DC790

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 2169 OF 2004

BETWEEN

MR AND MRS SENGI LAKI ON THEIR BEHALF
AND ON BEHALF OF STEPHANIE LAKI
COMPLAINANT

AND

SIMON POKO
FIRST DEFENDANT

AND

WILLIAM WAILO
SECOND DEFENDANT

AND

VILLAGE MINI MART LIMITED
THIRD DEFENDANT

Port Moresby: C.BIDAR, PM

2008: 20 and 28 March

District Court – Practice and procedure –Application to set aside ex parte order – District Court Act, Section 25

District Court – Practice and Procedure – Institution of Appeal, recognizance of appeal and entry of appeal simultaneously whether complies with mandatory requirements of appeal provisions – whether these act as automatica stay of enforcement of orders. District Court Act Sections 221, 222, 226, 227.

Counsel

J. Abone for Applicant/Complainant
V. Yabone for Respondent/Defendants

Cases Cited

Green and Co. –v- Green [1976] PNGLR 73
Barker –v- Govt of PNG [1977] PNGLR 386
Sangam Mote –v- Alkan Tololo [1996] PNGLR 404

Legislation

District Court Act (Chapter 40)

DECISION

BIDAR PM: On 21 January 2008, the defendants through their lawyers moved on a Notice of Motion which was filed on the same day due to the urgency of the situation. The requirements, of service was dispensed with. The urgency of the situation was that, the complainants applied for and obtained a Warrant of Execution. The warrant was executed and the third defendant’s brand new motor vehicle was seized and impounded at the Police Station.

2. The defendant applied ex parte on 21 January 2008 and obtained orders which set aside the order for issuance of Warrant of Execution. Return of the motor vehicle, Toyota Land cruiser, Registration number BCB 998 forthwith. Costs of application be paid by the complainant.

3. The present application by complainant seeks to set aside those orders of 21 February 2008.

4. The brief background to this proceedings is that, this court entered a judgment in favour of the complainant on or about 24 March 2006, in the sum of Six Thousand Two Hundred Ninety nine Kina sixty nine toea (K6, 299.69).

5. The defendants appealed the decision and orders of the District Court on the 20 April 2006, to the National Court. After waiting for prosecution of the appeal for about two and half years (2 ½) years, the complainants applied for Warrant of Execution which they obtained and executed on the defendant William Wailo’s motor vehicle and impounded it.

6. The present application by the complainants as I referred to earlier, seek to set aside the orders of this court dated 21 January 2008, which are in these terms:

1.	The requirement of service is dispensed with

2.	That the ex parte Court order for Warrant of Execution of 15 February 2008 be set aside.

3.	That the complainant return the Toyota Land cruiser, Registration number BCB 998 to the Third (3rd ) Defendant forthwith.

4.	That the Waigani Police station and any other policemen involved release the motor vehicle in question to the third (3rd) applicant forthwith.

5.	Costs of application be met by the complainant.

6.	Time is abridged to the date of settlement which shall take place forthwith.

7. The defendants have also through their lawyers filed a cross-motion, which the court considers is improper and is not prepared to deal with it at this stage.

8. Reverting to the present application, first of all the principles governing setting aside of ex parte orders is well settled. The law under section 25 of the District court act is clear and the often quoted case of Green and Co –v- Green [1976] PNGLR 73, Baker –v- Government of Papua New Guinea [1977] PNGLR 386.

Basically the principles are that the application should be made promptly. Reasonable explanation as to why judgment or ex-parte order allowed to be made and there is a defence on merits.

9. In this case the application by complainant was made promptly and there is no need to show a meritorious defence. The argument for complainants is that, they were entitled to enforce the orders after waiting for two and half (2 ½) years as the appellants had not taken any diligent steps to prosecute the appeal.

10. The main argument in this application is that, the defendant’s institution of appeal, recognizance of appeal and entry of appeal simultaneously on 20 April 2006, did not comply with the requirements of the appeal provisions in the District Court Act.

11. It is submitted that the institution of appeal under section 221, recognizance of appeal under section 222 and entry of appeal under section 226 in this case does not operate as a stay of enforcement. First of all the appellants have not complied with requirements of the appeal provisions. The requirement of section 226 of the District Court Act is that, the appellant shall within forty (40) days after institution of appeal, enter an appeal and set appeal down for hearing and give notice. Section 227, states that if within forty (40) days after institution of appeal the appellant does not enter the appeal for hearing, a court or magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.

12. The case of Sangam Mote –v- Alkan Tololo [1996] PNGLR 404. The facts of that case are distinguished from the facts of this case. In that case, the complainant filed an appeal together with recognizance on 5 January 1996 against the Judgment made on 29 January 1996. he had not filed an entry of appeal and after sometime filed an originating summons seeking a stay order of the Magistrates orders.

13. It was contended that the application was irregular in that it should be made under the appeal provisions. His Honour Injia J (as he then was) held that – 

"By virtue of section 227, the appellant has forty (40) days from 5 January 1996 to file an entry of appeal. If he fails to file an entry of appeal with this time frame, the court or magistrate" has the same authority to enforce the conviction, or order or adjudication as if it had not been appealed against. My interpretation of section 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. Like wise upon the institution of appeal by way of filing of a Notice and recognizance of appeal under section 220, it should have the effect of automatically staying the enforcement of the court order until the expiry of forty (40) days to allow the filing of an entry of appeal to take place. If within forty (40) days after the institution of an appeal under section 220 no entry of appeal is filed, the court order becomes enforceable despite the filing of Notice of Appeal and recognizance on appeal. In summary the appeal has a grace period of forty (40) days from the date of institution of appeal against enforcement of the court order."

14. In this case, I have heard both Mr. Abone of Counsel for Complainant and Ms. Yabone Counsel for the defendant, I am much indebted to both counsel in their submissions. I am particularly impressed with the able assistance which Mr. Abone provided, in relation to the appeal      provisions in the District Court Act which do not expressly state that once an appeal is lodged it acts as an automatic stay of enforcement.

15. Having considered various matters including the submission by counsel, case laws referred to as well as the appeal provisions in the District Court Act. I am convinced that, the appellants had not complied with the mandatory requirements of the appeal provisions as a consequence, I am firmly of the view that filing of appeal, recognizance of appeal and entry of appeal simultaneously, does not operate as a stay of enforcement of the court orders, simply on the basis that appellants have not complied with the time frames in appeal provisions.

16. In all the circumstances, I grant the application by the applicant (complainants) filed on 25 January 2008.

17. The orders:

1.	The ex parte orders of 21 February 2008 is set aside.

2.	Applicant (complainant’s) cost be paid by the Defendant.

___________________________________________

Lawyers for the Complainant/applicant Parkil Lawyers –
Counsel: J. Abone

Lawyers for the Defendants/Respondent Greg Mauda Lawyers 
Counsel: Miss V. Yobone