|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA No. 183 OF 2003
BETWEEN:
FRANCIS DAMA
Appellant
AND
JAMES ARMBA
Chairman, Board Of Directors,
Kundiawa Technical Vocational School
First Respondent
AND
MANAGERESS OF KUNDIAWA TECHNICAL VOCATIONAL SCHOOL
Second Respondent
AND
KUNDIAWA TECHNICAL VOCATIONAL SCHOOL
Third Respondent
Kundiawa: Liosi, AJ
2016: 26th October, 28th November
CIVIL PRACTICE & PROCEDURE– Application under Slip Rule – Section 155(3)(a)&155(4)of Constitution – Order (12(1)&Order 12 Rule 8 of National Court Rules – Application to revisit Court orders relating to costs – Setting aside of Consent Orders – enforcement of Eviction orders – Application granted.
Held:
Case Cited:
Autodesk Inc. v. Dyson (No.2) at pages 302 to 303
Coecon Ltd -v- The National Fisheries Authority of Papua New Guinea (2002) N2182
Griffin -v- Westpac Bank (1993) PNGLR 352
Joseph Kupo -v- Stephen Raphael, Secretary for the Department of Defence Force (2004) SC 751.
Paul Torato -v- Sir Tei Abel [1997] PNGLR 403
Papua New Guinea International Hotels Pty Ltd -v- The Registrar of Land Titles (2007) N3207
R-v- Cripps, ex parte Muldoon and Others [1984] 2 All ER 705 at 710
Simon Mali -v- The State [2002] PNGLR 15 (3 April 2002)
Stuckey -v- Chan [2012] N4840
Stephen John Rose -v- The State (2007) N3241
Wall bank and Mimifie -v- The State [1994] PNGLR 78
Wialu -v- Kaltakumb[2012] N4709
Counsel:
Mr. M Yawip, for the Appellant
Mr. T Kuma, for the Respondents
RULING
28th November, 2016.
1. LIOSI AJ: This is a ruling on a Notice of Motion filed by the Respondents on 20 April 2016. The Notice of Motion seeks the following orders;
2. The application is supported by the affidavits of Matthew Miale filed April 20, 2016 and Lilian Garima Kawage filed on even date. It is important to set out the background to the case.
Background
3. (a) In 2001, the Kundiawa Vocational Technical School Administration through its Board resolved to rent out the school canteen. The Respondent Francis Dama won the bid to rent the canteen at a rate of K500.00 per month. Francis Dama then requested to do some maintenance work on the canteen but the school refused as that was not part of the agreement. He however went ahead did some work and invoiced the school for K3, 143.00. Francis Dama then indicated suing the school for the amount of the repair work and also requested for a refund of the K1, 500.00 bond fee.
(b) Francis Dama proceeded and sued the school. The school filed a cross-claim. On the 4th August 2003 the complaint was dismissed and Francis Dama was ordered to be evicted within 14 days. He then filed an appeal on 11th August 2003. The Appeal was dismissed on 26th November, 2004 with the following orders;
(i) The Appeal is dismissed for want of prosecution.
(ii) The Respondents are to pay the appellants costs if not agreed to be taxed.
(c) The Respondents lawyers at the Appeal when taking out the orders made a mistake naming the respondents as the applicant and the applicants as the respondent. This led to the confusion in the entry of the orders and the enforcement. The appellant Francis Dama was meant to pay the costs of the appeal to the respondents and not the other way around as his appeal was dismissed.
(d) Mr. Tobby Bongerre, the Simbu Provincial Government Lawyer then signed a consent order on 6 June 2011 to pay K91,192.00 comprising of K61,000.00 costs & K31, 192.00 been interest to Francis Dama.
(e) On the 16 August 2012, the school board purportedly agreed to transfer the school canteen to Mr. Dama in settlement of the consent orders. Mr. Dama was paid K56,000.00 by the school pursuant to the Court order and the school further agreed to give him the canteen and the land to offset the balance of K35,000.00 that was owing.
(f) Since 2005 Mr. Dama has not paid a single toea as rental for the canteen. The land on which the canteen sits was given to Mr. Dama as part of the settlement proceeds without any subdivision by the Lands Department.
Issues
4. The current application raises several issues for determination by the Court. They are;
(i) Whether or not the Respondents be allowed to make a Slip Rule Application, to bring into Court, order No.2 of the orders of the Kundiawa National Court, made on the 26th November 2004, whereby, the Respondents were mistakenly ordered to pay costs of the Appellant, to be taxed if not agreed.
(ii) Whether or not the Appellant be ordered to pay the Respondent’s costs of the Appeal, such costs to be taxed, if not agreed.
(iii) Whether or not the consent orders entered on the 06 of July 2011 be set aside pursuant to Order 12, Rule 1 and Order 12, Rule 8 of the National Court Rules, as Mr. Tobby Bonggere did not have instructions to act for the Respondents to sign the consent orders.
(iv) Whether or not pursuant to Section 155(4) of the Constitution & Order 12, Rule 1 of the National Court Rules, the eviction orders granted by the District Court Kundiawa on the 04 August, 2003 be upheld and the Appellant be evicted within one (1) months from the date of entry of these orders.
5. The applicant submits as follows in respect of each of the legal issues raised.
The Law
6. The applicants/ respondents rely on Constitutional provisions as well as National Court Rules, as the basis upon which they seek the orders, as stated in the Notice of Motion. It is therefore imperative to look at the provisions of the Constitution, which talks about the inherent powers of the National Court.
7. Section 155 of the Constitution creates the National Judicial System.
(1) The National Judicial System Consist of–
(a) the Supreme Court; and
(b) the National Court; and
(c) such other courts as are established under Section 172 (establishment of other courts).
(2) The Supreme Court–
(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National
Court; and
(c) has such other jurisdiction and powers as are conferred on it by
this Constitution or any other law.
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
8. The National Court Rules also empowers the Court to make any kind of orders, given different circumstances in a case, to do justice under the circumstances.
9. Order 12(1) provides for General relief. (40/1)
“The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”
10. Order 12 Rule 8 relates to Setting aside or varying judgment or order. (40/9)
(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.
(2) .......................
(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. (underline mine)
11. The applicant submits that this is a clear cut case of a Slip Rule Application and the court does have power to revisit the case to correct the error. The question then is did the National Court make an error in the entry of that order on 25 November 2004 for the Court to invoke it’s powers under the Slip Rule to correct that error? He submits there was a clear error on the face of the record when the court ordered that the respondents pay the appellant’s cost of the appeal. Because of the way in which the parties were named in the application the order for costs were wrongly entered.
12. The order for costs would be a consequential order if the application for the Slip Rule is granted.
13. In respect of the consent orders to be set aside the evidence is clear. Mr. Tobby Bongerre the Simbu Provincial Government Lawyer signed a consent order on 6th June 2011 for payment of K91, 192.00 to Francis Dama. This comprised of K61, 000.00 for the costs & K31, 192.00 been for interest. There was no Notice of Change of Lawyers filed. Further no taxable bill of costs was filed to justify the huge amount of K91, 192.00. He submits this are clear irregularities associated with the obtaining of the consent orders. There are therefore grounds for setting aside the consent orders. See Wialu -v- Kaltakumb [2012] PGNC 89 N4709.
14. As to the eviction orders. The appeal was initiated as a result of the eviction order obtained by the applicant/respondent on 4th August 2003. This are alluded to in the affidavit of Lillian Garima Kawage at paragraph 15–20. The dismissal of the appeal automatically upholds the eviction order.
15. I now deal with each of the issues separately as raised by the applicant’s counsel.
Slip Rule Application
16. In Stucky -v- Chan N4840, Justice Makail defined slip rule application “An application under the slip rule is to correct slip or mistake made by the Court: Stephen John Rose -v- The State (2007) N3241 and Wallbank & Mimifie -v- The State [1994] PNGLR 78, in which the Supreme Court acknowledged the jurisdiction of the Court in dealing with misapprehension of facts or law.“In that case, the Supreme Court adopted the principle enunciated in Autodesk Inc. v. Dyson (No.2) (supra). The principle applies to a slip made by a court in an earlier judgment, which the same court would be required to rectify. Thus, the point to note here that, such slip would by the Court; which may arise as a result of a court proceeding on a misapprehension as to the facts or the law. This principle was expounded by Mason CJ in his judgment in Autodesk Inc. v. Dyson (No.2) at pages 302 to 303, where his Honour said:
“These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of
reviewing or rehearing an issue when a court has a good reason to consider that, in this earlier judgment, it has proceeded on a
misapprehension as to facts or the law. As this is a final court of appeal, there is no reason for it to confine the exercise of
its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some
miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised simply because the party
seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge,
in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension
of the facts or the relevant law or that this apprehension cannot be attributed solely to the neglect or default of the party seeking
the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue
their cases.”
His Honour further stated that;
“ The inherent jurisdiction of the Court under O8 r59(1) to correct such errors is wide and an all embracing description of the Court’s power was stated by Sir John Donaldson MR, in R-v- Cripps, ex parte Muldoon and Others [1984]2 All ER 705 at 710 where it was said:
“It is surprisingly wide in its scope. Its primary purpose is akin to rectification,
namely, to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge......
But it also authorizes the court to make an order which it failed to make as a result of the accidental omission of counsel to ask
for it..... It even authorizes the court to vary an order which accurately reflects the oral decision of the court, if it is clear
that the court inadvertently failed to express the decision which it intended ...... However, it cannot be over-emphasised that the
‘slip rule’ power can never entitle the trial judge or a court to reconsider a final and regular decision once it has
been perfected, even if it has been obtained by fraud...... We say ‘final’ decision because different considerations
apply in the case of orders which are provisional, because, for example, they were obtained ex parte, and we say ‘regular’
because again different considerations arise where the order may be said to be irregular for any of a variety of reasons.”
17. It is therefore, clear that the Court does have powers to revisit a case and correct any errors or “slips” if
it is clearly proven that there was an error. In the current situation, the relevant question to ask is .... “Did the National Court make an error in the entry of that order on the 26th November 2004, for the court to invoke its powers under the slip rule to correct that error?
18. I am satisfied there is a clear error on face of the record. The National Court herein made a mistake to order the respondents to pay the appellants costs of the appeal. The appellant appealed to the National Court after the District Court decided against him and ordered his eviction. He failed to prosecute his appeal. The appeal was dismissed for want of prosecution. In the normal cause of events costs follow the event. The appellant herein should have been ordered to pay the respondents costs. Under the slip rule, I am inclined to revisit that order.
19. Should the appellant be ordered to pay the respondent’s costs of the appeal such costs to be taxed if not agreed? I find this to be a consequential order given that the slip rule application is granted. Having granted that order it follows that naturally the appellant is ordered to pay the respondents costs of the appeal.
20. The next issue is whether or not the consent orders entered on 6th July 2011 be set aside. It is very clear that Mr. Tobby Bonggere the lawyer for the Simbu Provincial Government did not have any instructions to act for the respondents to sign the consent orders.
21. The leading case in this jurisdiction that has addressed the question as to whether a consent order or judgment can be set aside is Simon Mali -v- The State [2002] PNGLR 15 (3 April 2002), where the Supreme Court held that the National Court has an inherent power under Section 155(4) of the Constitution to set aside consent orders or judgments even it is a final order and is determinative of the relief sought. This power can be exercised in at least two situations and they are; firstly, where there are errors on the face of the Court’s record and secondly, where it is evident that there are procedural irregularities associated with the obtaining of the consent orders.
22. It is settled law that consent orders or judgments should not be set aside easily by the Court which made them because of the manner in which the consent orders or judgments were ordered and entered in the first place and that the court before which such applications are brought must always exercise caution: see Marsden; Paul Torato -v- Sir Tei Abel [1997] PNGLR 403; Coecon Ltd v The National Fisheries Authority of Papua New Guinea (2002) N2182; Joseph Kupo v Stephen Raphael, Secretary for the Department of Defence Force (2004) SC 751.
23. In Papua New Guinea International Hotels Pty Ltd -v- The Registrar of Land Titles (2007) N3207, Davani J observed that the rules on setting aside consent orders do not apply in situations where a party has not consented to them and is detrimentally affected by them. Her Honour stated at paragraph 59:
“ Whilst there are clearly difficulties for parties who have consented to orders applying to set aside those orders they consented to, I find that those rules on consent orders cannot be applicable to applications to set aside orders where the application is made by an entity or party that did not consent to them but who is detrimentally affected by these orders.”
24. In that case, consent orders were entered by the parties to proceedings which were struck out about 10 years earlier effectively cancelling a non-party’s title to the land the subject of the proceedings. Upon becoming aware of the consent orders, the non-party successfully applied to be joined as a third party to the proceedings for the purposes of moving its application under Order 5 Rule 8 the National Court Rules. Davani, J ruled that the consent orders were nullity because the proceedings were no longer on foot and non-existent in which to enter them. Her Honour went on to observe, inter alia, that in the absence of any specific rules of the Court addressing the situation that that case presented, Order 12 Rule 1 of the National Court Rules was applicable.
25. Another case on point is the case of Griffin -v- Westpac Bank (1993) PNGLR 352, whereby the Supreme Court held that “In an application to set aside a consent order, the applicant does not have to satisfy the court as to why he did not appeal, when there is no right of appeal against the consent order.
It held further that ..... “It is not just to allow a consent order to stand where the lawyer purporting to act on behalf of a litigant had no instructions to act in the matter.”
The facts in the above case were that the respondent mortgagee claimed possession of the mortgaged property and took out a summons for a possession order. The lawyers for the mortgagor consented to the order. The mortgagor sought judicial review of the order under Section 155(2)(b) of the Constitution on the ground that the lawyers acted on his behalf without instructions. The consent order was quashed and the matter was sent back for rehearing.
26. In the current case, it is very clear from the evidence that Mr. Tobby Bonggere the Simbu Provincial Government lawyer signed a consent order on 6th June 2011 to pay K91,192.00 comprising of K61,000.00 as legal costs and K31,192.00 been the interest component payable to Francis Dama. It is clear that Mr. Tobby Bongerre never at anytime acted for the respondents. The respondent’s lawyer on record at the material time was Wal & Company Lawyers who filed the Notice of Motion that led to the dismissal of the appeal. There was no Notice of Change of Lawyers filed, there was no taxable bill of cost that was filed by Tobby Bongerre or by any other lawyer for that matter to justify the amount of K91, 192.00 as costs. Further there is no evidence of the bill been taxed. I find these are clear irregularities associated with the obtaining of the consent orders. There are therefore clear grounds for setting aside of the consent orders and they are therefore set aside.
27. The eviction orders granted by the District Court the subject of the appeal are upheld. I find this also to be a consequential order of the Slip Rule application. It is clear that the appellant had been acting on an erroneous order wrongly entered by the National Court awarding costs to him. I would agree that in the circumstances, he capitalised on that order and continued his illegal existence in a property where he initially moved in as a tenant. It is clear from evidence that those in power had fraudulently assisted him to stay on in the property.
28. I uphold the application and I grant orders in terms of the Notice of Motion filed on 26th April 2016.
29. The formal orders of the Court are;
(i) Pursuant to Sections 155(3) (a)&155(4) of the Constitution, the Respondent’s Slip Rule Application, to bring into Court, order No.2 of the orders of the Kundiawa National Court, made on the 26th November 2004, whereby, the Respondents were mistakenly ordered to pay costs of the Appellant, to be taxed if not agreed is granted.
(ii) The Appellant is ordered to pay the Respondent’s costs of the Appeal, such costs to be taxed, if not agreed.
(iii) Pursuant to Order 12 Rule 1 and Order 12 Rule 8 of the National Court Rules, the consent order entered on the 06 June 2011 is set aside as Mr. Tobby Bonggere did not have instructions to act for the Respondents to sign the consent orders.
(iv) Pursuant to Section 155(4) of the Constitution & Order 12 Rule 1 of the National Court Rules, the eviction orders granted by the District Court Kundiawa on the 04 August, 2003, is upheld and the Appellant be evicted within one (1) month from the date of entry of these orders.
(v) The Appellant is ordered to pay the Respondents’ cost of the initial appeal as well as this application to be taxed if not agreed.
Ruling accordingly,
_____________________________________________________________
Public Solicitor : Lawyers for the Appellant
Tumun Kuma & Co. Lawyers: Lawyers for the Respondents
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2016/361.html