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Tawi v Rawa [1997] PGNC 46; N1560 (22 April 1997)

Unreported National Court Decisions

N1560

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 408 OF 1995
BETWEEN:
OSCAR M TAWI - Appellant
And:
RORI RAWA - Respondent

Vanimo

Akuram J
21-22 April 1997

PRACTICE & PROCEDURE - Appeal - District Court - Failure To Comply with Appeal provision - S.219, 220, 221 & 222. - District Courts Act, Ch. 40.

PRACTICE & PROCEDURE - Appeal - District Court - Magistrate’s reasons - Comments not proper - s.225 District Courts Act, Ch. 40 - not complied with.

Counsel:

Appellant No Appearance

Respondent In person

22 April 1997

AKURAM J: This is an appeal against the decision of the AITAPE District Court. It was dated 3th of April pril 1995. It is nown when the decisiecision was made by the said Court. It is alt clear as to wha wha the grounds of Appeal. However, from the written tten Notice of Appeal by the Appellppellant, the following are said to be such gro

1. &#T60; lte atierationaof thof the Original Court Summons;

2. ; Proof ov Serofce of the Suhe Summons;

3. No writren ovepro Coofracttract of the agreement;

4. ҈&ـ Th or twasgdamaged and nevd never waer was dams damaged aged by myby myself and is not road worthy; and

5. ; T60 Comelainant Statat that the truck was used but the truck is not registered.

There were no other documents accompanying the above Notice of App#160;AssisRegisof thional Court then wren wrote oote on then the 14th 14th June June 1995 to the Clerk of Aitape District Court to furnish the following:

1. ټ&#T60; ece Recognizagnizance of Appeal.

2. ҈ Entry of Appeal to l to the National Court.

The Assistant Registrar also asked for the date of the decision to be provided. The AiClerk ort di resp#16sp#160;he same request was re-dated ated on thon the 18te 18th Dech December 1995 and sent to him. Again thas no response.&#1e. ssistant Rrar again faxed axed the same memorandum of 14th 14th June 1995 to the Clerk on the 22-2-96 and no response up until the da thission.

Then on the 2nd of August 1996, the the magistrate who presided over the case case appealed against took an unusual step writing to the Assistant Registrar raising his concern about the procedures of the Appeal. These are:

(1) &ـ Leave nave not grat granted under s. 219 (3) of the District Courts Act to Appeal out of time.

(2) ټ&##160;e is cognizannizance to Appeal accompanying the notice of Appeal.

Thip>This wass was the last correspondence on the matte60; There is still no Recognizance on Appeal and Entry of Appeal filed by the Appellant.

The Respondent appeared in person and made an application to dismiss this Appeal on following grounds:

1. ټ&##160; T60; That that the appellant is not present to prosecute the Appeal;

2. ـ҈ T60; That Apat Appellant did not ask for Stathe Oof Aitape District Court;

3. ¦  Tha; That it is an outing ding case from 1995; and

I have aded toider Application. Before I make my ruling I want to make following observations.ions.

1. & < LODGING OEALS

T

The Appeals from the decisions of District Courts are lodged at the District Court0; Thst pa the e of l muste the datthe decision, the nature of thef the comp complaintlaint and and the dthe decisiecision iton itself. The second part of the Nooice of Appeal contains the grounds of Appeal including the ground that because of the grounds already stated, the Appellant hadered substantial miscarriage of justice. None of these matters ever ever stated in thin the Notice of Appeal lodged. The second part can be corrected had the Appellant presented himself in court and explained his grounds of Appeal which could be reduced tper grounds of Appeal.&#160 As stand now, I am not clet clear as to his grounds of appeal except to say that Magistrates findings is against the weight of the evidence.

2. ҈& < < COMMENTS BY MRAISTTO THE ATHE ASSISTANT REGISTRAR

The Magistrate who presided over the trial of this matter from which the appeal arose had no auth to much cts. The oomments he can make aake are as peas per hisr his reas reasons for decision pursuant to section 225 which reads:

225.ټ Report by Magistrate.

(1) Wnere as re wons wers give given by the Court for the making of the conviction, order or adjudication, the Clerk of the Court the decision of which is appealed against immediately after the notf apps lodith him, shall noll notify tify the Mthe Magistrate who constituted the Court by which the conviction, order or adjudication was made, of the notice of appeal.

(2) Immediately after being notified of a notice of appeal under Subsection (1), the Magistrate shall forward to the Registrar of the National Court a written report setting out the reasons for the maki the ctioner or adjudicatiocation.&#1n. (60; (emphadded).

T

The Magistrate therefore is in no position to advise the Registrar as to the procedural requirements or otherwise on the grounds of Appeal nor is he in a position to tell the Registrar whether an Appeal be accepted or not for failure to comply with the District Court Appeal procedures. The tone of tgistrate̵’s comments infact tend to imply that he has infact decided on the merits of the Appeal whereas he should really have given his reasons for hcision. However, I have ignoredcoms comments as far afar as the Appeal is concerned.

3. DFTY ORKCLE COOFT ONRAPPEAAPPEALS

The duties of the Clerk of Court once an Appeal is lodged is set out ly unectio of tstricrts A160; is, terk shall forward to d to the Rthe Registegistrar trar the fohe followillowing:

(a) Copy ofothe , der;>

(b) & The reasons by the Magistagistrate;

(c) ; CopCompl