N11322

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA 18 OF 2023

BETWEEN:
WINNIE MALIPU & MALAITA MALIPU
Appellants

AND:
ADAM LAKA
Respondent

WABAG: KANGWIA J
29 JANUARY, 6 JUNE 2025

DISTRICT COURT APPEAL - Appeal against refusal of application to set aside ex parte orders - application to set aside ex parte orders made after National Court dismissed appeal for want of prosecution - powers of National Court on appeal from District Court prescribed by  s 230 District Courts Act –power to dismiss for want of prosecution not prescribed by s 230 - Effect of National Court decision on District Courts’ refusal to set aside ex parte decision - Powers of District Court on application to set aside ex parte order prescribed by  s 25 District Courts Act – Striking out for want of prosecution not prescribed by s 25 - conditions under s 25 not complied – additional orders issued after striking out proceeding for want of prosecution- enforcement order issued after refusing application to set aside. – legally and procedurally flawed Court orders in initial and subsequent District Court decisions - substantial miscarriage of justice – Decision appealed against quashed - case remitted to the District Court for further hearing by another competent court pursuant to s 230 (1) (d) of the District Courts Act.  

Cases cited
Aiwasi v Derari (2017) N6602
Babia v Kimas (2009) N3940
Green v Green [1976] PNGLR 73
Lady Ni Cragnolini v Teddy Tasion and Henry Leia (2022) SC2464
Morobe Provincial Government v Tropical Charters Ltd (2009) N4160
Rangip v Loko (2009) N3714
Wawoi Guavi Timber Company v Malu (2016) SC1514

Counsel
J. Yapao for the appellant
Adam Laka, respondent in person

1.     KANGWIA J:  This is the decision on an appeal against the entire decision of the District Court made on 20 April 2023. The genesis of the proceeding is a complaint laid in the District Court in which the Plaintiff (now Appellant) sought restraining orders against the Defendant (now Respondent) from interfering with quiet enjoyment of property on an unregistered State Land in Wabag town. 
2.     On 10 August 2021 being the return date for the hearing, the Appellant made no appearance, and the Learned Magistrate struck out the proceeding for want of prosecution and made additional orders ex parte the Appellant. The ex parte orders are reproduced for completeness, and they appear in these terms.

1.Matter struck out for want of prosecution.
2. That the Defendant shall continue to manage and possess the properties he helped to erect with the assistance of Ben Dela Torre whilst the Complainant stays in the Bruce Lee Trading and others he currently benefits from.
3. Both parties adhere strictly to managing and benefitting from the properties they hold until such time a higher Court of competent jurisdiction finds otherwise.
4. Costs against the complainant in the sum of K1,000 to be paid to the Defendant within 7 days. 

3.     Aggrieved by the ex parte Court Orders the Appellant chose to appeal the decision in the National Court instead of making application to the District Court to set aside the ex parte Orders as permitted by s 25 of the District Courts Act. 
4.    On the return date in the National Court, the Appellant again made no appearance, and the National Court dismissed the proceeding for want of prosecution.  Not satisfied by the dismissal in the National Court the Appellant made application to the District Court to set aside the ex parte orders of 10 August 2021 instead of making application to the National Court to set aside the dismissal for want of prosecution. 
5.     On 20 April 2023 it appears the learned Magistrate heard the Appellants application to set aside and an application by the Respondent to enforce the Court Orders of 10 August 2021. After hearing both applications the learned Magistrate refused to set aside the ex-parte orders of 10 August 2021 and granted the Respondents application to enforce the earlier decision of the District Court in the form of additional Orders which are the subject of the appeal. The orders are reproduced and are in these terms.

1.	The complainant’s application to set aside the ex-parte Court Order of 10 August 2021 is refused.
2.	The Defendant’s application to enforce the ex-parte Court Order of 10 August 2021 is granted in the following terms.
a.	The Complainants including their tenants shall give vacant possession of the property described as Ben Dela Torre premises to the Defendant.
b.	In event of non-compliance of term 2 (a) within, the Defendant shall with the assistance of police use reasonable force to have the Complainant and their tenants removed from the Ben Dela Torre premises and have possession of the said premises.
3.	The Complainants Lawyers shall pay the costs of the Complainants application.
4.	Each party to bear their own costs with regards to the Defendants application. 

A.	Original ex-parte Orders

6.     I start with the original ex parte Orders of the District Court to give credibility to the decision on the appeal against the second decision of the District Court.   

7.    It is obvious from the reproduced ex-parte decision of 10 August 2021 that it reflects the exercise of the learned Magistrate’s general ancillary jurisdiction prescribed by s 22 of the District Courts Act to strike out the proceeding for want of prosecution because there is no provision in the District Court Act which prescribes that a proceeding can be stuck out for want of prosecution. 

8.     However, the decision is substantially flawed on the face of the record when it was made ex parte the Appellant.  The District Court being a creature of statute must comply with statutory requirements that the District Courts Act prescribes in the discharge of its powers and functions. 
9.     When the Learned Magistrate decided to first strike out the matter for want of prosecution, it effectively stopped the proceeding from any further activity on it. The additional orders issued were ultra vires the decision to strike out the proceeding. There is no evidence of where the additional orders originated from after the proceeding before the magistrate was struck out for want of prosecution.  There is also no evidence of any cross claim by the Respondent claiming part management or ownership to the property on the unregistered State land to be awarded management and ownership rights. 
10.    It also appears that the additional orders issued by the learned Magistrate to apportion management and possession of property on the unregistered State land was made ultra vires the complaint laid in the District Court.  According to the original complaint laid in the District Court the Appellant sought restraining orders against the Respondent from interfering with the Appellant’s quiet enjoyment of the property. 
11.    From material before the Court, it appears the Appellant relied on a lease agreement between Winnie Malipu and Big Ben Trading to seek the restraining orders against the Respondent. If I were inclined to accept that the source of the additional Orders made by the District Court were derived from the original complaint, then it would be a flawed decision as the terms of the lease agreement are not reflected in the decisions of the learned Magistrate.
 12.     There is a further flaw in the additional Orders of the learned Magistrate when the orders are made subject to a finding of a Higher Court without the matter being instituted in any Higher Court. How the learned Magistrate issued orders which are substantive in nature to be subject to a Higher Court finding remains a mystery when the relief claimed by the Appellant was only to restrain the Respondent from interference in the property on the unregistered State land.   
13.     Even then a decision to strike out a proceeding is not the same as a decision to dismiss a proceeding. 
14.     A proceeding that is struck out for want of prosecution is not a concluded proceeding and an aggrieved party is still entitled to enliven the proceeding by making application to set aside the decision or appeal the decision. These entitlements were properly exercised by the Appellant which led to the appeal the subject of this proceeding. 
15.     Under the circumstances referred to, the ex-parte Orders issued on 10 August 2021 should not have been allowed to stand when the Plaintiff applied to have the decision set aside. However, the District Court erroneously refused to set aside the ex-parte orders of 10 August 2021 which decision is the subject of this appeal. 

Appeal

16.      The decision the subject of the appeal has been reproduced in the earlier part of this decision and will be referred to in the deliberations of the appeal. 
17.     The Appellant elected to exercise his right to make application to the District Court to set aside the ex-parte Court Orders of 10 August 2021 after the National Court dismissed for want of prosecution the appeal against the same decision. It may appear that an abuse of process may have occurred when the Appellant elected to return to the District Court after the National Court dismissed the appeal for want of prosecution against the same ex parte order. 
18.    However, the Appellant as an aggrieved party is entitled to choose which option to take and the options the Appellant took does not offend any known law or established principle when an application to set aside an ex-parte decision of the District Court is permitted by s 25 of the District Courts Act without any reservations. 
19.     The powers of the National Court on an appeal against a decision of the District Court is found under s 231 of the District Courts Act. This provision states:

231.	POWER OF NATIONAL COURT ON APPEAL.
(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may–
(a) adjourn the hearing from time to time; and
(b) mitigate or increase a penalty or fine; and
(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) make such further or other order as to costs or otherwise as the case requires.
(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

20.     The powers given by this provision is wide and varied. However, it has the effect of confining the National Court to the prescribed powers despite the unlimited powers the National Court can ordinarily exercise. 
21.     Under the circumstances of the present appeal, it will require a consideration of the effect the dismissal for want of prosecution by the National Court has over the subsequent decision of the District Court which refused the application to set aside when both decisions relate to the same ex-parte orders of 10 August 2021. 
22.     Therefore, before going on to consider the decision the subject of this appeal it is appropriate to consider the law on dismissal for want of prosecution to shed some light on the effect of the dismissal by the National Court on the refusal by the District Court to set aside the decision the subject of the appeal.  
23.     The Law on the effect of a dismissal of proceedings per se is settled. It is based on the common law principle that a Court has no power to set aside a final Judgement or Order disposing of proceedings after it has been entered. 
24.    Following that principle some decisions of the Courts in this country hold the view that a decision to dismiss for want of prosecution has the effect of concluding the proceeding. The Court is deemed functus officio and the only remedy lay in an appeal against the dismissal. (See Babia v Kimas (2009) N3940; Aiwasi v Derari (2017) N6602).
25.     However, other more accommodating and compelling decisions of the Courts view Order 12 Rule 8 of the National Court Rules as imparting flexibility to the common law principle and confer jurisdiction on the National Court to set aside ex-parte orders dismissing proceedings for want of prosecution. In Wawoi Guavi Timber Company v Malu (2016) SC1514 the Supreme Court while favouring the views on Order 12 Rule 8 in the cases of Rangip v Loko (2009) N371 and Morobe Provincial Government v Tropical Charters Ltd (2009) N416 said this:

“What the drafters ensured in Order 12 Rule 8 (3) was an effective, convenient and economically feasible procedure to redress an injustice which can and does happen when a litigant has not had the opportunity to attend Court, and a decision is made in their absence without the litigant putting their side of the story”. 

26.     On a question of whether the National Court has power under Order 12 Rule 8 of the National Court Rules to set aside its own order made in the absence of a party dismissing the proceeding for want of prosecution the 5 men Supreme Court bench in Lady Ni Cragnolini v Teddy Tasion and Henry Leia (2022) SC2464 held:
“In circumstances where a proceeding is dismissed for want of prosecution in the absence of the parties, that decision was open to challenge to be set aside under Order 12 Rule 8 (3) of the National Court Rules. Order 12 Rule 8 (4) has no application given the specific roles governing applications to set aside orders made ex-parte or in the absence of parties”. 

27.     These enunciations accord well with the proposition that to treat the dismissal for want of prosecution as a concluded matter has the effect of barring parties from the seat of judgement when proceedings are purposefully instituted for Courts to resolve disputes and not for promoting procedural convenience of the Court.  
28.    This proposition is further enhanced through the requirements to be met in an application to set aside an ex-parte decision which dismissed proceedings for want of prosecution.  
30.    The requirements in an application to set aside a dismissal for want of prosecution is similar to an application to set aside a default Judgement. In the case of Green v Green [1976] PNGLR, the Court while setting aside a default judgement said this:
To set aside a default judgement the onus is on the applicant to satisfy the Court;
1.	Why the judgement was allowed to be entered 
2.	There is a reasonable explanation for the delay
3.	There is a defence on the merits. 

31.     The requirements equally apply in dismissals for want of prosecution because the decisions in both circumstances are made in the absence of a party and by doing so the merits of the proceeding are left in abeyance and not properly determined as observed by the Supreme Court in the Wawoi Guavi (supra) case. 
32.      The flow on effect from the cited decisions is that when an application to set aside a default judgement or dismissal for want of prosecution is allowed or upheld it has the effect of enlivening the proceeding in order for the merits of the proceeding to be determined hence the view that a dismissal for want of prosecution has the effect of concluding the proceeding has no basis and cannot be sustained under law. 
33.     In the District Courts Act there is no provision for dismissal for want of prosecution either in the District Court on its own or on appeal to the National Court. In the present case, it appears that the dismissal for want of prosecution by the National Court was a determination not prescribed by s 230 of the District Courts Act. The orders the National Court can make on an appeal from the District Court are prescribed by s 230 in these terms:

230.	 POWER OF NATIONAL COURT ON APPEAL.
(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may–
(a) adjourn the hearing from time to time; and
(b) mitigate or increase a penalty or fine; and
(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) make such further or other order as to costs or otherwise as the case requires.
(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

34.     The powers given by s 230 to the National Court makes no provision for dismissal for want of prosecution on any appeal against a decision of the District Court. The provision only requires that the National Court inquires into the matters on appeal before exercising any of the prescribed powers. 
35.     From material before the Court, it appears the decision of the National Court which dismissed for want of prosecution the appeal against the ex-parte decision of 20 August 2021 was not made after making enquiries into the matters on appeal as stipulated by s 230 of the District Courts Act hence, the trial judge could not properly give effect to any of the powers prescribed under s 230. 
36.     Under the circumstances it is safe to hold that the decision of the National Court to dismiss for want of prosecution was an exercise of the inherent powers of the National Court to remove procedural barriers to protect its processes from abuse. 
37.      When the National Court could not exercise any of the powers prescribed under s 230, the decision to dismiss for want of prosecution being an exercise of powers outside of the powers prescribed by s 230 did not extinguish the merits of the proceeding hence the Appellant was still at liberty to apply to the District Court to set aside the ex parte orders of 10 August 2021. It was not necessary for the Appellant to apply to the National Court to set aside the dismissal for want of prosecution. 
38.     Going back to the appeal, the law on an application to set aside a decision made ex parte in the District Court is as prescribed by s 25 of the District Courts Act in these terms:

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 a party.

39.     On a reading of this provision, it appears to be a readily available relief to a party who is aggrieved by a District Court Order made in his/her absence. Even though it is discretionary the discretion is limited, and the preferred requirement is to set aside the ex parte Order before hearing the substantive matters of the complaint or information.  
40.    Where a Magistrate in the exercise of discretion decides to hear the complaint or information at the time the ex parte order is set aside then directions must be given for a notice of hearing to the other party and adjourn the hearing to a time and place as it thinks fit. There is no room for the Magistrate to refuse, strike out or dismiss an application to set aside pursuant to s 25 of the District Courts Act. 
41.      As intimated earlier, the District Court being a creature of Statute must comply with what the provisions of the District Courts Act prescribes without venturing into unknow territory and cause irreconcilable miscarriage of justice. 
42.     In the present case it appears the Appellant satisfied the requirements of s 25 for the ex parte orders to be readily set aside pending a proper hearing, however the learned Magistrate without setting aside the ex parte Orders decided to hear the application together with an opposing application by the Respondent which sought to enforce the ex-parte decisions of 10 August 2021. 
43.     On 20 April 2023 after hearing both applications the learned Magistrate refused the application to set aside and granted the Respondents application to enforce the ex parte orders of 10 August 2021 with additional orders. 
44.    Aggrieved by that decision the Appellant appealed against the whole of the decision which is the subject of this appeal. 
45.    On the face of the record, the Decision the subject of the appeal is substantially flawed.
46.     Firstly, the refusal to set aside the ex-parte orders is ultra vires the grant of powers by s 25 of the District Courts Act as the enabling provision for setting aside ex parte decisions. Refusal is not an option available to a magistrate to be issued under s 25. 
47.    Secondly, assuming that the learned Magistrate was correct in refusing the application to set aside, then the additional Orders issued by the learned Magistrate are ultra vires the refusal to set aside.  After the application to set aside is refused, it effectively stopped any further activity in the proceeding. It was erroneous of the Learned Magistrate to issue orders after stopping the proceeding from further activity. The only option open to the Learned Magistrate was to set aside the ex parte Orders to enliven jurisdiction and then proceed to hear the complaint or make the additional orders. 
48.     Thirdly, the enforcement orders issued by the Learned Magistrate are legally and procedurally flawed. The additional orders appear to be different and a substituted version of the ex-parte orders of 10 August 2021. The power to substitute or interfere with any decision of a District Court lies only on appeal or review in a higher Court and not on another District Court. 
49.      On the same token the enforcement Orders which directed the Appellant to deliver vacant possession of Ben Dela Premises to the Respondent is also legally and procedurally flawed when it is outside the terms of the ex-parte Orders of 10 August 2021 and incapable of being subject to the enforcement Order. 
50.     Finally, according to material annexed to the affidavit of Malaita Malipu there was a written agreement over the property the subject of the application for restraining orders. The agreement is styled as between Winnie Malipu and Big Ben Trading over an unregistered State land. The affidavit of Winnie Malipu further alleges fraudulent activities on the written agreement by the Respondent to secure rental payments over the property from the other party to the agreement. Where, when and how the Respondent became a party to the agreement only the learned Magistrates in both decisions seem to be convinced enough to make substantive decisions in favour of the Respondent over the property the subject of the application for restraining orders.  
51.     Under the circumstances, a serious question arises as to how the District Court Orders of 20 April 2023 which directed the Appellant to give vacant possession of Ben Dela Torre premises to the Respondent can reconcile with serious allegations of fraudulent activities by the Respondent on the written agreement between Winnie Malipu and Big Ben Trading over the same property. 
52.    Ownership of land and property are serious matters and cannot be declared on face value. The Courts have a duty to properly consider the merits of the competing claims before making orders which are capable of incurring bitter results.  
53.     In view of the foregoing considerations the conclusion is this.  
54.     Having found that flawed decisions have been made by the District Court on 20 April 2023 in accordance with equally flawed ex parte decisions of the District Court made on 10 August 2021, there has been a substantial miscarriage of justice, and the appeal shall be allowed. The application by the Appellant shall be remitted for hearing by a competent Court pursuant to s 230 (1) (d) of the District Courts Act. 
Formal Orders
1.	The appeal against the decision of the District Court made on 20 April 2023 is upheld and the decisions of the District Court are quashed in their entirety pursuant to s 230 (1) (c) & (2) of the District Courts Act.
2.	The Appellants application to set aside the ex parte decision made on 10 August 2021 is allowed and the decisions of the District Court are set aside in their entirety. 
3.	The case shall be remitted for hearing before a competent Court on a date to be fixed by the Clerk of Court at Wabag District Court at the behest of the Plaintiff within two months. 
4.	The costs of and incidental to the two District Court proceedings and the National Court including this appeal shall be paid by the Respondent to be agreed if not taxed. 
________________________________________________________________
Lawyers for the appellant: 	Mc Kenzie Lawyers