Mote v Tololo [1996] PGSC 23; [1996] PNGLR 404 (26 February 1996)

PNG Law Reports 1996

[1996] PNGLR 404 - Sangam Mote v Sir Alkan Tololo

[1996] PNGLR 404

N1412

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SANGAM MOTE

V

ALKAN TOLOLO

Mount Hagen

Injia J

23 February 1996

26 February 1996

INFERIOR COURTS - District Courts Act, Chapter No. 40 - Practice and procedure - Appeal Procedure - Stay of enforcement of order - Entry of Appeal for Hearing - Whether filing of Entry of Appeal for Hearing under Section 227 results in automatic stay of enforcement of order appealed from.

PRACTICE AND PROCEDURE - Effect of filing of appeal under s 277 District Court - Stay of enforcement of District Court Order until entry of appeal is filed - Preservation of appellants rights.

Held

The applicant seeks an order to stay enforcement of the District Court Order, which order is a subject of an appeal in respect of property situated at Section 46 Lot 23, Mount Hagen.

Held

The filing of an entry of appeal for hearing by the appellant under s 227 of the District Courts Act, Ch no 40 has the effect of automatically staying enforcement of the Court Order appealed from.

Counsel

M Tamutai, for the applicant.

P Kopunye, for the respondent.

23 February 1996

INJIA J: All these proceedings relate to the residential property situated on Section 46 Lot 23, Mount Hagen.

The plaintiff applies for an order staying enforcement of the order made by the District court on 29th January 1996 against her which order is the subject of appeal in App. 39/96. That decision was appealed against by filing a notice of appeal and recognizance of appeal both of which were filed on or about 5th February 1996 pursuant to s 220 of the District Courts Act Ch No 40. An entry of appeal pursuant to s 227 of the Act is yet to be filed. By virtue of s 227, the appellant has 40 days from 5 February 1996 to file an entry of appeal. If he fails to file an entry of appeal within this time, the Court or Magistrate “has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against”. My interpretation of s 227 is that if and when the appellant files an entry of appeal within the prescribed time limit, it will have the effect of automatically staying the enforcement of the Court order appealed from. Likewise upon the institution of an appeal by way of the filing of a notice of appeal and recognizance on appeal under s 220, it should have the effect of automatically staying the enforcement of the Court order until the expiry of 40 days to allow the filing of an entry of appeal to take place. If within 40 days after the institution of an appeal order s 220, no entry of appeal is filed, the Court order becomes enforceable despite the filing of a notice of appeal and recognizance on appeal. In summary, the appellant has a grace period of 40 days from the date of institution of an appeal against enforcement of the Court order. Any enforcement proceedings instituted by the person in whose favour the judgment is entered or on the Court’s own initiative may amount to abuse of process of the Court.

The defendant challenges the regularity of the procedures used by the plaintiff to apply for the stay order. The defendant submits that the proceedings were irregularly instituted in that an application for interlocutory relief pending the determination of the substantive appeal should be by notice of motion under a separate application namely: app. 39/96. The defendant also submits that the Court should consider the merits of the grounds of appeal and decline to make the stay order. Mr Tamutai who appears for the plaintiff submits that the application is made by originating summons on the advice of the A/Registrar because by then the appeal file was not ready. He also submits the four grounds of appeal set out in the notice of appeal are substantive.

In relation to the merits of the grounds of appeal, as I said during argument, the first ground of appeal is an arguable one on the face of it. That is if consideration of the merits of the appeal were necessary to be considered in deciding whether or not to make a stay order. But as I said during argument, s 227 is clear, mandatory and self-executing and I do not think it is necessary to consider the merits of the appeal.

In relation to the procedures employed by the plaintiff, I agree that it is irregular. However, by the construction of s 227, an application for a stay order was unnecessary. In any case, non-compliance with the National Court Rules procedures do not on their own render those proceedings void: Order 1 r 8. I will treat this application for a stay order as an application for stay under the District Courts Act, in particular under app. 39/96.

The defendant then goes on to seek several other orders which are set out in its cross-motion filed on 14 February 1996. He seeks to declare void a tenancy agreement signed between the National Housing Commission and the plaintiff on 1 February 1996 over the subject property in dispute on the basis that it was done whilst proceedings in O.S.482/95 were still in progress. The defendant then applies for the plaintiff to be found guilty of contempt of the Court proceedings in O.S. 482/95. In O.S. 482/95, the plaintiff instituted “civil proceedings” for ejectment of the defendant purportedly under the Summary Ejectment Act Ch 202 whilst the District Court proceedings which the Plaintiff says were strictly “criminal proceedings” were still pending determination. The decision or orders made by the District Court on 29 January 1996 (which is subject of appeal) were that the “defendant is found guilty of an offence under s 113 of the Land Act and the defendant be fined K400.00 in default 3 months imprisonment which is suspended on the condition that he moved out of the premises within 7 days of this date and further in default be sentenced to a period of imprisonment for a period of 6 months”.

In my view, the defendant’s application seeking to invalidate the said tenancy agreement and punish the plaintiff for contempt are matters which are intricately associated with the proceedings in O.S. 482/95 and can be dealt with in those proceedings. I direct that those motions be dealt with together in O.S. 482/95.

The defendant also applies for an order that the plaintiff be ordered to comply with the District Court’s order made on 29 January 1996. However, an appeal has been lodged against that decision and this Court cannot issue such orders. That order of the District Court is enforceable by the District Court in the ordinary way in accordance with the provisions of the District Court’s Act.

The upshot of the foregoing discussions is as follows:-

N2>1.       The proceedings in respect of the plaintiff’s application for a stay order is treated as an application under app. 39/96.

N2>2.       The defendant’s application by cross-motion in para. (1) and (3) are dismissed whilst para. (2) and (4) are stood over to be dealt with together under O.S. 482/95 or perhaps under app. 39/96.

N2>3.       Whilst it is not necessary to make an Order for stay of enforcement of the District Court’s order, to ensure that the appellant’s rights in App. 39/96 are protected, I order that the enforcement of the Mount Hagen District Court order of 29 January 1996 the subject of appeal in app. 39/96 be stayed until an entry of appeal is filed by the appellant within the prescribed period stipulated under s 227 of the District Courts Act. Upon the filing of the same, this Order for stay shall be extended and remain so until the appeal is heard and determined.

N2>4.       Costs of the two motions shall be in the cause in respect of app. 39/96.

Lawyer for the plaintiff: Mathew Tamutai.

Lawyer for the defendant: Peter Kopunye.