N3032

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA. 414 OF 2005

BETWEEN:

JACKSON KEN
(Applicant/Respondent)

AND:

MARK KORAI
(Respondent/Applicant)

LAE: Kirriwom, J
2005: 20th December
2006: 15th February

Counsel:
Both parties in person

15th February

RULING

KIRRIWOM, J:

1.	This is an application by the Applicant, who is the Respondent in this appeal seeking orders for dismissal of the Applicant’s appeal against a decision of the Lae District Court which ordered the Appellant to pay K4,790.60 to the Respondent. The application is pursued because the Applicant says as per his Notice of Motion ‘That all the entire (six) proceedings (appeal) be dismissed forthwith on (sic) the grounds that the Appellant/Respondent is negligent (sic) in not filing Entry of Appeal and failing (sic) to file proper Notice of Appeal.’

2.	On 13 September 2005 the Appellant was ordered to pay K4,790 to the Respondent Rental Payment and that payment be made by end of December 2005.

3.	Unhappy with this decision the Appellant lodged this appeal on 11th October 2005 which was registered with the National Court on the same day. The Notice of Appeal is accompanied by Recognizance on Appeal also filed on the same day of the appeal.

4.	The grounds of appeal are:

1.	That the learned Magistrate erred when he entered judgement on the second mention.

2.	And that the Defendant was never given an opportunity to be heard on his defences.

3.	That the learned Magistrate erred when he did not take into account the contents of the defendants statement and other documents as submitted.

4.	The Court ordered to pay the Complainant the sum of K4,790.60 by the end of December 2005 is unjust in that:

i)	The monies spend by the complainant was in Accordance to the Rental Agreement reached with Danny Korai, the block and property owner.

ii)	The monies spend was for services rendered while the Complainant was renting and using the property for business purposes.

iii)	That the Defendant is not the owner of the said block and property, as verified by Documents as submitted, and do not owe the Complainant any money.

iv)	The amount of money the Complainant has paid and/or spend for the use of the said property is K525.00 as receipted and not K4,790.60 as he claims.

5.	The decision of the Court is unjust in circumstances, therefore the Appellant seek Court for the following orders:

a.	The decision of the District Court dated 13th September 2005 be squashed.

b.	The matter be put back for full trial in the District Court before another Magistrate.

c.	The Respondent pay the cost of this appeal proceeding.

5.	In respect of the Notice of Appeal as filed and the Recognizance on appeal, I am satisfied that both documents are in proper form and are therefore competent.

6.	I also note that upon receiving the Notice of Appeal on 11October 2005 the Assistant Registrar requested the Clerk of the District Court to supply the Court Depositions in this matter.

7.	At the time this application was moved before me by the Applicant on 20 December 2005 the Depositions have not yet arrived. This is clearly understandable because the matter is fairly recent and oldest request take priority.

8.	Procedural non-compliance such as failing to file Entry of Appeal for Hearing per se as stipulated in the District Court Act is not a strong ground for dismissal of an appeal that is properly on foot. The bottom line is that the Applicant must prosecute his appeal promptly which means obtaining the District court depositions and filing an appeal book with all material documents put together.

9.	When a party is appearing in person the Court must be slow in throwing the Court Rules at him for strict compliance as long as the other party is not prejudiced by the Court’s passive attitude in helping the parties to reach a solution in their cause in a fair and just manner and on even playing field.

10.	This appeal is not ready for hearing, the application for dismissal based on non-filing of the Entry of Appeal is a misconception and the Notice of Appeal is in order.

11.	I therefore dismiss this application and award costs to the Appellant.

Both parties in person