Nick Kikila & Agents v Nandap [2018] PGNC 402; N7499 (21 September 2018)

N7499

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 593 of 2018

NICK KIKILA & AGENTS
Applicant

V

PAULINE NANDAP
Respondent

Kimbe: Miviri AJ
2018: 21^st September

PRACTISE & PROCEEDURE – originating summons –notice of motion – Section 231 District Court Act – leave to file appeal out of time – Sections 155 (4) & 158 Constitution – good basis to grant – title to land bona fide – district Court no jurisdiction – leave granted.

Cases cited:

Napitalai v Toluana [2013] PGNC 41; N5139
Counsel:

D. Kari, for Plaintiffs

No, Appearance for Defendants

RULING
21^st September, 2018

1. MIVIRI, AJ: This is the ruling of the court pursuant to a notice of motion filed by the applicant dated the 29^th August 2018 filed that day whereby the following orders are sought:
   
   • (i) An order that the requirement of Service and notice be dispensed with pursuant to Section 231 of the District Court Act,
     
   • (ii) Leave be granted for the Plaintiff Applicant to file appeal out of time.
   • (iii) That the Kimbe District Court Clerk be directed to furnish court depositions in the matter Pauline Mandap v Nick Kikila & agents relating to decision 145 of 2018
     
   • (iv) Cost be in the course.
     
   • (v) Any other or further orders as the Courts deems appropriate.
     
2. The Motion is supported by the Affidavit of the Applicant Nick Kikila sworn the 29^th August, 2018 filed the 29^th August, 2018. He deposes that he lodged an appeal against a District Court ruling that ordered his eviction and ejectment over his land. He was advised that he had until the 31^st August, 2018 to lodge his appeal. Through the Office of the Public Solicitor he lodged only to be told that he was late. That the very block is also the subject of the National Court proceedings number OS. 783/2017 where the cause of action is the title to the subject land. Annexure “B” is the draft notice of appeal and “C” is the Originating summons 783/2017.
   

Facts

3. The following are facts undisputed that are established that originating summons 783/2017 was filed 5^th October 2017. Its subject relates to the land Portion 3 Section 1, Buvusi, Kimbe, West New Britain which is the same piece of land in DC 145/2018 annexure “A” of the affidavit of Nick Kikila (supra) was ordered on the 10^th July, 2018. Annexure “B” is the draft notice of appeal of the plaintiff applicant.
   
4. Section 21 (4) (f) District Courts Act states the Court does not have jurisdiction when the title to land is bona fide in dispute.
   

Law

5. Section 231 dispensing with conditions precedent of the District Court is in the following terms; The National Court May-
   
   • (a) Dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if , in its opinion, the appellant has done whatever is reasonably practicable to comply with the provision of this Act; and
     
   • (b) An application made ex parte by the party appealing-extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act
     
6. The applicant invokes Section 231 dispensing with conditions precedent of the District Court which is in the following terms;
   

The National Court May-

(c) Dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if , in its opinion, the appellant has done whatever is reasonably practicable to comply with the provision of this Act; and

(d) An application made exparte by the party appealing-extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act as basis to be granted leave to file his appeal out of time.

7. He further invokes Section 155 (4) and 158 of the Constitution that there is inherent jurisdiction in the Court to order and to grant leave to do justice in the circumstances of the case here. And he relies on the facts set out above from the affidavit of the applicant plaintiff.
   

Issue

8. Has the applicant established proper basis in law to invoke the jurisdiction to grant leave to file appeal out of time?
   

Ruling

9. It is clear by the facts and the law set out above that the terms of the notice of motion is granted as motioned from (i) (ii) (iii) (iv). The district Court by the Act setting it up section 21(4) (f) is clear in law that the magistrate did not have the power to make the order he made annexure, “A”, Napitalai v Toluana [2013] PGNC 41; N5139 (28 March 2013).
   
10. The order is not binding as it does not have the basis in law to hold onto. By Section 155 (4) and 158 of the Constitution together that order is not binding on the applicant. The Justice of the case by this authority calls that leave is granted the applicant to file his appeal out of time. He has more than an arguable case in the matter. The motion is granted fully in the terms (i) (ii) (iii) (iv) as applied.
    
11. Leave is granted the Applicant to file his appeal out of time.
    
12. The Kimbe District Court Clerk is directed to furnish court depositions in the matter Pauline Mandap v Nick Kikila & Agents relating to decision 145 of 2018. And the matter brought to finality in law expeditiously.
    
13. Costs be in the cause.
    

Orders Accordingly.

__________________________________________________________________

Public Solicitors: Lawyer for the Plaintiff/Applicant