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Amaiu v Worinu [2022] PGNC 505; N10027 (18 November 2022)

N10027


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS No. 27 OF 2022


BETWEEN
CATHY AMAIU & RELATIVES & ORS RESIDING AT SECTION 72, LOT 15, BOROKO, NATIONAL CAPITAL DISTRICT
Applicant/Defendant


AND
MARK WORINU
Respondent/Plaintiff


Waigani: Linge, AJ
2022: 17th & 18th November


PRACTICE AND PROCEDURE – application by defendant to set aside ex parte orders of National Court issued earlier – applicant also seeks new date to be set for rehearing of matter – applicant also seeks stay of execution of eviction orders – applicant has invoked wrong rules of court – court doesn’t have jurisdiction to hear application – matter finally determined cannot be revived by notice of motion – principles of finality in litigation applies – applicant if aggrieved by decision of National Court should have appealed to supreme court – applicants application to set aside previous orders of this court and the application for orders to stay eviction is dismissed


Cases Cited:


Allolim v Kirokin, and others [2018] PGSC 86; SC1735
Thomas Barry –v- Joel Luma [2017] PGSC 42; SC1639
Aiwasi v Monty Derari & Others (2017) N6602
Steven Punangi v Pacific Plantation Timber Ltd (2011) SC1153
Peter Malt v Dean Queen & Christian Union Mission (2009) N3577
Richard Dennis Wallbank & Jeanette Miniffe v The Independent State of Papua New Guinea [1994] PNGLR 78
Counsel:


Mr. D. Dotaona, for the Applicant
Mr. Dupre, for the Respondent


RULING


18th November, 2022


  1. LINGE, AJ: This is my ruling on a Notice of Motion filed by the defendant on the 4 November 2022 seeking to set aside the ex-parte order of this Court issued on 28 October 2022.
  2. The application is filed pursuant to Order 12 Rule 2 (a) (b) and (c) and 3 (a) and Rule 35 of the National Court Rules. Apart from the order to set aside, the applicant also seeks in the alternate a new date be set for rehearing of the matter.
  3. Applicant further seeks a stay of enforcement or execution by members of the Police Force of eviction on Section 72, Allotment 15 Boroko, NCD otherwise State Lease volume 40 Folio 144, (“the property”).

Facts


  1. On 28 October 2022 the Court declared Mark Worinu as the registered proprietor of the said property as described above. It was originally owned by Cathy Amaiu, the applicant and mortgaged to the National Development Bank (NDB). There was default on the principle debt by Malachi the son, resulting in the NDB to exercise its power of sale by tender, sale and registration of title to Mark Worinu.
  2. After title transfer the applicant continued to reside despite the notices to vacate leading to the filing of the proceeding and the ensuing order of this Court on the 28 October 2022 the subject of this application.
  3. Mr. Dupre objected to the application on the grounds of competency and non-filing of notice of appearance by Mr. Dotoana, however I ruled for the application to proceed and that he can raise the issue during submission. As an urgent application Counsels made oral submissions.

Submissions


  1. Mr. Dataona for the applicant submits from the outset that the order now the subject of the application is premature. That the defendant was not properly served with the notice of hearing, and she did not attend any hearing until on the 28 October 2022 she appeared in Court only to witness the handing down of the decision on the matter.
  2. Counsel submits that the defendant holds a valid title to the property, and he refers me to affidavit in support by the applicant Cathy Amaiu filed on the 4 November 2022. In the affidavit the applicant deposes to a pending case she filed against National Development Bank (NDB) wherein she alleges fraudulent dealing. That, while that case is pending determination, the plaintiff filed and fast tracked and obtained this order.
  3. Moreover, Mr. Dotoana submits that the disposal of the property has been orchestrated by the NDB utilizing its power of sale as a mortgagee over the property. Counsel contends that the evidence in Annexure “C” to the above referred supporting affidavit disclosed a mortgage by the NDB over the property as security for loans acquired by her late son Malachi with NDB.
  4. He submits that the defendant had nothing to do with dealings between her late son and the NDB. If anything, as a mother she may have unwittingly allowed her property to be a security for her son’s loan (s) with the NDB and now faces the wrath of the NDB.
  5. Mr. Dotoana submits on the issue of his representation that he is the lawyer on record for the applicant having filed a Notice of Intention to Defend marked as Document #4 in the Court file.
  6. He refers me to Supreme Court case of Allolim v Kirokin, and others [2018] PGSC 86; SC 1735, in which the Supreme Court adopt the view that an ex parte order may be set aside as a matter of discretion and with justifiable reasons.
  7. He concedes that the application was filed by the applicant herself and submits that it should properly be filed under Rule 8 of Order 12, National Court Rules.
  8. Counsel submits that the Court has an inherent duty to correct procedural defects and to do justice in all circumstances of the case. Thus, in the exercise of its discretionary power the Court must consider the above and set aside the ex-parte order and allow the matter to proceed to trial.
  9. Mr. Dupre responded on behalf of the plaintiff/respondent and submits that this application is incompetent based on the following:

(i) Applicant relies on wrong National Court Rules. The Court simply does not have jurisdiction.


(ii) In respect of Rule 35 Counsel points out that this relates to default judgment and is inapplicable.


  1. Counsel contends that the order of 28 October 2022 was issued after a trial following notice of trial and this application is an abuse of process.
  2. In support of his submission Counsel refers me to Thomas Barry v Joel Luma [2017] PGSC 42; SC 1639 which held that an ex-parte order dismissing the National Court proceeding disclosing no reasonable cause of action is a final order and cannot be set aside by way of notice of motion.

Considerations


  1. I allowed this application to proceed having in mind the objection to competency raised by Counsel for the respondent. I will deal with the objection.
  2. Order 12 Rule 2 (a) (b) and (c) and 3 (a) of the National Court Rules are not relevant to this application and are misapplied. Order 12 Rule 35 of the National Court Rules pertains to setting aside default judgment, which is not the case here.
  3. Clearly the Rules relied on do not provide me with the jurisdictional basis to hear the application. Mr. Datoana of Counsel for the applicant suggests that the application was filed by the applicant herself implying the reason for the wrong citation of the Rules whereas it should have been filed under Order 12 Rule 8 of the National Court Rules.
  4. The Notice of Motion was filed on the 4 November 2022 and there were 9 working days prior to the hearing on the 17 November 2022. In my view there is sufficient time to rectify the crucial jurisdictional question. It is defective and it seeks no dispensation of the Rules. Simply the Court has no legal basis and no power to proceed.
  5. Supposing, I consider this application on the basis of Order 12 Rule 8 (2) (a) (b) and (c) and 3 (a) of the National Court Rules, the following is my ruling.
  6. For ease of reference I set out the full text:

(1) The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment (my underlining).


(2) The Court may, on terms, set aside or vary a judgment –


(a) where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or


(b) where the judgment has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or


(c) when the judgment has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.


(3) The Court may, on terms, set aside or vary an order –


(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or


(b) where notice of motion for the setting aside or variation is filed before entry of the order.


(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part any claim relief.


(5) This Rule does not affect any other power of the Court to set aside or vary judgment or order.” [Emphasis added]


  1. Order 12 Rule 8 (1) gives general power, albeit discretionary, in the National Court to set aside or vary a direction for entry of judgment or order. The power can be exercised only when a notice of motion is filed “before entry of judgment”.
  2. This requirement may be dispensed with in appropriate circumstances under Order 1 Rule 7. Where the relief under Order 1 Rule 7 is not sought and or granted, there is no power to be exercised.
  3. In this case the settlement of the Order is made forthwith. However, it was entered on the 3 November 2022. The applicant’s Notice of Motion was filed on the 4 November 2022. The Notice of Motion does not seek to invoke Order 1 Rule 7 to dispense with compliance with any requirement of the Rules.
  4. Clearly it was filed outside of the proviso of filing before entry of judgement.
  5. Order 12 Rule 8 (2) provides 3 conditions:

(a) where a default judgment is entered under Division 3 of Order 12, or,

(b) in cases where a judgment has been entered ex-parte, or,

(c) in cases where judgment has been entered in proceedings relating to land.


  1. The order was granted after trial. It was not a judgment entered pursuant to Order 12 Division 3 (default judgment). The trial was conducted following a notice of trial. The ex-parte declaratory order the title to land registered in the plaintiff’s name to be valid and effectual. The plaintiff has a clear indefeasible title and to that extent it is a final order as it finally and effectively determines the life of the substantive proceeding before the National Court.
  2. In Steven Punangi v Pacific Plantation Timber Ltd (2011) SC1153 the Supreme Court held that an ex-parte order dismissing the proceedings for want of prosecution, and for that matter disclosing no reasonable cause of action is a final order.
  3. The Rules of Court provide two (2) modes of commencing a substantive matter in civil proceedings under Division 2 Order 4. Thus, except as authorized by any other law there are only two modes of commencing a civil proceeding and these are by a writ of summons and by an originating summons.
  4. In this case the Notice of Motion to resurrect the case was instituted after the final order and is an abuse of process. It cannot be used to commence or re-commence a substantive proceeding. It can only be used, as its name suggests, whilst the substantive proceedings during the currency of the proceeding.
  5. Order 4 Rule 4 of NCR, states:

“Proceedings may be instituted by motion, only if they relate to an interlocutory application.”


  1. Rule 4 is further reinforced by Rule 37 of Order 4 where it reads:

“An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.”


  1. I note the ruling of Kandakasi DCJ in Aiwasi v Monty Derari & Others (2017) N6602 in which the Court refused the plaintiff’s application to reinstate an ex- parte order. In Harry Tovon v Carl Malpo (2016) N6240 Kandakasi J discussed, amongst others, the scheme of the Rules and the meaning of “interlocutory” in the context of the Rules.
  2. Both cases discussed, amongst others, the effect of Rule 8 of Order 12 and I agree with conclusions reached by His Honour which is in agreement with the reasoning by Makail AJ (as he then was) in Peter Malt v Dean Queen & Christian Union Mission (2009) N3577 dismissing the application to set aside an ex-parte order dismissing the proceeding for want of prosecution. The Supreme Court in Thomas Barry v Joel Luma (supra) accepted the reasoning of these cases as sound in law and practice.
  3. The subject matter for the proceeding, being the declaration of title to property located at Section 72 Allotment 21, Boroko, NCD vest in the plaintiff has been made to be valid and effectual. It brought to a finality during trial the currency or life of the proceedings and is at end and cannot be brought back to life or resurrected, as it were, by an interlocutory process.
  4. In was held in Thomas Barry –v- Joel Luma (supra) the Supreme Court also held that a notice of motion cannot be employed to resurrect, restore, or revive a substantive proceeding that has been dismissed even on the basis of an ex-parte order. The remedy for an aggrieved party does not lie in an application under Order 12 Rule 8 but through an appeal or review process in the Supreme Court.
  5. Another most important consideration is the public policy reason. Public Policy dictates or requires finality in litigation. There must be finality in litigation once a final decision has been arrived see Richard Dennis Wallbank & Jeanette Miniffe v The State [1994] PNGLR 78.
  6. For all the foregoing reasons and applying the order approach principle recently approved by the full Bench of the Supreme Court in Steven Punangi v Pacific Plantation Timber Ltd (supra) a final order finally and effectively determines the life of the substantive proceeding before the National Court.
  7. The applicant who is aggrieved by an ex-parte final order can only appeal to the Supreme Court as of right.

Order


  1. Order of the Court:
    1. I refuse to set aside the order of 28 October 2022.
    2. I also refuse a stay of enforcement of the said order.
    3. Parties pay own costs
    4. Time is abridged to time of settlement which takes effect forthwith.

Ordered Accordingly.
__________________________________________________________________
Kaore Lawyers: Lawyers for the Appellants
Guardian Legal Services: Lawyers for the Respondents

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