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Aeno v Jack [2021] PGNC 38; N8748 (3 February 2021)

N8748

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 30 OF 2018

BETWEEN:
JENO AENO AND KAI AENO Trading as NAMONA INVESTMENTS LIMITED
Appellant

AND:
ABRAHAM JACK
Respondent

Waigani: Miviri J
2020: 11^th November

PRACTICE & PROCEDURE – Judicial Review & Appeals – Appeal from District Court – Setting Aside of District Courts Ex parte Order – Status of – When can an ex parte order be set aside – Law on ex parte orders – Compliance or non-compliance – Material relied – No error demonstrated – Dismissal of Appeal – cost follow event.

Cases Cited:

International Finance Company v K K Kingston Limited [2019] SC1872

Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397

Public Prosecutor, The State v [1976] PGSC 20; [1976] PNGLR 344

Pora v Sepetio [1988] PGNC 86; [1988-89] PNGLR 206

Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte Acting
Counsel:

B. Nahupa, for Appellant

R. Pokea, for Respondent

RULING

03^rd February, 2021

1. MIVIRI, J: This is an appeal against the decision of the Port Moresby District Court made on the 23^rd April 2018 in respect of the appellant’s application to set aside an ex parte order granted there previously on the 23^rd March 2018.
   

2. The particulars of the orders in that proceeding relevant to the determination here are as follows, that on the 23^rd April 2018 the Port Moresby District Court issued the following orders:

(i) the defendant/Applicant’s Notice of Motion filed on the 03^rd April 2018 is dismissed;
(ii) Order number 4 of the Court’s Orders of the 23^rd March 2018 to be complied by the Defendants forthwith.
(iii) Costs of this application against the Defendants/Applicants.

3. And further the orders that were issued ex parte earlier which was sought to be set aside were in the following terms:

(i) The defendants pay the Complainant the sum of K 7, 945.08.
(ii) The Costs incidental set at K 500.00.
(iii) Interest set at K 500.00.
(iv) Total being K 8, 945. 08 be paid by the 18^th April 2018, in default warrant of arrest be issued to bring the Defendant to Court to explain why he did not obey Orders.

3. The respondent was employed by the appellants as a security guard from 07^th December 2016 until 07^th September 2017 when he was terminated. He instituted the proceedings in the district Court to recover unpaid wages from the appellants. He successfully secured the order on the 23^rd March 2018 ex parte for the Judgment sum of K 8, 945. 08. The appellants unsuccessfully sought to set aside that order on the 23^rd April 2018 with costs following them. And from which this appeal was filed 04^th April 2018.
   
4. The contention in the notice of appeal is that there was error in law and fact by the learned Magistrate in refusing the application of the appellants to set aside the ex parte order when there was sufficient evidence that there was notice of intention to defend and defence was filed earlier by the appellants. Because the next adjournment date of the matter was set as the 23^rd March 2018. The appellants were denied a right to hearing and the ex parte order for that reason did not stand.
   
5. The refusal to set aside the ex parte order when there was an order of the 09^th October 2017, excusing the defendants, appellants now from further attending and appearing in court until the hearing or as determined by the Court.
   
6. The appeal book that has been filed of the 13^th May 2020 does not contain the decision of the Magistrate at first instance. On what material did he base himself to make the orders that he made which are set out above. Counsel has referred to the Lawyers affidavit in the Appeal Book (AB) pages 49-52. But it is not clear as to how the District Court on the basis of that material determined the issue. The orders are there that emanated but how it weighed this evidence to arrive at the orders it made. It is obvious that that affidavit did not have much bearing in the way that the court determined to end in the orders that it made. Without the record of the Judgment at first instance there is nothing much that can be attained in law without. Because the determination of this court will come from that decision. It is that decision that is the subject of this appeal. The submission by counsel will draw from that decision not without. There must be error apparent or identifiable in law from that decision which will be the basis to set aside that decision initially made: International Finance Company v K K Kingston Limited [2019] SC1872 (13 November 2019) and Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397 (30 October 2014).
   
7. It is not the case here and has not been shown to be the case here. The error of law or fact is within that decision and it is not before me to so determine where the error lies. This ground is not made and is without merit. It will not be disturbed where it was left to lay. It is the duty of the appellant, he who asserts must prove. And that has not been discharged to the required balance to favour the appellant. Accordingly, this ground is not made out and fails against the appellant.
   
8. And this will also befall the second ground of appeal that there is no evidence of an order preventing the defendants from appearing in court. Particularly also when their lawyer was unable to attend. And it would be very unusual for a court of law to make orders preventing a party from attending a case it has started out in court either as plaintiffs or defendants. Because by section 224 Deposition, Etc., To be Forwarded to the Registrar of the National Court;-

(1) The Clerk of the Court the decision of which is appealed against, immediately after notice of appeal is lodged with him, shall forward to the Registrar of the National Court a copy, certified by him to be a true copy–

(a) of the conviction, order or adjudication; and
(b) of the reasons given by the Court for the making of the conviction, order or adjudication, if any reasons were given at the time when the decision was pronounced; and
(c) of the complaint; and
(d) of the depositions; and
(e) of all other proceedings before the Court relating to the conviction order or adjudication,

together, subject to Subsection (2), with the original exhibits (if any) relating to the conviction, order, or adjudication.

(2) Where, in the opinion of the Clerk, it is impracticable to forward the exhibits required under Subsection (1), the Clerk may forward to the Registrar of the National Court, instead of the exhibits, a list and description of those exhibits.

9. By the authority of this section there should be a certified copy of the order or adjudication in the proceedings DC 705 of 2017 Abraham Jack v Jeno Aeno & Kai Aeno. Importantly and paramount is the reasons of the court presided by Magistrate Wilmot for making the decision that he did in that matter. All material are certified as having come from that proceedings in that Court usually by the clerk of Court in fulfillment of this section. The appeal is mounted on giving effect to the dictate of the District Courts Act 1963 without which there is no appeal before the National Court. “The District Courts of Papua New Guinea are not courts of record but creatures of statute (viz. the District Courts Act 1963) and as such have only those powers vested in them by statute. Accordingly, the sentencing power of a magistrate of the District Courts is exhausted once he has pronounced sentence; he has, subject to the courts power to correct a slip, no power to make any alteration which amounts to a fresh adjudication; if any alteration goes further than mere correction of an error or a mistake, that part of the conviction or order may be quashed,” Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte Acting Public Prosecutor, The State v [1976] PGSC 20; [1976] PNGLR 344 (27 August 1976).

10. Because by section 229 this will become the basis upon which the appeal will be centred because the section is specific, “Evidence other than the evidence and proceedings before the Court by which the conviction, order or adjudication was made shall not be received on the hearing of an appeal, except by Consent of the Parties or by order of the National Court.” This will comprise the Judgement at first instance that is being challenged by the appeal. The challenge will be mounted on it. The grounds of appeal will derive from it. As with all other appeals what is sought is to point to errors apparent or identifiable so as to vitiate the decision at the first instance. And here also it is worth noting that the hearing is on the material led at first instance or upon consent of the party’s introduction of new material or by order of the National Court: Pora v Sepetio [1988] PGNC 86; [1988-89] PNGLR 206 (25 November 1988). Even if what is relied on in the appeal book were the case it still would not make out the case of the appellant to the required balance in their favour. They lack the very Judgement of the Magistrate. It is not open for this Court to assume on that material as that is not the law. The findings of fact determinations of law are by the Magistrate at first instance and it is upon this that the case will fall one way or the other in an appeal. It is not the case here for the appellant and therefore will fail.

11. The evidence relied was from which the court determined and ruled. In the case here relating to this particular ground there is no determination made by the court at first instance before me to see where counsel is urging. And therefore, it would not be lawful to follow and this ground is not made out and fails. Any other ground will follow similar as the appeal is a rehearing and not de novo.

12. Accordingly, the formal orders of the court are that:

(a) The appeal is dismissed in its entirety as being without merit.
(b) The orders of the District Court of the 23^rd March 2018 at first instance set out above are confirmed forthwith, and enforceable against the appellants as ordered.
(c) The appellants will pay the cost of the respondent.

Orders Accordingly.

__________________________________________________________________

Horizon Lawyers: Lawyer for the Appellants

Pokea & Associates Lawyers: Lawyer for the Respondents