Dii v Ekoya [2019] PGSC 21; SC1787 (5 April 2019)

SC1787

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 12 OF 2019

BETWEEN
SAIAM DII & OTHERS
Appellants

AND
LYNETTE EKOYA
Respondent

Waigani: Dingake J
2019: 18^th March & 05^th April

Cases Cited

Gary Mc Hardy v Prosec Security and Communications Limited trading as Protect Security (2000) SC646

Counsel

Mr. Darryl Kamen, for Appellant
Mr Samson Endihipa , for Respondent

05^th April, 2019

1. DINGAKE J: This is an application for stay, in which the applicant, on the main, seeks an order, pursuant to Section 19 of the Supreme Court Act that the orders of the National Court made on the 8^th of February, 2019, in the proceedings commenced by CIA 45 of 2018, and the proceeding itself, be stayed until the final determination of the Notice of Appeal filed against those orders by the appellants, or until further orders.
2. The application is vigorously opposed by the respondent, who, on the 1^st of March, 2019 filed a Notice of Objection to Competency which was accompanied by the Affidavit of Lynette Ekoya.
3. At the heart of this application is a piece of land described as Section 318, Allotment 25, Hohola (Gerehu Stage 6) which the respondent claims belongs to her and the applicants dispute that she has lawful title over the property.
4. At all material times hereto, the applicants were in occupation of the said property and the respondent unsuccessfully sought to evict them, before the District Court.
5. Aggrieved by the decision of the District Court dismissing the entire proceedings, the respondent successfully lodged an appeal with this court.
6. On the 8^th of February, 2019, the National Court quashed the decision of the District Court, upheld the appeal and ordered that the appellants, relatives and family members immediately vacate the property.
7. Subsequent thereto the applicants obtained a restraining order to stop the respondent from moving into the property.
8. The applicants on the 15^th February, 2019 filed a Notice of Appeal against the decision of the National Court delivered on the 8^th of February, 2018.
9. The respondent objects to the appeal on a number of grounds, including that the application is incompetent in that it fails to state the grounds warranting a stay and is therefore not compliant with Form 4 of the Supreme Court Rules.
10. The other grounds include that the applicant’s Affidavit in support of this application deposed to by Wilma Nathaha Yakopya in so far as she purports to represent a party, Niugini Star Transport Limited, which is not a party to this proceedings is incompetent and irregular.
11. In this case, I am satisfied that even before applying the principles in Gary Mc Hardy v Prosec Security and Communications Limited trading as Protect Security (2000) SC646 this application ought to fail for one and all of the following reasons, considered singularly or cumulatively, namely, that the application is not in conformity with Form 4, in that although it states the nature of the application, it fails to state the grounds and further there appears to be no sufficient basis outlined in the affidavit filed by Wilma Nathaha Yakopya, why she must depose to an affidavit, when Niugini Star Transport Limited, the company of which she is a Director and which ostensibly is the proprietor of the property described as Section 318, Allotment 25, Hohola (Gerehu Stage 6) is not a party to the current proceedings.
12. In the result of the application is without merit and it is dismissed with costs.

___________________________________________________________
Mr. Darryl Kamen: Lawyer for Appellant
Mr Samson Endihipa: Lawyer for Respondent