Masenu v Mundi [2021] PGDC 62; DC6033 (20 May 2021)

DC 6033

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

CV 229 of 2020
BETWEEN

JACK MASENU
Complainant

AND

ROBERT MUNDI
Defendant

Lae: L Wawun Kuvi

2021: 7 July, 13 August, 8 September, 13 October, 5 November, 24 November, 1 December 2020, 2, 9 February, 11, 25 March, 1, 15, 22 April, 17 & 20 May

CIVIL-EXPARTE ORDER-Requirements for proceeding exparte- What must the Court be satified with to set aside an Ex parte Order?

Cases Cited
Johnston v Munro [2001] PGNC 133; N2089 (19 May 2001)

References
District Court Act

Counsel

No appearance of Complainant

Mr Johnah Sakol Langah for the Defendant

20 May 2021

L Wawun-Kuvi, Magistrate:

1. Mr Langah for the Defendant appears in Court today as a result of his client being locked out of the property described as section 336, Allotment 9, Admin Compound, Lae, Morobe Province. Police acted upon a warrant of ejectment issued by the District Court on 17 May 2021.
2. Mr Langah’s urgent application is for the Ex parte Eviction Order to be set aside and the Warrant of Ejectment revoked.

Chronology

3. I set out the history of the proceedings because they are relevant when considering whether an Ex Parte Order may be set aside:
   • On 7 July 2020, the Complainant filed a complaint and summons on complaint for summary ejectment. The summons was made returnable on 13 August 2020.
   • On 12 August 2020, the Defendant filed an affidavit in defence.
   • On 13 August 2020, only the Complainant appeared and the Magistrate issued Orders for Ejectment. There is no proof of service confirming that the Defendant was served the originating process. The Order was entered on 25 August 2020.
   • On 27 August 2020, the Defendant filed an application to set aside the Ex parte Order.
   • On 31 August 2020, a proof of service was filed. The deponent is a Bak Robert of Admin Compound attesting that he served a summons on 31 August 2020.
   • On 8 September 2020, the Defendants application was heard by another Magistrate. The Magistrate set aide the Ex parte Order and ordered for inter party hearing before the SPM on a date to be fixed by the Registry. It is unclear whether the Complainant was present at the time as the notes do not indicate such.
   • On 8 October 2020, the Registry issued a Notice of Hearing to the Defendant informing him that the case is listed for 13 October 2020. Whether or not parties received the notice is unclear as there is no proof of service or any records confirming that the complainant collected the letter for service.
   • On 13 October 2020 there was no appearance of both parties and the matter was adjourned to 15 October 2020.
   • On 15 October 2020, the SPM did not sit and the registry adjourned the matter to 5 November 2020.
   • On 5 November 2020, Mr Simon Sengi appeared for the Complainant. The Defendant was present in person. The SPM directed the Defendant to file a defence. The case was adjourned to 24 November 2020.
   • On 24 November 2020, the SPM was not available and the registry adjourned the matter to 1 December 2020. It is unclear whether parties attended to Court that date
   • On 1 December 2020, the matter went before a fourth Magistrate. The Complainant appeared in person and Mr Langah appeared for the Defendant. It is unclear what transpired as the Magistrate’s notes indicate only that the matter was adjourned to 2 February 2021.
   • By 2 February 2021, the Magistrate was transferred to another province and the registry adjourned the matter to 9 February 2021.
   • On 9 February 2021, the matter went full circle and return to the 1^st Magistrate that had granted the Ex parte Order of 13 August 2020. Both Mr Sengi and Mr Langah were present. The matter was adjourned to the registry for what reasons it cannot be clearly made out.
   • On 9 March 2021, a notice of Hearing was issued by the Registry addressed to the Defendant indicating that the matter was set for 11 March 2021 for mention. It is not clear whether the Complainant collected the Notice for service.
   • On 11 March 2021, Mr Sengi appeared for the Complainant. There was no appearance of the Defendant. There is no proof of service indicating that the Defendant was served the Notice of Hearing. The case was adjourned to 25 March 2021.
   • There was a National Court and District Court closure from the 24 to the 28 of March 2021 due staff being exposure to Covid 19.
   • The registry listed the matter for 1 April 2021. The matter was not heard and was adjourned to 15 April 2021.
   • On 15 April 2021, Complainant appeared in person. There was no appearance of the Defendant or his lawyer. The Magistrate decided to proceed Ex parte again. The matter was adjourned to 22 April 2021.
   • On 22 April 2021, the Magistrate reinstated and reaffirmed his Orders of 13 August 2020. The Orders were entered on 27 April 2021. The Order gave the Defendant 21 days to vacate the property.
   • On 14 May 2021, the Defendant through Mr Langah filed a Notice of Motion to set aside the 2^nd Ex parte Order.
   • On 17 May 2021, the Magistrate issued a warrant of ejectment. There is no record of proceedings.
   • On 19 May 2021, Mr Langah filed an application for the warrant of ejectment to be set aside. The motion sought for the matter to proceed ex parte and for the matter to be heard urgently on the 20 May 2021.

The Law

4. Lenali, J in Johnston v Munro [2001] PGNC 133; N2089 (19 May 2001), clearly set out the grounds for setting aside an Ex parte Order, as follows:
   1. The Applicant must provide a reasonable explanation as to why the judgement was allowed to go by default;
   2. The Application to set aside should be made within reasonable time;
   3. There is a defence on the merit.

What is the Explanation?

5. I have proceeded to determine both Notice of Motions by the Defendant filed on 14 and 19 May 2021, as the warrant is a consequence of the Ex parte Order.
6. Mr Langah in his affidavit filed on 14 May 2021 states that:
   • On 9 February 2021, both lawyers agreed that the State Lease was bona fide in dispute and informed the Court of such. The matter was adjourned to the registry to allow for settlement.
   • Both lawyers agreed that in the event parties wanted to purse the case, the appropriate forum was the National Court.
   • He and his client were never advised of the hearing on the 22 April 2021.
7. Mr Langah in his affidavit filed on 19 May 2021 states that:
   • On 13 May 2021, his client informed him that Lae Police had served him a Court Order dated 22 April 2021 threatening eviction. His client had been a resident for 10 years.
   • On 14 May 2021, he filed an application to set aside the Ex parte Order.
   • On the same day, Lae Police again went and threatened eviction.
   • He then wrote letters to the Provincial Police Commander for police not to enforce eviction because of the Ex parte Order.
   • The motion was listed for 18 May 2021, however, all the Magistrate were not sitting most likely due to the declared public holiday for the death of the late Jerry Nalau.
   • He liaised with the Registry and the matter was listed for 20 May 2021.
   • On 18 May 2021, Lae Police locked the premises. He called Mr Sengi to instruct his client to open the locks. Mr Sengi said that he was unable to speak to his client. Mr Langah informed his client to break the locks.
   • On 19 May 2021, his client contacted him and informed that Lae Police were threatening him and his workmen. He went to the property and spoke to the policemen. The policemen agreed and said that the parties should take the matter to Court.
   • He has asked the Complainant’s son how he came about with the Warrant of Ejectment and was told that “it just came out”.
   • He went to the police station to see the Provincial Police Commander and then later to Mr Sengi. Mr Sengi informed him that he did not have any instructions to act and was not present himself on the date when the Complainant obtained the Orders.
   • Police locked up the premises again in the afternoon.

Is the Explanation reasonable?

8. Yes.
9. I have outlined the history of the proceedings. There is only one proof of service in the entire Court file.
10. On the 9 of February 2021, the matter was remitted to the registry for parties to proceed to settlement. The reason was not stated in the Court file however, from Mr Langah’s affidavit, both counsels agreed that this was a matter that involved dispute as to title. That is the complainant had received part payment for his property from the defendant.
11. There was no returnable date for the matter. This is confirmed on the Court file. There is no explanation in the Court file as to how the matter got listed.
12. Whilst there are notices of hearing, there are no records whether those notices were picked by the complainant and served. There are no proof of services for those notices. There are also no notices for some of the dates that the case was adjourned to.
13. I therefore accept that the only time the defendant became aware of the proceedings was when he received an Ex parte Order on 13 May 2021.

Was the application to set aside made within reasonable time?

14. Yes. The Order was served on 13 May 2021 and the Defendant filed his application to set aside on 14 May 2021.
15. The Order was granted on the 22 April 2021 and entered on 25 April 2021. Police served it on the defendant on 13 May 2021, 19 days later.
16. This is an abuse of process especially when the Ex parte Order gave 21 days to vacate, and the Complainant served it 2 days shy of the 21 days.
17. The Court records show that there was no proof of service, confirming that the complainant did not serve the Ex parte Order.
18. This is a Court of law and a Court of justice. Ambushing one party at the 11^th hour is highly improper and should never be allowed.
19. It is further irregular that whilst there was an application to set aside on foot, the Complainant managed to obtain a Warrant of Ejectment signed 4 days later. There is no history or record of how the Warrant was obtained.
20. Since 21 days was given, there should be at least an affidavit filed stating that the Defendant was served and failed to vacate the premises.
21. I find based on the Court records and the affidavit by Mr Langha that steps were taken within reasonable time when his client became aware of the proceedings.

Is there merit in the substantive matter?

22. Mr Langah affidavit on the 14 May 2021 which explains the adjournment to the Registry on 9 February 2021. Both lawyers agreed that there was a bona fide dispute as to title and that the matter should proceed in the National Court if there is no settlement. This also explains Mr Sengi’s non appearance following the 9 February 2021.
23. Mr Langah directed the Court to the initial affidavit filed in July 2020 by the Complainant which provides a contract of sale and correspondences to the effect.
24. I find that the substantive matter raises issues of the District Court’s jurisdiction.
25. Considering all of the above, I set aside the Ex Parte Order and revoke the Warrant of Ejectment.

The case on its merits

26. Now, whilst the proper course is to have this matter listed for interparty hearing, I determine that his is a waste of time. The reason for this is simply because this case has been inanely on the list for almost 10 months.
27. In order to have this matter set inter party, I must first have the jurisdiction to do so. My jurisdiction is derived from the Complaint.
28. The affidavit filed by the Complainant in support on 14 July 2020, demonstrates that:
    • The Complainant was the sitting tenant to the property owned by the National Housing Corporation (NHC).
    • On 2 March 2012, the Defendant and the Complainant entered into an agreement that the Defendant would purchase the property once the Complainant obtained title.
    • The purchase price was K85, 000.00
    • The Agreement was that the defendant shall pay K40,000.00 and take immediate possession and pay the balance of K45, 000.00 upon title being transferred.
    • The Defendant paid the K40, 000.00 and took possession in 2012.
    • On 29 November 2012 and 12 February 2013, the Complainant through Warner Shand Lawyers sought the balance of the payment from the Defendant.
    • Title was granted on 13 November 2015.
    • The Complainant tried to contact the Defendant to settle the balance but that did not eventuate.
    • The Complainant sought advice and the current value of the property is K500, 000.00.
29. This is a breach of contract that involved the sum of K85, 000.00.
30. Whilst the Complainant may have title, he entered into an agreement and received money requiring him to transfer title. Pursuant to that agreement the defendant took possession of the property in 2012.
31. It is apparent that the value of the property now is assessed based on the developments done by the Defendant.
32. Paragraph 5 of the Agreement clearly states that if the Complainant wishes to terminate the Agreement he is liable for costs incurred by the Defendant.
33. All of this clearly demonstrates that the Complainant’s option is not to file for eviction but is simply to enforce the agreement.
34. The Complainant has either got to refund the Defendant and his costs or give the title over and receive the balance.
35. He who comes to law must come with clean hands; there is nothing clean about the entire proceedings.
36. On the face of the Court records, based entirely on the Affidavit filed by the Complainant in support of the proceedings, the District Court does not have jurisdiction to hear this case.
37. Section 21(4)(f) of the District Court Act states that where title is bona fide in dispute the District Court does not have jurisdiction.
38. The District Court further does not have jurisdiction because this case involves Breach of Contract requiring enforcement of an agreement in the sum of K85, 000.00, see Section 21 (1) of the District Court Act.
39. The Complaint is dismissed for want of jurisdiction.

Orders

40. The Orders of the Court is as follows:
    • The Ex parte Order entered on the 25 April 2021 is set aside.
    • The Warrant of Ejectment issued on the 17 May 2021 is revoked.
    • The Complaint is dismissed for want of jurisdiction.
    • Each party to meet their own costs

Lawyer for the Complainant Nil

Lawyer for the Defendant Albright Lawyers