DC 793

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 357 of 2006

NOM # 124 of 2008

BETWEEN

SAUTE LIMO
Complainant

AND

MENDIKWAE LIMITED
Defendant

Goroka: M. IPANG

2008: April 04, 09

CIVIL Application made pursuant to S. 22 District Courts Act, Chapter 40 – to stay enforcement and execution proceedings of Court order dated 12/12/07. Court order dated 12/12/07 heard interparte. 

Application seeking stay of execution process pending leave application before National Court seeking leave to appeal out of time. 

PRACTICE AND PROCEDURE: 

1. There shall be “cause of action” (substantive matter) on foot in which the District Court has jurisdiction for which an ancillary relief is sought.

2. Once the “cause of action” (substantive matter) is duly determined and order is made (interparte), there is no cause of action on foot, so application or Notice of Motion seeking interim can not be allowed to be filed as this will amount to abuse or misuse of court process.

HELD- 	Application made pursuant to S. 22 of District Courts Act, Chapter 40 misconceived – substantive matter deal with – no substantive mater on put – cause of action has been duly determined. Application – Notice of Motion by Applicant – defendant is an abuse of process.

Cases Cited

Nil 

References

1. Section 22 of the District Courts Act, Chapter 40

Counsel

Complainant: In Person
Defendant: Mr. Brian Koningi of Koningi Lawyers for the Defendant 

09 April 2008

RULING

M Ipang: This is a Motion dated 03 April 2008 filed by the Application – Defendant in this proceeding pursuant to Section 22 of the District Courts Act, Chapter 40 seeking to obtain the following orders from the Court:-.

(i) That enforcement of Court Order dated 12 December 2007 be stayed until Defendant’s Leave Application to the National Court and the Appeal are heard determined by the National Court;

(ii) Warrant of Execution issued on the said Court Order be set aside; and

(iii) Any other orders as the court deems fit

2. Defendant relies on the affidavit of John Siune dated 03 April 2008 and filed on the same date. John Siune is the Operations Manager of Applicant – Defendant. His affidavit contains 5 paragraphs.

3. In paragraph 2 of his affidavit, Mr. Siune deposed that they (Mendikwae Ltd) have instructed their lawyer to appeal on a matter of principle in respect of Agreement signed between our company and the complainant. Similar Agreements were signed with many other employees (including the complainant) before payment and termination of employment. Defendant submitted that they require a National Court decision as to whether the complainant and others can still come to court despite the Agreement.

4. Defendant through its Operations Manager further stated that their lawyer has filed Originating Summons (OS) No. 72 of 2008 seeking Leave of National Court to file our Appeal out of time.

Issue: Whether the process used by the Applicant – defendant to file a Notice of Motion seeking stay of enforcement of orders of 12 December 2007 is valid.

5. The issue before me is not that the Applicant – defendant has a genuine case before the National Court. The issue is one of the process used by the Applicant – defendant. 

6. As it is the normal practice that an ancillary relief is only sought once there is a ‘cause of action’ on foot for which the Court has jurisdiction. For example, a bare application or Notice of Motion seeking interim relief such as restraining orders should not be allowed to be filed unless a substantive cause of action is on foot or under taken to be filed.

7. And likewise, one the ‘substantive cause of action has been duly determined except ex-parte orders, I am of the view that there is no longer cause of action on foot, so the application or the Notice of Motion seeking stay of enforcement orders like the Notion of Motion by Applicant – defendant can not be allowed to be filed as it only amounts to abuse or misuse of court process and moreso, it is misconceived. Once court has properly dealt with the matter and issued court order (interparte) the matter is res-judicature and can not be re-opened by way of Notice of Motion. All the Applicant – Defendant need to do is go to National Court and seek such relief’s. 

8. Because of this reason, I dismiss Applicant – defendant’s Notice of Motion with costs.

Complainant: In Person
Defendant: Mr. Brian Koningi of Koningi Lawyers for the Defendant