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Lita v Rosso [2022] PGNC 166; N9584 (14 April 2022)

N9584

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 98 OF 2022 (IECMS)

BETWEEN:

THOMAS LITA

Plaintiff

AND:

HON. JOHN ROSSO as the Minister for Lands & Physical Planning

as the Chairman of the PNG Lands Appeal Board

First Defendant

AND:

DR ERIC KUA

as the Attorney General and the Statutory representative of the Head of State

Second Defendant

AND:

ALA ANE

as the Acting Registrar of Titles

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

AND:

WOODEN POLES SUPPLIESS LIMITED

Fifth Defendant

AND:

MICHAEL WAWUN & LAURA WAWUN KUVI

As joint tenants

Sixth Defendants

Waigani: Tamade AJ

2022: 14^th April

PRACTICE AND PROCEDURE – application for stay – plaintiff applies to stay orders of the District Court – Plaintiff file urgent application dispensing with requirements of service on defendants – plaintiff intends to stay decision of District Court pending determination of a new proceeding filed in the National Court – Sixth Defendants held a legitimate and valid title over the land - Plaintiff wants to challenge the awarding of that title to the Sixth Defendants and seeks to stay the decision to allow him to remain on the land albeit without any legal right – matter already determined and settled in National Court and Supreme Court on appeal - defendants are entitled to enjoy the fruits of their judgment – plaintiffs application is an abuse of process – application for stay refused

Cases Cited

The following cases are cited and or considered in the judgment:

Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2001] PNGLR 279

Yer, Secretary for Department of Finance v Yama [2009] PGSC 13; SC990

Counsel:

Mr Randolph Lains, for the Plaintiff

Ex parte Urgent Hearing

14^th April, 2022

1. TAMADE AJ: This is an urgent application seeking a stay of the Orders of the District Court made on 15 November 2019 and a Warrant of Execution issued on 16 December 2020. Plaintiff brings this matter before the Court as an urgent matter without informing the Defendants as a courtesy having filed the application on 12 April 2022. Plaintiff seeks a dispensation of the Rules of Court as to service of his application and I granted leave for Plaintiff to proceed ex parte.

2. Having heard submissions from Mr Lains towards the end, it became somewhat apparent to me that Mr Lains had previously attempted to challenge the subject decisions of the District Court by way of other court proceedings and it was generally agreed, as I heard in submissions, that the Plaintiff never sought a stay of the District Court decisions as it was agreed to by lawyers representing the Sixth Defendants that parties would await the outcome of other pending Court proceedings. Now that other Court proceedings are out of the way, lawyers for the Sixth Defendants have put the Plaintiff on notice that they intend to enforce the subject decisions of the District Court for eviction whereby the Plaintiff is hastily in Court without informing the Defendants of this matter coming on today.

3. At the outset, I make this observation that the Plaintiff relies on Order 12 Rule 1 of the National Court Rules citing the unfettered discretion of the Court to grant any such relief in a matter and also cites Order 18 Rule 12(2)(a) of the National Court Rules which is in relation to appeals from the District Court to the National Court concerning a stay of the Orders of the District Court. The proceedings in which the application for stay is mounted on is not by way of an appeal, it is by way of a Writ of Summons challenging the title now held by the Sixth Defendants.

Facts of the case

4. The Plaintiff states in his Affidavit filed on 12 April 2022 that he is currently residing with his family on the property described as Section 349, Allotment 47, Hohola, National Capital District referred to in Gerehu in NCD.

5. On 15 November 2019, the Sixth Defendants filed proceedings in the District Court under the Summary Ejectment Act and the District Court granted orders for eviction against the Plaintiff and his family upon being satisfied that the Sixth Defendants held a valid title to the subject property.

6. The Plaintiff aggrieved by the decision of the District Court then appealed to the National Court in proceedings described as CIA 120 of 2019. The appeal proceedings were dismissed on 7 December 2020 for non- compliance of the orders of the Court and for being frivolous and vexatious and disclosing no reasonable cause of action in law as cited from the decision of Justice Nicholas Miviri.

7. On 24 March 2020, after the dismissal of the appeal, Plaintiff attempted to stay the execution of the Warrant of Execution (Ejectment as written in the Orders) in the District Court however this was dismissed by the District Court on 24 March 2021.

8. The Plaintiff through his lawyer, Mr Lains also handed up to me in Court a copy of a decision in OS(JR) 706 of 2018 by Justice Nicholas Miviri given on 6 October 2020 that refused an application for leave for judicial review over a decision of the PNG Land Board granting title to Wooden Pole Supplies Limited which is the Fifth Defendant in these proceedings. The judicial review proceedings were dismissed as the Court was of the view that there was no primary decision before the Court to review and that the matter was of no merit without any cause of action.

9. Plaintiff then appealed the decision of the National Court in CIA 120 of 2019 to the Supreme Court in SCA 2 of 2021 however the Supreme Court Appeal was dismissed on 1 April 2022.

10. The Plaintiff is therefore back in the National Court in these proceedings by way of a Writ of Summons challenging the title held by the Sixth Defendants and the transfers or grants prior to the registration to the Sixth Defendants in this matter.

11. It is the Plaintiff’s plea that he and his family are residing on this property and that they have been given until today, 15 April 2022 to vacate the property failing which they will be forced out of the property by eviction.

Application for Stay

12. Plaintiff submits the Supreme Court case of Gary McHardy v Prosec & Communications Ltd Trading as Protect Security [2001] PNGLR 279 regarding the principles for the grant of stay. The principles for the grant of stay is premised on the principle that a party who obtains a judgment in their favour is entitled to the benefit of that judgment and only where the following considerations are met and or the Court being satisfied on the exercise of its’ discretion based on these considerations can a stay be so ordered. The considerations are as follows:

1. Whether leave to appeal is required and whether it has been obtained;
2. Whether there has been any delay in making the application.

100. Possible hardship, inconvenience or prejudice to either party.

4. The nature of the judgement sought to be stayed.
5. The financial ability of the applicant.
6. Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
7. Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
8. The overall interest of justice.
9. Balance of convenience.
10. Whether damages would be sufficient remedy.
    

13. In the Supreme Court case of Yer, Secretary for Department of Finance v Yama [2009] PGSC 13; SC990 (3 July 2009), the Supreme Court in considering an application for stay of the National Court decision stated that not all the considerations in the Mc Hardy case will be applicable to any given case.

14. I consider the following considerations as relevant in this case.

1. Whether leave to appeal is required and whether it has been obtained;
2. The nature of the judgement sought to be stayed.

100. The overall interest of justice.
     

15. The proceedings before me is not an appeal of the decision of the District Court. The proceedings is by way of a Writ of Summons challenging the title held by the Sixth Defendants. In exchange between counsel for the Plaintiff, Mr Lains agrees that the decision in the District Court was correct in the Court granting orders for eviction on being satisfied that the Sixth Defendants held a legitimate and valid title over the land. The Plaintiff however now wants to challenge the awarding of that title to the Sixth Defendants and seeks to stay the decision to allow him to remain on the land albeit without any legal right.

16. I am of the view that it is an abuse of process to seek a stay over a decision (agreed upon) as correct in law however the conduct of seeking a stay in itself to my mind holds the Sixth Defendants to ransom to keep them out of the benefit or the fruit of the judgment they are so entitled without any challenge to that judgment.

17. There is no need for me to proceed any further to consider the other considerations as to my mind, other considerations may not apply as this is not a contest or challenge of the decision of the District Court, this is a completely new course of action by way of a Writ of Summons and it is not in the interest if justice to keep the Sixth Defendants from their right to the judgment of the District Court.

18. The hands of the law are just and fair, it may be far-reaching and a party may suffer long to finally be within its reach, but it must not only be seen to be done, it must be done. Finality to litigation is a concept that litigants must accept, when you avail yourself to the process, you must avail yourself to the conclusion and its finality.

19. The Orders of the Court are that:

1. The Plaintiff’s Notice of Motion filed on 12 April 2022 seeking a stay of the decision of the District Court is refused forthwith.
2. The Plaintiff will this time inform the Defendants of the decision of this Court as to their application for stay heard ex parte today.
3. Time is abridged to the date of these orders to take effect forthwith.
   

Orders accordingly.
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Hardy & Stocks Lawyers : Lawyers for the Plaintiff