N2059

PAPUA NEW GUINEA

[In the National Court of Justice]

Appeal No. CIA 51 of 2001

BETWEEN:

Mr. Lee – Camp Manager
-First Appellant-

K.D. Logging Limited
-Second Appellant-

Lakaram Alam (PNG) Ltd
-Third Appellant-

AND:

Barnabas Mondu
-Respondent-

Lae: Injia, J.
2001: March 16, 20

District Court – Appeal – Stay of enforcement of judgment appealed against - Enforcement after appeal instituted and after appeal entered for hearing – Enforcement proceedings invalid – District Courts Act (Ch. No. 40.), s.227.

Cases cited:
Sangam Mote v. Alkan Tololo [1996] PNGLR 404 applied.

Counsel:
D. Poka for the appellant
Respondent in person

20 March 2001

INJIA, J.: This is an application by the appellants to stay further enforcement of the District Court order of 22 September 2000 ("principal order") pending the determination of this appeal. The appellants also apply for an order for the return of a Motor vehicle Toyota Crown Station Wagon Reg. No. BAU 139 which was seized by police in the execution of a Warrant of Execution issued under the principal order in early March 2001. The principal order was made ex parte pursuant to s.143 of the District Court Act (Ch. No. 40.)("the Act").

In the Notice of appeal, the appellants purport to appeal against two consecutive orders made on 17/01/01 and 7/02/01 dismissing two applications to set aside the principal order. These orders were made pursuant to S.25 of the Act. During argument, there was apparent confusion in the Notice of Appeal as to the particular order appealed against, that is, as to whether it was the order of 17/01/01 or 7/2/01. Mr. Poka of counsel for the appellants accepted my suggestion that since the appeal was lodged on 23/2/01, any purported appeal against the order of 19/01/01 was early out of time and therefore incompetent. The only competent appeal before this Court therefore is the order of 7/02/01. 

Pursuant to the principal judgment, judgment was entered for the respondent for K7,568.00 being for the loss of personal properties whilst in transit from Kimbe to Lae by ship. No appeal was lodged against that decision and the respondent did not take any steps to enforce the principal order. This was presumably because on 25/10/00, the appellants filed an application to set aside the principal order.

After a number of adjournments, on 17/01/01, this application was dismissed because neither the appellants nor their counsel were in attendance in Court to prosecute the application. Still, the respondent did not take any steps to enforce the principal order. Following the dismissal of the appellant’s first application on 17/1/01, the appellants filed a second application to set aside the principal order. On 7/2/01, this second application was also dismissed for the same reason – neither the appellants nor their counsel appeared in Court to prosecute their application. On 23/2/01, the appellants filed an appeal against the orders of 19/1/01 and 7/02/01. When the appellants instituted their appeal, they also filed an Entry of Appeal for hearing at the same time, pursuant to S.227 of the Act. By this time, the respondent took steps to enforce the principal order. It appears in the first week of March, 2001 he obtained a Warrant of Execution from the District Court and got the police to execute it against the second appellant. It is not clear from the evidence if the respondent took the enforcement action after the appeal documents were served on him. What is clear though is that the enforcement actions were taken by the respondent after the Notice of Appeal and Recognizance of Appeal were filed and the appeal was entered for hearing. I assume that the appeal documents were brought to the attention of the District Court that made the order because copies of the appeal documents would have been lodged with the Clerk of the District Court.

It is clear to me that following the institution of the present appeal, the respondent and the Magistrate concerned acted in haste to enforce the judgment. In Sangam Mote v. Alkan Tololo [1996] PNGLR 404, I said an appellant should be accorded a grace period of 40 days against enforcement of the decision appealed from, which period commenced from the date an appeal is instituted under s.219 of the Act. I said: 

"By virtue of s.227, the appellant has 40 days from 5 February 1996 to file an entry of appeal. If he fails to file an entry of appeal within this time, the Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against. My interpretation of s.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. Likewise upon the institution of an appeal by way of the filing of a notice of appeal and recognizance on appeal under s.220, it should have the effect of automatically staying the enforcement of the Court order until the expiry of 40 days to allow the filing of an entry of appeal to take place. If no entry of appeal is filed, the Court order becomes enforceable despite the filing of a notice of appeal and recognizance on appeal. In summary, the appellant has a grace period of 40 days from the date of institution of an appeal against enforcement of the Court order".

By emphasis, I restate s.227 of the Act again: 

"Failure to enter appeal for hearing

If, within 40 days after institution of an 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". 

I still maintain the above view. If an order appealed from were to be enforced either first before the expiry of 40 day period allowed for filing of an entry of appeal, or second, at any time after an entry of appeal is filed, the appeal would be rendered nugatory or futile. The District Court or a Respondent to an appeal must take care to ensure that they do not take steps to enforce the judgment appealed from in either of the above two situations because it would defeat the whole purpose of an appeal. If they do, those proceedings stand to be declared invalid.

In the present case, the principal ex parte order was made on 22/9/00. The two applications were made under S.25 of the District Court Act which permits application to set aside an ex parte order. An order made under S.25 is appealable to this Court. An order dismissing the application made under S.25 was made on 7/2/01 and an appeal was lodged against this decision on 23/02/01. The appellants had 40 days from 23/02/01 to file an entry of appeal, which period would have expired on 30/3/01, but they chose to file the Entry of appeal on 23/02/01. But the respondent obtained a Warrant of Execution not only during the currency of the 40 day grace period but also after the appeal had been entered for hearing, and had the warrant executed by police in Lae in late February or early March. 2001. Lae police executed the said Warrant and seized the said motor vehicle which was parked at the Second Appellant’s yard. The evidence is that this vehicle’s registered owner is Metro Holdings, a "subsidiary company" of the Second Appellant, which is not a judgment debtor in those proceedings. I am satisfied that the enforcement was carried out contrary to the purpose and intent of S.227. I am also satisfied that the property seized in execution of the said Warrant did not belong to the Second respondent. I declare those execution proceedings invalid. 

During argument, many other issues concerning the arguable nature of the grounds of appeal were raised by Mr. Poka but I consider it not necessary to address those. They are arguments proper for the substantive hearing.

For these reasons, I order that the subject motor vehicle be returned by Lae police to the Second Appellant and/or Metro Holdings forthwith. I further order that any future enforcement of the judgment appealed from be stayed pending the determination of this appeal. Costs of this application shall be in the cause.
____________________________________________________________________
Lawyer for the appellant	:	Pryke & Bray
Lawyer for the respondent	:	In person