N10124
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 17 OF 2022

ORIRA DABADA OF GUBINI CLAN OF BARUNI VILLAGE, NATIONAL CAPITAL DISTRICT
Appellant

V
DAVID YALAL SITTING AS THE DISTRICT COURT OF PORT MORESBY, NATIONAL CAPITAL DISTRICT
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND
BOIO MORATA OF IAROGAHA CLAN OF KOROBOSEA VILLAGE, NATIONAL CAPITAL DISTRICT
Third Respondent

Waigani: Miviri J
2022: 05th & 6th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – Against Land Court Decision – Motion to dismiss – Order 18 Rule 12 (4) (a) (i) NCR – Summary Determination of Appeal – Failure to Comply with Appeal Procedures District Courts Act – Sections 219, 220, 221, 222, 226 & 227 District Courts Act  – Breaches Of Mandatory Procedures – Whether Could be Dispensed With – Section 231 Dispensing With Conditions Precedent Right of Appeal – No Basis By Appellant – Appeal Incompetent – Balance Discharged Dismissal of Appeal – Primary Court Orders Force Of – Cost Follow Event.

Cases Cited:

Aihi v The State (No 1) [1981] PNGLR 81 
Moses v Magiten [2000] PGNC 73; N2023  
Handii Mahn Investment Ltd v Kiwiki Enterprise Ltd [2018] PGNC 173; N7265
Kiiark v Luio [2020] PGSC 54; SC1964 
Takori v Yagari [2007] PGSC 48; SC905 
Gelu v Somare [2009] PGNC 21; N3647 
Philip v Tiliyago [2019] PGSC 17; SC1783 
PNG Deep Sea Fishing Limited v Critten [2010] PGSC 53; SC1126 
Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346

Counsel:

G. Tine, for Appellant
P. Kuman, for Third Respondent 
RULING
06th December, 2022

1.	MIVIRI, J: This is the ruling on the third respondent’s Notice of motion of the 9th November 2022, seeking dismissal of the appeal on the basis that in the filing of it, there is non-compliance of the mandatory appeal procedures under the District Court Act. There is no appeal because of this non-compliance. And the appeal must be summarily determined in consequent.

2.	Service of the Notice of motion is set out by the affidavit of Nicholle Bitas  Lawyer in the employ of the firm Kuman Lawyers. Who deposes that on the 16th November 2022 letters to appellants Lawyers Martha & Associates were served annexure “ NB1” and to the solicitor General annexure “ NB2”. It was initially set before the Deputy Chief Justice but because of his unavailability was set before Acting Justice Tamade and adjourned to the 24th November 2022 at 9.30am. It did not lead to a hearing there. But the subject Notice of motion of the 9th November 2022 was served then. Matter is properly before this Court for hearing.

3.	Applicant third Respondent invokes and relies upon Order 18 Rule 12 (4) (a) (i) of the National Court Rules upon which the application is based, on the basis upon which the entire appeal should be dismissed for non-compliance of the mandatory terms of the requirements of the right to appeal, set out by the District Court Act, provisions sections 219, 220, 221, 222, 226 and 227 of that Act. Section 219 gives the discretionary basis upon which this appeal is made by the appellant to the National Court. He being an aggrieved person with the decision at first instance by the District Court, First Respondent. And Section 220 is the Institution of that Appeal by way of a notice of appeal in accordance with Section 220 (1) (a) of that Act which is served on the respondents including the Registrar of the National Court. And further in satisfaction of section 222 recognizance of the appeal that he enters into by giving valuable security fulfilling. Which is done within one month after the subject decision challenged from the primary Court the first Respondent. And which period is the same for his intention to appeal also within a month after the day the decision is pronounced by lodging a notice of appeal with the Clerk of the Court by which the conviction, order or adjudication is made. 

4.	Section 220 (2) of the Act places on the appellant mandatorily to give notice of appeal by lodging that with the Clerk of the Court by which the Conviction, order or adjudication was made. And which Notice must be served the respondent or each of the respondents if there is more than one in the case, including the Registrar of the National Court. The effect of this notice of appeal will have the primary District Court Clerk forward the subject court depositions in accordance with section 224 to the Registrar of the National Court. And where no reasons are given in respect of the appeal the Magistrate hearing is called to submit a report on the basis of which the decision was made, section 225 of the Act.

5.	Importantly therefore the Notice of Appeal must state in writing the nature of the grounds of appeal fulfilling section 221 of that Act. And by section 226 the appellant would set the appeal down and give notice of that fact. This is within 40 days after the institution of the appeal, and he is required to enter it for hearing on a date to be fixed by the Registrar of the National Court. And which entry shall be made by delivering to the Registrar of the National Court a memorandum in the prescribed form signed by him, the appellant, or his lawyer. Because by section 227 of that Act if the appellant does not enter the appeal for hearing the original orders originating from the primary Court, either a conviction, order or adjudication stands and will be enforced against the appellant in whatever terms it is ordered adjudicated as if it were not appealed against.

6.	The facts relied upon by the third Respondent is that Orira Dbada owns land described as DA 599 and the third respondent owns the land DA 600. On portion 165 Central Province in 2013 the National Capital District Commission erected the Laloki Betel Nut (Buai) Market. Which culminated in a dispute between the Appellant and the third respondent each contending that portion 165 was within their respective land, appellant DA 599 and third respondent DA 600. The result was that the Betel nut Market was stalled from further development. The Appellant sought proceedings in the Central Local Land Court in Port Moresby for alleged trespass against the third respondent. Primarily it was really a dispute as to the boundary of DA 599 and DA 600. And in that local Land Court the proceedings instituted by the appellant were dismissed by that court presided by the first respondent. It issued the following orders:

(i)	The Complainant’s claim for trespass and damages against the Defendant is dismissed.
(ii)	The interim restraining orders of October 11, 2013 are discharged forthwith.
(iii)	The issue of ownership of land described as DA 599 and DA 600 is res judicata.
(iv)	The NCDC-erected  Laloki Betel Nut (Buai) Market in the Central Province is located within the boundaries of land described as DA 600 that is owned by the Defendant and his Uhandi Iarogaha Clan.
(v)	Costs of the proceedings are awarded to the defendant, to be taxed if not agreed.

7.	Appellant was aggrieved instituting an appeal in the Central Provincial Land Court which after a hearing on the 09th November 2015 was dismissed. Firming that dismissal of the appeal was misconceived and Central Provincial Land Court lacked jurisdiction to deal with and determine the appeal from the order of the initial court Central District Court delivered by the First Respondent on the 22nd July 2014. In summary the appellant had pursued the wrong Court for the matter and so his action suffered dismissal. He was out of time and sought proceedings before this court on the 29th December 2015 seeking leave to appeal out of time. Which has after seven years (7) being granted leave by this Court on the 11th August 2022 per Deputy Chief Justice Kandakasi who issued the following orders:

(i)	The Court now grants leave to the Plaintiff to file a Notice of Appeal against the Port Moresby District Court decision the subject of this proceeding.
(ii)	The Notice of Appeal Shall be filed and served by the 25th August 2022.
(iii)	The Costs of the proceedings are ordered against the Defendant to be taxed if not agreed.
(iv)	This Order concludes this proceeding subject to an enforcement of the Costs Order.
(v)	Time for entry of the order is abridged.

8.	Appellant following instituted this appeal on the by the Notice of Appeal on the 24th August 2022. And the recognizance of the Appeal on the 25th August 2022 with the entry of appeal on the 25th August 2022. In the case of the notice of appeal he filed it in the Waigani National Court Registry whereas it should have been filed in satisfaction of section 220 of that Act by lodging that with the Clerk of the Court by which the Conviction, order or adjudication was made. Here the Central Province District Court presided by the First Respondent. This is erroneous to section 220 of the Act and breaches it. And by section 222 recognizance of the appeal is filed also at the same time 24th August 2022 with the Central Province District Court not a day later on the 25th August 2022 as is the case here, and in the National Court Waigani. Again, that is an error and a breach of that section prompting that the appeal is not properly before the Court. Because the recognizance is against the orders and adjudication initially made by the Central Province District Court. It is not against the National Court as it did not have initial carriage of the matter the subject of the appeal to it. The recognizance is to the initial court at first instance whose decision is challenged by the appellant which is the case here. It is therefore erroneous and breaches section 222 of that Act. So, the entry of appeal cannot sustain as it does not have the basis to flow from. There is no source to it. In any case it has been filed in the Central Province District Court by the imprint of the stamp on it. It should bear out the stamp and seal of the Waigani National Court. It has not satisfied section 226 setting down the appeal and giving notice. Because the entry is to the Registrar of the National Court here Waigani fulfilling section 226 (2) of that Act. And it is within 40 days after the institution of the Appeal. Here it is dated the 25th August 2022. The notice of appeal is dated 24th August 2022. If he had followed suit by that law, it would have been dated the 10th October 2022 the fortieth (40) day when the entry of appeal should have been entered in the Waigani National Court Registry. Because if it is not entered within 40 days after the provisions of section 227 of that Act come into play. There is failure to enter the appeal for hearing and whatever orders that were made initially in the District Court come into play. Its enforcement and compliance has full effect as if it had not been appealed against.

9.	And that would be the case as the Notice of Motion of the appellant of the 10th November 2022 as it is without the jurisdictional basis, because dispensation is not against the requirements of the Orders of the National Court, or as he sets against order 12 Rule 1 or Order 18 Rule 12 (2) of the National Court Rules. The requirements that he seeks to dispense are set out in Part XI of the District Court Act and the empowering section is 231 of that Act. This notice of motion is not based on that section and does not derive any jurisdictional basis. It means in effect there is no notice of motion in law before me to consider. The affidavit relied on in support of the motion cannot be considered without the jurisdictional basis. And dispensation pursuant to section 155 (4) of the Constitution cannot eventuate as that section only facilitates what is there. It does not substitute section 231 and cannot come in without that fact in law, because that is not the spirit of that section when viewed in the light of Aihi v The State (No 1) [1981] PNGLR 81. She was convicted of wilful murder and serving life sentence for that crime. The appeal period had expired because she did not have the benefit of a lawyer in that jail to bring her appeal against the sentence that was imposed by the primary court. Giving effect to the 40-day appeal period by the law would have denied her quarrel against the sentence imposed. 

10.	Section 155 (4) facilitated so that she could exercise her right to seek substantial justice that would have been denied had there being stiff adherence to the time limitation imposed by Section 27 of the Supreme Court Act, 1975. She was seriously affected should section 27 be heeded hence section 155 (4) facilitated to hear her appeal and to derail the initial sentence imposed because as the Court said, “The orders that can be given under s. 155(4) of the Constitution are based on two assumptions. Firstly, that the person who seeks the order has the right (or standing) to apply for the order and secondly, the Supreme Court has the power or jurisdiction to make the order sought. The provision itself does not give the right and the power.”

11.	And in this regard reliance by the applicant on the decision of this Court in Moses v Magiten [2000] PGNC 73; N2023 (1 December 2000) is affirmed as law in this respect in all endorsed in full by Handii Mahn Investment Ltd v Kiwiki Enterprise Ltd [2018] PGNC 173; N7265 (3 April 2018). Reliance on Kiiark v Luio [2020] PGSC 54; SC1964 (12 June 2020) originates from section 231 in waiving and the notice of motion of the appellant is not sourced from it.

12.	Is this a clear case for summary determination for the Courts discretion to be invoked pursuant. And acceding would not deny a genuine cause of action instituted. It is by its facts and circumstances, ought to be summarily determined. There has been breach of the appeal process and procedure in the District Court Act set out above. It discloses no reasonable cause of action instituted by law following the dictate of the District Courts Act appeal procedure in Part XI. 

13.	This is a case where the grant of leave to appeal by this Court on the 11th August 2022 after nearly seven (7) years has not materialized with due process in law by the Appellant to institute this appeal. The result is that the respondent has had to sacrifice the fruits of the Judgement at first instance. The converse is that “our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside,” Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 (28th February 2007). 

14.	In other words rules did not take the hand of Justice away because there was non-compliance. Taking the hand of Justice away meant the body was not there to serve Justice. It was therefore no light matter. The facts and circumstances of the present in a way depict what is observed in Gelu v Somare [2009] PGNC 21; N3647 (16 April 2009). And extended further is would follow the same fate as in Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). Here there is affidavit material by lawyer for the appellant filing which does not advance his cause for his client in view of the breaches set out above. The appellant is at fault for non-compliance. It is not an application in accordance with PNG Deep Sea Fishing Limited v Critten [2010] PGSC 53; SC1126 (10 December 2010) to vary the directional orders of this Court of the 11th August 2022. But he pleads to save the cause of action as it is not the fault of the appellant. In my view his plea to save is not consistent with Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346 because there are no cogent or convincing reasons apparent or identifiable on the basis of which this application must be denied. There is substantial miscarriage of Justice that would occur and is apparent if the Appellant motion is granted. Because his challenge emanating the appeal is not by compliance of the law but against. And in that respects the motion of the respondent is made out and  granted.

15.	The orders of the Court are:

(i)	The Respondents motion to dismiss is granted as pleaded by his notice of motion of the 9th November 2022.

(ii)	The Appeal is dismissed in its entirety for breach of the appeal procedures of the District Court Act.

(iii)	The original primary orders at first instance of the 22nd July 2014 affirmed on 09th November 2015 are revived for all intent and purposes pursuant and enforceable against the appellant pursuant to section 227 of the District Courts Act.

(iv)	Costs will be against the Appellant in the cause.
Orders Accordingly.
__________________________________________________________________
Martha & Associates Lawyers: Lawyer for the Appellant		
Kuman Lawyers: Lawyer for the Respondent