In re Application by Waghi Mek Plantations Ltd [2011] PGNC 158; N4439 (11 November 2011)

N4439

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 257 OF 2011 & OS NO 258 OF 2011

BETWEEN

IN THE MATTER OF THE DISTRICT COURTS ACT, CHAPTER 40 OF THE REVISED LAWS

AND

IN THE MATTER OF AN APPLICATION BY WAGHI MEK PLANTATIONS LIMITED PURSUANT TO SECTION 231 OF THE ACT FOR EXTENSION OF TIME FOR COMPLIANCE WITH THE CONDITIONS PRECEDENT TO THE RIGHT OF APPEAL PRESCRIBED BY SECTIONS 220, 221, 222 AND 226 OF THAT ACT

Mount Hagen: Makail, J
2011: 04th & 11th November

PRACTICE & PROCEDURE - Extension of time to appeal - Application of - Proposed appeal against decision of District Court - Dismissal of information - Proposed appeal by "a person aggrieved" - Grounds of - Considerations of - District Courts Act, Ch 40 - Sections 220, 221, 222 & 231.

PRACTICE & PROCEDURE - Proposed appeal against decision of District Court - Dismissal of information - Proposed appeal by "a person aggrieved" - Locus standi - District Courts Act, Ch 40 - Section 219.

Facts:

The plaintiff applied for extension of time to appeal two decisions of the District Court dismissing two separate stealing charges against one Ben Kombangil. It alleged it was not informed by the police arresting officer of the decisions until three months after the decisions and that the District Court was wrong in dismissing the charges based on insufficient evidence when there was overwhelming evidence from three witnesses identifying Ben Kombangil as the offender. The evidence sufficiently established that Ben Kombangil was guilty.

A preliminary issue arose at the hearing in relation to the standing of the plaintiff to bring the proposed appeal against the decisions of the District Court dismissing the information under section 219 of the District Courts Act, Ch 40. It was submitted for the plaintiff that it was "a person aggrieved", hence had standing to bring an appeal against the decisions of the District Court dismissing the charges. Further, it was submitted this was not a case of public importance where the Secretary for Justice would be the authorised person to file an appeal under section 219(3) of the District Courts Act, Ch 40. This was a private matter involving the plaintiff's coffee plantations where its proprietary and commercial interests have been allegedly interfered with and had sought criminal sanctions against the trespassers.

Held:

1. Section 219(1) of the District Courts Act, Ch 40 allows "a person aggrieved" by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, to appeal to the National Court.

2. The plaintiff is "a person aggrieved" by an order dismissing an information in the District Court, hence had standing to bring the proposed appeals pursuant to section 219(1) of the District Courts Act, Ch 40. Elison Javano -v- Samuel Lai (2010) N4140 and Whagi Mek Plantations Limited -v- Aip Kondim: CIA No 21 of 2009 (Unnumbered & Unreported Judgment of 06th June 2011) referred to.

3. On the evidence, the plaintiff has established that there is a reasonable explanation for failing to file an appeal within the prescribed time period, that there is an arguable case, and that there will be no prejudice caused to the defendant if leave is granted.

4. The applications for extension of time were accordingly granted.

Cases cited:

Elison Javano -v- Samuel Lai (2010) N4140
Whagi Mek Plantations Limited -v- Aip Kondim: CIA No 21 of 2009 (Unnumbered & Unreported Judgment of 06th June 2011)
Application by Rodney Rakum (2005) N2901
Lamiller Pawut -v- Lim Men Bee [1996] PNGLR 26
Kemp Ada -v- Lin Wen Beau, Lin Mene Bee & Chan Chin Ti [1996] PNGLR 172

Counsel:

Ms P Tamutai, for the Plaintiff

EX-PARTE RULING

11th November, 2011

1. MAKAIL, J: This ruling covers both matters OS No 257 of 2011 and OS No 258 of 2011. The applications are the same and are by the same plaintiff Waghi Mek Plantations Limited. It applies for extension of time to appeal two decisions of the District Court dismissing two separate stealing charges against one Ben Kombangil pursuant to sections 220, 221, 222 & 231 of the District Courts Act, Ch 40.

Brief Facts

2. The plaintiff owns about fourteen coffee plantations in the mid Waghi area of the Western Highlands Province. In 2000, there was a conflict between locals and the manager of the plaintiff. This resulted in the plaintiff going into bankruptcy and the plantations were mortgaged to the Agriculture Bank, now National Development Bank and Bank South Pacific Limited. During that time, the plaintiff sub-leased the plantations to the former landowners. Pursuant to the sub-leases, the sub-lessees were entitled to benefit from the coffee trees but were specifically excluded from dealing with gum trees and or any houses, machines etc, as they were owned by the plaintiff.

3. However, from 2003 onwards, individuals began trespassing on the plantations and felling mature trees and milling them for timber for personal and commercial use. The plaintiff struggled to stop the logging activities by reporting them to the police for appropriate criminal charges to be laid on the offenders and brought to Court. One of the individuals arrested and charged for stealing was Ben Kombangil. The police laid two criminal charges of stealing against him. One for stealing five gum trees worth K4,782.15 and the other for stealing seven gum trees worth K6,695.01.

4. The charges were heard before the District Court in Mt Hagen and on 23rd December 2010, the District Court dismissed them due to insufficient evidence. The plaintiff was not informed of the decision until March 2011 when it made inquiries with the police arresting officer. It alleged there was sufficient evidence from three witnesses proving that Ben Kombangil had entered and cut down the gum trees without its consent. He took them away and applied them to his own use. The plaintiff seeks to appeal the decisions of the District Court of 23rd December 2010 dismissing the charges and as it is out of time, seeks extension of time to do so.

Preliminary issue- Locus standi of Plaintiff

5. A preliminary issue arose at the hearing and that is, the standing of the plaintiff to appeal against the decision of the District Court following dismissal of the stealing charges against Ben Kombangil in the District Court. Ms Priscilla Tamutai of counsel for the plaintiff referred to section 219(1) of the District Courts Act, Ch 40 and the case of Elison Javano -v- Samuel Lai (2010) N4140 and submitted the plaintiff is "a person aggrieved" and as such has standing to bring an appeal against the decisions of the District Court dismissing the charges against Ben Kombangil in the District Court.

6. She further submitted this is not a case of public importance where the Secretary for Justice would be the authorised person to file an appeal under Sub-section (3) of Section 219. She submitted this is a private matter involving the plaintiff's coffee plantations where the plaintiff's propriety and commercial interests have been allegedly interfered with and has sought criminal sanctions against the trespassers out of which Ben Kombangil is identified as one of the perpetrators.

7. Section 219 states:

"219. Appeal to National Court.

(1) Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2) Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3) Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Secretary for Justice may -

(a) appeal against a decision of a District Court on behalf of a party; or

(b) intervene in an appeal to the National Court.

(4) The Public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code."

8. I agree with Ms Tamutai's submissions. Section 219(1) allows "a person aggrieved" by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, to appeal to the National Court. The plaintiff was the complainant and made the initial complaints of stealing against Ben Kombangil to the police. The police arrested and charged Ben Kombangil for stealing trees. He was tried before the District Court and was found not guilty due to insufficient evidence. As "a person aggrieved" by the decisions, it seeks to appeal them to the National Court.

9. My brother Cannings, J in Elison Javano's case (supra) observed that section 219(1) allows "a person aggrieved" by an order of a District Court, including an order dismissing an information, to appeal to the National Court and based on that, accepted the appellant as having standing to appeal a decision of the District Court dismissing an information against the respondent for driving without due care and attention. David, J was of the same view when he dismissed an application by the respondent seeking to dismiss an appeal on the ground that the appellant lacked standing to bring an appeal against an order dismissing an information by the District Court pursuant to section 219(1) of the District Courts Act, Ch 40. That was in the case of Whagi Mek Plantations Limited -v- Aip Kondim: CIA No 21 of 2009 (Unnumbered & Unreported Judgment of 06th June 2011).

10. The decisions of Andrew, J in Lamiller Pawut -v- Lim Men Bee [1996] PNGLR 26 and Kemp Ada -v- Lin Wen Beau, Lin Mene Bee & Chan Chin Ti [1996] PNGLR 172 which were followed by Injia, DCJ (as he then was) in Application by Rodney Rakum (2005) N2901 were appeals from the District Court to the National Court arising from prosecutions under the Fisheries (Management) Act, 1998, commonly known as fisheries prosecutions, because the prosecutions of information laid under the said Act are done by Fisheries Officers. They held that in a case of an appeal against dismissal of an information, the appeal would have to be brought by the Secretary for Justice with leave of the National Court under section 219(3). This is because, by section 219(2), it appears the State has no right of appeal against a dismissal of an information. The reason for this restriction is well explained by Injia, DCJ (as he then was) in Rodney Rakum's case (supra) which I respectfully adopt and quote hereunder:

"There is good reason for the restriction placed by subsection (2) and (3), on appeal against dismissal of an information by the State. Dismissal of an information has not only public policy implications but also constitutional implications and only the State, by its principal legal officer, the Attorney-General, may, by leave applied for himself or herself and granted, appeal such decisions or intervene in an appeal that has been validly instituted by another person. The constitutional implication is that the State has accused the person of committing a criminal offence and had him arrested and charged and prosecuted before a Court of competent jurisdiction. He or she has been tried by a Court which found him or her not guilty of the charge. He or she is entitled to the protection of the law – to remain innocent of that offence. He cannot be re-tried for the same offence after an acquittal or dismissal of the charge except following a successful appeal against dismissal by the Attorney-General under Subsection (3)."

11. In the present case, I am satisfied it is a private matter involving the plaintiff's coffee plantations where its propriety and commercial interests have been allegedly interfered with by trespassers. That is why it has not asked the Secretary for Justice to appeal nor is there an indication that the Secretary for Justice will intervene in the proposed appeals. In my view, section 219(1) allows the plaintiff as "a person aggrieved" by the dismissal of the information to independently appeal the decisions. I am, therefore, satisfied the plaintiff has locus standi to pursue the proposed appeals.

Applications for Extension of Time

12. Turning to the main applications, the principles upon which an applicant for extension of time to appeal must satisfy are, there is a reasonable explanation for failing to file an appeal within the prescribed time period, that there is an arguable case, and that there will be no prejudice caused to the defendant if leave is granted.

13. Is there a reasonable explanation for failing to file the appeals within the prescribed time period? Ms Tamutai submitted the decisions were made 23rd December 2010, however, the police arresting officer had not informed the plaintiff of the decisions until three months after the decisions. This was in March 2011 when the plaintiff enquired with the police arresting officer. On the evidence, I am satisfied the plaintiff has established that there is a reasonable explanation for failing to file an appeal within the prescribed time period.

14. Is there an arguable case? Ms Tamutai submitted the District Court was wrong in dismissing the charges based on insufficient evidence when there was overwhelming evidence from three witnesses identifying Ben Kombangil as the offender. The evidence sufficiently established that Ben Kombangil was guilty. In my view, this submission raises an issue in relation to the District Court's assessment of the evidence it had before it. Its finding that evidence was insufficient is crucial to the plaintiff's case where it alleged its propriety and commercial interests in the coffee plantations have been interfered with and had sought criminal sanctions against the trespassers out of which Ben Kombangil was identified as one of the perpetrators. On the evidence, I am satisfied the plaintiff has established an arguable case.

15. Finally, will the granting of the applications prejudice the defendant? It is not disputed following the decisions of the District Court on 23rd December 2010, Ben Kombangil has been discharged and released from further obligations to the Court. If leave is granted and appeals are filed, he will be served with the appeals and will be given an opportunity to respond to them. I am satisfied there will be no prejudice caused to him if leave is granted.

Order

16. I grant the applications for extension of time. I order that the appeals be filed within 30 days from the date of these orders and I make no order for costs.

Ruling and orders accordingly.
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Tamutai Lawyers: Lawyers for the Plaintiff