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Kanama v Sobendi [2019] PGNC 229; N7905 (10 July 2019)

N7905

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA N0.14 0F 2018

BETWEEN
MARY TAMO KANAMA
Appellant

AND
PAUL SOBENDI
&
ROBIN TIMOT
Respondents

Kokopo: Susame, AJ
2019: 05^th, 10^th July

DISTRICT COURT – Practice And Procedure – Appeals – Ss. 220, 221& 226 District Courts Act- Motion Seeking Dismissal Of Appeal Filed In Breach Of Requirements Of Ss. 220,221 & 226 - Non-Compliance Of & Consequence Thereof-

Cases Cited:

Rabaul Shipping Ltd v Rita Ruru (2002) N2022

Counsels:

Ms. C Pulapula, for the Appellant
Mr. K Pora, for the Respondents

RULING

10 July, 2019

1. SUSAME AJ: The appellant lodged an appeal against the decision of Rabaul District Court delivered on 19 December 2017, ordering her to pay K8000.00 damages for defamation. The respondents challenge the competency of that appeal by motion filed on 17 June 2019. The motion seeks dismissal of the entire appeal on following grounds:

1. For failure to file Notice of Appeal within the mandatory 30 days required time pursuant to section 220(2) of the District Courts Act,
2. For failure to file Recognizance on Appeal within the mandatory 30 days required time pursuant to section 222(1) of the District Courts Act.
3. For failure to file Entry of Appeal with the mandatory 40 days required time period after filing of the appeal pursuant to sections 226 & 227 of District Courts Act
4. For abuse of process pursuant to section 155 (4) of the Constitution and Order 12 Rule 40 of the National Court Rules
   

2. The motion also seeks enforcement of the judgment of District Court.

3. In support of the motion is the affidavit of Mr. Kenneth Pora representing the Respondents sworn on 17 June 2019 with the following attachments:

1. Sealed Copy of Rabaul District Court order marked “A”
2. Sealed Copy of Notice of Appeal filed 23^rd January 2018 marked “B”
3. Sealed Copy of Recognizance on Appeal filed on 23 January 2018 marked “ C ”
4. Sealed copy of Entry on Appeal filed 16 March 2018 marked “ D”
   

4. Appellant has filed an affidavit in reply sworn on 30 June 2019 defending her appeal. Appellant concedes that appeal documents were not filed within the statutory time requirements stipulated under sections 220 (2), 226 & 227 of the District Courts Act. Her reasons for the default are contained in paragraph 2 (i) – (v) which I will consider in due course.

Issue:

5. Whether the appeal filed in breach of statutory time requirements should be allowed to go through for hearing?

Law

6. The law in sections 220, 221 and 222 of District Courts Act is explicitly clear. The law makes it mandatory and obligatory for both Notice of Appeal and Recognizance on Appeal to be filed within one month after the day when the decision is pronounced. Section 226 provides a further mandatory directive for the appellant to enter the appeal for hearing on a date to be fixed by the Registrar of the National Court. He is required to do that within 40 days after filing the appeal in the District Court.

7. It is not contended appeal was filed outside of the mandatory one month within which to institute the appeal. Appellant concedes to that.

8. District Court decision subject of appeal proceedings was delivered on 19 December 2017. Court takes judicial notice of the sealed copy of the judgment of the court which appears on page 11 of the Appeal Book. Annexure “A” annexed to Mr. Pora’s affidavit is merely a copy of the proceedings of 15 December 2017 and is not the judgment of the court.

9. From 19 December 2017, one month would have lapsed on 19 January 2018. Appeal was instituted on 23 January 2018 which is 04 days outside of mandatory one month time frame. Sealed copies of the Notice of Appeal and the Recognizance on Appeal marked annexures “B” & “C” attest to that fact.

10. After instituting the appeal appellant is required to file an entry of appeal within 40 days in the National Court for the appeal to be heard. Commencing 19 January 2018, 40 days would have lapsed on 28 February 2018. In this instance entry of appeal was file on 16 March 2018 which is way outside of the mandatory 40 days.

11. In her affidavit appellant blames the Clerks of Rabaul District Court Registry of their lack of assistance which contributed to the delay in her filing her appeal within one month. Both the Clerk of Court and the Magistrate had gone for vacations. Similar reason is given for the delay in filing an Entry on Appeal within the compulsory 40 days.

12. Ms. Pulapula argued based on the above reasons court should allow the appeal to go through for hearing. I enquired with the counsel what authority she relies on to advance this argument. Counsel referred me to the case of Thomas v Thomas [2011] PGNC 325 N5142 (19 April 2011). I have read the judgment. Needless, to say I get no assistance from the case. It is of no relevance to the question posed and I concur with Mr. Pora.

13. Other than that, I have not been referred to any precedent in which court had ventured beyond the mandatory requirements of sections 220, 221 & 226 and allowed the appeal to be maintained in the exercise of its inherent powers under s155 of the Constitution.

14. In Rabaul Shipping Ltd v Rita Ruru (2002) N2022 Kandakasi J (as he then was) in his discussion of the mandatory requirements of sections 220, 221, 226 & 227 stated;

“The word “shall” is used in these sections. The words used in these provisions are so plain and clear that there is no room for any argument as to when and where an appeal can be lodged and when it should be prosecuted before the National Court. The words of s 220(2) makes it clear that an appeal against a decision of the District Court should be lodged with the Clerk of Court of the District Court by which the conviction, order or adjudication was made.

This must be done within a period of one month from the date of the decision appealed against. By virtue of s 221(2) sealed copies of the notice of appeal should be served on the respondent, or respondents if more than one also within one month from the date of the decision appealed against.”

15. His honour went on to state that failure to comply with the requirements of District Courts Act appeal provisions is fatal and renders the appeal non-existent. I adopt His Honour’s pronouncement as that is the position of the law on the issue.

16. Appellant cannot come to court and blame the District Court Clerical Staff of their inefficiency and the lack of assistance to file the relevant appeal documents. She was not happy with the decision. She had the right of appeal. Immediately when the decision was pronounced it was her duty to seek advice from the Clerks at the Registry of the process to follow in filing her appeal or alternatively seek legal aid from established law firms practicing in Kokopo or Rabaul or from the Public Solicitor’s Office. I am pretty sure someone in the legal fraternity would have assisted her.

17. It is clear from all of the above discussion the appeal was filed in breach of the mandatory requirements of sections 220, 221 & 226 of District Courts Act. It would be an abuse of process for the court to deal with the appeal filed in breach of the appeal provisions in the District Courts Act. The appeal proceedings is therefore frivolous and cannot be sustained. Accordingly, motion seeking dismissal of the appellant’s appeal is upheld.

Orders:

1. Appeal is dismissed.
2. Judgment of Rabaul District Court delivered on 19 December 2017 to be enforced.
3. Cost be in the cause.
4. The time of entry of this order is abridged to the time of settlement by the Assistant Registrar, which shall take place forthwith.
   

Public Solicitor: Lawyer for the Appellant
Warner Shand: Lawyer for the Respondents