Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Ande v Isingi [2001] PGNC 23; N2206 (27 July 2001)

N2206

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APPEAL NO. 162 OF 2000

Between:

LUCY ANDE

Appellant

And:

ANSON ISINGI
Respondent

Wabag : Jalina, J.
2001 : 2 May
: 27 July

PRACTICE AND PROCEDURE – Appeal from the District Court – Appeal does not automatically operate as a stay – Orders for stay of proceedings or orders required.

PRACTICE AND PROCEDURE – Judgments and Orders – Stay pending appeal from the District Court – Tests to be applied.

Cases cited:
The following cases are cited in the judgment:

State –v- Philip Kapal [1987] PNGLR 302.

PNG –v- Gulf Provincial Government [1994] PNGLR 34.
PNG & The Commissioner, Corrective Institution Services –v- Daniel Mollen, unreported Supreme Court Judgment in SCA 513 of 19 November, 1996.
Post PNG Limited –v- Westpac Bank PNG Limited, unreported Supreme Court Judgment No. SC608 of 26 May, 1999.
Gary McHardy –v- Prosec Security and Communication Ltd trading as Protect Security, unreported Supreme Court Judgment SC645 of 30 June, 2000.

Counsel:

I. Umbu for the Applicant/Appellant
P. Potane for the Respondent

27th July, 2001

JALINA, J. This is an application for an order to stay the execution of the Order of the Wabag District Court whereby on 30th May, 2000 the Applicant was ordered to vacate the property within 2 days. The same court on 1st June, 2000 extended the period she was required to vacate the premises to 14 days. The application for stay is made pending the determination of an appeal to the National Court which has been filed by the Applicant.

Unlike s.19 of the Supreme Court Act (Chapter 37) which expressly provides that an appeal or application for leave to appeal does not operate as a stay thus requiring specific orders to be obtained to stay certain orders or proceedings, the District Courts Act does not contain any equivalent provisions. It might be argued therefore that in the absence of express provisions in the District Courts Act, an appeal automatically operates as a stay of proceedings.

I, with respect, do not agree with such an argument for the simple reason that it would encourage the appellant to protract or delay the prosecution of the appeal and in doing so deny or frustrate the judgment creditor or a party in whose favour a judgment has been obtained from enjoying the fruits of the judgment. So a specific order for stay of certain orders or proceedings must be applied for and obtained.

Applications for stay can be made to the National Court under Order 13, Rules 11 and 21 respectively of the National Court Rules. Order 13, Rule 11 provides:

"11. Matters occurring after judgment. (42/12)

(1) A person bound by a judgment may move the Court for a stay of execution of the judgment or for some other order, on the ground of matters occurring after the date on which the judgment takes effect and the Court may, on terms make such order as the nature of the case requires.

(2) Sub-rule (1) does not affect the powers of the Court under Rule 21 (stay of execution)."

Order 13, Rule 21 provides:

"21. Stay of execution.

The court may, on terms, stay execution of a judgment or order."

The proceedings in the District Court which I have referred to above related to a residential lease in Wabag Town which is contained in Allotment 10 Section 23. On it is a residence owned by the National Housing Corporation. Both parties have filed affidavits setting out the history of his/her dealings with the National Housing Corporation over the property.

The Applicant has annexed more documentary evidence to her affidavit than the Respondent to demonstrate that her claim to the property was genuine and justice and fairness required that this application be granted. The Respondent has annexed only a few documentary evidence which included a copy of title to the property in his favour. The Applicant contends that the title was granted to the Respondent under questionable or suspicious circumstances and that she should not be evicted pending determination of the appeal and the circumstances under which the title was granted.

The tests to be applied in application for stay particularly before the Supreme Court under s.19 of the Supreme Court Act (Chapter 37) were considered in a number of cases. In the State –v- Philip Kapal [1987] PNGLR 302 which was referred to by the Supreme Court in PNG –v- Gulf Provincial Government [1994] PNGLR 34 it was decided that an applicant must show "special" or "exceptional circumstances" before the court’s unfettered discretion to grant a stay can be exercised in his favour.

However, in PNG & The Commissioner, Corrective Institution Services –v- Daniel Mollen, unreported Supreme Court Judgment in SCA 513 of 19 November, 1996 the Supreme Court was of the view that "special" or "exceptional circumstances" were not specifically required by s.19 of the Act and all that needed to be established by an applicant was a "reason" or "an appropriate case" to warrant an exercise of discretion in his favour. The issue was decided without full argument having been advanced on it.

Subsequently in Post PNG Limited –v- Westpac Bank PNG Limited, unreported Supreme Court Judgment No. SC608 of 26 May, 1999 the Court in which I was a member considered that the Court had sufficiently clarified the test and concluded that the previous test of "special" or "exceptional circumstances" no longer applied and that all an applicant for stay needed to show or demonstrate was "a reason" or "an appropriate case" by evidence to warrant the exercise of discretion in his favour. Mr. Umbu for the Applicant has relied on this case to apply for a stay of the District Court order of 30th May, 2000.

The Supreme Court in which I was a member has now re-examined the tests or principles laid down in the above cases. This was done in Gary McHardy –v- Prosec Security and Communication Ltd trading as Protect Security, unreported Supreme Court Judgment SC645 of 30 June, 2000. In that case the court was of the view that the tests in the above cases were based on what foreign courts have said about their provisions and did not demonstrate a satisfactory way of dealing with the issue. We ought to consider for ourselves what ought to be the relevant factors and circumstances for the exercise of this discretionary power in this jurisdiction. It went on to say at p.8:

"We distil from these precedent cases the kinds of factors and circumstances that the Court will consider, amongst others, in the exercise of the discretion whether or not to grant a stay order. We start with the principal premise that the judgment creditor is entitled to the benefits of the judgment. The other factors include the following:

• 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."
  

Although I was a member in both Post PNG Limited –v- Westpac Bank PNG Limited (Supra) and Gary McHardy –v- Prosec Security and Communication Ltd trading in Protect Security (Supra) I prefer the view expressed by the Court in the latter case.

Consequently, I am of the opinion that the test to be applied in applications for stay of proceedings or orders before the District Court should be as set out in Gary McHardy –v- Prosec Security and Communication Ltd trading as Protect Security (Supra).

The particular circumstances of this case is that both the Applicant and the Respondent claim to be entitled to the property but the documentary evidence relied upon by the Applicant on the issue of whether or not the title purportedly granted to the Respondent was granted in a just, fair and lawful manner outweigh those of the Respondent both as to duration and substance.

From the factors outlined by the Supreme Court which I have alluded to above, it would appear from a preliminary assessment that the Applicant has an arguable case. There also appears on the face of the record of the judgment and documentary evidence deposed to in the Applicant’s affidavit that there is a possible error of law in the grant of the title.

Furthermore, having lived on the premises and paying rent to the National Housing Corporation since 1993 and then later making arrangements to purchase the property would be unjust and would cause her a lot of inconvenience if the application is refused and she is required to vacate the property as ordered by the District Court.
For the foregoing reasons I have decided to exercise my discretion in favour of the Applicant.

I accordingly grant the application for stay and make the following orders:

1. The Orders of the Wabag District Court of 30th May, 2000 as well as the Order of 1st June 2000 be stayed pending the determination of the Appeal.
   
2. The Respondent, his servants, agents and associates be restrained from taking possession of or entering Allotment 10 Section 23, Wabag or from evicting the Applicant pending determination of the validity of the grant of title to him over the property.
   
3. The National Housing Corporation, its servants, agents or associates be restrained from evicting the Applicant or taking possession of Allotment 10 Section 23, Wabag pending determination of the Appeal and the validity of the title granted to the Respondent over the property.
   
4. Costs be costs in the cause.
   
5. Time for entry of these orders be abridged to the time of its making which shall take place forthwith.

_____________________________________________________________________

Lawyer for the Applicant/Appellant : Warner Shand Lawyers

Lawyer for the Respondent : Pato Potane Lawyers