N7520
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No. 630 of 2018

BETWEEN:
DAN NARUGI
First Applicant

JACOB NARUGI
Second Applicant

AND:
ANDMUK NO 2 LIMITED
Respondent

Kimbe: Miviri AJ
2018	: 12 & 19 October

PRACTISE AND PROCEDURE – Originating summons – Notice of Motion –Application for leave to appeal – Section 231 District Courts Act – exercise of judicial discretion – facts insufficient –application not made out –leave denied–costs. 

Cases Cited:

Gary McHardy v Prosec Security and Communications Ltd trading as Protect Security (2000) SC 646
In the matter of an application by Linah Edward [2005] PGNC 144; N2804 
Motor vehicles Insurance Ltd v Gigmai [2013] PGNC 159; N5295  
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
The State v Colbert, [1988] PGSC 10; [1988-89] PNGLR 138 

Counsel:

F. Kua, for Plaintiff Applicant
No appearance, for defendants
					
RULING 
 19th October, 2018
 
1.	MIVIRI AJ: This is an Application for leave to file appeal out of time pursuant to Section 231 of the District Court Act. It is by Notice of Motion drawing from an originating summons seeking same. 

2.	Section 231 of the District Court Act 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 reasonable practicable to comply with the provisions of this Act; and

(b)	On 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.

3.	There is at the outset a right of appeal which is exercised within the rules and according to law the District Courts Act. It is available within the bounds of that Act the rules and ceases as here non compliance hence the application for leave. It is discretionary in this regard. Facts must be properly set out to invoke dispensation and waiving compliance with conditions precedent to the right of appeal. Here time has run and the applicant has not come within time allowed of one month by virtue of section 220 of that Act.

4.	He supports the motion by his own affidavit; Dan Narugi’s dated the 11th September 2018 and also supplementary affidavit dated the 26th September 2018. He swears that on the 24th July 2018 the District Court ordered his eviction from the subject property Allotment 19 section 35 Kimbe. He raised the issue of title in the proceedings that was not upheld by the court. He was not given an opportunity to be heard and appealed but was told that he was late in filing his appeal. The appeal is late by two months. There is no reason disclosed as to why he is late in the filing other than he being illiterate. 

5.	He is an ordinary citizen and followed the process of law in the district Court. He has advanced no reason why he failed to comply within the time allowed. It was his right not of the court nor anyone let alone the respondent. It is not reasonable to contend that he is illiterate to allow him to come in by that reason; it would open the flood gate for every person to come in on that basis. It is not a substantial reason in the light of the fact that for two months he did nothing. Process set out by the District Court Part XI Appeals from Decisions of District Court must be followed. He should file a notice of appeal including entering into a recognizance on appeal reading section 219 and 220 of the Act within one month from the date of the decision. And copies of which shall be served on the respondents to the appeal including the Registrar of the National Court. Within 40 days after the institution of the appeal the appellant shall enter the appeal for hearing on a date and time to be fixed by the Registrar of the National Court. If this is not done then the magistrate has authority to enforce the conviction or order or adjudication as if it had not been appealed against section 227 of the District Courts Act.

6.	What the applicant is asking is permission or authorization or leave to dispense with these preconditions in particular leave to file his notice of appeal out of time. The test in my view to so determine is in Gary McHardy v Prosec Security and Communications Ltd trading as Protect Security (2000) SC 646; 

i.	Whether there has been any delay in making the application;
ii.	Possible hardship, inconvenience or prejudice to either party;
iii.	The nature of the Judgement sought to be stayed;
iv.	The financial ability of the applicant;
v.	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
vi.	Whether on the face of the record of the Judgement there maybe indicated apparent error of law or procedure;
vii.	The overall interest of Justice;
viii.	Balance of convenience;
ix.	Whether damages would be sufficient remedy.

7.	And also similar position following in In the matter of an application by Linah Edward [2005] PGNC 144; N2804 (11 February 2005).

8.	It is clear there was delay of two months by the applicant in filing the appeal. It was his own making. If leave is granted it would inconvenience the respondents more since because life has moved on since the decision by the Court. He knew his rights but did nothing it would inconvenience the other party to give him leave to appeal out of time. There is no arguable case nor will it serve any utility to so grant. The overall interest of Justice is that the matter be not granted leave to dispense with the condition under Part XI Appeals from Decisions of District Court, District Courts Act. Overall interest of Justice does not require that leave be granted to file the appeal out of time.

9.	The balance of convenience also does not favour that leave be granted to file appeal out of time here. No substantial reasons or material has been placed to invoke. He slept over his rights it is not for the court to make good what was due to him which he saw fit not to take up. There are no cogent or convincing reasons or exceptional circumstances shown or that some substantial injustice is manifest or that the case is of special gravity and there are clear legal grounds as in a review to invoke discretion here: Colbert, The State v [1988] PGSC 10; [1988-89] PNGLR 138 (5 August 1988). 

10.	He is not likened to New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522 where leave was granted because it had merit there were cogent and convincing reasons and exceptional circumstances in favour of granting leave. It was brought on promptly. That is not the case here deduced from the affidavit of the applicant filed in support. 

11.	Motor vehicles Insurance Ltd v Gigmai [2013] PGNC 159; N5295 (20 June 2013) is on point in this regard and clear that leave will not be granted on the subject and material applied here. Accordingly the application for leave to appeal out of time is refused with Costs.

12.	Application denied and leave is refused. 

13.	Costs will follow the event.

Orders Accordingly,
__________________________________________________________________
Felix Kua Lawyer: Lawyer for the Plaintiff Applicant		
No appearance: Lawyer for the Defendant