Sengi v Hawina [2019] PGNC 345; N7991 (25 July 2019)

N7991

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

0S No. 450 OF 2013

IN THE MATTER BETWEEN

CHRIS SENGI on behalf of himself and his family and his clan
Plaintiff

AND
ANDREW HAWINA
Defendant

Wewak: Gora AJ
2018: 14^th September
2019: 25^th July

CIVIL – Application for extension of time to file appeal in the District Court – Appeal against decision of District Court – District Court Orders for eviction of Plaintiff/Applicant from State Lease – Defendant/Respondent has title over the subject Lease.

CIVIL – Plaintiff/Applicant’s claim of customary ownership of subject land – Allegation of fraudulent acquisition of subject land and trespass against the State- Defendant/Respondents title in dispute.

CIVIL – Whether reasonable explanation for delay in filing an appeal- Applicant has substantial interest in the subject Land – Applicant has right of appeal against District Court order – Whether grounds of appeal have merit – Whether appeal would be the appropriate forum to address issues alleging fraud and trespass against the State.

Cases Cited

Seravo v Bahafo [2001] PGNC 122; N2078 (21 March 2001)

Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777 (4 March 2005)
Pato v Motor Vehicles Insurance Ltd [2008] PGNC 93; N3403 (18 June 2008)
Kalalyo v Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 368 (12 April 1996) N1419

Counsel

Mr. S Dadada, for the Plaintiff
Mr. W Tekwie, for the Defendant

RULING ON APPLICATION SEEKING EXTENSION OF TIME TO FILE NOTICE OF APPEAL IN THE DISTRICT COURT

25^th July, 2019

1. GORA AJ: INTRODUCTION: This is an application made ex-parte by way of Notice of Motion by the plaintiff seeking extension of time to file Notice of Appeal in the Wewak District Court against a court order made by the said Wewak District Court on the 08^th of February 2013 in the matter of DC 196/2011 (Andrew Hawina v Chris Sengi). Furthermore, to stay the orders of the said District Court dated 08^th February 2013. The application is supported by several affidavits of the Plaintiff dated 27 August 2013, 10^th October 2014, 31^st March 2017, and 09^th April 2018 respectively.
   
2. Additional affidavits in support were filed by Humin Kondi, a Private Surveyor dated 31^st July 2017, affidavit of Peter Trur, a former Surveyor with the Department of Lands & Physical Planning dated 07th April 2018 and Affidavit of Fr. Casper Talmou of the Catholic Dioceses of Wewak dated 08^th April 2018. Fr. Casper is also a Land Mediator in Wewak.
   
3. The order of the District Court which is the subject of this application is in the following terms:
   

“The Court orders that: Application for eviction is granted and defendant is given four (4) months from today’s date (8^th February 2013) to vacate premises.

Dated at WEWAK the 08^th day of FEBRUARY 2013

BY THE COURT

D.AINGA
Magistrate”

BACKGROUND INFORMATION

4. The proceedings in the District Court under DC 196/2011 between Defendant Andrew Awina (who was the Complainant) and Plaintiff Chris Sengi (who was the Defendant) was an application by the Complainant for eviction of the Defendant from a State Lease described as Section 68, Allotment 11, Wewak Town, East Sepik Province.
   
5. On the 8^th of February 2013 the District Court granted the Complainant’s application to evict the defendant, members of his family and his clan members from Section 68, Allotment 11, Wewak Town. I have quoted the District Courts Orders in Paragraph 2 above.
   
6. The proceeding now before this court was commenced by the Plaintiff Chris Sengi who was the defendant in the eviction proceedings in the District Court. He commenced this proceeding under an Originating Summons O.S No.450 of 2013 pursuant to Order 18, Rule 12 (1) which reads:
   

“Application for extension of time to appeal or dispensation or waiver of any condition precedent to the right of appeal prescribed by statute must be instituted by Originating Summons and made ex-parte.”

7. The mode of proceedings is correct. Plaintiff basically seek an order for Extension of Time to file an Appeal against the decision of the District Court dated 08^th February 2013.
   
8. Basis of the Plaintiffs intention to appeal against the decision of the District Court is on the grounds that:
   
   • (a) The State Lease described as Section 68, Allotment 11 is a customary land belonging to his family and clan. A portion of their customary land, referred to as Portion 16 was given to the Catholic Diocese of Wewak who later transferred it back to them. But the State encroached on part of Portion 16 and subdivided it, thus creating Section 68, Allotment 11 which has subsequently been leased to the defendant Andrew Awina who was the Complainant in the District Court and who successfully obtained the eviction order against Chris Sengi and members of his family and his clan.
     
   • (b) State is alleged to have encroached on part of Portion 16 and subdivided it illegally, and therefore the subsequent allocation of State Lease Section 68, Allotment 16, Wewak Town to Andrew Awina is also illegal, thus allegation of fraud and trespass.
     

ISSUES

9. Questions are:
   
   • (a) Whether leave be granted to the Plaintiff Chris Sengi to file an Appeal out of time.
     
   • (b) whether Orders of the District Court dated 08^th February 2013 be stayed.
     

THE LAW

10. In the case of Seravo v Bahafo [2001] PGNC 122; N2078 (21 March 2001), the Plaintiff applied for an extension of time to appeal the decision of the Goroka District Court. His Honour Kandakasi J, as he then was, with appropriate modifications, adopted the principles for extension of time to lodge a Notice of Claim against the Motor Vehicle Insurance Limited to the application for extension of time to appeal a District Court decision. His Honour stated:
    

“There is nothing much or substantial required of the Plaintiff. All that he had to do was to provide an affidavit and explain why he could not lodge his appeal within time and show that, he has a good chance of success on the appeal, and that the delay has not caused any prejudice to the Defendant.”

11. In the case of Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777 (4 March 2005), a case concerning an appeal against the refusal by the National Court to grant an extension of time to issue Section 5 Notice under the Claims By and Against the State Act, the Supreme Court when approving the Statement of Kandakasi J, as he then was in Seravo v Bahafo, supra, held that sufficient cause will be shown if the applicant is able to:
    
    • (a) Provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under Section 5 of the Claims by and Against the State Act, and where there is a delay on applying for an extension of time, provide a reasonable explanation for that delay;
      
    • (b) Demonstrate a reason able cause of action to be pursued on merit;
      
    • (c) Show by appropriate evidence that the delay has not and would not result in any prejudice to the State.
      
12. In the case of Pato v Motor Vehicles Insurance Ltd [2008] PGNC 93; N3403 (18 June 2008), the applicant applied for extension of time to give his Notice of Intention to make a claim against the Trust Company, as to the issue of whether application for leave was made promptly and or reasonable explanation for the delay. His Honour Makail J, after considering previous cases on the issue stated that:
    

“I am also satisfied that the applicant was unable to speak to a lawyer to pursue his claim for damages against the Defendant immediately after obtaining the Police Accident Report because he was not aware of the legal requirement to give a Notice of Claim within six (6) months of the date of accident.”

13. The above case authorities demonstrate four (4) essential requirements or tests. These are:
    
    • (a) Whether there has been any delay in bringing the application to court.
      
    • (b) Whether or not there are reasonable explanation provided for the delay in filing the appeal within time.
      
    • (c) Whether the Appellant has a good chance of success at trial and or a reasonable cause of action.
      
    • (d) Whether or not prejudice will be caused to the respondent.
      

APPLICATION OF THE LAW

Plaintiffs arguments

14. In respect of the first test of “delay,” the Plaintiff generally does not deny there was delay in filing this application. Eviction Orders of the District Court were made on the 08^th of February 2013. Plaintiff was supposed to file his Notice of Appeal on or before the 08^th of March 2013 which he did not. Counting from the date of the District Court orders to the date of hearing of this motion is about five (5) years. This is a lengthy delay and is unacceptable. However, realizing that he was out of time in filing an appeal, he took steps to file this motion on the 27^th of August 2013, which was six (6) months after the District Court made the eviction orders. This in my view was a reasonable thing to do.
    
15. In respect of the second test of “reasonable explanation,” I note from court records and his several affidavits that he did not have a lawyer to assist him at that time because he did not have the financial capacity to engage one. A legal representative would have assisted him to ensure his appeal was filed in time. In any case he took reasonable steps to file this application for extension of time to file an appeal which was six (6) months after the District Court’s orders. The applicant did not just sit back and allow a very lengthy time to lapse.
    
16. I also note from court records that after filing this application on the 27^th of August 2013, the plaintiff was not able to pursue it because the court (National Court) made an order for the matter to be transferred to the Alternative Dispute Resolution (ADR) Track. It has been pending there in the ADR track for about three (3) years without progress until it was restored back to the civil track, hence this application. This delay was not caused by the applicant but by an order of the court to transfer his matter to the ADR track.
    
17. These are reasonable explanations particularly where litigants have no legal representation and are ignorant of the court processes and procedures. Courts have a duty to be reasonable and fair to them. In the case of Kalalyo v Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 368, his Honour late Justice Sevua stated:
    

“I pause here to ask, do we penalize an ordinary Papua New Guinean by refusing his/her application for an extension of time to make a claim against the Trust because of delay due to his/her ignorance of the statutory requirement...In my view, it is quite unfair to refuse an application for that reason...”

I agree and adopt his Honour’s views.

18. I therefore accept the reasons pleaded by the Plaintiff for not filing his appeal in time and the delay in pursing this application. I view them as reasonable explanations.
    
19. In respect of the third test of whether the Plaintiff has a “reasonable course of action”or whether he would succeed at trial, I note that he is alleging fraud on the part of the State. He submits that he has a reasonable cause of action or grounds on merit based on trespass and fraudulent acquisition of the subject land by the State which was transferred to him and his clan by the Catholic Dioceses of Wewak. This may appear to be a genuine or reasonable cause of action, but the only concern is whether the appeal court would be the appropriate forum to address allegation of fraud and trespass against the State. Or should a separate action be instituted by the Plaintiff.
    
20. Plaintiff claims that he has a substantial interest in the subject land because he and his family and other tenants have resided on the subject land for a very long time and have done substantial improvements on that land which they claim as their customary land.
    
21. Plaintiff further submits that the Wewak District Court should have exercised its discretion to refuse the eviction orders sought by the defendants as there was a bona fide dispute as to the title held by the Defendant, hence eviction proceeding was not a straight forward matter.
    
22. I can see that the Plaintiff has a reasonable cause of action whereby trespass and fraud are alleged against the State thus disputing legitimacy of Defendants title over the subject land. But the concerns are; First, the eviction proceeding in the District Court was an application by the Defendant for eviction of the Plaintiff from State Lease Section 68, Allotment 11, Wewak Town for which he (Defendant) has a title issued by the State and the District Court was entitled to issue eviction orders based on evidence of title. Second, whether issues relating to trespass and fraud will be sufficiently heard and determined by the appeal court, if appeal is allowed. In other words, would appeal court be the appropriate forum to challenge the validity of the defendant’s title to the subject land and further to argue issues of trespass and fraud.
    
23. I hold a strong view that the Plaintiff should commence separate proceedings by way of a Writ of Summons on allegations of fraud and trespass against the State.
    
24. In any case the Plaintiff has the right to appeal and should not be denied. He must be given the opportunity to have his day in court. He strongly contends that he has a good chance of success in the substantive appeal because he has evidence which will be produced once he is given the opportunity to be heard in the substantive hearing of the appeal. Hence onus on him to advance grounds of appeal with merit.
    
25. In respect of the fourth test- Whether the defendant will suffer prejudice. The answer is “yes.” This is because he is the legitimate holder of a registered State Lease title at the present time which is protected by law. Any prolonged delay for him to freely use and enjoy his rights over the said State Lease would be detrimental to his interests over the subject land. But I must also say the same for the Plaintiff. Injustice would be done to him if extension of time to file an appeal is not granted. This is because the Plaintiff has substantial interest in the subject land too as he and his family and other tenants have been residing on the subject land for a long period of time and have carried out extensive improvements on the subject land.
    
26. Therefore, in the interest of justice, it is my humble view that it would be fair and just to grant the application to extend time by 14 days for the Plaintiff to file an appeal against the District Court orders of 08^th February 2013 and for both parties to be fairly heard.
    
27. Application is therefore granted with orders that:
    
    • (i) Extension of time by 14 days is granted to the Applicant to file a Notice of Appeal against the District Court’s Orders of 08^th February 2013.
      
    • (ii) District Court Orders of 08^th February 2013 be stayed pending determination of the Plaintiffs appeal.
      
    • (iii) Parties to meet their own costs.
      

Determined Accordingly
_______________________________________________________________
S. Dadada: Lawyer for the Plaintiff
Tekwie Lawyers: Lawyers for the Defendant