Pupu v Mara [1996] PGLawRp 726; [1996] PNGLR 226 (3 April 1996)

PNG Law Reports 1996

[1996] PNGLR 226 - Leto Pupu v Yangao Mara

[1996] PNGLR 226

N1435

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LETO PUPU

V

YANGAO MARA

Mount Hagen

Akuram AJ

3 April 1996

APPEAL - Practice and procedure - District Courts Act s 231 - Clerk of Distirct Court failing to send Notice of Appeal to National Court – Ex parte Application to dispense with conditions.

PRACTICE AND PROCEDURE - Appeal from District Court to National Court – Clerk of District Court failed to proceed with filing of appeal documents as required.

Facts

The applicant applied for ex parte leave to file out of time an appeal from the District Court to the National Court. The ground relied upon was that the Clerk of the Court had failed to forward the notice of appeal and the Court depositions to the National Court as required by s 221(2) District Courts Act.

Held

The action of the Clerk of the District Court could be regarded as showing contempt for the process of the Court. Depending on the circumstances the Clerk may be cited for civil contempt and the inaction may be punished as a criminal contempt.

Counsel

P Peraki, for the applicant.

3 April 1996

AKURAM AJ: This is an ex-parte application to dispense with the compliance of the conditions precedent to the right of appeal prescribed by the District Courts Act pursuant to s 231. The application was by way of notice of motion seeking the following orders:

N2>1.       That the time limit for compliance with the conditions precedent to the right of appeal as prescribed by Section 220(2), 221(2) 222(1) of the District Courts Act be extended.

N2>2.       That the order of the Wapenamanda District Court of 26th October 1995 be stayed until such time as the National Court determines the appeal which is the subject of this application.

N2>3.       That the items obtained by the Wapenamanda Police purportedly acting under a Warrant of Execution be released to the plaintiff forthwith.

N2>4.       That the time for the entry of the orders shall be abridged to the time of settlement by the assistant registrar which shall take place forthwith.

The grounds upon which such reliefs are sought where based on an affidavit of Counsel for the applicant which adequately sets out efforts and actions taken by both the applicant and his Counsel.

They are as follows:

N2>1.       This is an application for Leave to be granted to lodge an entry of appeal to the National Court out of time. The main reason for this application for leave is that the Clerk of Court at Wapenamanda did not forward the notice of appeal and the Court depositions in the matter to the Registrar of the National Court as is required under s 221(2) of the District Courts Act.

N2>2.       On 3 November 1995, I received instructions from the plaintiff to lodge an appeal against a decision of Wapenamanda District Court of 26 October 1995 in which a decision was made by the said Court ordering the plaintiff to pay the defendant certain sums of money.

N2>3.       On 8 November 1995, I under cover of my firms letter head wrote to the Clerk of Court enclosing the notice of appeal and the recognizance on appeal each in triplicate and was hand delivered to the Clerk of Court at Wapenamanda by the plaintiff. Annexed hereto and marked with the letter “A” is a true copy of the said letter.

N2>4.       The copies of the notice of appeal and the recognizance on appeal were personally collected from the Court House by the plaintiff and the same were brought to my office after they were stamped. So on 27 November 1995, I under cover of my letter wrote to the Assistant Registrar enclosing copies of the sealed notice of appeal and the recognizance on appeal together with an entry of appeal to the National Court. Annexed hereto and marked with the letters “B, C, D and E” are true copies of the said letter, notice of appeal and the recognizance on appeal and the entry of appeal to the National Court respectively.

N2>5.       Since the lodging of the documents mentioned in paragraph 4 above I received no response so I wrote two separate letters to the Assistant Registrar on 19 January and 9 February 1996 respectively enclosing a copy of the entry of appeal on both occasion. Annexed hereto and marked with the letters “F and G” are true copies of the said letters.

N2>6.       Then on 21 February 1996 I received a notice of rejection from the Assistant Registrar rejecting the entry of appeal saying that it was out of time after which I wrote a detailed letter to the Assistant Registrar outlining the entire process. Annexed hereto and marked with the letters “H and I” are true copies of the said notice of rejection and my letter dated 21 February 1996 respectively.

N2>7.       I did not receive any response until 15 March 1996 when I received a letter from the Assistant Registrar refusing to accept my request to enter the appeal to the National Court. Annexed hereto and marked with the letter “J” is a true copy of the said letter.

N2>8.       Whilst we were involved in this fiasco I am instructed that the plaintiff properties in excess of K6,000.00 have been taken by Wapenamanda Police acting on a Warrant of Execution allegedly issued by the Wapenamanda District Court when the Clerk of the said District Court knew the existence of an appeal.

N2>9.       It will also be noted from the correspondences that transpired between myself and the Assistant Registrar that the Clerk of the Wapenamanda District Court did not forward the depositions to the National Court upon receipt of the notice of appeal as is required by the District Courts Act.

The notice of appeal was dated the 7 November and filed in Wapenamanda District Court on 10 November 1995, 17 days within the time limit from date of order on 26 October 1995, coupled with the recognizance on appeal which was signed by the Magistrate on the same date. Counsel also wrote to the Clerk of Wapenamanda District Court on 8 November 1995 advising him of what exactly to do which I quote:

“Re: Leto Pupu v Yangao Mara - Complaint No.

We act for Leto Pupu who has instructed us to lodge an appeal against the decision of the Wapenamanda District Court of 26th October 1995.

We enclose herewith the following:-

N2>1.       Notice of appeal in triplicate

N2>2.       Recognizance of appeal in triplicate

We advise that in accordance with s 220 (2) of the District Courts Act, we lodge the said appeal with your Court. We request that you get the Magistrate to counter - sign the recognizance of appeal and seal the same together with notice of appeal and return our copies so that we can serve it on the respondent and the Registrar of the National Court in accordance with s 221 (2) of the District Courts Act.

We further advise that you are required by s 224 (1) of the District Court Act to forward to the Registrar of the National Court at Mount Hagen a certified copy of the depositions.

We would appreciate if we can be served with a copy of the depositions so that we can prepare the appeal books.

We thank you for giving this matter your priority attention.

Yours faithfully

Peraki Lawyers (emphasis added).”

Despite the specific advice on what to do, the said Clerk of Court did not do anything when the Counsel wrote to the Assistant Registrar at Mount Hagen to enter the entry of appeal with copies of the notice of appeal and recognizance of appeal.

The Assistant Registrar wrote back rejecting the appeal as being out of time on the 15/2/96, a period of 3 months and 5 days from 10th October 1995.

Counsel then wrote to the Assistant Registrar on the 21st February 1996 setting out his efforts in getting the appeal entered which I set out below:-

“We refer to your note of rejection of the above appeal and advise that we did lodge the notice of appeal and recognizance of appeal with the Clerk of Court Wapenamanda on 10th November 1995 which is within 1 month of the decision (26th October 1995).

Upon receipt of our copies of the notice of appeal and recognizance of appeal we lodged same with entry of appeal to National Court on 27th November 1995 but same was not registered and that is why we re-lodged same after you advised us that you do not have the Appeal. We enclose copy of that letter for your attention.

We again wrote to you enclosing the entry of appeal to the National Court on 19th January but nothing happened so on 9th February 1996 a new set of forms were re-lodged and they have been rejected.

It appears that the Clerk of Court at Wapenamanda District Court has not forwarded those depositions and notice of appeal to you. This is against an advise we tendered to them when we lodged the appeal as can be seen from the attached copy of letter dated 8th November 1995.

In the light of the above and in all fairness to our client we kindly request that you allow for the entry of the appeal instead of rejecting same as you will note that the Appeal was lodged at the Wapenamanda District Court.

We thank you for giving us a favourable assistance.

Yours faithfully

Peraki Lawyers”

I have intentionally set out the Counsel’s efforts in getting this appeal lodged in the District Court and entered in the National Court to illustrate certain matters which are pertinent to an appeal process from the decision of the District Court. These are matters which the Clerk of District Court should be aware of. They are:

N2>1.       That the District Court is a creature of statute, the District Courts Act, Ch. 40 and it is mandatory under s 220 (2) and s 221 (2) that:

(a)      appeal shall be lodged with the Clerk of Court by which an order etc. was made; and

(b)      a copy of the notice of appeal shall be served by or on behalf of the appellant on the respondent and the Registrar of the National Court.

The appellant cannot serve the said notice of appeal on the respondent and Registrar if the Clerk of Court has failed or omitted in his duty to endorse the notice of appeal and forward the same to appellant.

N2>2.       The Clerk of Court has delayed the processing of the notice of appeal for 3 months and 5 days as of 15/2/96 but 4 months and 18 days as of today (3/4/96). This has cost the appellant substantially by having his lawyer make the present application. The actions of the Clerk of Court could be treated as contempt of the court process. The Halsbury’s Laws of England, Vol. 9, para. 2 says this:

“Contempt in procedure, otherwise known as civil contempt, consisting of disobedience to the judgments, orders or other process of the Court, and involving a private injury.”

It also explains that:

“Although a civil contempt is essentially a wrong done to a person who is entitled to the benefit of the order or judgment concerned, it also involves an obstruction of the fair administration of justice and may accordingly be punished in the same manner as a criminal contempt”.

I am therefore, of the view that delay in processing of the appeal documents by the Clerk of Court can or may be, depending on the circumstances of each case, regarded as a civil contempt of the fair administration of justice. The Clerk of Court may be cited for civil contempt of the fair administration of justice and may be punished as a criminal contempt.

N2>3.       Although it is up to Counsel for the appellant or the appellant to prod the Clerk of Court to obtain the Court Depositions, this cannot happen if the Clerk of Court has not entered the notice of appeal by stamping it with the seal of the District Court and dating it and returning copies to the counsel or appellant and forwarding one copy to the Assistant Registrar of the National Court as evidence of the appeal being lodged within time (s 221 (2)). The same procedure is required by the Clerk of Court for the recognizance on appeal [see s 222(2)] and also for the Court Depositions under s 224(1) to be forwarded to the Registrar or Assistant Registrar of the National Court. In the present case, the inaction by the Clerk of Court not only breached the one month requirement for the notice of appeal to be lodged but the whole appeal process from taking its normal course as required by law under the District Courts Act, Ch. 40.

In view of what I have said above, I have no hesitation in granting the orders sought and make the orders accordingly.

Lawyer for the applicant: Peraki Lawyers.