SC1264

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 145 of 2010

Between:

PETER DEVIS
Appellant

And:

LEO KAIWOR & PAUL KAIWOR
Respondents

Waigani: Injia, CJ
2011: 12th August

SUPREME COURT – Practice and procedure – Application for stay orders- principles on grant of stay – consideration of - grant or refusal of stay – exercise of discretion - application dismissed 

Counsel:

G Konjib, for the appellant
A Baniyamai, for the respondents

12th August, 2013 

1. INJIA CJ: By application filed on 26th October 2010, the appellant seeks the following order:

"2. That the whole judgment of Hon Justice Davani delivered on the 01st October 2010 in Appeal CIA No. 15 of 2010 be stayed pending the hearing and determination of the Appeal herein pursuant to Section 5 and or 19 of the Supreme Court Act."

2.	The application is supported by various affidavits.

3.	 The application is contested. The respondents also rely on various affidavits.

4.	I have considered the material and affidavits relied on by the parties and submissions of counsel. 

5.	The orders of the National Court sought to be stayed are as follows: 

(1)	The appellant's appeal is dismissed.

(2)	The District Court orders of 25th January 2010, remain good and must immediately take effect.

(3)	The appellant shall pay all respondent's reasonable costs of this appeal which this Court assesses at K500.00.

(4)	 Time is abridged to the time of settlement to take place forthwith.

6.	The orders of the District Court appealed from to the National Court relate to a dispute over land lease agreements and rental payments over customary land known as Buruwau which is situated in the township of Wewak. The dispute went before the District Court which heard the matter and issued certain directional orders relating to re-negotiation of the lease agreement, receipt of rental payments and payment for improvements to the land if lease agreement was not continued. The Court also fixed time lines within which those actions should be taken. 

7.	The effect of the stay order, if granted, is not fully explained by the appellant. I surmise the appellant's case at its highest to be that the decision if stayed would result in the decision of the District Court not being enforced whilst this appeal is pending. 

8.	The principles on grant of stay are set out in Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (McHardy case). The grant or refusal of stay is discretionary and it is exercised on proper principles and on proper grounds. The Court must start from the basic premise that the judgment creditor is entitled to enjoy the benefit of the judgment. There are ten (10) other considerations which are enumerated in that case. In exercising its discretion, the Court must consider all relevant and appropriate circumstances in determining whether it is just and reasonable that the order ought to be stayed. It is not intended that the discretion should be exercised on all or selected considerations and factors enumerated in McHardy; rather the Court is required to consider the totality of those relevant factors and circumstances, in order to dispense substantive justice in the circumstances of the case before it. The circumstances of a particular case may warrant greater or less or even no weight to a particular relevant factor(s) and then again, that is a matter of discretion. I apply the various considerations set out in McHardy in the following manner.

(1)	 Whether leave to appeal is required and whether it has been obtained.

(2)	 Whether there has been delay in making the application.

(3)	The nature of the judgment sought to be stayed.

(4)	 Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.

(5)	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal. 

(6)	 Possible hardship, inconvenience or prejudice to either party. 

(7)	The financial ability of the applicant.

(8)	 Balance of convenience.

(9)	Whether damages would be sufficient remedy.

(10)	The overall interest of justice. 

9.	The appellant's submissions are based on factor numbers (3), (5), (6), (7) (8) (9) & (10), supra. 

10.	Consideration (1) & in particular (2) & (4) are relevant but they were not addressed or fully addressed by the appellant's counsel in his submissions. 

11.	The appellant has exercised his right to appeal the decision. However he has not shown any error in the face of the judgment that presents an arguable case on appeal. In his submissions under factor No. (5) his counsel merely points out that the land known as Traichen which includes the Buruwau land is under an administrative enquiry by the Wewak District Lands Office between persons claiming ownership.

12.	An issue as to the District Court's jurisdiction to hear a land dispute is raised in this appeal for the first time, in an attempt to show some error occurred in the National Court but that point was neither raised in the District Court nor the National Court. It is not open to parties to raise an important point in an appeal if the point was not raised in the court below. In any case, I accept the respondent's submission that the case before the National Court was not about customary ownership of the land but enforcement of lease agreements and enjoyment of rental benefits. 

13.	 Mr Konjib of counsel for the appellant submits that the appellant has occupied the land for a long time and has erected substantial improvements on the land to the tune of over K700,000. Although he is not a party to the lease agreement, his father who is no longer alive, was a party to the lease agreement and his (appellant's) hereditary rights cannot be overlooked. He has come this far to assert his rights and in the interest of justice, he ought to be given the opportunity to contest the decision on appeal. 

14.	It is submitted if the orders are not stayed, the appellant will suffer substantial prejudice, face financial hardship and inconvenience in terms of being left without compensation for his improvements because the value of the improvements is beyond the respondent's ability to pay. He submits the respondents are simple villagers and they do not have the means to compensate for damages arising from taking occupation of the property. 

15.	 I agree with the appellants that the circumstances relied upon in support of factors No. 1,6, 7, 8, & 9 all favor the appellant. However I consider the failure to demonstrate an identifiable error in the judgment and the arguable nature of the appeal to be compelling considerations in the circumstances of this case. On the face of the judgment of the National Court, the Court was correct in allowing parties to comply with the directional orders issued by the District Court. Those directional orders did not determine ownership rights but facilitated negotiations to enable parties to reach an amicable settlement of their dispute. The appellant has failed to discharge the burden placed on him to demonstrate an error occurred in the manner in which the case was decided in the National Court and that there is an arguable case to warrant consideration by the full Court. 

16.	Further, in these sorts of matters, delay in bringing the application is also critical. The decision of the District Court was made on 25th January 2010. An appeal was filed in the National Court on 2 February 2010. There is no mention of a stay of the directional orders issued by the District Court pending determination of the appeal. The National Court decision was made on 1st October 2010 and an appeal from that decision was filed in this Court on 25 October 2010. An application for stay was filed on 26th October 2010 and was not prosecuted until 4th April 2011. It is now 18 months since the District Court made its decision and 9 months since the National Court made its decision, 6 months of which was soaked up in preparing the present application for hearing. After the decision of the National Court, the directional orders issued by the District Court would have become operative and activated. There is no evidence before me to explain what has become of the parties' compliance with those directional orders. The undue delay in bringing this application is not without its consequences. The undue delay is critical to the utility of this stay application. 

17.	For the foregoing reason, I dismiss the application with costs to the respondent. 

 ______________________________________________
Daniels & Associates Lawyers: Lawyer for the appellants
Pryke & Janson Lawyers: Lawyer for the Respondent