Wen's Holdings Ltd v Agen [2018] PGDC 6 (19 January 2018)

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

DC: 831 OF 2017

BETWEEN:

WEN’S HOLDINGS LIMITED
(Applicant)

AND:

LUCY AGEN
(1^st Defendant)

AND:

CICILIA SAM
(2^nd Defendant)

PORT MORESBY : J.TAPAT

Principal Magistrate

2018 : 19^th January

- Summary Ejectment proceeding – Applicant was granted, Court Order – to be given – possession – of the property – and – a self-executing order – to eviction.
- Court Order – irregularly obtained – Section 22 of the District Court Act invoked and adopted National Court Rule – Order 1 rule 8 and 9 to give relief.
- Applicant – directed – to file – joinder application – to be a party – in WS NO 1828 of 2015 – at the National Court proceeding.
- District Court – lack jurisdiction – pursuant to Section 21 (4) (f) of the District Court Act.

Relevant Laws

i. District Court Act
ii. Summary Ejectment Act
iii. National Court Rules – Order 1 Rules 8 and 9
iv. The Constitution of the Independent State of Papua New Guinea

Cases cited

* Tony Yandu - v - Peter Waiyu & Others (2005) N2894

Counsels:

Mr Kombri - for the Complainant
Mr Donald - for the 1^st Defendant
Mr Mende - for the 2^nd Defendant

REASONS FOR THE DECISION

1. TAPAT J. – MAGISTRATE – This was a matter that went before a brother magistrate for Summary Ejectment, who grant the relief and made a self-executing order for eviction.
   
2. Both Counsel for the Applicant/Complainant and the Respondents/Defendants were confused over the decision, when both counsels did not appear before the Court.
   
3. The Counsels Mr Donald for the First Defendant Lucy Agen and Mr Kombri for the Complainant, Wen’s Holding limited came in to enquire over this irregularity.
   
4. Mr Donald did file his notice of motion to dismiss this proceeding pursuant to Section 21 (4) (f) of the District Court Act on the 24^th November 2017 which was never considered and the Court granted an eviction Order exparte.
   
5. The eviction order made exparte was also a self-execution order for the Warrant to Evict would be raised on the 22^nd of December 2017.
   
6. The irregularity was, the Complaint and Summon was never signed by a Magistrate pursuant to Section 6 (1) of the Summary Ejectment Act.
   
7. The Summons and Complaint were never served on the Defendants and there were no proof of service filed.
   
8. The magistrate who issued the eviction order, and the self-executing order for an issuance of a Warrant to Evict, was on recreational leave on the very day 8^th of November 2017.
   
9. The Summary Ejectment Court Order granted was irregular because the Clerk of Court of Port Moresby District Court did not endorse the Order to verify the validity of the Court Order.
   

ISSUE

10. Whether the redress sought under Section 22 and Section 25 of the District Court Act would be appropriate for this circumstance; or
    
11. Whether this Court can grant relief under such irregular circumstances under Section 22 of the District Court Act and sought redress under Order 1 rule 8 and 9 of the National Court Rules.
    

FACTS OF THE CASE

Brief History

12. The complaint by the Complainant was filed on the 15^th of November 2017.
    
13. No evidence of the Complaint and Summons being served on the Defendants.
    
14. A notice of motion for an interim injunction was granted on the 22^nd of November 2017 without any work sheet. An affidavit of Service by Constable Mangrove was filed on the 7^th of December 2017.
    
15. The Court file was not returned to the registry and on the 8^th of December 2017, an eviction application was moved by the Complainant in person not the lawyer, and an eviction order was granted.
    
16. There was no identification of the person, who represented the company, Wen’s Holding Ltd who moved the Notice of Motion for eviction on the 8^th of December 2017.
    
17. No affidavit of Service was filed for eviction proceedings.
    
18. The eviction order granted was a self-executing order, which reads;
    
    1. Defendant their agents, associate and family be given 14 days to vacate the premises described as Allotment: 6 Section: 95, Hohola, NCD.
       
    2. A Warrant of eviction be issued giving police powers to remove the defendant, agents, associates, and family should they failed to vacate the premises by the 22^nd December 2017.
       
    3. Police be given the authority to enter the said premises and forcefully removed the defendant his family, agents and relative should they fail to vacate the premises on the time set, 22^nd of December 2017.
       
19. But, the Warrant to evict was issued on the same day 8^th December 2017.
    
20. A letter of complaint was submitted, addressed to the Senior Provincial Magistrate, stating a pending National Court proceeding since 2015 was on foot.
    
21. A copy of the pending National Court matter, WS NO 1828 of 2015 was filed as evidence.
    
22. Both Counsels Mr Donald for the First Defendant Lucy Agen and Mr Kombri for the Complainant appeared before this Court on the 20^th December 2017 enquiring how the Court Order was obtained.
    
23. This Court invoked in its Section 22 of the District Court Act and Order 1 Rule 8 and 9 of the National Court Rules to deal with the irregular Exparte proceedings on the 20^th of December 2017 and ordered Mr Kombri to withhold the Warrant to Evict.
    
24. However the District Court Order was not complied with and police executed the eviction warrant.
    
25. The affected defendants returned to Court on the 26^th of December 2017, on a Special Sitting and to restrain the police from reentering and harassing the defendants and to take possession of the property, while WS 1828 of 2015 is still pending in the National Court.
    
26. The District Court granted the relieves sought under Section 22 of the District Court Act and adopted Order 1 Rule 8 and 9 of the National Court Rule for the redress they sought.
    
27. The presiding magistrate directed the three Counsels to make submissions on District Court’s jurisdiction after the exparte irregular order was obtained; the execution of the warrant to Evict, and for the continuity of this proceeding.

LAW

28. The Complainant commences the proceeding under Section 28 of the District Court Act.
    
29. Under Section 6 of the Summary Ejectment Act, Summons and Complaint shall be made to a Magistrate of the District Court.
    
30. In this case, complaint and summons were administered by the Clerk of Court which is contrary to Section 6 of the Summary Ejectment Act.
    
31. Despite, the defective substantive complaint without any relief and in law on which the information was laid contrary to Section 42 (1) (c) of the District Court Act, the matter proceeded on.
    
32. An interim injunction Order was granted for the protection of the property, the Complainant and its agents.
    
33. According to Constable Mangrave’s affidavit of Service, the six (6) documents filed were; Annexure “A”
    
    1. Interim Injunction Court Order
    2. Summons to a person upon Complaint
    3. Affidavit in Support
    4. Notice of Motion (for Interim Injunction)
    5. Supplementary Affidavit in Support, and
    6. Undertaking for Damages.
       
34. In fact it was the same Complaint used for Summary Ejectment.
    
35. Right to amend the Complaint is under Section 32 and 33 of the District Court Act but the Court proceeded without amendments and a relief, was granted which was never been pleaded in the Complaint.
    
36. The entire Court file was kept in the magistrate’s chambers and was not properly managed in the registry. Therefore exparte order granted in the magistrate’s chamber is highly irregular.
    
37. The eviction order granted was not certified by the Clerk of Court also causing suspicion on the manner the Court Order was obtained.
    

CAN THE MATTER BE SET ASIDE PURSUANT SECTION 25 OF THE DISTRICT COURT ACT?

38. In my humble opinion, the Complaint filed in Court on 15^th of November 2017 was not properly laid in law, even the relief sought was not pleaded in law as stated under Section 42 (1) (c) of the District Court Act.
    
39. The mandatory requirement of service under Section 47 of the District Court Act and Section 6 (1) and (2) of the Summary Ejectment Act was not complied too. The spirit of the right to defend under Section 37 (4) (e) of the Constitution was denied.
    
40. The only service executed was for the Interim Injunction Order by Constable Mangrave and Summons upon Information with other documents.
    
41. Despite the above, the Counsel for the Complainant had some good arguments, that OS NO 464 of 2017 was his client’s right to withdraw. This Court acknowledges that and totally agrees with the argument.
    
42. This Court also agrees with the Complainant’s Counsel that the WS NO 1828 of 2015 was not a fraud matter.
    
43. However, the Breach of Contract was filed well before Wen’s Holding Limited was granted the title to the property. Even the referral of the matter to the National Court registry, the matter is still pending before the National Court.
    
44. NO: 7 of the Plaintiff’s claim for the Particulars of the Breach of Contract of the Writ of Summons explicitly requesting the relief to prohibit sale of the property named in this Court’s proceeding.
    
45. This relief sought would raise the issue of the transmission of the title that is in the applicant’s possession before this Court. Where should this Court seek Jurisdiction under the law for such irregularity.
    
46. In this Court’s opinion, Section 22 of the District Court Act and Order 1 Rule 8 and 9 of the National Court Rules as stated in Section 22 (a) of the District Court Act for irregularly obtained Court Order. District Court does not have any specific provision for irregularities and irregularly obtained judgement.
    
47. The application to Set Aside a regular proceeding or a complaint does fall into Section 25 of the District Court Act. But in this case, it is an irregular exparte proceeding and judgement obtained was irregular, therefore a specific relief can be sought under Section 22 of the District Court Act which invokes Order 1 and Rule 8 and 9 of the National Court Rules.
    
48. The matter is a Summary Ejectment matter that was done irregularly exparte which is still within the jurisdiction of this Court. Inspite of this Court’s jurisdiction, Paragraph 43, 44 and 45 of the Plaintiff claim for Breach of Contract in WS NO:-.1828 of 2015 causes this Court to lose its jurisdiction.
    
49. By invoking Section 22 (a) of the District Court Act and Order 1 Rule 8 and 9 of the National Court Rules, this Court imposes the following Court Order.
    

COURT ORDER

1. There was irregular (eviction order) Court Order judgement entered.

2. There was evidence of National Court proceeding WS NO 1828 of 2015 in relation to the property in this proceeding, which indirectly disturbs the title of the applicant as stated in the principle of the Case Tony Yandu –v- Peter Waiyu and others (2005) N2894.
   
3. District Court loses its jurisdiction pursuant to Section 21 (4) (f) of the District Court Act.
   
4. Complainant/Applicant is directed to make a joinder application in the National Court WS NO 1828 of 2015 to validate its title that was not obtained by fraud.
   
5. The Complainant shall pay all costs of the proceedings in the District Court.