Mondia v Kapo [2013] PGSC 44; SC1284 (28 May 2013)

SC1284

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 22 OF 2013

BETWEEN:

THEODORE MONDIA
Appellant

AND:

JOHN KAPO
Respondent

Waigani: Kassman, J
2013: 22 & 28 May

SUPREME COURT – practice and procedure – application for stay – principles applicable for grant of application for stay – consideration of – application meets criteria for grant of stay order – application for stay granted

Cases Cited:

McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279 SC646

Legislation Cited:

Sections 19, 5(1)(b) & 14(1)(b) Supreme Court Act
Order 1 Rule 7 Supreme Court Rules 2012
Sections 3, 4 and 6 Summary Ejectment Act c. 202

Counsel:

Mike Karu, for the Appellant
Wesley Bigi, for the Respondent

DECISION

28th May, 2013

1. KASSMAN J: Theodore Mondia ("Mondia") has filed an appeal from the judgment of the National Court in proceedings Appeal No. CIA 167 of 2011 delivered on 14 March 2013. In that judgment, the National Court dismissed Mondia's appeal from orders of the District Court Lae of 1 December 2011.
   
2. The dispute concerns a property at Allotment 12 Section 26 Lae ("the property") which is owned by National Housing Corporation ("NHC").
   
3. It is also not disputed that Mondia and his family live in the property. Mondia's mother, the Late Agnes Mondia, was the lawful tenant of the property and had gained occupation as a tenant over twenty years before her death. Mondia and his siblings had been occupants of the property with their mother all this time.
   
4. It is also not disputed that the Respondent John Kapo ("Kapo") was married to Agnes for some time and they lived together in the property until about the year 1998 when their marriage was dissolved by the Local Court. Kapo left the property and remarried and lived elsewhere for many years.
   
5. Both Mondia and Kapo concede they are not the owners of the property.
   
6. It is not clear when Agnes Mondia passed away.
   
7. It appears that sometime after Agnes Mondia passed away, Kapo approached the owner of the property NHC and signed a tenancy agreement dated 9 May 2011 that provides the tenancy of Kapo shall commence on 1 December 2010.
   
8. It was not clear whether Mondia and his siblings, the occupants of the property at the time Kapo signed the tenancy agreement, were informed by NHC. It is however interesting to note that at the time Kapo signed the tenancy agreement, rent outstanding was some K10,000 but Kapo says he paid K20,000 to NHC. Kapo produced copies of the cheque payment and receipt issued by NHC.
   
9. The cheque is dated 11 February 2011 and issued by a company Popuna Estates Ltd ("Popuna") which has no connection to Kapo as Kapo is not a shareholder or director of Popuna and neither is Kapo an employee of Popuna.
   
10. Further, there is no explanation as to why a payment of K20,000 was made to NHC when rental outstanding and payable by Agnes Mondia was half that amount at K10,000. The NHC receipt produced by Kapo is dated 16 February 2011 and states the payment of K20,000 is made for rental arrears. Mondia says the real but undisclosed motive is for Popuna to acquire the property from NHC.
    
11. What is most intriguing is the fact the NHC receipt is issued in the "TENANT'S NAME – AGNES MONDIA".
    
12. It is arguable the Late Agnes Mondia, although deceased, was the lawful tenant at the time Kapo alleges he entered into a tenancy agreement with NHC. It is also arguable the Late Agnes Mondia had no outstanding rental payable and actually had rentals paid up in full. Further, if her rental payable was K200 per fortnight, it is arguable her rental was paid in advance for some fifty fortnights from 11 February 2011 taking her tenancy to February or March 2013.
    
13. From these basic facts, it is also arguable, NHC should be a party to the proceedings as NHC is the owner of the property. Further, any action under the Summary Ejectment Act Chapter 202 could only be commenced by NHC as Section 6 provides "Where a person without right, title or license is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises ...".
    
14. It is also arguable, the Estate of the Late Agnes Mondia, being the subsisting lawful tenant was the proper person to commence any eviction proceedings. Further, NHC would not have had the power to evict the family of the Late Agnes Mondia (including Mondia) as she would have had lawful occupancy having paid rentals in full and in advance. Further, her tenancy had not expired. So NHC would not have had the right to commence eviction proceedings pursuant to Sections 3 and 4 of the Summary Ejectment Act Chapter 202.
    
15. Pending the determination of the Appeal, Mondia now moves for a stay of the Orders of the National Court of 14 March 2013.
    

Application for stay – principles applicable

16. The application for stay is made pursuant to Section 19 of the Supreme Court Act which provides "Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings."
    
17. Section 5(1)(b) provides "an interim order to prevent prejudice to the claims of the parties may be made by a judge." Order 1 Rule 7 of the Supreme Court Rules 2012 states "Judge" "means a judge of the Supreme Court of Justice".
    
18. The leading judgment of the Supreme Court in McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279 SC646 sets out the considerations to be applied in the Court's exercise of discretion on an application for stay. I will now apply the criteria to the facts and circumstances of this matter.
    
    1. Start with the principal premise that the judgement creditor is entitled to the benefits of the judgment - Apart from arguing there were strong grounds of appeal, there was no suggestion that this principle should not apply.
       
    2. Whether leave to appeal is required and whether it has been obtained – Mondia argues this is an appeal from a final judgment and lies without leave on questions of law or fact as provided by Section 14(1)(b) of the Supreme Court Rules. This was not disputed by Kapo.
       
    100. Whether there has been any delay in making the application – the decision appealed was made on 14 March 2013. The Notice of Appeal was filed on 26 March 2013. This application for stay was also filed on 26 March 2013. The relevant period is calculated from the date of the decision appealed to the date of filing of the application for stay. In this matter, that period was twelve days. There has been no delay.
         
    4. Possible hardship, inconvenience or prejudice to either party – Kapo is entitled to the fruits of the judgment of the National Court. Kapo could also argue his right to possession as per his tenancy agreement arose from 1 December 2010. Against this, Mondia may argue should this appeal fail, Kapo can claim the rentals he is paying for alternative accommodation while awaiting the outcome of this appeal. In my assessment of the prospects of the appeal, Mondia will experience greater hardship and inconvenience should the stay be refused and he and his family be evicted from a residence they have called home for over twenty years.
       
    5. The nature of the judgment sought to be stayed – the judgement of the court was a final judgment and not an interlocutory ruling.
       
    6. The financial ability of the applicant – there is no evidence from Mondia that can be considered in assessing the financial ability of Mondia. All he says is enforcement of the eviction orders of the District Court are being taken by Kapo, he has filed an appeal and the status quo should be maintained pending determination of the appeal. I have not been assisted at all in this regard.
       
    7. Preliminary assessment about whether the applicant has an arguable case on the proposed appeal – In my assessment made above, there appear to be arguable issues raised on the facts and the law as I discussed above.
       
    8. Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure – Mondia argues there is apparent error of law or procedure and in my perusal of the judgment of the National Court and all material filed, there are apparent errors of law and procedure.
       
    9. The overall interest of justice – Following my preliminary assessment about whether the applicant has an arguable case on the proposed appeal, the interests of justice are best served by a stay of the judgment of the National Court.
       
    10. Balance of convenience - Following my preliminary assessment whether the applicant has an arguable case on the appeal, the balance of convenience is best served by a stay of the judgment of the National Court.
        
    11. Whether damages would be sufficient remedy – I would say damages would not be an adequate remedy should Mondia and his family be evicted only to be allowed back in on his appeal being upheld.
        
19. On the basis of my assessment made above, I grant the application for a stay.
    
20. The formal Orders of the Court are:
    
    1. The Appellant's application for stay is granted.
       
    2. Pending the determination of this appeal, the Orders of the National Court of 14 March 2013 and the Lae District Court eviction orders of 1 December 2011 are stayed.
       
    100. The Respondent shall pay the Appellant's costs of this application, to be taxed if not agreed.
         

Judgment accordingly:
_____________________________________________________________
Daniel & Associates Lawyers: Lawyers for the Appellant
Niugini Lawyers (city agents Henaos Lawyers): Lawyers for the Respondent