Bowada v National Housing Corporation [2014] PGSC 39; SC1387 (29 September 2014)

SC1387

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 124 OF 2014

BETWEEN

ELIZABETH BOWADA
Applicant

AND

NATIONAL HOUSING CORPORATION
Respondent

Waigani: Makail, J
2014: 26th & 29th September

PRACTICE & PROCEDURE – Application for stay and interim order – Stay and interim injunction sought following grant of leave to appeal – Appeal against refusal to grant interim injunction by National Court – Interim injunction sought to restrain eviction from property – Jurisdiction of Single Judge of Supreme Court to grant interim injunction – Relevant principles – Grounds of – Supreme Court Act – Sections 5(1)(b) & 19.

Cases cited:

Gary Mc Hardy v. Prosec Security & Communication Ltd [2000] PNGLR 279; (2000) SC646
Joel Luma v. John Kali, NEC & The State: SCM No 14 of 2014 (Unnumbered & Unreported Judgment of the Supreme Court of 25th April 2014)
Willie Edo v. Margaret Elias & Ors (2008) SC1160

Counsel:

Applicant in person
No appearance, for Respondent

RULING ON STAY AND INTERIM INJUNCTION

29th September, 2014

1. MAKAIL, J: This is an application for stay of proceedings and interim order in the nature of injunction pursuant to sections 5(1)(b) and 19 of the Supreme Court Act ("Act"). They are being sought following grant of leave to appeal the refusal of the interim injunction by the National Court on 05th September 2014 to restrain the respondent from evicting the applicant and family from a property described as Section 81, Allotment 11, Flat 4, Korobosea, National Capital District ("Property").

2. The applicant was formerly employed with the respondent as its Legal Officer. She claims that officers of the respondent have threatened to evict her and family from the property. They have made several attempts between 2012 and this year after she ceased employment with the respondent in September of 2011. On these occasions, there have been physical confrontations between them, verbal abuses of her and family and removal of personal items out of the property.

3. The recent attempt was on 29th August 2014 where a group of officers of the respondent converged on the property while she was away at the Port Moresby General Hospital attending to her sick daughter and terrorised her children and family members. They removed their personal items out of the property and told them to leave. They gave no reasons for the eviction.

4. On 05th September, she applied for an urgent ex parte interim injunction before his Honour Justice Kariko. His Honour refused it and allowed her time until 27th September to vacate the property. Since it was an interlocutory judgment, on 26th September, she applied and was granted leave to appeal it. The Court also heard the application for stay and interim injunction and reserved its decision to today.

5. The stay and interim injunction are being sought to preserve the status quo and stop the respondent from evicting the applicant and family from the property. The primary judge refused the interim injunction but gave her until 27th September to peacefully vacate the property and adjourned the substantive matter to 03rd October at 1:30 pm for mention. The applicant claims that she has an arguable case because she has a valid tenancy agreement with the respondent, which has not been terminated. If the respondent claimed that it was terminated because she had ceased employment with it in 2011, this claim is untenable because the tenancy agreement did not state if it was subject to her continuous employment with the respondent.

6. If the respondent claims that she had failed to pay rent of K50.00 per fortnight after she ceased employment with it, this claim is also untenable because she is not in arrears. She had overpaid rentals by an extra K15.00 per fortnight since 2006 when she commenced employment and as a result, the respondent owed her money. The K15.000 was instalment payment per fortnight to complete a bond fee of K100.00 when she moved into the property and was supposed to cease after full payment but continued until 2011. As a result, the respondent should use the excess to off-set any outstanding rentals between 2012 and this year.

7. The error in the primary judge's exercise of discretion in refusing the interim injunction is that if his Honour refused it, he should not have given her time until 27th September to vacate the property. When he so did, it was tantamount to granting an interim injunction and inconsistent with his decision to refuse the interim injunction.

8. Based on these reasons, the Court was satisfied that there was an arguable case and granted leave. Relying on the same reasons, she submits that the Court should grant a stay of proceedings and interim injunction to stop the officers of the respondent from evicting her and family from the property. The first issue is whether a stay of proceedings should be granted. Section 19 provides for the jurisdiction of a single Judge of the Supreme Court to grant a stay. It states:

"19. Stay of proceedings on appeal.

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."

9. The relevant principles on stay are those enunciated in Gary Mc Hardy v. Prosec Security & Communication Ltd [2000] PNGLR 279; (2000) SC646. It is worthwhile to restate these principles. They are:

• Whether leave to appeal is required and whether it has been obtained.
• Whether there has been any delay in making the application.
• Possible hardship, inconvenience or prejudice to either party.
• The nature of the judgement sought to be stayed.
• The financial ability of the applicant.
• Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
• Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
• The overall interest of justice.
• Balance of convenience.
• Whether damages would be sufficient remedy.
  

10. Applying them to the facts and circumstances of this case, there is no question that leave to appeal is required, has been sought and granted and based on the reasons given by the applicant, I am satisfied that there are serious questions to be tried in the appeal in relation to the primary judge's exercise of discretion in refusing the interim injunction.

11. But there has been some delay in making the application and I say that in the context of the urgency of the matter. The decision by the National Court to refuse the interim injunction was made on 05th September and almost three weeks had gone by before the applicant filed the application for leave to appeal and application for stay on 22nd September. She has not explained the delay. The significance of the delay is that she has nine days left to return to Court for the mention of the substantive matter in the National Court.

12. While leave has been granted to the applicant to appeal the refusal of the interim injunction, the substantive matter in relation to the validity of the applicant's tenancy and occupation of the property is pending hearing before the National Court and the Court has fixed the matter for mention on 03rd October at 1:30 pm.

13. It is fair to say that it will take time for the substantive appeal to be heard and determined because the applicant will need to prepare and file an appeal book and attend the listings to obtain a hearing date. The current forecast is that if the appeal book is not filed by end of October, it is unlikely that the appeal will be given a hearing date in the December sittings of the Supreme Court, which is, by the way the last sittings of the Supreme Court for the year.

14. On the other hand, if the matter in the National Court were to proceed for mention on 03rd October, it will be pre-trialled, heard and the Court will make a decision which will finally determine the dispute between the parties. It would also be in the interests of both parties that they proceed to trial in the National Court without further delay and that refusing a stay would not be adverse to the applicant because the matters she raised in this application are matters which she can also rely on in the National Court to support her case.

15. For these reasons, I am not satisfied I should stay the proceedings in the National Court. I refuse the application for stay.

16. The second issue is whether an interim injunction should be granted. Section 5 provides for the jurisdiction of a single Judge of the Supreme Court to grant an interim order. It states:

"5. Incidental directions and interim orders.

(1) Where an appeal is pending before the Supreme Court —

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court." (Emphasis added).

17. The interim injunction is being sought to prevent or stop the officers of the respondent from evicting the applicant and family from the property pending the hearing of the appeal. The applicant sought the same relief in the National Court and was refused. She has appealed against the refusal of the relief and it is before the Supreme Court for determination. The question is whether a single Judge of the Supreme Court can grant the same relief pending the determination of the appeal on the same question, that is, whether the primary judge in the Court below correctly refused the relief.

18. I have not been assisted by the applicant in this respect. I have not been able to find any case authority that supports the proposition that a single Judge of the Supreme Court can grant an interim injunction pending the determination of the appeal on the question of refusal of the same relief by National Court.

19. In Joel Luma v. John Kali, NEC & The State: SCM No 14 of 2014 (Unnumbered & Unreported Judgment of the Supreme Court of 25th April 2014), the respondent applied to the full Court to discharge an interim injunction I granted in favour of the appellant pending the appeal. The appeal arose from a decision by the National Court to refuse leave to apply for judicial review. The respondents argued given that the National Court had refused leave for judicial review, there were no proceedings in the National Court upon which the National Court would grant an interim injunction. In essence, the National Court lacked jurisdiction to grant that relief. It followed that a single Judge of the Supreme Court lacked jurisdiction to grant the same relief.

20. In following an earlier decision by Justice Hartshorn sitting as a single Judge of the Supreme Court in Willie Edo v. Margaret Elias & Ors (2008) SC1160, the Supreme comprising the Chief Justice, Justice Sakora and Justice Manuhu held that it would be inconsistent with the procedural law that governs judicial review proceedings in the National Court, for the Supreme Court including a single Judge of the Supreme Court to grant a stay or an interim relief in an appeal from refusal of leave for judicial review before the appeal is heard and determined. The Supreme Court lacked jurisdiction to grant such interim relief and discharged the interim injunction.

21. In my view those two cases do not address the issue at hand. They concerned interim orders in judicial review proceedings where leave for judicial review has been refused and appeal pending hearing before the Supreme Court. This case is different because the proceedings in the National Court are pending and the applicant seeks an interim injunction pending the determination of the appeal.

22. I consider that the key words in section 5(1)(b) (supra) are "to prevent prejudice to the claims of the parties." This means, an interim order may be granted to prevent prejudice to the claims of the parties. There are competing claims over the same property. The applicant claims a right to occupy it based on a tenancy agreement and the respondent claims otherwise. If the Court grants an interim injunction, it would prejudice the respondent's claim to the property. Conversely, if the Court refuses the interim injunction, the applicant's interest will be prejudiced. There will be nothing to stop the officers of the respondent to enter and evict the applicant and family from the property.

23. Further, while the question as to the exercise of discretion in refusing the same relief is before the Supreme Court for determination and that to grant the same relief is tantamount to determining that question, hence the merits of the appeal, it can equally be argued that to refuse the interim injunction is tantamount to determining the appeal itself. So, either way, a decision on the same relief is unavoidable.

24. I will apply the principles relevant to the application for stay with modification where appropriate in deciding whether or not to grant the interim injunction. I consider that apart from there being serious issues to be tried in this case which I have briefly touched on under the application for stay, given that the applicant is the sitting tenant of the property, that the continuous employment with the respondent is not a condition of the tenancy agreement and that there is no evidence suggesting that she has defaulted in paying rent, I am satisfied that the balance of convenience favour the grant of the interim injunction.

25. For to refuse it would result in serious prejudice to the applicant and family. It would give the respondent and its officers the impetus to carry out the threat to evict the applicant and family from the property. This would result in chaos and hardship while the dispute remains to be decided by the Court. Further, when all the circumstances of the case are considered, the overall interests of justice demands that the eviction must be stop.

26. The application is granted. The respondent, its officers and any party who has an interest in the property known as Section 81, Allotment 11, Flat 4, Siai Street, Korobosea be restrained from evicting the applicant or issuing any threats in any shape or form to evict her and the applicant shall be allowed to occupy the property until further order. Subject to availability of a judge, the matter will return to Court for inter parte hearing on 07th October at 1:30 pm. Costs of the application shall be in the appeal and time shall be abridged.

Ruling and orders accordingly.
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