Tele v Kondo [2009] PGDC 37; DC851 (27 May 2009)

DC851

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

DCCi No. 406 of 2007

BETWEEN:

JOHN BLACKY TELE
Complainant

AND:

PETRICK KONDO
Defendant

Goroka: M. IPANG
2009: May 20, 21, 27

CIVIL LAW- Notice of Motion seeking Warrant of Execution to be set aside pending appeal before National Court.

PRACTICE & PROCEDURE - Appellant appeal from District Court –

Filing of entry of appeal to National court in compliance with s.226 of the District Court – Automatic stay of District Court Order and enforcement proceedings – Notice of Motion abuse of process.

Cases Cited:

1. Andrew –v- John N2031 (19 January 2001)
2. William Moses –v- Otto Benal Magiten (1st December 200) N2023
3. Sangam Mote –v- Alkan Tololo [1996] PNGLR 404
4. State –v- Philip Kapal & Others [1987] PNGLR 302
5. Gary McHardy –v- Prosec Security and Communication Ltd Trading as Protect Security (30th June 2000) SC646

References:

District Courts Act, Chapter 40 Ss. 220, 22,. 222, 226, and 227
National Court Rules 1983 Order 10 Rule 4 and 5

Counsel:

Dennis Anton Umba, for the Applicant/ Appellant
John Blacky, Respondent In Person

27th May, 2008

DECISION

M Ipang Magistrate: This is an application by way of Notice of Motion seeking to stay the Warrant of Execution. The Warrant of Execution sought to be stayed was from the ex-parte court order made on the 6th March 2008 (s.143 District Courts Act). The Applicant/ Appellant through his lawyer without invoking s. 159 of the District Courts Act, to set aside the order, appealed to the National on the 13th of March 2008. The Appeal Case was registered and numbered as CIA 47 of 2008.

2. On the 19th November 2008, after almost 8 months from the date of filing the appeal, the applicant filed Notice of Discontinuance. Mr. Umba deposed in his supplementary Affidavit sworn and filed on the 14th May 2009 paragraph 7 that “as the orders made by the District Court was made ex-parte he discontinue the appeal by filing a Notice of Discontinuance.

3. After Notice of discontinuance was filed, the applicant file an application before the District Court to set aside the ex-parte orders of 6th March 2008. This application came before brother magistrate Frank Manue and was refused on the 25th march 2009.

4. Because of magistrate Manue’s refusal of Applicant’s application, an appeal was lodged. Notice of Appeal dated 30th March 2009 is on foot, Recognizance on Appeal dated 30th March 2009 and Entry of Appeal to the National Court dated 3rd April 2009 was also filed. However, a little earlier than 30th March, 2009, to be more specific on the 27th March 2009, a warrant of Execution was taken out by the Respondent.

5. On the 24th of April 2009, the Applicant filed this motion, the subject of this current proceeding seeking stay of Warrant of Execution pending determination of his appeal before the National Court.

Issue

1. Whether Applicant’s application for stay enforcement of Warrant of Execution is correct in law and procedurally when Entry of Appeal filed complied with s. 226 District Courts Act.

6. I am baffled in my mind and that is the Applicant has lodged an appeal in the National Court. He has complied with the requirements for lodging an appeal. See Ss. 220, 221, 222, 226 and 227 of District Courts Act. The section 226 of the District Courts Act states:

“226 APPELLANT TO SET DOWN APPEAL AND GIVE NOTICE”

(1) Within 40 days after the institution of an appeal, the appellant shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court

(2) An entry shall be made by delivering to the Registrar of the national Court a memorandum in the prescribed form, signed by the appellant or his lawyer and containing the prescribed particulars.

s. 226 conditional requirement is to expedite hearing of appeal and keep the status process rolling. And s. 227 sets out the consequences for failure to comply with s. 226. Section 227 states if within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.

7. In my view, Applicant has complied with the requirements of s. 226 in that he has filed his Notice of Appeal on the 30th of March 2009. On the 3rd April 2009 he has filed his Entry of Appeal within 40 days after institution of appeal. By complying with the requirements of s. 226, the Applicant has the automatic right to stay of Warrant of execution and any enforcement proceedings.

8. While Applicant is protected from any enforcement proceeding, he has come to this court by way of Motion to seek the same relief s. 226 has provided him. My view, this is an abuse of process and dilutes or watered down the significance of s. 226.

9. I draw my mind to what His Honour Kandakasi J stated in William Moses –v- Otto Benal Magiten (1st December 2000) N2023 as quoted in Andrew –v- John N2031 (19 january 2001). His Honour said of these provisions Ss. 220, 221, 226 and 227 of the District Courts Act (ch.40) that:-

“The words used in these provisions are so plain and clear that there is no room for any argument as to when and where an appeal can be lodged and when it should be prosecuted before the National court. The words of section 202 (2) make it clear that an appeal against a decision of a district Court should be lodged “with the clerk of the District Court by which the conviction, order, or adjudication was made.” That must be done within a period of one month from the date of the decision appealed against. Then by virtue of section 221 (2), sealed copies of the Notice of Appeal should be served on the respondent or respondents if more than one, also within a period of one month from the date of the decision appealed against.

10. His Honour continued and this is very much important here;

“Once an appeal has been lodged and served in the above manner, appellant is obliged by section 226 to enter the appeal for having by the National Court within a period of 40 days from the date of the lodgement of his appeal. A failure to do so attracts the application of section 277, which renders the appeal non-existent. The combined effects of sections 226 and 227 in my humble view, is that , an appeal should be ready for hearing before the national Court within 40 days from the date of its filing. There would of course, be exceptions to that. If the delay in having an appeal heard within such a period can be excused by reason of say, the District Court depositions and or transcripts not being made available despite requests and follow ups on such requests by an appellant, or that the magistrates reasons for decision are not available, or that there is no judge to hear the appeal, or that the appellant is seriously ill and or such other factors exist which prevent an appellant from promptly prosecuting his appeal, the effect of non-compliance of section 226 could be voided.”

11. Perhaps Injia, J (as he then was) gave good clarity in Sangam Mote –v- Alkan Tololo [1996] PNGLR 404 at p. 405:

“My interpretation of s. 227 is that if and when the appellant file an entry of appeal within the prescribed time limit, it will have the effect of automatically staying the enforcement of the Court Order appealed from. Likewise, upon the institution of an appeal by way of filing of a notice of appeal and recognizance on appeal under s. 220, it should have the effect of automatically staying the enforcement of the Court Order until the expiry of 40 days to allow the filing of an entry of appeal to take place. If within 40 days after the institution of an appeal .... no entry of appeal is filed, the Court Order becomes enforceable despite the filing of a notice of appeal and recognizance on appeal. In summary, the appellant has a grace period of 40 days from the date of institution of an appeal against enforcement of the Court Order. Any enforcement proceedings instituted by the person in whose favour the judgment is entered or on the Court’s own initiative may amount to abuse of the process of the Court.”

12. The Sangam Mote’s Case is very clear on this issue. Mr. Kondo has failed his entry of appeal within 40 days requirement and as such there is no need to file a separate application requesting for stay Orders. This is an abuse of process.

Ruling.

1. Applicant’s notice seeking stay orders is dismiss with costs being for abuse of process.

_______________________________

Lawyer for the Complainant, Umba Lawyers
Lawyer for the Defendant, In Person