N10192

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 2 OF 2021

BETWEEN
JOSHUA NITA
Appellant

AND
NINE MILE LUTHERAN CHURCH
Respondent

Waigani:  Linge AJ
2022:  12th December

APPEAL – error of law or fact – appeal from the District Court – against enforcement order of a village court – lack of jurisdiction

Cases Cited:

Kennedy Thomas Kiiark v Norit Luio, SCA No.1964 (2017)
Kalan Constructions v Louis John (2014) N5665
Counsel:

Mr. T. Tape, for the Appellant
Mr. Toke, for the Respondent

RULING
6th  April, 2023

1.	LINGE AJ: I heard the appeal on the 12 December 2022 and reserved my ruling which I now deliver. The Notice of Appeal was filed at the National Court Registry on the 10 February 2021. It is an appeal against the entire judgment of the Port Moresby District Court entered on the 21 January 2021 and certified on the 2 of February 2021, VEC No. 79 of 2019; Nine (9) Mile Lutheran Church –vs- George Yangela & Joshua Nita. 
Facts
2.	The appeal relates to a claim of ownership of a parcel of land at the 9 Mile settlement at the outskirt of Port Moresby.  
3.	It is alleged by the appellant that around 2004, his late father, Dia Nita, settled on the subject piece of land. That in 2005 Dia Nita built a church referred to as the Nine Mile Lutheran Church (Church) next to their family house.  On the 10 of August 2016, Dia Nita who was pastoring the church passed on and thereafter there had been no service undertaken at the building due to there being no congregation.
4.	The issue of ownership of the land surfaced after October 2016 following the payment of K10,000.00 by the former MP, Hon Labi Amaiu purportedly to the Church. The appellant claims that he was promised part of the money for his father’s funeral expenses including for headstone but had missed out completely.  He claimed that the money was diverted to personal use by Win Lakalio who purported to be the Chairman of the Nine Mile Lutheran Church.   
5.	The situation seemed to have created friction between the appellant and the hierarchy of the Nine Mile Lutheran Church. It culminated in the appellant claiming the land which housed the Church as belonging to his late father and sought the removal of the Church from the land.
6.	Aggrieved by the stance taken by the appellant, Win Lakalio of the Nine Mile Lutheran Church obtained several village court orders from the Nine Mile Village Court including an order against the appellant dated 5 January 2019 to accept K2, 000.00 from the Nine Mile Lutheran Church and to vacate the premises in peace.
7.	The matter eventually came to the District Court by way of an appeal and on the 20 September 2018, the District Court remitted the matter to the Village Court to comply with village court orders.
8.	On the 26 of November 2020 the District Court made the following orders:
1	Village Court Orders of 05/01/2019 is enforced.
2	Defendants to follow Village Court Orders dated 05/01/2019 and accept K2, 000.00 from Nine (9) Mile Lutheran Church and vacate the premises in peace.
3	Review on 17/12/20 @ 9:30am.
9.	The defendant, now appellant filed a Notice of Motion on 16 December 2020 seeking to dismiss the entire proceedings alleging incompetency for want of legal capacity on the part of the Nine Mile Lutheran Church. The application was heard on the 21 of January 2021 by the District Court and made orders which were certified on the 2 February 2021, holding inter alia that the application was an abuse of the Court process:

	“1.	This Court is sitting as an Enforcement of Village Court Orders.
	2.  	The Ruling was handed down on 26 November 2020 enforcing the Village Court Order of 15 January 2019.
	3.	 	The Court of 26 November 2020 is at the Enforcement stage.
	4. 		The Defendant had the right of appeal which he did not choose.
	5.	Therefore, the Notice of Motion filed by the Defendant on 16 December 2020 to dismiss the proceedings and or to set-aside the Enforcement Orders of 26 November 2020 is an abuse of the court process.”

10.	This appeal is against the whole of the order of 21 January 2021 which is condensed into three (3) main grounds.
Grounds of appeal
11.	(3.1)	Her worship committed an error of law and /facts whereby:
(a) 	She failed to consider Her Worship has powers under Section 75 of the Village Courts Act which provides for enforcement hearing to review the decision of the Village Courts pursuant to Division 11, particularly Section 87 of the Village Courts Act and thus has powers to refuse enforcement based on incompetency issues by virtue of Section 75 (3) and (4) of the Village Courts Act. 
(b)	She failed to note that even if there is no appeal on a village court decision, the District Court has powers under Division 11, Section 87 of the Villages Court Act to review the orders of the village court and make appropriate orders including refusal of enforcement based on incompetency of proceeding including the village court orders when the Complainant is not a legal person, particularly an unregistered entity which goes to the jurisdiction of the Village Court to hear and make orders in the case.
(c)	She failed to consider that the Village Court Orders of 5th January 2019 including Village Court Orders of 24th May 2017 and 15th August, 2017 and other such Village Court orders in favour of the Complainant/Respondent were incompetent for want of legal capacity of the Complainant/Respondent as it has never been a registered entity.
(d)	She failed to consider that competency issues can be raised at any stage of proceedings based on established principles set out in the Supreme Court case of David Gung v Seth Daniels (2015) SC1503 which was brought to the attention of the Magistrate by way of Supplementary submission filed on 11th January 2021.
( e)	She failed to consider that the Enforcement proceeding was not concluded as it was made returnable on the 17th of December 2020, for review as per the Court Orders of 04th December 2020 and thus it still had the jurisdiction to vary or set aside her own orders or the orders of the Village Court based on competency issue raised as to legal capacity of the Complainant following the National Court judgment of Kalan Constructions v Louise John (2014) N5665 which was brought to her attention by way of written submission filed on 18th of December 2020.
(f)	She erroneously ordered that the Notice of Motion filed on the 16th of December 2020 was an abuse of process of the Court given the legal and factual bases set out at sub-paragraphs (a), (b), (c), (d) and (e) above.
12.	(3.2 ) Her Worship committed an error of law/facts by ordering that if the Appellant/Defendant fails to comply with the orders to vacate property he shall be arrested and to be brought before the court for sentencing when that is on an offence under any law except contempt of the District Court Orders which the District Court has no powers except the National Court whereas the appropriate order under such circumstance would be for eviction by force with the assistance of the Police.
13.	(3.3)	Her Worship failed to make the orders under item 6 of the orders of 25th January 2021 conditional upon the Respondent/Complainant complying with item 2 of the Court Orders of 14th December 2020 whereby the Respondent /Complainant was ordered to pay K2,000.00 to the Appellant/Defendant.
14.	The respondent raises six (6) preliminary issues, but I find only three (3) that warrants special consideration which I will deal with in seriatim prior to consideration of the appeal.

	(i)	Incompetent Filing of Notice of Appeal 
15.	The Amended Appeal Book contains the Notice of Appeal (Notice). At page 71 is a copy of the Notice showing the National Court sealing reference of CIA No. 2 of 2021 and Document No. 1 at Waigani dated 10 February 2021.
16.	The respondent submits that this is contrary to Section 220 (2) of the District Court Act. Section 220 (2) of the District Court Act provides:
“An applicant shall give notice of his intention to appeal by lodging within one month after the day when the decision is pronounced, a notice of appeal with the Clerk of the Court by which the conviction, order or adjudication was made.”  

17.	The order the subject of the appeal was made by the Port Moresby District Court. On the face of it, the filing of the  Notice of Appeal is contrary to the provisions of s. 220 (2) of the District Court Act as it was not filed with the Clerk of Port Moresby District Court, and as such is incompetent and should be dismissed in its entirety.
18.	However, in considering this objection, I take cognizance of the Practice Direction   inserted as Order 18 Appeal Rules of 2005 in the National Court Rules. The purpose of Rule 18 is to prescribe procedures for the conduct of appeal cases in the National Court with the establishment of a separate Appeals List. 
19.	The Supreme Court in Kennedy Thomas Kiiark v Norit Luio (unreported numbered judgement) SCA No.1964  considered a similar submission in which the respondent filed his notice of appeal with the National Court Registry instead of lodging it with the Clerk of Port Moresby District Court. The Supreme Court posed to consider the following: “Is that breach of any consequence in the context of the primary judge having exercised his discretion to refuse the appellant’s application to dismiss the appeal?”
20.	The Supreme Court noted the practice that developed in which the National Court Registry has been used as the original filing place of notice of appeal in Form 71 of Schedule 2 of the [District Court] Act, signed by the appellant, rather than requiring  a copy of that notice of appeal filed with the Clerk of the District Court be served on the Registrar of the National Court to initiate the appeal. 
21.	The Supreme Court referred to Order 18 Rule 5 of the National Court Rules and concluded that the words “receipt of the Notice of Appeal by the Registrar” implies receipt of the original notice of appeal. Whereas s.221 (2) (b) of the Act refers to it as a copy of the notice of appeal lodged with the Clerk of the District Court pursuant to s.220 (2) of the Act.
23.      The Supreme Court noted the anomaly between Order 18 Rule 1 and 5 of the National Court Rules and s. 220 (2) and s.221 (2) of the District Court Act. However, it expressed the view that until such time as this anomaly is resolved by statutory amendment to the relevant provisions  of the District Court Act or other statutory intervention, it considered that the “technical infraction of these particular provisions in the [District Court] Act by the respondent having filed the original of his notice of appeal with the National Court Registry instead of lodging it with the Clerk of Port Moresby District Court is not a condition precedent to his statutory right of appeal and is of no significance in the circumstances of this case given the amendments which were made to Order 18 of the National Court Rules which came into effect on the 27 September 2005” 
24.	The substantive matter for consideration in this appeal is whether the District Court acted appropriately within the power given it under the Village Court Act to enforce the order of a village Court or should it have regard to its power of review under s.87 of the Village Court Act?
25.	This appeal is also about the competency of the respondent to have initiated the claim in the Village Court against the appellant in the first place. The respondent in turn raised objections to the competency of this appeal. 
26.	Clearly the subject matter of the appeal that requires my consideration is whether the matter properly came before the District Court and whether it properly exercised its power. Thus, considering the decision taken by the Supreme Court in Kennedy Thomas Kiiark v Norit Luio (supra), I conclude that the objection raised by the respondent as a preliminary issue in protesting breach of s.220 (2) of the Act is without merit and is of no legal and adverse consequence to the issue that I will determine.    
	(ii)	Other parties not named in the appeal
27.	Does this make the appeal incompetent? The issue is the claim of ownership of the land which is between Joshua Nita and the Nine Mile Lutheran Church. Joe Povori and Win Lakalio were or are chairmen of the Nine Mile Lutheran Church at the material times. 
28.	There is nothing in the appeal book that indicates that they have personal interest or acted on their own personal capacity but for the purported interest of the Nine Mile Lutheran Church and therefore their not being named in the appeal is of no consequence and can be disregarded.
	(iii)	Capacity of the appellant to file the appeal
29.	The appellant was sued in the village court and was a party in the enforcement proceedings in the District Court. He is appealing against the order of the District Court against him and as such he is competent to defend his interests which have been subjected to legal proceedings. The appeal is a logical outcome of the decision of the District Court which went against his interest including an order for eviction and imprisonment and for which he has a right in law to appeal.    
30.	In as far as the three (3) objections raised by the respondent, I find that they all lack merit and dismiss all three (3). Consequently, I now consider the Grounds of appeal. 
	Consideration of the Grounds for Appeal
31.	For Grounds 3.1(a) and (b) of the appeal, the order the subject of the appeal is that made on 21 January 2021 and certified on the 2 of February 2021. It is considered as enforcement of a village court order. The Village Court order being enforced is that  of 5 May 2019 which directed the appellant (defendant then) to follow Village Court Orders dated 15/01/2019 and accept K2, 000.00 from Nine (9) Mile Lutheran Church and to vacate the premises in peace. The District Court had previously enforced the same order on the 26 November 2020. 
32.	The Enforcement provisions are provided for in Division 9 of the Village Court Act ss.60-67.  The District Court may refuse to endorse the village court order where it believes that the village court acted without jurisdiction or acted in excess of its powers. In such a situation the District Court shall exercise the power of review provided by Division 11, that is to review the decision of a village court within 12 months pursuant to s. 87 of the Village Court Act.
33.	If the District Court had properly exercised its power of enforcement, it would have been apparent that it had acted without jurisdiction in enforcing the order of 15   January 2019 as subsequently purportedly enforced.
34.	Thus, when it sat on the 21 January 2021 the District Court should have reviewed and at least set aside the subsequent purported enforcement  order of 26 November 2020 and not to have refused the motion as an abuse of process. 
35.	Ground 3.1(c) and (d). 	The exact legal status of the Nine Mile Lutheran Church is not provided. The respondent submits that the appellant has not provided evidence of his ownership of the disputed land, and neither the respondent. The Court is devoid of any evidence, leaving me to conclude that neither party have a registerable title or a priority right to the disputed land. 
36.	Ultimately the issue of lack of legal capacity to issue proceedings and maintain them comes to the fore, and my conclusion is that the village court proceedings were a nullity from the outset.  Had the District Court considered the appellant’s competency application and granted the order sought, valuable Court’s time would not have been taken up.  
37.	Ground 3.1(e) (f). I  find that the matter was not concluded as it was made returnable on the 17 of December 2020 for review as per District Court order of 4 December 2020. The District Court at that stage still has power to review and vary or set aside its previous order. Moreover, where a Court has before it an application based on competency issue as was the situation with the Notice of Motion of the appellant filed on the 16 December 2020, the proceedings can be dismissed; see Kalan Constructions v Louis John (2014) N5665.
38.	Ground 3.1 (f). I consider that the Notice of Motion filed on 16 December 2020 was properly before the Courts for it to exercise its power, in particular the exercise of its review power under s.87 of the Act.  It is not an abuse of process of the Court as the matter was still pending before it. It is trite law and practice that issues of competency can be raised at any stage of the proceedings.
39.	Ground 3.2 is not pursued.
40.	Ground 3.3.  It is evident that the presiding Magistrate failed to incorporate into her Orders of 21 January 2021 the condition precedent that the Complainant/Respondent paying the appellant K2, 000.00 before his vacating the disputed land. I find the Magistrate to be in default of her  own orders of the 26 of November 2020 (entered on the 4 December 2020) before making the orders of 21 January 2021, the subject of this appeal.
41.	Finally in considering the respondent’s submission that the District Court Magistrate properly exercised its powers of enforcement of the Village Court order in accordance with the requirements of Section 75 of the Village Court Act, it is my finding that Section 75 is one of the repealed provisions of the said Act and therefore this argument is misconceived and misleading.
42.	 In the end it is cumbent upon me to say something about the disputed land. The status of the land is uncertain. It has not been established whether it is state land or customary land.  There is no document of title produced by either party.  At best it is customary land and clearly the National Court and might I add the District Court, do not have jurisdiction to deliberate on the issue of ownership .
Order

43.	The order of the Court will be:

1	I uphold the appeal and set aside and quash the District Court order of 25 January 2021.
2.	The District Court Orders made on the 5 January 2019,  26 of November 2020 and 4 of December 2020 all be set aside for want of legal capacity of the Respondent.
3.	Costs of this appeal follow the cause and is to be paid by Win Lakalio of the Nine Mile Lutheran Church, a person who is behind all court proceedings.
4.	Time is abridged to the time of settlement of the order.

Ordered Accordingly 
_______________________________________________________
Kandawalyn Lawyers:	Lawyers for the Appellants
Public Solicitor:		Lawyers for the Respondents