Winnie Malipu & Malaita Malipu v Adam Laka

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Kangwia J
• Judgment Date: 06 June 2025
• Neutral Citation: N11322
• Citation: N11322,
• Docket Number: CIA 18 OF 2023
• Year: 2025
• Date: 06 June 2025
• Counsel: J. Yapao for the appellant,Adam Laka, respondent in person,Counsel

N11322

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CIA 18 OF 2023

Between:

Winnie Malipu & Malaita Malipu

Appellants

v.

Adam Laka

Respondent

WABAG: Kangwia J

29 January, 6 June 2025

DISTRICT COURT APPEAL — Appeal against refusal of application to set aside ex parte orders — application to set aside ex parte orders made after National Court dismissed appeal for want of prosecution — powers of National Court on appeal from District Court prescribed by s 230 District Courts Act — power to dismiss for want of prosecution not prescribed by s 230 — Effect of National Court decision on District Courts' refusal to set aside ex parte decision — Powers of District Court on application to set aside ex parte order prescribed by s 25 District Courts Act — Striking out for want of prosecution not prescribed by s 25 — conditions under s 25 not complied — additional orders issued after striking out proceeding for want of prosecution — enforcement order issued after refusing application to set aside. — legally and procedurally flawed Court orders in initial and subsequent District Court decisions — substantial miscarriage of justice — Decision appealed against quashed — case remitted to the District Court for further hearing by another competent court pursuant to s 230 (1) (d) of the District Courts Act.

Cases cited

Aiwasi v Derari (2017) N6602

Babia v Kimas (2009) N3940

Green v Green [1976] PNGLR 73

Lady Ni Cragnolini v Teddy Tasion and Henry Leia (2022) SC2464

Morobe Provincial Government v Tropical Charters Ltd (2009) N4160

Rangip v Loko (2009) N3714

Wawoi Guavi Timber Company v Malu (2016) SC1514

Counsel

J. Yapao for the appellant

Adam Laka, respondent in person

Lawyers for the appellant: Mc Kenzie Lawyers

1. Kangwia J: This is the decision on an appeal against the entire decision of the District Court made on 20 April 2023. The genesis of the proceeding is a complaint laid in the District Court in which the Plaintiff (now Appellant) sought restraining orders against the Defendant (now Respondent) from interfering with quiet enjoyment of property on an unregistered State Land in Wabag town.

2. On 10 August 2021 being the return date for the hearing, the Appellant made no appearance, and the Learned Magistrate struck out the proceeding for want of prosecution and made additional orders ex parte the Appellant. The ex parte orders are reproduced for completeness, and they appear in these terms.

1. Matter struck out for want of prosecution.

2. That the Defendant shall continue to manage and possess the properties he helped to erect with the assistance of Ben Dela Torre whilst the Complainant stays in the Bruce Lee Trading and others he currently benefits from.

3. Both parties adhere strictly to managing and benefitting from the properties they hold until such time a higher Court of competent jurisdiction finds otherwise.

4. Costs against the complainant in the sum of K1,000 to be paid to the Defendant within 7 days.

3. Aggrieved by the ex parte Court Orders the Appellant chose to appeal the decision in the National Court instead of making application to the District Court to set aside the ex parte Orders as permitted by s 25 of the District Courts Act.

4. On the return date in the National Court, the Appellant again made no appearance, and the National Court dismissed the proceeding for want of prosecution. Not satisfied by the dismissal in the National Court the Appellant made application to the District Court to set aside the ex parte orders of 10 August 2021 instead of making application to the National Court to set aside the dismissal for want of prosecution.

5. On 20 April 2023 it appears the learned Magistrate heard the Appellants application to set aside and an application by the Respondent to enforce the Court Orders of 10 August 2021. After hearing both applications the learned Magistrate refused to set aside the ex-parte orders of 10 August 2021 and granted the Respondents application to enforce the earlier decision of the District Court in the form of additional Orders which are the subject of the appeal. The orders are reproduced and are in these terms.

1. The complainant's application to set aside the ex-parte Court Order of 10 August 2021 is refused.

2. The Defendant's application to enforce the ex-parte Court Order of 10 August 2021 is granted in the following terms.

a. The Complainants including their tenants shall give vacant possession of the property described as Ben Dela Torre premises to the Defendant.

b. In event of non-compliance of term 2 (a) within, the Defendant shall with the assistance of police use reasonable force to have the Complainant and their tenants removed from the Ben Dela Torre premises and have possession of the said premises.

3. The Complainants Lawyers shall pay the costs of the Complainants application.

4. Each party to bear their own costs with regards to the Defendants application.

A. Original ex-parte Orders

6. I start with the original ex parte Orders of the District Court to give credibility to the decision on the appeal against the second decision of the District Court.

7. It is obvious from the reproduced ex-parte decision of 10 August 2021 that it reflects the exercise of the learned Magistrate's general ancillary jurisdiction prescribed by s 22 of the District Courts Act to strike out the proceeding for want of prosecution because there is no provision in the District Court Act which prescribes that a proceeding can be stuck out for want of prosecution.

8. However, the decision is substantially flawed on the face of the record when it was made ex parte the Appellant. The District Court being a creature of statute must comply with statutory requirements that the District Courts Act prescribes in the discharge of its powers and functions.

9. When the Learned Magistrate decided to first strike out the matter for want of prosecution, it effectively stopped the proceeding from any further activity on it. The additional orders issued were ultra vires the decision to strike out the proceeding. There is no evidence of where the additional orders originated from after the proceeding before the magistrate was struck out for want of prosecution. There is also no evidence of any cross claim by the Respondent claiming part management or ownership to the property on the unregistered State land to be awarded management and ownership rights.

10. It also appears that the additional orders issued by the learned Magistrate to apportion management and possession of property on the unregistered State land was made ultra vires the complaint laid in the District Court. According to the original complaint laid in the District Court the Appellant sought restraining orders against the Respondent from interfering with the Appellant's quiet enjoyment of the property.

11. From material before the Court, it appears the Appellant relied on a lease agreement between Winnie Malipu and Big Ben Trading to seek the restraining orders against the Respondent. If I were inclined to accept that the source of the additional Orders made by the District Court were derived from the original complaint, then it would be a flawed decision as the terms of the lease agreement are not reflected in the decisions of the learned Magistrate.

12. There is a further flaw in the additional Orders of the learned Magistrate when the orders are made subject to a finding of a Higher Court without the matter being instituted in any Higher Court. How the learned Magistrate issued orders which are substantive in nature to be subject to a Higher Court finding remains a mystery when the relief claimed by the Appellant was only to restrain the Respondent from interference in the property on the unregistered State land.

13. Even then a decision to strike out a proceeding is not the same as a decision to dismiss a proceeding.

14. A proceeding that is struck out for want of prosecution is not a concluded proceeding and an aggrieved party is still entitled to enliven the proceeding by making application to set aside the decision or appeal the decision. These entitlements were properly exercised by the Appellant which led to the appeal the subject of this proceeding.

15. Under the circumstances referred to, the ex-parte Orders issued on 10 August 2021 should not have been allowed to stand when the Plaintiff applied to have the decision set aside. However, the District Court erroneously refused to set aside the ex-parte orders of 10 August 2021 which decision is the subject of this appeal.

Appeal

16. The decision the subject of the appeal has been reproduced in the earlier part of this decision and will be referred to in the deliberations of the appeal.

17. The Appellant elected to exercise his right to make application to the District Court to set aside the ex-parte Court Orders of 10 August 2021 after the National Court dismissed for want of prosecution the appeal against the same decision. It may appear that an abuse of process may have occurred when the Appellant elected to return to the District Court after the National Court dismissed the appeal for want of prosecution against the same ex parte order.

18. However, the Appellant as an aggrieved party is entitled to choose which option to take and the options the Appellant took does not offend any known law or established principle when an application to set aside an ex-parte decision of the District Court is permitted by s 25 of the District Courts Act without any reservations.

19. The powers of the National Court on an appeal against a decision of the District Court is found under s 231 of the District Courts Act. This provision states:

231. POWER OF NATIONAL COURT ON APPEAL.

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may–

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a...