Simasimaku Samapa Estate v Monemone [2021] PGNC 581; N9439 (23 November 2021)

N9439

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 20 OF 2021


BETWEEN:
SIMASIMAKU SAMAPA ESTATE
Appellant

AND:
ALKEN MONEMONE
Respondent

Goroka: Mugugia, AJ
2021: 11^th, 12^th, 23^rd November

CIVIL APPEAL - Appeal from District Court to the National Court against ex parte order of the District Court – ambiguity on the reliance of the District Court Order appealed against – Appeal is not in order.

CIVIL PRACTICE AND PROCEDURE - Appeal from District Court to the National Court against ex parte order of the District Court – party not present when the ex parte order was made has a remedy under Section 25 of the District Courts Act – Appeal wrongly brought to the National Court.

CIVIL PRACTICE AND PROCEDURE - Appeal from District Court to the National Court – Appeal against interlocutory order of District Court –- Whether interlocutory order of District Court appealable – question of jurisdiction of the National Court – consideration of Section 219 of the District Courts Act - no appeal lies to the National Court from an interlocutory ruling or order of the District Court in civil proceedings – Appeal from interlocutory order wrongly brought before the National Court.

CIVIL APPEAL - Appeal from District Court to the National Court against ex parte order of the District Court – Appeal is not correctly on foot - Appeal dismissed.

Held:

The Appeal is not correctly on foot as it is not in order, and it is wrongly brought to the National Court.

Case Cited:

Nikints v Rumint [1990] PNGLR 123
Waninara v Omi (2011) PGNC N4913
Paraka v. Peng ( N6120" title="View LawCiteRecord" class="autolink_findcases">2015) PGNC N6120

Counsel:

D. Wayne, for the Appellant
G. Gendua, for the Respondent

DECISION

23^rd November, 2021

1. MUGUGIA, AJ: This National Court appeal is against an ex parte order of the District Court made on 13 April 2021 in favour of Mr Alken Monemone and all the residents of Portion 1091c, Volume 37 Folio 129, Milinch Goroka, Fourmil Karimui ALL THAT piece of land also known as Ginipauka Sogorepaloka (named Defendants), whereby the District Court constituted by His Worship Frank Manue granted the Defendants’ application/motion.

BACKGROUND

2. Simasimaku Samapa Estate had filed a complaint in the Goroka District Court in early January 2021, against Alken Monemone and the other residents, asking the District Court for an order pursuant to Section 6 of the Summary Ejectment Act 1952, to eject them from the subject land. Simasimaku Samapa Estate claimed that it is the proprietor of the property which holds indefeasible title to the property, and the Defendants were in possession and/or purporting to own the property without right, title and licence.

Simasimaku Samapa Estate’s grounds of appeal

3. Only Mr Monemone was named as a Respondent in this appeal. The grounds of the appeal which were pursued at the hearing were as follows:

“1. The magistrate erred in law by entertaining the notice of motion filed on 24 March 2021 as the relief sought therein did not properly invoke the jurisdiction of the District Court to adjudicate;

2. The magistrate erred in law by entertaining the notice of motion filed on 24 March 2021 as the relief sought therein were incompetent;

3. The magistrate erred in law by entertaining the notice of motion filed on 24 March 2021 when it did not have the jurisdiction to rule on the relief sought.”

Mr Monemone’s notice of motion filed on 14 October 2021 in CIA No. 20 of 2021

4. Mr Monemone had filed a notice of motion on 14 October 2021 in this appeal, seeking dismissal of the entire appeal based on competency grounds. The arguments advanced were that there were defects in the Appeal Book, and non compliance with the Court Rules. Mr Monemone’s lawyer had abandoned Term 2 of the motion.

5. The parties’ lawyers had agreed that both Mr Monemone’s motion and the substantive appeal be heard together, and Mr Monemone’s motion to precede as it concerned the competency of the appeal. The hearing proceeded on that basis on 11 November 2021. The submissions brought to my mind the issue of whether the Appeal was correctly on foot.

ISSUES FOR DETERMINATION

6. The question that I asked myself at the outset was “Is the Appeal correctly on foot?”. To answer this question, I will determine the following issues:

(i) Whether the Appeal is in order.

(ii) Whether Simasimaku Samapa Estate should have filed an application under Section 25 of the District Courts Act to set aside the ex parte order appealed against.

(iii) Whether the ex parte order appealed against is appealable.

ISSUE 1: WHETHER THE APPEAL IS IN ORDER

Mr Monemone’s evidence in support of the notice of motion filed on 14 October 2021

7. The evidence before me showed that there were two (2) ex-parte orders made by the District Court on 13 April 2021. Mr Monemone’s lawyer Mr Gendua confirmed in his affidavit in support of the motion filed on 14 October 2021 that on 13 April 2021, Mr Wayne failed to appear to prosecute his client’s case. The presiding Magistrate proceeded to hear the case ex parte. Mr Gendua prosecuted his clients’ motion filed on 24 March 2021. The terms of this motion were as follows:

“1. Pursuant to Item No. 2, 3 and 4 of the Court Orders made by Justice Neill on 28 February 2020 in the matter WPA No. 8 of 2001: Julie Soso Akeke v. Angela Soso, the subject land known as Simasimaku also known as Ginipauka Sogorepaloka, at Asaroyufa Village, Goroka District of Eastern Highlands Province still remains a customary land.

2. Simasimaku Samapa Estate, having been first registered with the Investment Promotion Authority as a business under the Business Names Act on 29 August 2017, lacked the legal capacity to conduct any business or acquire any property in its name in 2016 as it was non-existent in 2016, hence the purported Conversion Order and Conversion Plan Mr Jackson Gah, Acting Deputy Chief Commissioner made on 16 July 2016 was the result of conspiracy to defraud between Mr J. Gah and Ms Julie Soso Akeke, and thereby, the Certifcate of Title issued on 18 December 2016 was or is the result of corruption and so is invalid.

3. The Complainant can not invoke Section 6 of the Summary Ejectment Act for the reason that it did not or does not have a title to the land described as Simasimaku, also known as Ginipauka Sogorepaloka as the subject land is a customary land by reason of Justice Neill’s Orders made on 28 February 2020.

4. Cost of this application.

5. Any or further Orders as the Court deems fit.”

8. Mr Gendua deposed that the District Court considered that there were two (2) issues before it for deliberation. Firstly, the Defendants’ motion filed on 24 March 2021, and secondly, the Complainant’s complaint. Mr Gendua submitted that after making his clients’ application, he asked the Court to dismiss the proceeding, which the Court did.

Ex parte order made on the motion filed on 24 March 2021

9. The Court made the following orders in the District Court after hearing Mr. Gendua:

“(1) The application/motion is granted.

(2) This Court has no jurisdiction as the matter has been decided by the higher Court.

(3) Cost of this case be awarded to Alken Monemone.”

10. This ex parte order is included in the Appeal Book, but the pages of the Appeal Book are all unnumbered.

Ex parte order made on the complaint

11. Mr Gendua’s evidence shows that on the issue of the Complainant’s complaint, the Court made the following Orders after hearing his submissions:

“(1) Complaint is dismissed for want of prosecution.

(2) The complaint of customary ownership of Portion 1091c, Volume 37 Folio 129, Milinch Goroka, Fourmil Karimui, known as Ginipauka Sogorepaloka is to be mediated by the Land Mediators of Goroka District or that the process of conversion, under the Land Tenure Conversion Act be done with the knowledge and cooperation of Alken Monemone, and any interested parties, whichever process the parties intend to take.

(3) Costs is to be paid by the Complainant.”

12. This ex parte order made on the complaint was not in the Appeal Book, only the ex parte order made on the motion filed on 24 March 2021.

13. The evidence before this Court showed that Mr Monemone’s lawyers Gendua & Associates Lawyers raised the issue on the defects in the appeal book in their letter to Simasimaku Samapa Estate’s lawyers dated 30 September 2021 (Annexure “D1”). They also confirmed the existence of the two ex parte orders made on 13 April 2021, and queried why the ex parte order made on the complaint was not included in the Appeal Book.

Simasimaku Samapa Estate’s Submissions

14. Mr Wayne’s submissions in summary were:

• His Court file search at the District Court showed that there were no handwritten notes for the ex parte order made on the complaint, and that this order was made in vacuum. The only orders made were on the motion, not the substantive.
  
• The ex parte order made on the motion filed on 24 March 2021 concluded the complaint in the District Court. There was no need to determine the substantive matter as the District Court was seised of its jurisdiction.
  
• His client’s appeal in the National Court against the ex parte order made on the motion filed on 24 March 2021 was in order.
  

Examination of the documents on the District Court file

15. Because of the different positions taken by the parties on the ex parte orders made on 13 April 2021, I went further by examining the documentations on the District Court file to ascertain for myself what transpired in the Court below. I discovered the following:

(i) Both the magistrate’s handwritten notes for the ex parte order made on the motion filed on 24 March 2021, and the ex parte order made on the complaint were on the District Court file.

(ii) Sealed copies of both the ex parte order made on the motion filed on 24 March 2021, and the ex parte order made on the complaint were on the District Court file.

(iii) The Certificate to Accompany Appeal Papers, dated 13 May 2021 was signed by the Clerk of Court Elizabeth Ga’a. She confirmed that she received a Notice of Appeal from the Appellant. Such appeal being made by the Appellant against an order of the District Court at Goroka, E.H.P on the 13 day of April 2021, whereby a Court Order was made in favour of the Respondent(s) which the Court ordered that:-

(1) Complaint is dismissed for want of prosecution.

(2) The complaint of customary ownership of Portion 1091c, Volume 37 Folio 129, Milinch Goroka, Fourmil Karimui, known as Ginipauka Sogorepaloka is to be mediated by the Land Mediators of Goroka District or that the process of conversion, under the Land Tenure Conversion Act be done with the knowledge and cooperation of Alken Monemone, and any interested parties, whichever process the parties intend to take.

(3) Costs is to be paid by the Complainant.

16. One can confirm from the District Court file, just as I did, that two ex parte orders were made on 13 April 2021. Firstly, the ex parte order made on the motion filed on 24 March 2021, and, secondly, the ex parte order made on the complaint. Sealed copies of both the ex parte orders were on the District Court file. Further, the Certificate to Accompany Appeal Papers, dated 13 May 2021 shows receipt of a Notice of Appeal from Simasimaku Samapa Estate against the ex parte order made on the complaint, not the ex parte order made on the motion filed on 24 March 2021.

17. Mr Gendua had submitted that after making his clients’ application in the District Court, he asked the Court to dismiss the proceeding, which the Court did. Mr Wayne’s assertion that his Court file search at the District Court showed that there were no handwritten notes for the ex parte order made on the complaint is untrue. I find that this ex parte order was not made in vacuum.

18. I find that Simasimaku Samapa Estate’s Appeal is not correctly on foot as it is not in order. There is ambiguity on the reliance of the District Court Order appealed against.

The order being appealed against as stated in the Certificate to Accompany Appeal Papers, dated 13 May 2021, is the ex parte order made on the complaint. However, in Simasimaku Samapa Estate’s Notice of Appeal filed on 20 May 2021, the order appealed against is the ex parte order made on the motion filed on 24 March 2021.

19. Even if I am wrong, I am of the view that there is a second reason why Simasimaku Samapa Estate’s Appeal is not correctly on foot as it was wrongly brought before this Court. I now deal with the second issue to address this.

ISSUE 2: WHETHER SIMASIMAKU SAMAPA ESTATE SHOULD HAVE FILED AN APPLICATION UNDER SECTION 25 OF THE DISTRICT COURTS ACT TO SET ASIDE THE EX PARTE ORDER APPEALED AGAINST

20. Section 25 of the Act states:

“25. Ex parte Order may be set aside

“A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just, and the Court, on service on the other party of such reasonable notice as the Court directs, may–

(a) proceed to hear and determine the information or complaint in respect of which the conviction or order was made; or

(b) adjourn the hearing and determination of the hearing to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to

21. During the course of the hearing, I asked the parties’ lawyers to make submissions on Section 25 of the Act.

Parties’ Submissions

22. Mr Wayne’s submissions were that the ex parte order on the complaint was made in a vacuum after the District Court was seised of its own jurisdiction. He submitted that both orders concluded the matter. When asked by the Court which order his client should have appealed against, he submitted that the order that was made first which they became aware of, that was the interlocutory order. They had the option to appeal and they appealed. He further submitted that even if the substantive order was made, it was an ex parte order and he still had the option under Section 25 to set that order aside.

23. Mr Gendua submitted that when a matter is determined ex parte, litigants refer to Section 25. He submitted that Mr Wayne did not exhaust the statutory requirement/avenue available under the Act. He had taken the wrong step, and this is an abuse of process.

Consideration

24. Mr Wayne’s submissions are unconvincing. I concur with Mr Gendua’s submissions.

25. The District Courts are creatures of statute. Therefore, their powers, functions and anything to do with them are governed by their enabling legislation, that is, the District Courts Act.

26. In Nikints v Rumint (1990) PNGLR 123, Woods J stated that:
“Appeals from the District Court to the National Court are creatures of statute and one must look at the procedures and conditions set out in the statute to find the ambit of the power of the court.”

27. The District Court may set aside its own orders by virtue of its powers in section 25 of the Act. An ex parte order made in the District Court may be set aside on application by a party to the Court.

28. In Waninara v Omi (2011) N4913, Kawi J held that in an ex parte hearing, the court will usually hear and receive evidence and submissions from the party present. The party not present is however not without remedy. Section 25 of the District Courts Act provides for a party affected to apply to the Court to set aside the orders or any adjudication made in his or her absence.

29. In the present case, the District Court depositions show that Simasimaku Samapa Estate did not file an application to set aside the ex parte order of 13 April 2021 (order appealed against). After the ex parte order was made against it, it had an opportunity to make an application to set it aside. This, it failed to do so. Simasimaku Samapa Estate was entitled to file such an application under Section 25 of the Act because the ex parte order by its very nature was made following an ex parte hearing.

30. I find that Simasimaku Samapa Estate was not without a remedy. It should have filed an application pursuant to Section 25 of the Act to set aside the ex parte order. It instead filed this appeal which was wrongly brought before this Court.

31. I am of the view that there is a further reason why this appeal is not correctly on foot as it was wrongly brought before this Court. I address this under Issue 3.

ISSUE 3: WHETHER THE EX PARTE ORDER APPEALED AGAINST IS APPEALABLE

32. The relevant part in the Act that deals with appeals from the District Court to the National Court is Part XI, from Sections 219 to 227.

33. To answer Issue 3, I looked at Section 219. The right of appeal from a decision of a District Court is conferred by this section. It states:

"PART XI.—APPEALS FROM DECISIONS OF DISTRICT COURTS.
219. Appeal to National Court.

(1) Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2) Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3) Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Secretary for Justice may —
(a) appeal against a decision of a District Court on behalf of a party; or
(b) intervene in an appeal to the National Court.

(4) The Public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code." (Underlining is mine).

34. My research on the law and relevant cases took me to the case of Paraka v. Peng N6120" title="View LawCiteRecord" class="autolink_findcases">(2015) PGNC N6120. Makail J dealt with the issue of the jurisdiction of the National Court to determine an appeal from an interlocutory ruling or order of the District Court. The Appellant had filed appeals against interlocutory rulings or orders of the Waigani District Court in its Committal Court jurisdiction. His Honour referred to section 219 of the Act, and expressed his views at paragraphs 14 to 17 in these words, and I quote:

“14. My reading of Section 219 is this, in the first part of Sub-section (1), a person aggrieved by a conviction order or adjudication of a Court may appeal to the National Court. This includes an adjudication or order dismissing an information or complaint. In the second part, the reference to " appeal to the National Court from the conviction, order or adjudication....." must be read with reference to the first part of Sub-section (1).

15. When construed in this way, an appeal to the National Court from a "conviction" would be in relation to the "conviction order". Similarly, an appeal from an "order" would be in relation to the "order dismissing an information or complaint" and finally, an appeal from an "adjudication" would be in relation to the "adjudication of a Court".

16. This interpretation is fairly restrictive, one may argue, and an appeal would not lie to the National Court unless it is from a conviction order or order dismissing an information or complaint or adjudication of the Court.

17. In my view the use of the expressions "conviction order", "order dismissing an information or complaint" or "adjudication of a Court" strongly suggest that the order is a final order. This means that it is made after a hearing of the whole matter, including the evidence and submissions made.”

35. His Honour concluded that no appeal lies from an interlocutory ruling or order of the District Court in a criminal proceeding before that Court, and dismissed the appeals.

36. In the present case, I am faced with the same issue relating to the jurisdiction of the National Court to determine an appeal from an interlocutory ruling or order of the District Court. I take the same approach here as Section 219 of the Act also applies to civil claims.

37. I find that the ex parte order of 13 April 2021 which Simasimaku Samapa Estate is appealing against is not appealable, and the appeal is wrongly brought before the National Court because the ex parte order is an interlocutory order. The District Court did not make a final decision after a full hearing on the merits. This ex parte order is not a final order for Simasimaku Samapa Estate to appeal to the National Court under Section 219 of the Act. This provision does not permit an appeal from an interlocutory order of a District Court. The ex parte order of 13 April 2021 was not final in nature which could only be challenged under the provisions on appeal regulated by Part XI of the Act.

CONCLUSION

38. I conclude that Simasimaku Samapa Estate’s appeal is not correctly on foot as it is not in order, and this appeal was wrongly brought before this Court. It is therefore not necessary for me to consider the submissions of counsel on the grounds of appeal. The appeal is therefore dismissed.

FORMAL ORDERS

39. I make the following orders:

1. Appeal is dismissed.

2. The Appellant shall pay the Respondent’s costs of the appeal, to be taxed, if not agreed.

3. Time for entry of these orders is abridged to the date and time of settlement of these

orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
D. Wayne: Lawyer for the Appellant
Gendua & Associates Lawyers: Lawyers for the Respondent