International Education Agency of Papua New Guinea Ltd v Wadau [2018] PGSC 85; SC1733 (19 October 2018)

SC1733

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 44 of 2018

BETWEEN:
INTERNATIONAL EDUCATION AGENCY OF PAPUA NEW GUINEA LIMITED
Appellant

AND:
YOUNG WADAU
Respondent

Waigani: Batari, J
2018: 12 September

SUPREME COURT – stay - application for stay orders of National Court – principles applied – application for restraining orders – considerations of

Cases Cited:

Amadio Pty Ltd v The State & 3 Ors (1993) N1181
Haiveta v Wingti (No 2) [1994] PNGLR 189
Issac Lupari v. Sir Michael Somare, MP (2008) SC 951
Kalinoe v. Paraka (2010) SC 1025
Kilori v. National Housing Commission [1991] PNGLR 48
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Pacific Equities and Investments Limited v. Goledu (2009) SC 962
Solomon Tato v Samson Akuani & Ors (2016) SC 1625;
Southern Highlands Provincial Government v. David Kapipi & Anor (1996) N1486
Wal Wine v. Bill Giglmai [1996] PNGLR 462
Wartoto v The State [2013] PGSC 59, SC 1290
Yii Ann Hii v The Deputy Commissioner of Taxation and Commonwealth of Australia (2017) 1626

Counsel:

Mr D. Mel, for the Appellant
Mr Y. Wadau, In person

19 October, 2018

1. BATARI J: In an appeal from a District Court decision at Madang, the National Court on 8/3/2018 upheld an appeal by the respondent. The appellant filed this appeal on 17 April 2018. It now applies for stay of the effect of the National Court orders. The applicant also seeks restraining orders against the respondent.
   
2. The subject matter of the proceedings is a residential property located in Madang Town described as Allotment 14, Section 13 Madang, contained in State Lease Volume 22 Folio 188 (the property). The applicant claims to own the land. Prior to 2008 it leased the property to Madang Provincial Health Authority and occupied by a medical doctor and spouse of the respondent, Mr Young Wadau (respondent), a practising lawyer. The lease expired in 2008 but Mr Wadau continued to occupy the property under permissive residency arrangement. The applicant later considered the occupation arrangement to have lapsed and deemed Mr Wadau, an illegal tenant. So, in 2016 the applicant succeeded in eviction proceedings against him in the District Court. The respondent’s successful appeal against the decision of the District Court have led to an appeal to this Court and this application.
   
3. The respondent has since the eviction proceedings before the District Court contested the applicant’s title over the property. He is contesting this application for stay and restraining orders for the same reasons that the applicant does not own the property. And if it did, the title has been forfeited and the property is currently a vacant plot.
   
4. The application for stay is made pursuant to s 19 of the Supreme Court Act which provides that 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 stop the proceedings or the orders of the Court below, taking effect. A grant or refusal of the stay sought is subject to the exercise of Court discretion.
   

Party’s positions

5. The applicant’s basic contention for a stay are that;
   
   • The proposed grounds of appeal raise arguable legal issues;
   • The court orders are causing it hardship, inconvenience and prejudice;
   • The overall interest of justice and balance of convenience favours grant of stay.
     
6. The main contention by Mr Wadau appearing in person is twofold:
   
   • The appeal is incompetent and does not raise any arguable ground
   • The proceeding is an abuse of the court process as the applicant does not have valid title and has neither legal nor equitable interest to the property.
     
7. The principle on stay is well settled. In McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 the Supreme Court suggests guidelines to be followed in considering an application for a stay as follows;
   
   • 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 judgment 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.
     
8. See also, Solomon Tato v Samson Akuani & Ors (2016) SC 1625; Yii Ann Hii v The Deputy Commissioner of Taxation and Commonwealth of Australia (2017) 1626.
   

Whether leave to appeal is required

9. This issue does not arise in this application. The decision of the National Court was final in nature. So the appeal is properly before the Supreme Court to be determined on the factual and legal issues raised.
   

Delay in making the application

10. This application is made four months and 11 days after the applicant appealed the National Court decision following what appears to be a kneejerk reaction prompted by the court action Mr Wadau had taken in pursuit of his Bill of Costs. There was nothing estopping the respondent from seeking enforcement of his right to the benefit of the judgment in his favour. An appeal to the Supreme Court does not operate as a stay to the orders of the primary Court under s.19 of the Supreme Court Act. It seems the applicant did not see any necessity to seek a stay of the primary court orders earlier or to restrain the respondent from carrying out any maintenance or repair works to the property.
    
11. As the stay application is made outside the time required for filing of the application, the question of whether this consideration alone is fatal against the applicant must be decided on the whole of the facts of the case. It is trite, that depending on the particular circumstances of each case, undue delay of a longer period or a lesser period than four months can amount to contumelious and reproachful delay, such as to offend against the rules. It has been held that even two weeks can be unduly long. See, Amadio Pty Ltd v The State & 3 Ors (1993) N1181. The Court must consider the facts in each case before it.
    
12. In this case, the facts of the case do not support an undue and reproachful delay. The nature of the orders sought to be stayed does not pose any extraordinary urgency against a delayed application. In any case, a delay of about two weeks outside the four-month period cannot be seriously considered as decisive in the circumstances of this case.
    

Possible hardship, inconvenience or prejudice to either party.

13. Matters supporting hardship, inconvenience or prejudice can be of varying type, form or character. The circumstances of each case, the quality and extent of one or a number of these situations will determine the grant or refusal of a stay application. In this case, Mr Wadau deplored the application for stay as unnecessary hindrance and inconvenience against critical maintenance works required to save the property from deterioration. His attempts to save the property from collapsing will cause him inconvenience and hardship. Mr Wadau made no specific submission on the issue of prejudice. The fact of prejudice against him is nevertheless fairly summoned up by the applicant.
    
14. Mr Mel of Counsel for the applicant submitted, that if the stay is granted, the respondent will suffer some prejudice in the delay in having to enjoy the fruits of the judgment in his favour and the delay in pursuing his costs. Conversely, Counsel submitted, that a refusal of the stay application will highly prejudice its appeal. The applicant will suffer irreversible prejudice if taxation proceeds on the Bills of Costs. Mr Mel argued that if a stay is not granted, his client’s appeal on the issue of costs would be rendered futile and nugatory. The appellant relied on the cases of Wartoto v The State [2013] PGSC 59, SC 1290 and Yii Ann Hii v. Deputy Commissioner for Taxation of Australia in support of its contention. The gist of the principle in these cases is, when in considering whether there will be possible hardship, inconvenience and prejudice to the parties, it is relevant to take into consideration, the full protection of the law the appellant is entitled to in ensuring that his or her statutory and constitutional right to appeal is not rendered futile and nugatory by a refusal of a stay of the orders of the primary court.
    
15. In this case, it is my view, that if a stay is not granted and the respondent proceeds with his cause for taxation of costs, the appeal will be rendered futile and a nugatory. The prejudice factor favours the applicant.
    

The nature of judgment sought to be stayed.

16. In the National Court proceedings in CIA No. 71 of 2017 Young Wadau v. International Education Agency of Papua New Guinea, Cannings, J upheld the appeal and quashed the decision of the District Court which had ordered eviction of the respondent for being in illegal occupation of the property. The primary judge also ordered costs against the IEA on a party-party basis to be taxed if not agreed.
    
17. Mr Wadau did not directly challenge the contention that he was in occupation of the property illegally or that the eviction orders were inherently flawed. He relied primarily on his contention that the property title is vacant and that the appellant has no lawful claim of ownership. He also submitted the property was in dire want of repair and that he had carried out essential repair works at his own expenses.
    
18. I accept Mr Mel’s contention that the orders of the National Court made no consequential determination or orders touching the rights of the parties. In particular, the primary court made no determination in favour of the respondent and his rights vis-a-vis the property. The respondent’s status is that of an occupier of the property. The primary court orders did not determine the ownership issue. The court did not make any finding of an equitable interest of the property either legal or equitable in favour of Mr Wadau. It merely upheld the District Court appeal, quashed the decision and ordered costs.
    
19. The ‘fruit’ of the judgment is limited for the respondent. The effect of orders merely reverted the situation back to the status quo before the eviction orders. I consider that a stay of the orders will cause no substantial prejudice, inconvenience or hardship to the respondent.
    

Financial ability of the applicant

20. In support of the application, the applicant relies on the Undertaking as to Damages filed by Karaho Asimi, the Corporate Services Manager of the appellant. Mr Wadau has attacked that undertaking as baseless and void. He argued that Mr Asimi has no authority to file the undertaking and that he failed to provide proof of the appellant Board resolution authorising him to file the undertaking. Mr Asimi is an officer of the appellant School Board. In my view, he has ostensible authority to commit the school in carrying management affairs of the school. The undertaking as to damages in my view, is sufficient evidence of the financial ability of the applicant. I am satisfied with the legitimacy of that undertaking.
    

Whether the applicant has an arguable case

21. The court, in an application for stay, need only make a cursory assessment of the strength or otherwise of the grounds of appeal before exercising its discretion to grant or refuse the application. This is the principle adopted in Issac Lupari v. Sir Michael Somare (2008) SC 951 and followed in the Kalinoe v. Paraka (2010) SC 1025 where the Supreme Court stated;
    

“An applicant does not even have to prove that there are special or exceptional circumstances to warrant the making of interim orders. There are no hard and fast pre-conditions that had to be satisfied. Provided that the court exercises its discretion justly and reasonably and in accordance with the principles of natural justice or procedural fairness, the discretion available to the Judge or the Court when deciding whether to grant the interim orders or a stay of proceedings, is very broad (Isaac Lupari v Sir Michael Somare MP (2008) SC951.”

22. The respondent’s contention is that the appeal grounds have no good basis and that the appellant has not been able to demonstrate an arguable case on anyone of the grounds enumerated in the grounds of the appeal.
    
23. The appellant has summed up in its written submissions, six paragraphs of contentions that point to an arguable case. I pause here to say, in my view; one need not show as a pre-condition for a stay or grant of restraining orders, that each and every ground of appeal is being arguable. It is sufficient that one ground is arguable for the court to decide in addition to other considerations, whether or not to grant a stay.
    
24. In this case, the fourth ground of appeal raises procedural error in the hearing both in District Court and the National Court where the respondent raised the issue of title and ownership of the property without filing separate proceedings in the National Court. Mr Mel submitted that in District Court proceedings for eviction, the District Court by law could only consider a bona fide dispute as to title where the person disputing has taken some distinct legal step to disturb the title. This necessarily involves commencement of action in the National Court and proving one or more of the exceptions under s. 33 of the Land Registration Act. The respondent did not take such a step and the District Court had correctly ruled, that the respondent without a right or title was in occupation of the property. The respondent did not challenge those findings but instead appealed the ruling on grounds alleging purported defect in the appellant’s title.
    
25. It is trite that in eviction proceedings, the assumption is that the party seeking eviction orders against the occupier of a property has indefeasible title. It is arguable that, that assumption is rebuttable in a defence against the validity of the eviction proceedings. Conversely, it is not open to the party defending against the eviction proceedings to raise a bona fide dispute as to title outside due process. The points of law and procedure raised in this ground are arguable.
    
26. The first ground of appeal raises the procedural issue of whether the notice of appeal before the primary court met the requirements of the National Court Rules as to the drafting of the grounds of an appeal. The applicant’s contention is, that the grounds of appeal from the District Court were so defective and lacking in particulars, the primary judge ought to have not entertained the appeal and hence, fell into error in failing to dismiss the appeal.
    
27. It is settled that the notice of appeal must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law. In Pacific Equities and Investments Limited v. Goledu (2009) SC 962 the Supreme Court provides the following guidelines;
    
    1. The ground relied on in support of the appeal must be stated briefly, but specifically.
       
    2. If it is alleged that a judgment is against the evidence or the weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence.
       
    3. If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.
       
28. These requirements in essence, exist for two reasons as explained by the Supreme Court in, Haiveta v Wingti (No 2) [1994] PNGLR 189 that:
    
    • the respondent must be informed of the basis of the appeal so they can prepare their arguments; and
    • the court must be informed of the issues to be determined.
      
29. As clarified in Pacific Equities and Investments Limited v. Goledu (2009) (supra), if the notice of appeal fails to meet those requirements, the Court has discretion to strike out the offending ground(s) of appeal. Alternatively, the Court could dismiss the entire appeal as incompetent. And if for example, all of the grounds set out in a notice of appeal were defective in failing to comply with the requirements of Order 7, Rules 8(c) and 9 of the Supreme Court Rules, the natural conclusion to draw would be that the appeal is incompetent.
    
30. For avoidance of doubt, I consider that the rule of procedural practice in the higher court in relation to appeal grounds applies equally to appeals from the lower courts. I have considered the grounds of appeal from the District Court in the light of those principles. I am of the view that the grounds of appeal from the District Court are arguably contestable.
    
31. The third ground of appeal to the National Court raises the issue of estoppel in the circumstances where the acknowledgment of the appellant as the landlord by the respondent estopped the respondent tenant from denying the landlords’ title. The evidence in the court below showed, that Mr Wadau accepted, recognised and dealt with the appellant as owner and landlord of the property in question. The applicant cited the cases of Kilori v. National Housing Commission [1991] PNGLR 48; Southern Highlands Provincial Government v. David Kapipi & Anor (1996) N1486 and Wal Wine v. Bill Giglmai [1996] PNGLR 462 as supporting its contention. The primary court determined otherwise that those cases are distinguished from the present case and that the principle of estoppel did not apply.
    
32. As the appellant will be arguing, the primary judgement misapprehended the facts and consequently misapplied the law, those questions of fact and law are arguable.
    
33. Further grounds to be argued as raised in grounds 6 and 7 of the appeal are that the primary judge misapprehended the facts when he found uncertainty as to who owned the property. The facts which appear not to be in dispute are that;
    
    1. IEA was for all intents and purposes the owner of the property.
    2. Mr Wadau had occupied the property under a tenancy agreement between IEA and Madang Health Authority from about 2004 up to 2008.
    100. The respondent continued to occupy the property on permissive residency basis reached between him and an officer of the appellant.
    4. Property Rental payments to the appellant ceased around December 2009.
    5. From 2010 to the time of the eviction proceedings, Mr Wadau appear not to have been paying rental to the applicant or anyone claiming ownership over the property.
    6. None of the previous owners and tenants including the respondent disputed the appellants’ title.
    7. No other person had registered any competing interest or claim to the property.
    8. The registered title had gone through some changes of names connected in some aspects with the appellant until it lapsed the property purportedly became vacant.
       
34. The applicant contended that these facts and other relevant information on the face of the records are arguably in favour of the appeal succeeding on the basis that the primary judge misapprehended the facts and weight of the evidence.
    
35. The final ground of appeal states, the primary judge erred in ordering costs against the appellant where the court dismissed half of the grounds of appeal from the District Court as incompetent. It is arguable, judicial discretion was wrongly exercised where a winning party succeeds and also fails on some of the reliefs sought in the cause before the court.
    
36. In the up short, the Court is satisfied that the applicant has an arguable case that is likely to succeed on the proposed grounds of appeal.
    

Apparent error of law or procedure shown on the face of the records

37. The same observations I have made in the preceding paragraphs on the arguable case apply under these considerations as well.
    
38. The appeal from the District Court appeared to have turned on the issue of title raised as a ground of appeal in an eviction proceeding where prior to the proceedings, the respondent had by his conduct or omission accepted and treated the appellant as the owner of the property. It is arguable, that Mr Wadau was not estopped from denying the title.
    
39. The nature of those errors is fairly raised in the grounds of the appeal. It is only proper that the Supreme Court considers and determines the proposed grounds of appeal on the merits.
    

The overall interest of justice

40. The history of this case presupposes that the property is owned by the appellant and the respondent is an illegal tenant. The uncertainty in the title as the primary court found, only came to light in 2016 in the course of the eviction proceeding against Mr Wadau. Prior to 2016 Mr Wadau did not dispute the right of the applicant over the property and appeared to have acquiesced to the applicant’s status as landlord. While the applicant still claims ownerships over the property and the property appears to be vacant, the position of the respondent remains that he is an illegal tenant with no equitable interest in the title except for the improvements he has undertaken on the property. Until the issue of ownership is resolved, the interest of justice in my view favours the appellant.
    

Balance of Convenience

41. The respondent currently occupies the property in question illegally albeit, permissive residency which appeared to have lapsed at the time of eviction proceedings. He has incurred expenses to maintain the property and will be inconvenienced if the stay is granted. He will remain on the property pending determination of the appeal but will not proceed with his taxation case or carryout any further maintenance repairs if restraining orders are granted. On the other hand, if the stay is not granted with restraining orders, the respondent will have the liberty to continue his taxation action and maintenance works. This will inconvenience the efforts of the appellant in pursuing its appeal because of the obligation to defend the taxation case. All that will result in wastage if the decision of the Supreme Court in the substantive appeal favours the appellant.
    
42. The balance of convenience from these observations and on the issue of overall interest of justice, favours the stay of the National Court orders and proceedings pending the hearing of this appeal.
    

Whether damages would be sufficient remedy

43. If the appeal is granted and there is no stay, the appellant’s contention is that damages would not be sufficient remedy. I agree. The respondent on the other hand has the liberty to sue for damages.
    
44. In the end result, the majority of the considerations favour the grant of stay.
    

Restraining Orders

45. For the same considerations that there is an arguable case, I consider that restraining orders should be imposed. The respondent’s conduct in continuing to carry out maintenance works on the property in question while the appeal to the Supreme Court is pending will prejudice the appellant’s rights. The ownership of the property has been raised by the respondent in the appeal. That is a matter for a separate, appropriate proceedings. It is undesirable that without the proper equitable interest and title, the respondent would be allowed to undertake continued maintenance works to property. I will grant the relief sought by the appellant in this application.
    

Conclusion

46. The grounds for stay of the National Court orders and interlocutory orders restraining the respondent from carrying out any or further repair maintenance to the property in question have been made out in favour of the applicant. I propose to make those orders.
    

Orders of the Court:

1. The application for stay of the Orders of the National Court dated 8 March 2018 is granted pending the determination of this Appeal.
   
2. Respondent is restrained from carrying out any further maintenance work of any nature, form or type in relation or connection with the property the subject of this proceeding pending the hearing of this Appeal.
   

100. Costs of and incidental to the application for stay shall follow the event to be taxed if not agreed.
     

4. Either party is at liberty to apply within 3 clear days’ notice to other party.
   

____________________________________________________________
Mel & Hennry Lawyers: Lawyers for the Appellant
Young Wadau in-Person