant, Mr. Tom Brian.

Lawyer for the Defendant, Ms. V Move

Date: 6^th of September, 2017
DECISION

P. KAUMBA, Magistrate: This is a complaint filed by the complainants seeking stay orders from this court to stop the Defendants from evicting them from a disputed property described as Section 81 Allotment 2, Goroka, Eastern Highlands Province(herein-after ‘the property’) in enforcement of a court order for eviction dated 24^th of February 2009 because they allege that:

(1) The eviction order dated 24^th of February 2009 was obtained through an irregular process in that it was obtained by the company itself when it was supposed to be obtained by lawyers for the company. Thus the eviction warrant is invalid and police cannot use an invalid warrant to evict them.

(2) The eviction order and warrant referred to above was executed in February 2009 and thereafter the complainant obtained eviction orders to evict the defendant on the 12^th of June 2009. Therefore the warrant cannot be used again.

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(3) The complainants intend to appeal to the Supreme Court from the National Court decision dated 2^nd of August 2017 which dismissed their OS 756/2005 and WS 775/2009 and therefore prays for a stay order staying the eviction order dated 24^th of February 2009 and the warrant issued in pursuance of the said order.

2. I heard the parties’ counsels on the 24^th of August 2017 and reserved judgment for the 31^st of August 2017. On the 31^st of August 2017 my decision was not ready for delivery so I adjourned the case to the 6^th of September 2017 for ruling and I directed the parties to negotiate and come up with an amicable solution. On the 6^th of September 2017 I handed down my decision finding inter alia that the complainant has an equitable interest in the property and gave the parties another 30 days to negotiate and come up with an amicable solution and adjourned the case to the 9^th of October 2017 for review of the same. On the 9^th of October 2017 the parties advised the court that they have not negotiated a settlement. Defence advised court that their position is not negotiable.

1. ISSUES:

(1) Whether this case is an appropriate case for transfer to the National Court pursuant to section 24 of the District Court Act?

(2) Whether this Court can refer the issues before this Court to the Higher Courts under law and/or equity?

(3) Whether this court has the power to issue a stay order on enforcement of the court order dated 24^th of February 2009 pursuant to section 21 (Equity jurisdiction) pending decision of the higher Courts on the issue of ownership?

2. LAW.
District Court Act.
Section 21 Civil Jurisdiction

(1) Subject to this Act and in addition to any jurisdiction conferred by any other law, a court has jurisdiction in all personal actions at law and in equity where the amount of the claim or the amount or value of the subject matter does not exceed-

• (a) Where the court consists of one more Magistrates Grade V-K10,000.00; and
• (b) Where the court consists of one or more Magistrates Grade VI-K8, 000.00 and

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(c) Repealed
(d) Repealed

(2) Repealed

(3) Sub-sections (1) shall not be taken to limit the jurisdiction of courts in cases where, by any law, money, irrespective of amount, may be recovered before a court.

(4) A court has no jurisdiction in the following cases:-

• (a) Where the validity or effect of a devise or bequest or limitation under a will or settlement or under a document in the nature of a settlement, is in dispute; or
• (b) Infringement of trade names; or
• (c) An action for or in nature of slander of title; or
• (d) An action for illegal arrest, false imprisonment or malicious prosecution; or
• (e) For seduction or breach of promise to marry; or
• (f) When a title to a property is bona fide in dispute.
  

(5) Subject to this section, a court has jurisdiction when:-

• (a) The defendant, or one or two or more of the defendants, as the case may be, is usually resident or carries on business; or
• (b) The cause of action wholly or partly arose; or
• (c) The defendant has given an engagement or written promise to pay a debt or sum at a specified place, in the area of which the court is constituted.
  

(6) A court has jurisdiction under this section notwithstanding that the defendant is not within the country; if the defendant is within a state or a territory of or under the Authority of Australia.

(7) Subsection 6 applies whether defendant has or has not ever been resident in or carried on business in the country.

(8) For the purposes of sub –section(6) and (7) ‘Defendant’ means where there are more defendants than one, defendant not within the country.

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Section 24, Transfer of Proceedings.

(1) Where proceedings have been commenced in a court, the court may, at any time before judgement with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staying the proceedings and such terms as to it seem just transferring the proceedings for hearing and determination by some other District Court or if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court

(2) The National Court may at any time before verdict or judgement, with or without an application from an interested person in that behalf, make an order staying the proceedings before the District Court and ordering that the proceedings be taken before the National Court, if the proceedings are such that they could have been instituted before the National Court in the first instance.’

4. LAW OF EQUITY

Schedule 2.2 ADOPTION OF A COMMON LAW.

(1) Subject to this part, the principles and rules that formed, immediately before independence day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that-

• (a) They are inconsistent with a constitutional law; and
• (b) They are inapplicable or inappropriate to the circumstances of the country from time to time; or
• (c) In their application to any particular matter they are inconsistent with custom as adopted by Part 1...
  

Equity is defined by Osborn’s concise law dictionary as ‘Primary fairness or natural justice. A fresh body of rules by the side of original law, founded on distinct principles and claiming to supersede the law in virtue of a superior sanctity inherent in those principles (Maine)... Some of the maxims of equity that are relevant here are: Equity acts in personam, equity acts on the conscience, equity looks at intent rather than form, equity looks at balance of convenience, where there are equal equities first in time prevails, equity will not permit a statute to be a cloak for fraud.
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Public Policy. According to Osborn’s concise law dictionary public policy is defined as ‘Certain classes of acts are said to be against public policy, or against the policy of the law, when the law refuses to enforce or recognize them on the ground that they have a mischievous tendency so as to be injurious to the interests of the state or the community. Thus trading with an enemy, marriage-brocage contracts, and agreements in restraint of marriage or trade, are instances against public policy(see Egerton –v- Brownlow(1853)4H.L.C 1)...

Common law principle of Res judicata – Once a matter between parties is decided by a court, a party (ies) cannot raise the same issues or litigate the same case again in another court.

4. SUBMISSION BY PARTIES

The complainants counsel advised the court that they have lodged an appeal in the Supreme Court against the decision of the National Court dated 2^nd of August 2017 but the Appeal does not automatically stay the National Court decision and the enforcement of the District Court Order dated 24^th February 2017 and submitted that this court should consider issuing stay order. Counsel also submitted that this court can refer the matter to the Supreme Court but considering the hierarchy of courts it would be more appropriate to transfer this case to the National Court but he did not back its submission with law. He assumed that this court has power under section 24 of the District Court Act and its okay but did not go further to consider a scenario where if the court finds that this case is not appropriate for transfer then what should be the fall back position best suits their client.

The defendants submitted that if this case is transferred to the National Court under section
24 of the District Court Act then it will be an abuse of court process because the National Court has already heard the parties on issues in relation to the property in dispute and made a decision. Furthermore counsel submitted that this is not a fresh matter and it cannot be referred to the National Court. Counsel for defence did not address the issue of alternative options to consider if the court decides against transferring case to the National Court and this court will have to do what it can in the circumstances based on law and legal processes available.

3. APPLICATION OF LAW TO FACTS.

In considering whether this case is appropriate to be transferred to the National Court, I take into account the following facts and law:
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(1) The case involving the property and same parties was heard by the National Court and was dismissed on a technicality on the 2^nd of August 2017. It may be argued that the principle of res judicata may apply because it has already dealt with issue s relating to the same property. It may also be an abuse of legal process because the complainants should have obtained a stay order in the Supreme Court and not come to the District Court via a new complaint and seek orders under section 22 of the District Court Act. If the complainants wish to come to the District Court then they should have filed a motion in the same case in which the eviction order dated 24^th of February 2009 was made to stay the order on equitable grounds and public policy reasons or file a judicial review or appeal the decision in the National Court in 2009 etc. instead of filing a new complaint like this case.

(2) A third party is interested in the property according to the complainants counsel but I disregard the counsels’ statement because it is not in evidence before the court.

(3) There are several issues that came to light due to conduct of the parties in the various proceedings in the District Court involving the property in question and they are:

1. Does the District Court have jurisdiction to issue eviction orders under the Summary Ejectment Act (SEA) where an occupant who has a right to be on the property pursuant to a licence given by an agency, department, statutory body of the State quite a long period of time. If so under what preconditions(s), circumstances/ condition(s) is an order for eviction permissible and/ or necessary?. In this case the complainants were on the property under a licence from National Housing Corporation before the Defendant obtained title to the property and issued eviction proceedings 10 years later and whether the District Court considered the issue of whether the complainants have an equitable interest in the property when issuing the eviction order of the 24^th of February 2009 is in doubt because no evidence was produced before this court by the parties. In relation to the order of June 2009 His Worship Manue was more concerned with the Section 21 (4) (f) of the District Court Act which deals with title of the property being bona fide in dispute when he made his decision to temporary stay the order of eviction and ordered the complainant herein to move back into the property.
   
2. Does the District Court have jurisdiction to hear a motion by a person without title to a property and issue a stay order to stay an eviction order given earlier to a

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person with a title to a the property pending determination of issue of ownership by the National Court pursuant to section 22 of the District Court Act?. The complainants went to court by motion and obtained restraining orders on the 12^th of June 2009 against the enforcement of the District Court order dated 24^th of February 2009 under the aforesaid provision and obtained an order to move back into the property and they did and whether this process is legal or not can be determined by a higher court.

3. Is it a must for the District Court to consider the equitable interest of an occupant of property before considering issuing an eviction order on a complaint from a person who acquired legal title to property later (knowing that someone is already in occupation of the Land) under the Summary Ejectment Act? This issue can be determined by a higher court with sufficient jurisdiction.
   
4. When does a Warrant of Eviction issued under the Summary Ejectment Act is deemed to expire or lapse and/ or deemed to have being executed in law? This issue can be also determined by a higher court.
   
5. The above issues need to be resolved but this court is not the appropriate court because it has limited powers.
   

(4) I have thoroughly considered the counsels submissions and I am of the view that cases can be transferred to the National Court in the interest of justice under section 24 of the District Court Act. If the parties file a case in another court again then it will be in violation of the common law principle of res judicata but the court is not bound by the principle of res judicata. It can transfer cases on valid grounds secondly this case is about an order to stay a District Court decision and not the National Court decision and this court can transfer the case to the National Court. Thirdly the complainants have filed a Supreme Court Appeal (which I take judicial notice of) and I suggest they should also obtain a stay order against the decision on the National Court dated 2^nd of August 2009 and 24^th of February 2009 in the Supreme Court. If they want to do it in the District Court then they should file a motion in the case where the court issued the order for eviction and obtain stay order based on equity, public policy and the issue of title being bona fide in dispute (section 21) (4) (f) District Court and not file a fresh complaint like they have done in this case. Hence I am not prepared to add another dimension to the abuse processes by the complainants so far by transferring this case to the National

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Court. Fourthly I have read section 24 of the District Court Act and note that transfer of a case refers to a substantive matter and an application for stay order pending Higher Court ruling on the substantive matter, is in my view not a substantive matter and it may not be appropriate for transfer under section 24 of the District Court Act to the National Court. Lastly counsels before me have not convinced me that this case is appropriate for transfer to the National Court and I am not transferring this case to the National Court pursuant to section 24 of the District Court Act.

(5) This brings me to the issue of whether I should issue an extension of my stay order pending the Supreme Court appeal decision and/ or refer issues before this court to the National Court for appropriate declarations and consequential orders under my equity jurisdiction or leave the parties to seek appropriate remedy themselves.

(6) In that regard I take into account my finding on the 6^th of September 2017 that the complainant has an equitable interest in the property in question. Secondly counsels especially the complainants counsel have not submitted to this court for a stay of the District Court order of the 24^th of February 2009 until the Supreme Court decides on their appeal so I am not in position to decide on that because we operate a adversarial system of justice and parties will have to submit for what they want the court to do for them. This Court cannot o it for them at its own volition. Thirdly one of principles of equity is that equity seeker must come with clean hands and the complainant has not come with clean hands because they have abused the legal process to file for stay under section 22 of the District Court instead of coming to court under section 21 of the District Court Act or going to the Supreme Court to obtain stay orders as I have stated herein – above and I am not going to grant a stay order pending Supreme Court decision. Furthermore the complainants did not challenge the order of eviction dated 24^th February 2009 via and appeal or judicial review in the National Court in 2009 and now it may be too late to do so.

Lastly I have the power to issue a stay order staying the court order of the 24^th of February 2009 pending the Higher Court determination on ownership of the property in dispute based on equity but one of the principles of equity is that equity follows the law and the complainants have not exhausted their legal rights through legal processes like filing a Supreme Court Appeal (filed and in process) and obtain a stay order in the Supreme Court, seek declaratory orders from the National Court on whether the order of the 24^th of February 2009 can be executed again after it was executed already by police in 2009 or file a ,motion in the District Court in the case wherein the court issued the

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eviction order dated 24^th of February 2009 and obtain a stay order of the same on equitable and public policy reasons, File proceedings in the National Court for a declaration on the issue of whether an eviction order issued some 8 years ago can be executed gain, File proceedings in the National Court to enforce its equitable interest in the property in question etc. Therefore in the final analysis, I am of the view that I will leave it to the parties to protect and/ or enforce their legal and equitable interests in the appropriate courts. They can also consider the issues I have highlighted herein-above and take appropriate action if they think it is in their best interest to do so.

In conclusion I have considered the conduct of the parties and I am relying on my finding of the complainant’s equitable interest in the property on the 6^th of October2017 to order a stay of the decision of 24^th of February 2009 to give tie to the parties to take appropriate action. I believe 21 days is reasonable tie. I am also relying on public policy and public interest to do so.

(7) ANSWERS TO ISSUES

(1). No.

(2). Yes but I am not prepared to exercise it leaving the parties to consider the issues and

take appropriate action.

(3). Yes but temporary stay order only.

(8) COSTS

Cost is a discretionary matter. This court is of the view that the complainant has not done their homework in having this matter filed in this court and seek stay order under section 22 of the District Court Act. Hence the complainant should pay the defendants costs to date but the payment of the same be deferred until after the Higher Courts have made a decision on the parties legal and equitable interest in the property in question.

Counsels:

Lawyer for the Complainant: KamoPilisa Co. & Lawyers.

Lawyer for the Defendant : Ms. V. Move of Public Solicitors Office.