Kipian v Tarai [2010] PGNC 227; N4907 (10 August 2010)

N4907

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 10 OF 2010

JOHN KIPIAN
Appellant

V

SEBASTIAN TARAI
Respondent

Kimbe: Kawi J
2010: 7th August
Hoskins: 10th August

DISTRICT COURTS ACT- Practice and Procedure- Application to dismiss Appeal for want of Prosecution – Order 10 Rule 5 of the National Court Rules- District Courts act- section 226 and 227 are expressed in Mandatory terms – Onus on appellant to demonstrate he took steps to expeditiously prosecute Appeal- Lawyers also have a duty to demonstrate they took active steps to expeditiously dispose appeal within 40 days. - Delay by clerk of court to furnish court depositions to Registrar – section 224 of District Courts Act mandatory – Lawyers did not produce evidence to show they followed up with clerk of court to explain delay in prosecuting appeal- Delay not explained – Appeal dismissed for want of prosecution

Cases cited

Rabaul Shipping Ltd v Rita Ruru [2000] N2022.

Counsel

Mr G Linge, for Respondent
Mr. D. Kari, for Appellant
10th August, 2010

1. KAWI J: By a Notice of Motion filed on the 13th April 2010, supported by the affidavit of respondent also dated the 13th April 2010, the respondent sought the following orders:

1. The appeal be dismissed as appellant failed to disclose reasonable cause of action.

2. The appellant failed to comply with the District Court Regulation as to filing of documents in support of appeal.

3. The District Court order dated 8th December 2009 be upheld.

4. Such other orders deemed appropriate by the Court.

2. By a Notice of Appeal dated 5th of January 2010, the appellant lodged an appeal to the National Court against the decision of the Kimbe District Court. The Kimbe District Court on the 8th December 2009 ordered the appellant to vacate a block identified as Block No. 512 located at Kekeli at Morokea Village Oil Palm Settlement. The appellant lodged the appeal citing a number of grounds which are elaborated in the notice of appeal.

3. A Recognizance of Appeal was entered into by the appellant before the Kimbe District Court Magistrate on the same day as the lodgment of the appeal. A standard condition prescribed by the Recognizance or Appeal is that the "appellant shall duly prosecute the appeal without delay."

4. This condition simply requires any appellant to undertake and comply with all necessary steps to ensure that there is minimum or little or no delay at all in getting the appeal ready and expeditiously prosecuted in the National Court.

5. Failure by an appellant to undertake and comply with the Rules and Regulations relating to the expeditious and diligent disposition of an appeal runs the risk of attracting the application of Order 10 rule 5 for the dismissal of an appeal for want of prosecution.

6. Indeed this is the very reason why the applicant/respondent, Mr Sebastian Tarai wants the appeal to be dismissed. In his Notice of Motion he says the appellant John Kipian failed to comply with the District Court Regulation relating to the expeditious and diligent disposition of an appeal.

Let me now consider and address the grounds relied upon in this Notice of Motion.

1. Appeal Failing to Disclose Reasonable Clause of action

7. This ground wasn't strongly pursued by Mr Linge, counsel for the applicant. Even then all the court depositions as well as the Transcripts and the Reasons for decision of the learned magistrate including his worship's judgment were not made available before the Court. They were not annexed as an annexure in the affidavit of the appellant.

8. Accordingly, in the absence of the court depositions and transcripts, this Court is simply not in a position to assess and determine for itself whether or not a reasonable cause of action was disclosed before the learned magistrate. Ground No. 1 sought in the Notice of Motion is hereby dismissed.

2. Ground No. 2 – Failing to Comply with District Court Regulations as to Filing of Documents in Support of Appeal.

9. The applicant /respondent did not specify the specific Rules and Regulations that he is relying upon. However, during submissions his counsel, Mr Linge referred to the new Rules on Appeals and Judicial Reviews and in particular, the requirement to file an appeal book.

10. There is no doubt that the appellant did not file the Appeal Book as is required by Rules 8 & 9 of the New Rules on Appeals and Judicial Review. Neither has the appellant filed a Draft Index to the Appeal Books. I find this to be a breach of the Appeal Rules 8 and 9.

11. In his affidavit in response, the respondent says this at paragraph 4: "That since lodging my appeal, the District Court has not furnished me with the Court's reasoning hence the lengthy delay in compiling the Appeal Book, but I have now received the judgement and in the process of compiling the Appeal Book."

12. The appellant does not say when he received the judgement and court transcripts such as to demonstrate to the Court as to what step he is taking to have this appeal expeditiously disposed of without further delays. Furthermore he failed to disclose evidence such as correspondence from him to the District Court Clerk to show that he was indeed following up on the transcripts and the court depositions.

13. In his submissions, counsel for the appellant Mr Kari argued that delay in taking reasonable steps to have this appeal expeditiously disposed off was caused by the Clerk of the District Court in not furnishing the District Court depositions to the appellant once the appeal was lodged.

14. Section 224 of the District Courts Act places a mandatory obligation upon the Clerk of Court to forward to the Registrar of the National Court certified copies of the Court depositions and the transcripts. Section 224 is stated in these terms:

"224 – Deposition, etc -- to be forwarded to the Registrar of the National Court.

(1) The Clerk of the Court the decision of which is appealed against, immediately after notice is lodged with him, shall forward to the Registrar of the National Court a copy, certified by him to be a true copy --

• (a) Of the conviction, order or adjudicating; and
  
• (b) Of the reasons given by the Court for the making of the conviction, order or adjudication, if any reasons were given at the time whether decision was pronounced; and
  
• (c) Of the complaint; and
  
• (d) Of the depositions; and
  
• (e) Of all other proceedings before the Court relating to the conviction or adjudication; together, subject to subjections (2) with the original exhibits (if any) relating to the conviction order or adjudication.
  

(2) Where, in the opinion of the Clerk, it is impracticable to forward the exhibits required under Subsection (1) the Clerk may forward to the Registrar of the National Court, instead of the exhibits, a list and description of those exhibits."

15. As I indicated this provision makes it mandatory for the clerk of District Court to act once he receives a Notice of Appeal. The clerk need not have to wait for appellants and litigants to follow up by letters or in person to remind him of his public duty. His is compelled and duty bound by law to act once a Notice of appeal is lodged.

16. Here in Kimbe there have been so many instances of the District Court Clerk not acting expeditiously in complying with Section 224. Either the District Court Clerk is always negligent or is simply incompetent in the discharge of his duties. As a result, so many appeals are not even ready to be prosecuted within the 40 day period required by Sections 226 and 227 of the Act or are simply dismissed by the Courts for want of prosecution.

17. In this case, Mr Kari lays blame squarely on the incompetence and failure of the Clerk of District Court to furnish to him the necessary court depositions and the transcripts. Lawyers and litigants on their part need not have to wait for the Clerk to forward the depositions to them. Once they become aware of the Clerk of District Court's failure to forward the depositions, they should seriously consider applying for orders for mandamus against the Clerk to compel him to perform his duties.

18. In this case the lawyers for the appellants must also shoulder some blame for the inordinate delay in prosecuting the appeal in a diligent manner.

19. Mr Kari further argued that the appeal in this Court was largely conducted by the appellant in person. Consequently he submitted that the Court should exercise its discretion in favour of the appellant as the appellant was not aware of prosecuting the appeals within 40 days.

20. Here in Kimbe I have noticed that many litigants are conducting their own legal proceedings and other processes such as appeals, drafting court documents and conducting other legal processes on their own accord mostly without the assistance of lawyers. This is quite commendable on the part of private litigants. If appellants have been conducting their own legal proceedings without the assistance or advise of lawyers, then they are presumed to know the law and all procedural and substantive requirements on the right to appeal. Hence they cannot run around and plead lack of knowledge or plead ignorance of these requirements.

21. The case before me here is such a case. The appellant conducted all the processes on his own. He only engaged legal assistance as his counsel puts it "to assist him to appear in Court". Consequently, this Court will not accept arguments that because appellants have conducted the proceedings themselves, they should be now excused from compliance with mandatory requirements of appeals from the District Court to the National Court.

22. One such requirement is the need to comply with Section 226 and Section 227 of the District Court Act.

23. Section 226 is stated in these terms:

"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.

Section 227 – Failure To Enter Appeal For Hearing:

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 adjudicating as if it has not been appealed against."

24. In my view the combined effect of both s.226 and s.227 is that an appeal should be ready for hearing before the National Court within 40 days from the date of its filing. It is a mandatory provision which requires compliance within the 40 day period. Non compliance will attract an application for dismissal for want of prosecution. These two provisions are expressed in mandatory terms. See Rabaul Shipping Ltd v Rita Ruru (2000) N2022.

25. For Rita Ruru's Case, His Honour Kandakasi, J made these pertinent comments which I will adopt here:

"The word 'shall' is used in these sections. 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 s.220 (2) makes it clear that an appeal against a decision of the District Court should be lodged 'with the Clerk of the District Court by which the conviction, order or adjudication was made.'

This must be done within a period of one month from the date of the decision appealed against. Then by virtue of s. 221(2), sealed copies of the Notice of Appeal should be served on the respondent or respondent if more than one, also within a period of one month from the date of the decision appealed against.

Once an appeal has been lodged and served in the above manner, an appellant is obliged to enter the appeal for hearing by the National Court within a period of 40 days from the date of the lodgment of his appeal.

A failure to do so attracts the application of s.227 which renders the appeal non existent. The combined effects of s.226 and s.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 period can be excused by reasons of say, the District Court depositions and transcripts not being made available despite requests and follow-ups or such requests by an appellant from promptly prosecuting his appeal, the effect of non compliance of Section 226 could be avoided. The onus is always on the appellant to show such factors exists if there is an application to dismiss for want of prosecution or non compliance of s.226 of the Act. If an appellant fails to prove by appropriate evidence, the existence of such factors, the appeal should be dismissed for want of prosecution."

26. In the present case the appeal was not entered for hearing because of the failure by the Clerk of the District Court to forward the court depositions and transcripts to the Registrar and the parties.

27. But the appellant himself has failed to show by appropriate evidence the steps he took in following up with the Clerk of District Court of the need to provide transcripts and the court depositions expeditiously. Even if the Clerk of Court failed in his duties, the then lawyers themselves failed to show by appropriate evidence the steps they took to follow up with the Clerk of Court to comply with Section 224 of the District Court Act. The failure by the lawyers is most deafening. There was never any evidence to show the steps taken by the appellant and his lawyer that they were diligently taking steps to expeditiously prosecute the appeal.

28. Consequently, I find that Sections 226 and Section 227 impose mandatory obligations upon an appellant and cannot be solely attributed to the clerk of Court alone, but lawyers must also take some responsibility for this delay. Non compliance with Sections 226 and 227 renders the appeal non existent.

29. I find that the appellant has failed to show the court that he did take steps to expeditiously dispose his appeal in a diligent manner. There has been an unexplained inordinate delay in expeditiously disposing off this appeal.
Order 10 Rule 5 of the National Court Rules empowers a judge or a court to dismiss a case for want of prosecution.

30. Accordingly this appeal is hereby dismissed for want of prosecution under Order 10 Rule 5 and the orders of the District Court are hereby affirmed and enforced under Section 230(2) of the District Court Act. Each party is to bear their own cost of the appeal.

Orders:

1. Appeal dismissed.
2. Each party to bear their own costs of the appeal.
______________________________________________

Public Solicitors Office: Lawyers for the Appellant
Gerhard Linge Lawyers: Lawyers for the Respondent