Tandawi v Kore and Gaa [1997] PGNC 2; N1510 (18 January 1997)

Unreported National Court Decisions

N1510

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 171 OF 1996 (W)
BETWEEN: STEVEN KAMBU TANDAWI
(APPELLANT)
AND: LUCAS LAU KORE
(FIRST RESPONDENT)
AND: PATRICK GAA (SENIOR CONSTABLE)
(SECOND RESPONDENT)
AND: PROVINCIAL POLICE COMMANDER - ENGA
(THIRD RESPONDENT)
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(FOURTH RESPONDENT)

Mount Hagen

Lenalia AJ
10 January 1997
18 January 1997

CIVIL JURISDICTION - Appeal - Appeal from District Court - One order with conflicting interpretations - correct interpretation should be obtained from handwritten transcript of magistrate.

DISTRICT COURT APPEAL

Held

(1) &##160;e terre aere are cone conflicting interpretations of an order it is advisable to consult original orders in the handwritten transcript of the Court that mae ord/p>

(3) &&#160n theugh tugh the sece second defendant’s name was not mentioned in the judgement of the magistrate, it could not be inferred that the second defendas frem liay.

(4) 160; The gThes oods seizedeized and held by police was done in accordance with the terms of a valid existing Warrant of Execution. However the issue before his worship at Wabag was whether the vehicle seized was held within time prescribed by S. 174 (5) of the District Courts Act - Ch. 40.

CASES CITED

Thomas v Nokes (1868) L.R. Eq. 521

Hillingdon London Borough Council v Cutler [1968] 1 Q.B. 124

Counsel

G. Yapao for the Appellant

M. Thoke for the First Respondent

18 January 1997

LENALIA AJ: The Appellant appeals from the decision of the District Court in which the District Court at Wabag on the 26th of June 1996 dismissed his claim for damages against the First, Second, Third and by a motion latter the Independent State of Papua New Guinea was added the fourth Respondents. The cause of action before the Wabag District Court related to damages claimed by the Appellant for what the Appellant alleges to be unlawful detention of his motor vehicle a Toyota Hiace Bus Registration No. P 893Q. This vehicle was impounded by the Warrant and Summons Section in Wabag by authority of a Warrant of Execution issued by the Lae District Court on the 28 August 1993. Such warrant was issued to be executed against the goods and chattels of the two judgement debtors, the Appellant and another person by the name of Kuri Pato. The First Respondent executed the warrant following an ex-parte order made in his favour awarding him a sum of K7,862.40. The second respondent being the agent of the third and fourth respondents impounded the aforementioned vehicle from which detention the Appellant instituted proceedings in the Wabag District Court which dismissed his claim the subject of this appeal.

The following grounds of appeal are alleged:

1. ҈ &60; “The Court ern d in law and in fact in deciding against the weight of the &##160; <
v0; efo beoup C

3. &#160 Such further grer grounds unds as may become apparent upon the Magistrate providing reasons for decision”.

The facts of this case show that in March 1993, thst reent cced proceedings in Laen Lae Dist District rict Court against two defendants, Steven Kambu Tandawi and another Kuri Pato. This was a joint proceedings and both defendants were named as the Appellant being the first and Kuri Pato the second defendant. What transpired in the hearing at the Lae District Court is not the subject of this appeal but the ex-parte orders made against the two defendants were latter enforced by the judgement creditor by a Warrant of Execution taken out pursuant to SS. 173 and 174 of the District Courts Act Ch. No. 40 against the two judgement debtors which then resulted in the confiscation of the Appellant’s vehicle.

It is alleged on behalf of the Appellant that there were three different sets of orders by the Lae District Court. The first being the original ex-parte order dated 13th of July 1993. The second one related to an application to set aside the original order, the second order being made on 5th of May 1994 during which His Worship Roap Geming once more at the Lae District Court made orders in the following terms:

“Defence applied for the matter to be struck out, defendant discharged.

Application struck out, original order reinstated and enforced accordingly”. see pages 50, 51, & 52 appeal both.

By yet another order purportedly said to be drafted by the Appellant’s former lawyer Warner Shand Lawyers dated 5th June 1994 was entered on 8th of July 1994. This latter order is argued by the lawyer for appellant to be the correct interpretation of what transpired at the hearing when the application to set aside was made.

That later order reads:

1. &##160; “The complainplaint be struck out for want of prosecution.

2. No order as to cost2&#82p>;

I shall return to these two conflicting orders a little later. See page 83 of appeal book

e appas exivelyed by Counsels. I would agree with Mr Thoke thke that inat in orde order forr for this this Cour Court to decide whether the Wabag District Court erred in law in dismissing the complaint against the weight of the evidence before it, I must first find out which of the three sets of orders was the correct one. To this Court after careful examination of all the evidence, there are only two orders that have conflicting versions. The original order by His Worship Possaen Poloh is not in dispute. The two sets of orders in issue are the ones that resulted from the application to set aside the one dated 5th May 1994 in favour of the First Respondent in which Magistrate Roap Geming refused the application by the former lawyer of the appellant to set aside and His Worship struck the application out and made an order for reinstatement of the original ex-parte order. The latter order dated 5th June, 1994 is argued by the lawyer for the appellant to be the correct one and which he says correctly represents what transpired in court on the 5th of May 1994. The second issue I must determine is whether the impounding of the Appellant’s vehicle was unlawful.

The first ground of appeal alleges that the District Court in Wabag dismissed the Appellant’s claim against the weight of the evidence. In close examination of all documentary evidence filed there is evidence by the First Respondent that he commenced proceedings in the Lae District Court against the Appellant and another person named as Kuri Pato in March 1993. From this proceeding the first respondent obtained an ex-parte order on 13th July 1993 for a sum of K7,862.40 against the Appellant and co-defendant Kuri Pato. This amount was due to the first respondent for leasing his snooker table to the two defendants for a period of two years from 1990-1992.

Some ten months after the original order was made against the two judgement debtors, the Appellant instructed Warner Shand Lawyers in Hagen to apply to set aside the ex-parte order of the 13 July 1993. The Mount Hagen Warner Shand Office consulted their Lae Office which made an application to set aside. Mr Robert Nonggor from the Lae Office took charge of the application on 5th May, 1994. From reading the handwritten transcript of his worship it appears to this Court that the Application to set aside made on the 5th May 1994 was refused and his worship reinstated the original ex-parte orders and also directed such orders to be enforced. see page 50 of the appeal book, it is also Exhibit “A attached to the appellant’s affidavit at page 46. Comparing the orders on page 50 with the typed copies on pages 51 and 52 have the same wording Exhibit “B” (page 51) has no signature and Exhibit C has a signature but it appears another person signed for the presiding magistrate. A more accurate picture of the terms of the orders made in page 50 could be found in page 32 Exhibit “B” attached to the First Respondent’s affidavit. At least Exhibit “B” of the first respondent’s affidavit bares the same signature on page 50 of the Appeal Book and which I must accept at that of the presiding magistrate.

By yet another set of orders dated 5th June 1994 entered 8th July the same year, it was ordered that the complaint be struck out for want of prosecution and no order was made for costs. Quite apparently one of the parties to the appeal must be lying. The magistrate who heard the application to set aside on 5th July 1994 could not have possibly said two things at the same time. He could only either order reinstatement of the original ex-parte order or made an order for the complaint to be struck out for want of prosecution pursuant to S. 144 of the District Courts Act.

It is argued by the lawyer for the appellant that in order for his worship at Wabag to dismiss the appellant’s claim, the magistrate had to satisfy himself on the balance of probabilities that the appellant’s vehicle was impounded under a lawful order and that the order must have been against the appellant himself. I note from all the evidence that, Mr Robert Nonggor from Warner Shand Lawyers in Lae applied on 5th May 1994 to apply for the order of 13th July 1993 to be set aside. It is also submitted in favour of the appellant that at the time the application to set aside was made, an additional application was also made for the complaint to be struck out.

There is evidence both by affidavit and oral by the first respondent (see page 29-30 & 80 of the appeal book) at the Wabag District Court that the first respondent was present at the Lae District Court on 5th of May 1994 when the application to set aside was made. There is also evidence that the appellant was not present himself since he was represented by a lawyer (see pages 58-59 of the appeal book). Asked in chief how did he know that the original ex-parte order was set aside and the complaint struck out. He said in answer that his lawyer rang him about the complaint being struck out. With respect I must say that what is alleged by the appellant in his evidence first on his affidavit dated 1st August 1995 and his oral evidence in the proceedings at the Wabag District Court (see pages 46-59 & 58-60 of the appeal book) does not correspond with the handwritten transcript of the magistrate of what occurred on the 5th day of May 1994. It is quite clear from the terms of S. 159 of the District Courts Act that where an order has been made ex-parte pursuant to S. 157, it may be set aside only if a magistrate is satisfied by an affidavit or a statutory declaration that a defendant has a good defence. The presiding magistrate at Lae at the date of the application to set aside was empowered to set aside the ex-parte order and reinstate the complaint and appoint a time and place for the hearing of the complaint. Section 59 is in the following terms:

“159. Court may set order.

(1) &&#160re ae orde order is m is made under Section 157, the Court, whether consisting of the same Magistrate or not, at any time after the making of the order, on being satisfied by an affidavittatuteclar that that the dehe defendafendant has a good defence, may---

(a) &#160 asite the order and rand reinstate the complaint and appoint a time and place for the hearing of the complaint; and

(b) ҈ ssece/p(-

(ii) &&##160;; givve tond on tern terms as to costs osts or otor otherwiherwise as to it seem just.

(2)&#16) & Notf an aptionption to seto set aside an order made under Section 157---

(a) ҈ ballive given by t by the defendant ining t compnt orlegal representative stating ting the tthe time wime when, hen, and the place where, the application is to be made; and

(b)҈&ـ shal shall havl have atte attached a copy of the affidavit or statutory declaration in support of the application.

(3) The notice and the copy of the affidavit or declaration referred to in Subsection (2) shall be served---

(a) ;ټ on the the complaomplainant or his legal representative not less than 18 hours before the time when the application ise madd

(b) & in the manner prescribed ibed for the serviservice ofce of notice of intention to defend a complaint in respect of which a default summons has been issued, and the Court may entertain any answering affidavit or statutory declaration submitted to it by the complainant in reply”.

As can be seen from subsections (2) & (3) there is a requirement that there be notice served on the complainant either by the defendant or his lawyer together with a copy of the affidavit or statutory declaration 2 days prior to the application being made.

Mr Yapao now argues that there are at least 3 different sets or orders. He has referred to pages 51 & 52, 72 and 83 of the appeal book. Let me now examine each of those orders commencing with the ones that were purportedly made on 5th of May 1994. For the purposes of this discussion I will commence with the order made in the hand written transcript of his worship Gemung as put by the lawyer for the appellant. At page 50 and exhibit “A” of the Appellant’s affidavit one finds his worship’s handwritten transcript in the following terms:

“Defence applied for the matter to be S/Out

deft discharge -

Application S/Out

Original order re-instated and enforce accordingly (signed)

At the right hand side beside the order was his worship’s signature. On page 51 is a typed copy with the same wording that appears on the hand written transcript on page 50 but does not however have the signature of the presiding magistrate. By yet another copy of the same order on page 52 one finds the same wording again but this time that order was signed on behalf of the presiding magistrate. On page 72 and 85 of the appeal book the appellant has yet another copy of the order which his lawyer has urged this Court that that must be the correct order given on 5th May 1994. The order on page 83 appear clearer than that in page 72, but the order reads:

“1. The complaint be struck out for want of prosecution.

2. No ordet as st co822&#.

the aant as hernot blained in isolation from what the first respondent dent says says in hiin his evis evidencedence. On Exhibit “A” to his avit the> the resp respondent includes a copy of the original ex-parte order of 13th July 1993. Exhibit “B” on page 32 of the appeal book contains a copy of the order of 5th of May 1994 with the same wording as contained on pages 51 & 52 of the appeal documents. At least the one on page 32 bares the signature of the presiding magistrate but with exactly the same wording.

It is argued on behalf of the Appellant that the court should accept the order made on the same date 5th June 1994 on page 83 of the appeal book which bares the order to struck the complaint out. It is now argued by Mr Yapao that because the first respondent was not in Court on the 5.5.94 it was only right for the complaint to be struck out for want of prosecution and that at least the order that was wrongly dated 5th June 1994 presents a more accurate picture of what transpired in Court on 5th May 1994. Mr Yapao also urged that the wrong date was a typographical error on the part of the secretary/typist at the Lae District Court.

This argument is far from the truth and there is no evidence to support that proposition. To the Court it does not reveal an accurate picture of his worship’s hand written transcript dated 5th May, 1994. At least if there is any confusion in regard to what the Appellant now says to be confusing orders one must go back to the hand written transcript by the presiding magistrate on 5th May 1994. Although the order for the complaint to be struck off was signed by the same person that signed the order on page 52 and which has been suggested by the lawyer for the appellant that it must have been the Clerk of the Lae District Court who is supposed to be a relative of the First Respondent, I am not convinced that the order on page 72 & 83 was the true representation of what transpired on the date that the original ex-parte order was reinstated.

It is part of the appellant’s argument that there was no valid court order to enforce against him arguing that the draft order done by his previous lawyer was and is valid. I have already explained that whatever happened, the hand written transcript of his worship on 5th of May 1994 should be accepted as the true intention of the court. I note in particular that pages 51 & 52 were typed copies of the wording of the hand written transcript on page 50. I am not left in darkness on that view. Exhibit “B” on page 32 of the first respondent’s affidavit sheds further light on that proposition. I would rather accept the order on page 32 as correct and the signature there matches the hand written order of magistrate Geming as appears on page 50 of the appeal book.

The argument that the Warrant of Execution was stale when it was executed would in my view be beside the point. The original orders made by his worship Posaen Poloh reads:

“That ex-parte judgement entered for the complaint in the sum of K7,862.00 (costs inclusive). Payment be made forthwith”.

This would have meant that the two defendants were to immediately settle the debt and from which it may also be inferred that the first respondent was entitled to execute that order at any time. Secondly by the requirement of S. 174 (5) of the District Courts Act, goods and chattels seized must be sold within the period fixed by warrant and with a written consent to the person against whom the writ of levy of property is being issued. The same subsection requires that if the Warrant for Levy of property does not fix the time for execution then the sale should be made 14 days after the date of making the levy. Procedure on execution is set out in S. 174 of the District Courts Act. I note in particular subsections (1) (2) (3) (4) and (5) are in the following terms:

“(1) & A warrant of executxecution issued by a Court or Magistrate shall be executed---

(a) &##160; r under nder the dirnctioa of a police officer or by or under the direction of some other officefficer named in the warrant; and

(b)ټ&##160;; by a seizure and sale of the goods ands and chattels of the person against whom whom the the warrant is issued.

(2) &##160; The weae wearing ap arelbend bedding of the defendant and his family, and the tools and implements of the defe’s trade, the whole not exceeding in value the sum of K200.00 shall not be taken unde under a warrant of execution.

(3) ـ Except cept in so far as the person against whom the execution is issued otherwise consents in writing, the goodschattels seized shall be sold by public auction and five days at least shall intervene betw between the making of the levy and the sale, of which due and public notice shall be given, except in the case of perishable goods which may be sold at the expiration of 24 hours after seizure, after such notice as is practicable.

(4) Where writteneconss t ien iven under Subsection (3), the sale may be made in accordance with the consent.

(5) &##160; Subjectbject to Sub)e (4dsgoodschatteizedl be sold within thin the pere period fiod fixed ixed by thby the warrant, and if no period if fixed then within the period of 14 dayer the of g the lthe levy, unless the sum for which the ware warrant rant was issued, together with the charges of the execution, is sooner paid”.

I am not aware how practical is subsection (5) of S. 174 of the District Courts Act. There were no arguments raised by the lawyer for the appellant on the limitation placed by S. 174 (5) as to the time limit. It is understood from that sub-section that, any property seized or levied other than perishables has to be sold within 14 clear days. I note from the body and wording of the Warrant of Execution that the property levied was to be sold after expiration of 14 days if the judgement debtors could not within those 14 days be able to settle the terms of the orders.

The analogous enforcement provision to PART 1X Divisions 1 & 2 see SS. 160 - 179 of the District Courts Act is Order 13 of the National Court Rules 1983. I note from O. 13 r 31 that there is no time specified for the sale to take place but sub-rule (1) of the rule 31 says that the Sheriff is to put up for sale all property liable to be sold under a writ “as early as may be with due regard to the interests of the parties and to the avoidance of sacrifice of the reasonable value of the property”. O. 13 actual governs the methods for enforcement by the Court of its judgements or orders in circumstances that would amount to contempt of Court. In the commentary to the effect of the rule in the English Supreme Court Practice Rules 1970 Volume 1 page 666 also similar to the Supreme Court Rules of New South Wales which the National Court Rules of 1983 make reference to, say the following in relation to enforcement of judgements in particular with regard to the time.

“This Rule governs the methods for the enforcement by the Court of its judgements or orders in circumstances amounting to a contempt of Court. It applies to both positive and negative judgements or orders, i.e., those which require a party to do an act as well as those which require a party to abstain from doing an act, subject, however, to this important qualification, that the coercive methods of enforcement under this Rule cannot be employed to enforce a judgement or order to do an act unless that act is required to be done, but is not done, within a specified time which has been fixed either by the original judgement or order, or by a subsequent order extending or abridging such time under s. 3, r. 5, supra, or fixing such time under Rule 6, infra. The effect of the qualification is, that a judgement or order to pay money to some other person or to give possession of land or to deliver goods which need not, and will not as a general rule specify, the time within which such act is required to be done (see O 42, 4. 2 (2), supra) will not come within this Rule, and so will not be enforceable by writ of sequestration or order of committal, unless and until a time is specified for the doing of that Act (see para. (2) and Rule 6, infra)”.

It is clear from reading the above quote that a judgement or order requiring an act to be done must state the time within which the act is to be done before it can be enforced. O. 13 r. 5 of the National Court Rules says that in a case where an order requires a person to do an act within a time specified in the judgement he must comply with such terms and conditions as directed by the judgement or order failure, to which will result in enforcement procedures set out in O. 13 r 2. Unlike in the National Court the District enforcement provisions see SS. 173 & 174 (3) (5) specifically say that 5 clear days shall intervene between the time the levy is made and the time of sale and if no time period is fixed by the Writ of Execution the property seized has to be sold within 14 days after the date of making of the levy.

Mr Yapao argues on page 3 of his submission that SS. 220 (2) and 221 (2) of the District Courts Act were breached providing for an aggrieved party to appeal within one (1) month from the date of the decision. With respect, I am of the view that since the Writ of Execution resulted from an ex-parte order there were two options open for the Appellant. First it was open for him to apply for the order to set aside as he alleges he did, pursuant to S. 159 of the District Courts act. Secondly it was also open for him to apply to stay the Warrant of Execution S. 159 (1) (b) (i). I do not think the right of appeal lies where an ex-parte order has been made unless perhaps by the leave of the Court. S. 159 of the District Courts Act specifically provides that an ex-parte order made pursuant to S. 157 may be set aside wether before the same magistrate who made the order or another magistrate.

There is no way it can be inferred that the order of 13th July 1993 of the District Court in Lae was against the Appellant alone. The copy of the order on pages 32 and 50 of the appeal book show that the order was made against two Defendants, Steven Kambu and Kuri Pato. The Warrant of Execution confirms this. There is no evidence before this Court that the motor vehicle impounded was jointly owned by the two defendants. What is clear is that a general order was made against both Defendants. It is submitted by Mr Yapao that the amount ordered (K7871.30) could be proportionately shared between the appellant and the other defendant so that the appellant could pay a sum of K3,931.15 leaving the other half to be paid by the co-defendant. Mr Yapao submits that this amount is at least reasonable and which his client could pay.

The fact that, the appellant’s private vehicle was seized under the Warrant of Execution did not in my view prevent the police from further execution upon the second defendant on the same warrant. Allegation by the appellant that the Warrant of Execution was made out the same date is incorrect. The foot of the Warrant is dated 12th August 1993. This was despite the fact that the order was made to be paid “forthwith”. The term “forthwith” has been held to be sufficient expression of time for doing an act by an order: Thomas v Nokes [1868] UKLawRpEq 165; (1868) L.R. 6 Eq. 521. An order to do an act “forthwith” means that the act is to be done as soon as it can reasonably done: Hillingdon London Borough Council v Cutler [1968] 1 Q.B. 124 see also [1967] 3 W.L.R. 246.

Lawyer for the Appellant also argued that his worship the Magistrate in Wabag District Court did not or failed to mention the name of the second defendant in his judgement (see pages 101-103 of the appeal book). I think this did not mean in anyway that the second defendant was being dropped from the original proceedings. I think the issue before his worship at the Wabag District Court was whether the detention of the appellant’s vehicle by police in Wabag was lawful and if it was lawful was the appellant entitled to damages as claimed.

Further, I do not agree with the proposition that the ex-parte order of 13th July 1993 was not properly served on the Appellant and co-defendant. The first respondent says in his affidavit at paragraph 4 (see page 29 appeal book) that the ex-parte order was properly served on the appellant and the co-defendant. I have also perused the first respondent’s oral evidence before the Wabag District Court (see pages 37 - 41 of appeal book) that he was consistent in answering questions from the appellant’s lawyer. The appellant himself says at paragraph 4 of his second affidavit (see page 47 of appeal Book) that he himself and Mr Pato were aggrieved by the ex-parte order of 13th of July 1993 and he himself instructed his former lawyers Warner Shand Lawyers in Mount Hagen to make an application to set aside the ex-parte order. This is further evidence that the appellant and the second defendant were properly served with a copy of the ex-parte order of the Lae District Court.

In that same second affidavit the appellant deposed that the Hagen based Warner Shand Lawyer gave instruction to their Lae office to make an application to set aside the order of 13th July 1993, and that the order to set aside was granted on 28th of October 1993 and the matter was adjourned and relisted to 5th May 1994. On further perusal of his affidavit evidence there is no evidence to support that proposition. All I find is that there was an application to set aside the ex-parte order of 13th July 1993. Such application was made on 5th of May 1994 before his worship Roap Geming who struck the application to set aside and further ordered reinstatement of the ex-parte order.

I am most hampered by lack of authorities cited to me by the lawyers in carriage of this appeal. From what I have said, I am satisfied that his worship at the Wabag District Court was satisfied that there was a valid order for reinstatement of the ex-parte order of 13th July 1993. He was also satisfied that the ex-parte order was properly served on the two judgement debtors who had refused and neglected to make payments to satisfy the order. Despite that his worship could have gone further and asked himself, was the vehicle held within the time specified in the Warrant of Execution as required by S. 174 (5) of the District Courts Act. If he found that the vehicle had been held longer than the time required by the law he would have granted damages to the appellant. Alternatively had he found that the vehicle was held within the time specified he was entitled to dismiss the claim as he did. These two propositions dispose of the first ground of appeal.

On the second ground of appeal, I am of the view that it did not matter if the second, third and fourth defendants were present or not. That depended so much on whether or not service was effected on each of those defendants. It does not appear from the evidence before me whether the last three defendants in the Wabag District were served with hearing notices. Even if they were served and did not appear on the trial date, had the magistrate found in favour of the appellant the three defendants would have been served with copies of ex-parte orders against each of them. I must dismiss the second ground of appeal. Costs ordered in favour of the Appellant to be taxed if not agreed.

Lawyer for the Appellant: Yapao Lawyers

Lawyer for the First Respondent: Michael C. Thoke Lawyers