Maso v Jack [2020] PGNC 370; N8622 (9 November 2020)

N8622

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 101 OF 2018

BETWEEN:
MARTIN MASO, FRANK LAURIE, ERIK PIUK, TERENCE TOKAOSON, TERRY JOEL, GIBSON OPERA, LUKE MINJUK, MARTIN KAPO, LARSON WALI, REX MINAO, PETER KAKI & AKITA NARIMA
Appellant

AND:
MICHAEL JACK
First Respondent

AND:
PAPUA NEW GUINEA CHRISTIAN FELLOWSHIP INC.
Second Respondent

Waigani: Miviri J
2020: 04^th & 9^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal from District Court – District Courts Act 1963 – Appeal Rehearing – Section 224 Deposition on appeal – Appeal without Deposition – Appellant to set down appeal & give notice under Section 226 – Evidence to be Received on Hearing Section 229 – Incompetent – Dismissal of Appeal – cost follow event.

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of motion –Order 12 Rule 1 NCR – Restraining Order – Notice to Quit – Respondent registered proprietor of land – Appeal pending – Maintenance of Status Quo – delay in making application – arguable case – overall interest of Justice – balance of convenience – undertaking as to damages – cost follow event.

Cases Cited:

Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte Acting Public Prosecutor, The State v [1976] PNGLR 344

Pora v Sepetio [1988-89] PNGLR 206

Pari and Kaupa v The State [1993] PNGLR 173

Kelo v Ipu [2020] PGSC 92; SC2003

Yanasa v Talkan [2017] PGNC 225; N6920

Counsel:

D.P. Kipa, for Applicant/Respondents

J. Lome, for Appellants

RULING

09^th November, 2020

1. MIVIRI, J: This is an appeal against the decision of the Port Moresby District Court made on the 27^th October 2018 in the proceedings DC 469 of 2019 Michael Jack & ors v Martin Maso & ors.
   
2. Pending the appeal the respondents are seeking an application by notice of motion pursuant to Order 12 Rule 1 of the National Court Rules, “the Rules” and Order 4 Rule 49 (5) (ii) (a) of the Rules an order restraining the appellants Martin Maso, Frank Laurie, Eric Piuk, Terence Tokaoson, Terry Joel, Gibson Opera, Luke Minjuk, Martin Kapo, Larson Wali, Rex Minao, Peter Kaki & Akita Narima and their servants and agents, relatives associates or persons under their direction or control be immediately restrained from disturbing, interfering, threatening, intimidating, harassing, confronting, and or disrupting the First Respondent and the Church members and the congregation of the Second Respondent.
   
3. I will deal with that application after consideration of the appeal as that is depended in my view on the outcome of the appeal, even though made before this court first in time. It is therefore logical to deal with the roots before the branches. Part XI of the District Courts Act 1963 as amended deals with appeals from decisions of the District Court. It is very thorough in the way it sets out to deal with the subject of appeals. And in my view that is the Code any appellant seeking to appeal a decision adjudication conviction from the District Court should follow to ensure their appeal is properly before the National Court and heard. Any failure to observe will be a hole where the appellant to be will fall out with their appeal. It is therefore important to examine the competency raised by the respondents.
   
4. Section 219 authors the appellant to do what he has done here to lodge the appeal from a decision or adjudication of the District Court. And under section 220 that is by way of a notice of appeal including recognizance on the appeal or other security to secure prompt prosecution. This is within one month after the day the decision is pronounced. Effectively that is 30 days within which to lodge the appeal. The notice is lodged with the clerk of court from where the decision emanates from here upon the Port Moresby District Court Clerk.
   
5. By section 221 the Notice of appeal must be in writing giving the grounds of appeal and this is within that one-month period. It must be served on the respondent or each of the respondents if there is more than one. And also, on the Registrar of the National Court. Fundamentally the appeal is from the decision, adjudication, conviction or order at first instance in this case from the decision by Port Moresby District Court presided by Magistrate Jimmy Tapat and therefore it is important to set out in full section 224 of the District Courts Act.
   
6. Section 224 Deposition, Etc., To be Forwarded to Registrar of National Court

(1) The Clerk of the Court the decision of which is appealed against, immediately after notice of appeal 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 adjudication; 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 when the 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 order or adjudication,

together, subject to Subsection (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.

7. By the authority of this section there should be a certified copy of the order or adjudication in the proceedings DC 469 of 2019 Michael Jack & ors v Martin Maso & ors. The reasons of the court presided by Magistrate Jimmy Tapat for making the decision that he did in that matter. These include the complaint and depositions together with any exhibits if any or description of the exhibits if he is unable to send them. All are certified as having come from that proceedings in that Court usually by the clerk of Court in fulfillment of this section. The appeal is mounted on giving effect to the dictate of the District Courts Act 1963 without which there is no appeal before the National Court. “The District Courts of Papua New Guinea are not courts of record but creatures of statute (viz. the District Courts Act 1963) and as such have only those powers vested in them by statute. Accordingly, the sentencing power of a magistrate of the District Courts is exhausted once he has pronounced sentence; he has, subject to the courts power to correct a slip, no power to make any alteration which amounts to a fresh adjudication; if any alteration goes further than mere correction of an error or a mistake, that part of the conviction or order may be quashed,” Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte Acting Public Prosecutor, The State v [1976] PGSC 20; [1976] PNGLR 344 (27 August 1976).
   
8. Because by section 229 this will become the basis upon which the appeal will be centred because the section is specific, “Evidence other than the evidence and proceedings before the Court by which the conviction, order or adjudication was made shall not be received on the hearing of an appeal, except by Consent of the Parties or by order of the National Court.” This will comprise the Judgement at first instance that is being challenged by the appeal. The challenge will be mounted on it. The grounds of appeal will derive from it. As with all other appeals what is sought is to point to errors apparent or identifiable so as to vitiate the decision at the first instance. And here also it is worth noting that the hearing is on the material led at first instance or upon consent of the party’s introduction of new material or by order of the National Court: Pora v Sepetio [1988-89] PNGLR 206 (25 November 1988).
   
9. Here is where the aspect of fresh evidence comes into play and as rightly pointed out by counsel for the respondent proper application will have to be made to introduce into the proceeding on appeal. The National Court will consider and determine whether to admit or not to. “Two requirements must be satisfied if fresh evidence is to be admitted on appeal. Firstly, there must be fresh evidence within the meaning of s 6(1)(a) of the Supreme Court Act Ch 37, which means evidence which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Secondly, the court must be satisfied that the justice of the case warrants admission of the evidence, Pari and Kaupa v The State [1993] PGSC 15; [1993] PNGLR 173 (20 December 1991). That cannot be what the appellant contends and seeks reliance upon in the appeal book tab 5 to 20. They are not fresh evidence admitted into the proceedings of the appeal. They have not become part of the appeal and as such have no basis in law to be considered. Any consideration upon them would be an error of law to do. Even then the appeal is not even in court as it were. There is no deposition that make up the appeal.
   
10. The present appeal has no depositions emanating from the District Court proceedings styled contended as DC 469 of 2019 Michael Jack & ors v Martin Maso & ors as part of the appeal book. It is the heart of this appeal proceedings. It is what is challenged here as being not observing principles of Natural Justice or of whether person includes singular or plural or is extended and if so in what way. Further the evidence led in that case considered by the learned Magistrate to arrive at his verdict and the orders emanating is not before nor is it part of the appeal book. That would also see the facts found the issues raised both in fact and law and the determination made to arrive at the verdict and orders emanating. All are not before me and are not part of the appeal book that is relied on in this appeal.
    
11. The proceeding there in the District Court was on the 27^th September 2018 and was against Martin Maso, Frank Laurie and all other illegal persons or people who unlawfully were residing on the land described as Portion 3685 Port Moresby NCD and voluntarily give possession to the 2^nd Complainant PNG Christian Fellowship Inc. It sought to evict the appellants from occupying that land Portion 3685 volume 89 Folio 186 which was a 99-year lease granted to the second respondent. Even this is not the depositions of the appeal so will not be a basis to hear and determine an appeal. It is information that should have prompted the appellant even more strongly to seek out and produce the deposition to make out the appeal book so that in law the appeal was properly before this court.
    
12. The arguments that have come from the appellants do not advance their cause intended before me. Because there are no depositions to measure out what they are saying to arrive at a determination. How is it expected to find that there is no observance of section 59 of the Constitution? Obviously, it cannot be from the affidavits that have since being filed. Because that is not the depositions and the reasons for the decision at first instance. But have come in along the way and cannot and will not be considered because they are not before the court at first instance. The rational is summed in this way by the Supreme Court, “Similarly, and in the present case, the missing part of the transcript of proceeding, makes it difficult or not possible for us to consider (i), the evidence that were adduced, (ii) the submissions that were presented by the parties, (iii), and the Court’s considerations or rulings if any, all of which could have occurred during that time. Without the information, we find grounds 3.4 and 3.5 unattainable, and so we dismiss them. We should end this with the remark that non-full disclosure of transcript of proceedings or delays in their provision or compilations, are valid grounds that may be relied upon by a party to summarily dispose an appeal, Kelo v Ipu [2020] PGSC 92; SC2003 (24 September 2020).
    
13. Appellant has by his own demise caused that the balance is in favour of the respondent in that the appeal is hereby dismissed forthwith. As the application for retraint was pursuant to that appeal depended on the appeal pending its determination in the interim it will not be necessary to effect and deliver a ruling pursuant because the proceedings holding is now dismissed and is no longer before this court. Interlocutory are depended on the substantive proceedings and will not hold further if the substantive has been determined as is the case here: Yanasa v Talkan [2017] PGNC 225; N6920 (29 September 2017).
14. 
    

Orders Accordingly.

__________________________________________________________________

Jefferson Lawyers : Lawyer for the Appellants

Wang Dee Lawyers : Lawyer for the Defendant