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Pyako v Ganai [2024] PGNC 205; N10871 (1 July 2024)

N10871

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 28 OF 2023

BETWEEN:
ROLAND PYAKO
Appellant

AND:
HER WORSHIP TRACY GANAI
First Respondent

AND:
DAVID TU RAII
Second Respondent

Waigani: Purdon-Sully J
2024: 20^th June, 1^st July

APPEALS - District Courts - Appeal to National Court – Whether valid Entry of Appeal filed – Whether manner of institution of appeal an abuse of process – Failure to comply with District Courts Act fatal - Filing Notice of Entry of Appeal when appeal not ready – Abuse of process
PRACTICE & PROCEDURE – National Court – Appeals to – Want of prosecution – motion to dismiss – Failure to comply with time limits under District Courts Act – No satisfactory explanation for delay – Grounds of Appeal deficient – Prejudice –- Filing Notice of Entry of Appeal when appeal not ready – Abuse of process – Applicability of s 155(4) of Constitution – Appeal dismissed

Cases Cited:
The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349
Kiau Nekints v. Moki Rumints [1990] PNGLR 123
Kimbe Bakery Pty Ltd v Jalatang (1993) N1274
ABCO Transport Pty Ltd v. Timothy Sakaip [1997] PGNC 65; N1577
Moses v Magiten [2000] PGNC 73; N2023
Kong v Tai [2023] N10403
Seravo v Bahafo (2001) N2078
Latu v Kua (2007) N315
Kiiark v Luio [2020] PGSC 54; SC1964
Kingal v State [2008] PGNC 147; N3498
Nipo Investment Ltd v Nambawan Super Ltd [2017] PGSC 45; SC1642
Kirin v Paroda [2004] PGNC 177; N2599
Yandu v Waiyu [2005] N2894
Jant Ltd v Jell [2003] N4953
General Accident & Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331

Legislation:
National Court Rules, Order 18 Rule 12(4)(a)(i)
District Courts Act (Ch.40), ss. 220, 221, 226, 227 & 231
Constitution, s 155(4)

Counsel
R Awalua, for the Applicant/Second Respondent
L Aigilo, for the Respondent/Appellant

DECISION

1^st July 2024

1. PURDON-SULLY J: On 29 November 2023 the District Court entered judgment against the appellant in the Port Moresby District Court granting the second respondent eviction and vacant possession within 14 days of real property to which the second respondent held title.
   
2. On 11 December 2023 (misdescribed on the front sheet as 11 December 2019) the appellant lodged an appeal in the District Court against the decision.
   
3. By Notice of Motion filed 20 February 2024, supported by an affidavit filed the same date, the applicant who is the second respondent to the appeal seeks an order pursuant to Order 18 Rule 12(4)(a)(i) of the National Court Rules (NCR) dismissing the appeal for want of prosecution for non-compliance with the provisions of s 226 of the District Court Act in that the appellant did not file his Entry of Appeal within the required 40 days after the appeal was instituted. Alternatively, the applicant/second respondent seeks dismissal of the appeal on the basis that the grounds of appeal are too general.
   
4. Order 18 Rule 12(4)(a)(i) of the NCR provides that the Court may summarily determine an appeal on an application by a party.
   
5. The appellant seeks dismissal of the Notice of Motion and that the matter be returned to the Registry for progression of the appeal.
   
6. In these reasons I shall describe the parties as they are named in the appeal, that is, as the ‘appellant’ and ‘second respondent’.

CONTEXTUAL BACKGROUND

7. By way of background, the following facts, supported by documents in evidence, do not appear in contention:
   1. On 9 July 2001 the appellant acquired title to land at Section 467, Allotment 12, Hohola, Port Moresby (the land) subject to a mortgage in favour of the ANZ Banking Group.
   2. The appellant thereafter lived on the land with his extended family.
   100. On 3 May 2007 the mortgage in favour of the ANZ Bank was discharged.
   4. On 26 September 2011 the appellant re-mortgaged the land to the National Development Bank Limited (NDB).
   5. On 28 April 2017, the NDB, asserting default, issued a Letter of Demand to the appellant in the sum of K246,893.70.
   6. On 25 July 2018, the NDB issued a further Letter of Demand to the appellant in the sum of K218, 895.21.
   7. The appellant issued legal proceedings against the NDB in the National Court (HR (OS) No 4 of 2021). On 26 April 2022 consent orders were made in those proceedings which inter alia provided that the appellant pay to the NDB the sum of K150,000 within 2 months of that date with the appellant to then file a Notice of Discontinuance.
   8. The appellant did not make the payment as ordered.
   9. The land was then offered for sale by tender as a Mortgagee Sale by way of public notice.
   10. The second respondent successfully tendered for the property and on 1 September 2023 entered a contract of sale with NDB.
   11. On 2 October 2023 the appellant filed a Human Rights Enforcement Application asserting breach of his human rights by the NDB, the lawyers for the NDB and his own (unnamed) lawyer.
   50. The appellant also lodged a caveat over the land.
   13. By letter dated 9 October 2023 the NDB wrote to the Registrar of Titles inter alia seeking removal of the caveat and change of ownership on the title.
   14. On 12 October 2023 the second respondent issued eviction proceedings in the District Court.
   15. On 26 October 2023 the land was transferred to the NDB as mortgagee exercising power of sale.
   16. On 1 November 2023 the second respondent acquired title to the land.
   17. On 29 November 2023 the Port Moresby District Court handed down a decision in favour of the second respondent.
   18. On 8 December 2023 the appellant filed a document titled Notice of Intention to Appeal in the District Court at Port Moresby.
   19. On 11 December 2023 the appellant filed a Notice of Appeal and Recognizance of Appeal in the District Court.
   20. On 12 December 2023 the appellant filed a Notice of Appeal in the National Court.
   21. On 12 December 2023 the appellant filed an Entry of Appeal incorrectly described on its cover sheet as a Notice of Appeal.
   5. On 22 December 2023 on the appellant’s application, orders were made by the National Court to stay the eviction order the subject of appeal and restrain the second respondent from executing the eviction orders and interfering with the land pending further order.
   23. On 9 January 2024 the appellant filed an Amended Notice of Appeal and Amended Recognizance in the District Court.
   10. On 20 February 2024 the second respondent filed a Notice of Motion seeking dismissal of the appeal.
   25. On 20 March 2023 the appellant’s current lawyers filed a Notice of Change of Lawyers.
   26. On 11 April 2024 the appellant filed a Draft Appeal Index.
   27. On 14 May 2024 the second respondent’s application to dismiss was heard and a decision reserved.
   28. On 3 June 2024, on the Court relisting the matter, the Court brought to the attention of the parties the existence of the misdescribed Entry of Appeal filed 12 November 2023 and sought further submissions in writing.
       
8. It is not in dispute that the hearing of the application of the second respondent on 14 May 2024 proceeded on the basis that the appellant had not filed an Entry of Appeal.

MATERIAL RELIED UPON

9. The second respondent relies upon the Notice of Motion and his affidavit filed 20 February 2024 and written submissions filed 3 May and 11 June 2024.
   
10. The appellant relies upon his affidavits filed on 6 March and 12 April 2024 together with an affidavit of service and written submissions filed 9 May and 20 June 2024.

ISSUES

11. The issues are:
    1. Whether the document filed 12 December 2023 was a valid Entry of Appeal and if not, whether the appeal should be dismissed by reason of the appellant’s failure to file a valid Entry of Appeal within 40 days of the filing of his appeal, and if a valid document whether its filing amounts to abuse of process by reason of the appeal not being ready for hearing at the date of its filing;
    2. whether the appeal should be dismissed for failure to disclose arguable grounds;
    100. whether the appellant’s institution of his appeal by way of Notice of Intention to Appeal was an abuse of process; and
    4. whether the Court should exercise its discretion in favour of either the appellant or second respondent as sought under s 155(4) of the Constitution based on the Court’s inherent power to make such orders as are necessary to do justice in the circumstances of the particular case.
       

CONSIDERATION

12. It is convenient to address the above issues as identified in narrative format as a consideration of each will touch on the other.
    
13. It is settled law that District Courts are not courts of record, but creatures of statute. Their powers, functions and anything to do with them are governed by their enabling legislation, the District Courts Act (Ch.40) (the Act). As a consequence, all things not done in accordance with the Act are null and void and of no effect (The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349; Kiau Nekints v. Moki Rumints [1990] PNGLR 123; Kimbe Bakery Pty Ltd v Jalatang (1993) N1274; ABCO Transport Pty Ltd v. Timothy Sakaip [1997] PGNC 65; N1577; Moses v Magiten [2000] PGNC 73; N2023 (Moses)).
    
14. Appeals from the District Courts are governed by Part XI of the Act. Sections 219 to 246 set out the practice and procedure prescribed by the Act for civil and criminal appeals from the District Court to the National Court. These provisions also define the powers of the National Court on appeal including the enforcement of District Court orders affirmed on appeal.
    
15. For present purposes ss 220, 221, 226 and 227 relevantly provide as follows:
    
    220. Institution of appeal.

(1) An appeal under Section 219 shall be instituted—

(a) by notice of appeal; and

(b) by entering into a recognizance on appeal, or by giving other security as specified in Section 222.

(2) An appellant shall give notice of his intention to appeal by lodging, within on month after the day when the decision is pronounced, a notice of appeal with the Clerk of the Court by which the conviction, order or adjudication was made.

221. Notice of appeal.

(1) A notice of appeal under Section 220 shall be in writing, and shall state the nature of the grounds of appeal.

(2) Within one month after the day on which the decision was pronounced, a copy of the notice of appeal shall be served by or on behalf of the appellant on—

(a) the respondent, or on each of the respondents if more than one; and

(b) the Registrar of the National Court.

226. Appellant to set down appeal and give notice.

(1) Within 40 days after the institution of an appeal, the appellant shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court.

(2) An entry shall be made by delivering to the Registrar of the National Court a memorandum in the prescribed form, signed by the appellant or by his lawyer and containing the prescribed particulars.

227. Failure to enter appeal for hearing.

If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.

16. Relevantly section 231 further provides:
    

231. Dispensing with conditions precedent.

The National Court may—

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and

(b) on application made ex parte by the party appealing—extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.

17. The Court has a wide discretion when determining an application to dismiss a proceeding for want of prosecution and non-compliance with procedural and/or statutory requirements. The principles to be applied when exercising that discretion are settled. They were summarised by Shepherd J in the recent decision of Kong v Tai [2023] N10403) at [50] to involve a consideration of five (5) principles as follows:
    1. Has the plaintiff’s default been intentional or contumelious or has there been inordinate and inexcusable delay in the prosecution of the claim;
    2. Has a reasonable explanation for the delay been given;
    100. Has the delay caused an injustice or prejudice to the defendant;
    4. Does the conduct of the parties and their lawyers warrant a dismissal of the proceedings;
    5. Is the dismissal of the proceedings in the interests of justice.
       
18. These principles will be considered during the course of the Court’s discussion of the issues.
    
19. As noted in my recitation of the background facts, at the initial hearing of the matter on 14 May 2024, the submissions proceeded on the basis that it was conceded that the appellant had not filed an Entry of Appeal, a document required to be delivered to the Registrar of the National Court in prescribed Form 73, as contained in Schedule 2 of the Act, the effect of which is to certify that the appeal is ready to proceed.
    
20. The second respondent submitted that once the appellant filed his appeal he was obliged by s 226 of the Act to enter the appeal for hearing by this Court within a period of 40 days from the date of the lodgement of his appeal, his failure to do so attracting s 227 of the Act and rendering his appeal non-existent. In response, it was submitted on behalf of the appellant that the provisions of ss 226 and 227 were not mandatory requirements that were tantamount to dismissal of the appeal.
    
21. The misdescribed Entry of Appeal filed 12 December 2023 having been discovered subsequent to that hearing, and further written submissions taken by the parties:
    1. It is submitted on behalf of the second respondent inter alia that:
       1. the misdescribed Entry of Appeal, prepared by the appellant’s former lawyers, is not a proper entry of appeal because it is wrongly worded, however if found to be a valid entry of appeal it is an abuse of process in that it was filed without the appeal documents being ready for hearing and even to the 40^th day; and
       2. the manner of institution of the appeal by way of the filing of a Notice of Intention to Appeal was also an abuse of Court process.
    2. It is submitted on behalf of the appellant inter alia that:
       1. the document is a valid Entry of Appeal, the second page in the form as prescribed by the Act, the misdescribed cover page an oversight or mistake, and had they had knowledge of its existence they would have made formal application to amend the document;
       2. the Court has a discretion under s 155(4) of the Constitution to do justice in the circumstances, a discretion the Court should exercise in favour of the appellant where the document is in substantial compliance with the relevant form under s 226 of the Act.
          
22. With respect to how the document filed on 12 December 2023 should be treated, the contents of the letter of 9 January 2024 from the appellant’s former lawyers to the Clerk of the Court (Annexure “A” to his affidavit filed 11 April 2024), support the view that the appellant did not intend to rely upon the misdescribed document filed on 12 November 2023. This is because in their letter marked “URGENT” the lawyers for the appellant after noting they had filed a Notice of Appeal and Recognizance of Appeal on 12 December 2023, acknowledged their client needed to file an Entry of Appeal in the National Court proceedings and the approaching statutory deadline as follows:

We confirm after having filed the Notice of Appeal, you are yet to forward to the Registrar of the National Court certified copies of the Court depositions and the transcripts for the Applicant to compile and file an Appeal and make an Entry of Appeal at the National Court fro(sic) the Registrar to set a date for the substantive appeal.

[Emphasis added]

23. There would be no need to make mention of the need to make an Entry of Appeal if it had already been done. Further, the fact the misdescribed document had been filed on 12 December 2023 does not permit a conclusion it was intended to be relied upon given that its form was incorrect, where an amended appeal and recognizance was filed on 9 January 2024, the same date as the letter aforesaid and where as these reasons will show, the appeal could not have been ready for hearing on 12 December 2023, the date of its filing. I am reinforced in that view because it seems to me that there would have been no need for the appellant to formally seek a stay of the District Court order which was made on 23 December 2023 as the filing of an entry of appeal, if relied upon, would have operated as an automatic stay of the decision of the District Court until the appeal was determined Kingal v State [2008] PGNC 147; N3498 (Kingal) at [20]). Further the purpose of filing an entry of appeal would be to inform the Court the matter was ready to proceed to hearing which was not the case as at 12 December 2023.
    
24. The submission, then, on behalf of the appellant at [12] of further submissions filed 20 June 2024, to the effect that the appellants former lawyers who prepared the document intended the misdescribed Entry of Appeal to be relied upon, lacks evidentiary support and is not otherwise persuasive.
    
25. However, for the reasons to be expanded upon shortly, a determination either way on whether the misdescribed Entry of Appeal is a valid document will not alter the outcome of the application to dismiss before the Court. This is because, if the document is not a valid Entry of Appeal, then the appellant has failed to comply with the mandatory requirements of s 226 of the Act, he adducing no persuasive evidence to support an exercise by the Court of its discretion in his favour to relieve him of that obligation and in consequence, his appeal should be dismissed for want of prosecution. If the document is a valid entry of appeal, then it’s filing was an abuse of process because the appeal was not ready when the Entry of Appeal was filed and the appeal should be dismissed.
    
26. My expanded reasons for reaching that conclusion will proceed on a consideration of the matter on two bases: if the document is not a valid entry of appeal and if it is.

If the document is not a valid entry of appeal

27. The Court accepts that the provisions of ss 226 and 227 of the Act are mandatory requirements. In the oft quoted case of Moses, Kandakasi J (as he then was) said the word “shall” as used in ss 220, 221, 226 and 227 of the Act, are words “so plain and clear that there is no room for any argument....” as to how an appeal is to be lodged and prosecuted in the National Court.
    
28. Once his appeal was lodged, the appellant was obliged by s 226 to enter the appeal for hearing by the National Court within a period of 40 days from the date of the lodgement of the appeal, that is by 20 January 2024. The consequential effect of non-compliance with s 226 as provided in s 227 of the Act is that there is no appeal on foot that can be prosecuted.
    
29. While the non-compliance of any statutory time limit must always be viewed as a serious matter, the Court has a discretion to waive compliance with the provisions of s 226 if an appeal is not ready for hearing before the National Court within 40 days from the date of its filing by reason of factors that prevented an appellant from promptly prosecuting his appeal (Moses; Seravo v Bahafo (2001) N2078; Latu v Kua (2007) N3151 (Latu); Kiiark v Luio [2020] PGSC 54; SC1964 (Kiiark) at [61 – 63]).
    
30. The onus lies with the appellant to show that such factors exist. If the appellant has not led appropriate evidence to prove the existence of such factors, then, as the Court said in Moses, the appeal should be dismissed for want of prosecution.
    
31. The evidence does not support a finding that the plaintiff’s default was intentional or contumelious, or that his conduct or that of his lawyers rise to the level of dismissal or that the delay in the prosecution of his claim was inordinate. The relevant considerations are whether the appellant has failed to provide a reasonable explanation for the delay, whether there has been an injustice or prejudice to the second respondent as a consequence that cannot be reasonably addressed and whether a dismissal of the appeal would serve the interests of justice.
    
32. On the evidence the appellant has not adequately explained his non-compliance with s 226 of the Act. He is best placed to provide a clear explanation and the Court must decide issues based on the evidence.
    
33. The appellant relied upon two affidavits: an affidavit filed on 6 March 2024, which he prepared himself, and an affidavit filed 12 April 2024 prepared by his current lawyers. The matters deposed to in those affidavits do not sufficiently explain why an Entry of Appeal in proper form was not able to be filed by 20 January 2024 or why, if that deadline could not be met, the appellant could not have made application to this Court to extend the time for compliance as prescribed, supported by an affidavit explaining why he could not comply, had arguable appeal grounds on which to proceed and that the delay had not caused any prejudice to the respondent.
    
34. The appellant, who was at the time legally represented, was able to make application and obtain an order on 22 December 2023 staying the decision of the District Court Order. He was also able to file through his former lawyers an Amended Notice of Appeal on 9 January 2024 (albeit no longer relied upon), all occurring within the 40 day time period required to prosecute his Appeal. It was clear from the contents of the letter of 9 January 2024 aforesaid that his former lawyers were aware that time was a pressing issue. The appellant however deposes to no further attempts (by reference to date) after the 9 January 2024 to obtain Court documents if there had been a delay in receiving same.
    
35. The appellant’s affidavit filed 6 March 2024 does not advance matters. He deposes to why he feels aggrieved by the decision of the primary Judge. He deposes to Court documents being served on him on 22 February 2022 and an inability to get the documents to his lawyers who were not available in the NCD. He does not particularise the documents served, albeit by reasonable inference on the evidence they relate to the second respondent’s Notice of Motion to dismiss which had been filed two days earlier on 20 February 2024. He does not address his failure to file the Entry of Appeal by 20 January 2024 by reason of him not having received the transcript and Court depositions or by reason of difficulties with his legal representation. He does not provide a date for his conversation with the registry clerk, Jimmy, when informed the depositions and transcript were available at the National Court Registry and ready for compilation of the Appeal Book. While the deficiencies in his affidavit may be explained, in part, by the preparation of the affidavit himself – he is not a lawyer and cannot be expected to understand what may be relevant - it is not for the Court to fill in the evidentiary gaps. Nor is it open to the Court to conclude that he had no access to legal advice at the relevant time. He does not depose to that being the case. There is no evidence from the appellant that his former lawyers failed to keep him informed of the progress of his matter, including failing to provide him with copies of communications sent on his behalf to prosecute his appeal.
    
36. In his further affidavit filed 12 April 2024, prepared by his current lawyers, the appellant had an opportunity to clarify his earlier evidence and thus provide a reasonable explanation for the delay. He failed to do so. He adduced no evidence that the District Court depositions or transcripts were unavailable within the relevant time period. It would be a simple matter to give that evidence if it was the case. As evidenced by the letter of his former lawyers dated 9 January 2024, earlier noted and annexed to his more recent affidavit, a verbal request was made by the appellant’s former lawyer for a transcript and court deposition on 12 December 2023. There is no evidence however of what, if any, follow ups were made between 12 December 2023 and 9 January 2024 in that regard or thereafter in the lead up to 20 January 2024. Again, the appellant does not depose that he did not have access to his lawyer or his lawyer was on holidays or the time of year was problematic in advancing his appeal preparation. The Court takes judicial notice of the fact that, save for the public holidays, the Court Registry was not closed over the Christmas break.
    
37. On the appellant’s evidence the requested documents had been sent to the National Court and the file was in the Judge’s chambers. He does not depose to the date he was so advised. He adduces no evidence of the relevant time-line or any attempts to obtain the documents from the Judge’s chambers, and if so, when that may have occurred. On his evidence he obtained a copy of the District Court file and instructed his lawyers to draft the index to the Appeal Book. He does not depose to the date those instructions were given. The evidence is silent on when the documents were received. It is not difficult evidence to give and as such, the failure to give it entitles the Court to conclude that lack of access to that material on a timely basis was not a reason for his non-compliance. On his deposition after receiving the file he instructed his lawyers, it appears his current lawyers, to draft an index to the appeal book however an Entry of Appeal had yet to been filed by him, a circumstance conceded at the hearing on 14 May 2024. While on his evidence a Draft Index to the Appeal Book was filed on 11 April 2024, that fact does not entitle the Court to assume that that date had some relevance to receipt of any documents requested from the Court.
    
38. In short, the appellant provides no chronology to assist the Court in understanding with clarity what factors may have prevented the filing of an Entry of Appeal by the due date or why an application to dispense with the requirement to do so could not have been made. Put another way, it is unclear on the evidence why by 20 January 2024 the appellant was not in a position to file an Entry of Appeal he intended to rely upon or seek an extension of time to do so, given the clear legislative intent to have all appeals from the District Court heard after the lapse of 40 days from the date of lodgement of the appeal, and the need for delay to be satisfactorily explained if a dismissal of the decision appealed against was to be avoided and where, as the Court said in Moses, a failure to provide such an explanation is fatal to an appeal.
    
39. The authorities the Court was asked to consider by the appellant, including Kingal and Kiiark, do not permit a contrary conclusion.
    
40. Relevantly, there is no evidence to explain why at a time when the appellant and his lawyers were labouring under the belief that no Entry of Appeal had been filed, the appellant did not file an Entry of Appeal in the proper form. The appellant came to Court on the hearing of the second respondent’s application to dismiss, seeking to progress the appeal without filing the one document that tells the Court the matter was ready for a hearing.
    
41. It is a delay that has caused an injustice or prejudice to the second respondent. While there is no direct evidence of prejudice, it can be imputed. It is the appellant who is appealing the judgment of the primary Judge, the second respondent prima facie entitled to the benefit of that judgment. The appellant has the carriage of the action he institutes with an expectation that he, as a legally represented party, knows and will comply with the requirements for instituting his appeal. In filing his recognizance, for example, the appellant inter alia promises to that his appeal and that he will prosecute it “without delay”. By reason of the delayed appeal the second respondent has been unable to reap the benefit of a successful judgment order made seven (7) months ago), one that enabled him to gain vacant possession and access to real property to which he holds legal title. That is a significant prejudice.
    
42. Further, the importance of strict compliance with time requirements is to “ensure that the difficult and often complex process of litigation occurs in an ordered manner, meeting the expectations of the Court and all parties.” (Nipo Investment Ltd v Nambawan Super Ltd the Full Court (Murray, Collier, Geita JJ) said at [9]). That principle is highlighted by the circumstances of this case. Given the legislative intent of the Act that underscores the importance of time requirements on appeal, even a small delay may give rise to prejudice. Where the legislative intent in Part XI of the Act is expedition, that prejudice has been exacerbated by a further delay in addressing the appellant’s own misdescribed Entry of Appeal, which it is asserted his current lawyers had no knowledge of at the hearing on the 14 May 2024 and upon which the appellant now seeks to place reliance.
43. There is a further matter that must be considered by the Court and that is whether the appeal grounds are arguable. While the second respondent relies upon this ground as an alternative basis for dismissal of the appeal, it is one of the tests referred to by Lay J at in Latu (supra). It is an issue that also goes to a consideration of the interests of justice and, as such, can be conveniently dealt with now.
    
44. It is submitted on behalf of the appellant that there are serious issues to be tried and that the proceedings disclose reasonable grounds of appeal. The Court however finds that the grounds as outlined in the Notice of Appeal lack sufficient specificity and/or clarity.
    
45. Section 221(1) of the Act requires the appellant to “state the nature of the grounds of appeal”. It is settled law that the duty is always on the party to plead their case. To that end, a party in any Court proceedings must be specific and clear in their pleadings by stating with particularity the grounds relied upon to demonstrate that the decision was against the weight of the evidence and the specific reasons why it is alleged in law to be wrong (Kirin v Paroda [2004] PGNC 177; N2599 (Kirin)). What grounds can be discerned from the Notice of Appeal as pleaded do not meet this requirement, enabling the second respondent to know the case he is required to meet and the Court, as arbiter, the substantial miscarriage of justice being asserted by the appellant as the basis of his appeal.
    
46. In Kirin, Kandakasi J (as he then was) said:

The appeal process is there not to enable an aggrieved party to have a second rehearing of the whole case after a court of competent jurisdiction has dealt with the matter on its merits. A decision after that process resolves and should resolve the matters in dispute between the parties subject to an aggrieved party’s right of appeal on very good grounds or reasons. The process is therefore there to enable a party which has a genuine and meritorious ground to challenge the decision of the Court below. It is thus necessary for such a party to specify with sufficient particulars the grounds or reasons for his appeal. This would enable the opposing party to know at the outset the basis for the appeal, prepare, and present his or her response or where possible, consent to the relief sought. At the same time, it enables the appellate Court to know the basis of the appeal and determine whether it is meritorious or not. This is important in the case of appeals from the District Court to the National Court because of s. 230 of the District Courts Act. This provision provides that "if it appears to the National Court that there has been a substantial miscarriage of justice", it can uphold an appeal.

It follows therefore that, where a purported ground of appeal is too general and not specific on the real basis for the appeal, it stands the risk of a strike out or dismissal for not disclosing a reasonable ground of appeal.

47. In the present case grounds 2 (i) and (ii) of the Notice of Appeal, do not state how a failure to go through the Court’s file not in the courtroom, prior to Her Honour handing down her decision, was an error of law by reason of insufficient consideration of the evidence. Further ground 2(ii) is unclear as to why the learned primary Judge lacked jurisdiction amounting to an error of law, the ground, as presently pleaded, seeking to join several propositions into one. Ground 2(iii) is confusing in its drafting, failing to specify with sufficient particularity the grounds or reasons for the primary Judge erring in law and fact. Ground 2(iv) does not particularise how and by reference to which principle in the noted cases the primary Judge erred in law and fact. The identified decisions of Yandu v Waiyu [2005] N2894 and Jant Ltd v Jell [2003] N4953 consider a number of principles. Ground 2(v) similarly does not state with particularity how the primary judge fell into error by failing to consider the matters outlined.
    
48. The Court accordingly finds that the grounds of appeal do not disclose a reasonable ground of appeal by reason of a lack of specificity or clarity.
    
49. Seeking to clarify the pleadings in written or oral submissions and/or raising further grounds does not rectify the defect in the grounds of appeal as pleaded in the Notice of Appeal.
    
50. In written and/or oral submissions the appellant is also alleging collusion between the NDB and the respondent and/or fraud issues. At [14] of the most recent written submissions filed on his behalf on 20 June 2024 the appellant asserts “serious allegations of fraud against the Second Defendant and NDB...”. None are raised in any of the grounds of appeal. In oral submissions Counsel for the appellant was unable to assist the Court by articulating with particularity the basis of his client’s complaints with respect to what the second respondent should have done prior to purchasing the property other than by way of an appeal to asserted due diligence duties (unparticularised) and notions of common sense and the justice of the matter. However, there is no evidence that the respondent was other than a third-party arms length purchaser for value of real property from a vendor bank mortgagee in possession exercising its right to take control of a property due to non-payment of the mortgage by the appellant, the land sold through a publicly advertised tender process. Counsel for the appellant conceded, for example, that in separate legal proceedings involving the bank and the appellant, the appellant had failed to meet the terms of a consent order on 26 April 2022 that he pay K150,000 to the bank within two months. Whilst it was asserted, from the bar table, that the order was not made with the consent of the appellant, the plain terms of the order suggest otherwise, with no evidence that the appellant thereafter took any steps to rectify that asserted inaccuracy in the two year period since the order was made. Further, it is unchallenged that the appellant has not initiated, by way of Writ of Summons, proceedings to disturb the second respondent’s title to the land.
    
51. It is trite law that allegations of fraud must be pleaded with specificity and those allegations cannot be tried in a court of law if not pleaded. The appellant has not applied for and obtained leave to include these or the other additional grounds of appeal he raises in submissions, the time for them having expired without leave.
    
52. The Court acknowledges the need to tread carefully before extinguishing a litigant’s right to appeal a decision in respect of which they feel aggrieved (General Accident & Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331). However, the requirement for expedition that underpins the relevant rules, resultant prejudice to the second respondent, the absence of persuasive evidence by the appellant to adequately explain the factors that prevented him from complying with a clear requirement in the form of s 226 of the Act or seeking an extension of time to do so and the defects in his pleading of the grounds of appeal are fatal to his case.
    
53. The interests of justice sound in dismissal of the appeal for want of prosecution. The grounds for dismissal on the second respondent’s alternative ground is also made out.

If the document is as valid entry of appeal

54. If the misdescribed Entry of Appeal filed 12 December 2023 is to be regarded as a valid entry of appeal, the appeal should be also dismissed. This is because the appellant filed an entry of appeal on the day after he filed his Notice of Appeal in the District Court and the same day of lodgement of his appeal in the National Court.
    
55. In doing so he was informing the Court that as of 12 December 2023 the appeal was ready for hearing. That was not the case on his own evidence. Nor was the appeal ready at the time of the hearing of the motion seeking to dismiss the appeal for want of prosecution. The filing of the Entry of Appeal at that time was an abuse of process, the Court’s conclusion to that end supported by authoritative pronouncement in Moses (supra).

Does the institution of the appeal also amount to an abuse of process?

56. No issue was taken with the appellant filing a Notice of Appeal in two different Courts, an issue addressed in Kiiark where the Supreme Court (Salika CJ, Mogish & Shepherd JJ) held that whereas s 220(2) and s 221(2) of the Act require an appellant to lodge the original of a notice of appeal against a decision of the District Court with the Clerk of that District Court and to then serve a copy of the notice of appeal on the Registrar of the National Court, Order 18 Rule 5(1) of the NCR contemplates the lodgement of the original of the notice of appeal with the Registrar of the National Court, not the Clerk of the District Court.
    
57. It is, however, submitted by the second respondent that, although not sought in the second respondent’s initial application, the appeal was wrongly instituted by the filing of a Notice of Intention to Appeal, a circumstance that represents an abuse of Court process. The Court accepts that an appeal is instituted by way of Notice of Appeal, not by the filing of a Notice of Intention to Appeal, however it was not a circumstance that came to light following the Court making the parties aware of the existence of the misdescribed Entry of Appeal. The second respondent was aware of the filing at the hearing on 14 May 2024 and did not raise it as an issue (see [17] of the affidavit of the second respondent filed 20 February 2024).
    
58. While the Court also accepts that it has a responsibility to protect its processes from abuse, unlike the misdescribed Entry of Appeal it was not a defect that on the evidence resulted in a prejudice to the second respondent. None was asserted and none can be imputed. It was not a document on which the appellant sought to rely at any stage. The Court is accordingly unable to conclude that its filing gives rise to an abuse of process that in and of itself should lead to dismissal.

The application of s 155(4) of the Constitution to the facts of this case

59. Finally, I am not persuaded that the Court should, on the submissions of the appellant, exercise the discretion conferred on it under s 155(4) of the Constitution in his favour to dismiss the motion of the second respondent, based on the Court’s inherent power to make such orders as are necessary to do justice in the circumstances of the particular case (see [11] of the appellant’s further submissions filed 20 June 2024).
    
60. The appellant has failed to make out a case for the Court’s exercise of that power. In that regard, there is already learned authoritative pronouncement on the proper use of the Court’s inherent power under s 155(4), such that the jurisprudence is unlikely to be advanced from anything further I may choose to say on the subject. The inherent power of the Court under s 155(4) to protect the primary rights of a party and do justice carries with it the onerous responsibility to safeguard its processes and procedures against abuse. In this case, the appellant could have, but did not seek to avail himself of the Court’s power under s 231 of the Act to dispense with a condition precedent to the right of appeal and/or to extend time for compliance with the provisions of s 226 of the Act. This is notwithstanding the appellant labouring under an earlier belief that he had not filed an Entry of Appeal, yet seeking to progress his appeal at the hearing of the motion to dismiss without that document having been filed.
    
61. The Court otherwise repeats and relies upon its earlier discussion of the appellant’s grounds of appeal including his failure to plead further significant grounds which he now raises in written and oral submissions without seeking leave to amend or an extension of time to do so.
    
62. In the circumstances a proper basis for reliance on s 155(4) of the Constitution to achieve justice in the matter has not been made out.

CONCLUSION AND ORDERS

63. For the reasons given, I find as follows:
    1. The misdescribed Entry of Appeal is not a valid document, the appellant’s absence of reasonable explanation for the delay in filing the document or seek an extension of time within which to do so fatal to his resistance to the second respondent’s motion to dismiss.
    2. If I am wrong in so concluding and the misdescribed Entry of Appeal is a valid document and should be viewed as such by reasons of its substantial compliance with the relevant form of an entry of appeal, the filing of the document amounts to an abuse of Court process and the appeal should be dismissed by reason of the document having been filed at a time when the appeal was not ready to proceed.
    100. The second respondent’s alternative argument for dismissal based on deficiency on the grounds of appeal is upheld.
    4. The second respondent’s application for dismissal based on the manner of institution of the appeal by the appellant being an abuse of process lacks merit and is not upheld.
    5. A proper basis for reliance on s 155(4) of the Constitution to achieve justice in the matter has not been made out by the appellant, the Court not required to consider the submissions on behalf of the second respondent in that regard given the Court upholding the second respondent’s application to dismiss on other grounds.
       
64. I dismiss the appeal with costs against the appellant. While not strictly necessary given the dismissal of the appeal, to ensure clarity, the order of 22 December 2023 should be formally set aside.
    
65. I make the following orders:
    1. The orders of 22 December 2023 be set aside.
    2. The Appeal filed 12 December 2023 be dismissed.
    100. The appellant pay the costs of the applicant/second respondent to be agreed or taxed.
    4. Time to Abridge

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Awalua & Associates Lawyers: Lawyers for the Second Respondent
Laken Lepatu Aigilo Lawyers: Lawyers for the Appellant