N4443

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 406 OF 2011

BETWEEN

PETER SARIS
Plaintiff

AND

STATE
Defendant

Goroka: Ipang AJ
2011: 14 & 21 October

CIVIL MOTION – Appeals – Application for extension of time to appeal out of time – s.231 District Courts Acts – three (3) requirements to be satisfied by the Plaintiff – (i) there must a reasonable explanation for the delay (ii) there must be an arguable case and (iii) no prejudice will be occasioned by the delay because of plaintiff not coming within the time period prescribed by the Act.

Cases Cited

Vivisio Seravo v Jack Bahafo (2001) N2078
Vehicles Insurance Ltd v Peter Kopunye t/a Kopunye Lawyers OS No.57 of 2009

Counsel

Mr. Paiya, for the Plaintiff
Nil Appearance, for the Respondents

RULING ON MOTION

21st October, 2011

1.	IPANG AJ: The plaintiff moves this motion ex-parte for an extension of time to file his appeal out of time against the decision of the Goroka District Court. The District Court had on the 23rd of March, 2011 convicted and fined the plaintiff K300.00 court fine in default a prison term of six (6) months was imposed.

2.	The relatively recent principle of law in relation to seeking extension of time to appeal out of time is established in the case of Viviso Seravo v Jack Bahafo (2001) N2078. In that case His Honour Kandakasi, J using the principle of law in relation to extension of time to give notice of one's intention to make a claim against the Motor Vehicles Insurance Trust devised the following principles that need to be complied with to seek an extension of time to appeal out of time. These are;

i.	There must be a reasonable explanation for the delay in complying with the time period prescribed for appeal;

ii.	To disclose a cause of action to be pursued against the defendant or simply there must be an arguable case; and;

iii.	No prejudice has or will be occasioned by the delay because plaintiff has not come within the time period prescribed by the Act.

Brief Background Facts

3.	The plaintiff is employed as a driver by the Mountain Transport Ltd. On the 21st February, 2011 the plaintiff was driving a truck registration No. LAM 458 from Lae to Porgera. After leaving Goroka and before Mando, a motor vehicle accident occurred involving a Toyota Coaster bus travelling at a high speed from Mt. Hagen to Lae. The Toyota Coaster bus collided with the truck driven by the plaintiff. The plaintiff denied any wrong doing. Because of the motor vehicle, the by –standers tried to attack the plaintiff. The plaintiff feared retaliation and went in to hiding. The plaintiff contacted Operation's Manager for Mountain Transport Ltd in Lae, who then contacted the Asaro police. The plaintiff was picked up, driven to Goroka and was detained in the police cells. The plaintiff was eventually arrested and charged for the offence of negligent driving, contrary to s.17 (1) of the Motor Traffic Act. 

4.	The plaintiff claimed that during the first appearance in court, he was forced to plead guilty to the charge put to him because more than 20 different people turned up at the District Court House. He said he was threatened and as a result he pleaded guilty as his life was in danger.

5.	In moving his motion, the plaintiff relies on the Originating Summons (OS) filed on the 19th of July, 2011, the Affidavit of Maso Mangape, sworn on the 27th of June, 2011,and filed on the 19th of July, 2011 and the Affidavit of the plaintiff sworn on the 28th of June, 2011 and filed on the 19th July, 2011.

6.	In his Affidavit paragraphs 7, 8,9,10 and 11, Maso Mangape deposed of the reason why the plaintiff pleaded guilty and the undue delay of communicating of Courts decision to his attention. In paragraph 11 he said the Mountain Transport Ltd is now faced with hefty compensation claim because the plaintiff had pleaded guilty to the charge of negligent driving. He maintained that the plaintiff pleaded guilty under duress. In his Affidavit, the plaintiff in paragraph 10 deposed that on the 23rd March, 2011 he attended the Goroka District Court. He said there were more than 20 different people there at the Court House. He said he was threatened and forced to plead guilty. He said he was told in no uncertain terms that if he did not plead guilty he will not return to Lae alive. The plaintiff said he is from Yangoru and considering that he was one against the 25 or so highlanders his life was in danger and so he pleaded guilty. He said his conscious was clear and he did not want to plead guilty to the charge of negligent driving. In paragraph 12, plaintiff said he did not return to work and did not tell his employer that he had already pleaded guilty to the charge. On or around first week of May, 2011 he received a message that he was to see his employer in which he told his employer that he had pleaded guilty to the charge. That would be approximately after one (1) month.

7.	The first order, the plaintiff sought from the motion is for the condition precedent under s.231 of the District Courts Act, to be dispensed with. Section 231 states:

231. Dispensing with conditions precedents 

The National Court may –

(a)	 Dispense with compliance with a condition precedent to the 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.

Issue

8.	 The issue that is to be determined is that, has the plaintiff taken reasonable steps or efforts' to comply with provisions of the District Court Act, to lodge its appeal. (Refer to s.231 (a) of the District Court Act )

9.	Application of the Principles in Vivisio Seravo's case:

i.	Reasonable explanation for the delay

The plaintiff explained that when he returned to Lae he did not report to work but stayed away from work. When the owner of the 25 Seater bus demanded compensation from Mountain Transport Ltd, Mr. Maso Mangape asked the plaintiff to come back to work. Only then, the plaintiff explained that he was forced and threatened to plead guilty. The letter from Tony Mantila to Mountain Transport is dated 11th May, 2011. Steps were then taken by the plaintiff to commence this proceeding on the 22 June, 2011 which is a period of one month. 

ii.	Disclosing a cause of action 

The draft Notice of Appeal contains the following grounds;

a.	The Court erred in law and in fact when entering a plea of guilty when it was evident that the court house was packed and the court failed to ascertain why so many people were interested in the matter against the defendant. 

b.	The Court erred in law and in fact when entering a plea of guilty against the defendant when the court failed to ask the defendant if defendant wanted the service of a lawyer to defend him or speak to his family members or any other person before entering a plea of guilty.

c.	The motor vehicle accident investigation conducted by Asaro Police including the informant was tainted as there was evidence of bribery;

d.	The defendant was threatened and intimidated by the owner of the 25 Seater bus and at the time when defendant pleaded guilty the defendant was not in a right state of mind to enter a guilty plea thereby contravening section 37 of the Constitution. 

iii.	Prejudice

No prejudice will be caused to the defendant. Mountain Transport Ltd is prejudiced because the owner of the 25 Seater bus is demanding compensation. If the plaintiff had notified Mountain Transport Ltd, the company would have engaged lawyers to defend the plaintiff, but the enter of guilty plea by the plaintiff was without the plaintiff notifying Mountain Transport Ltd, his employer who is prejudiced. 

Analysis of Issue, Evidence & Law	

10.	 The first requirement to satisfy is the reasonable explanation for the delay. The Goroka District Court decision was made on the 23rd of March, 2011. The date when the appeal could have been lodged was 23rd of April, 2011. The owner of the 25 Seater bus wrote to Maso Mangape of Mountain Transport Ltd on the 11th May, 2011 for the compensation. Then on 22nd June, 2011 steps were taken to file an appeal out of time. There was exactly two months between the lapse of appeal period and when this motion was filed. In Vivisio Seravo's case (supra) the court noted a six months period almost passed and in Motor Vehicle insurance Ltd (MVIL) v Peter Charles Kopunye t/a Kopunye Lawyers OS. No.57 of 2009, the Court noted a lapse of just over two (2) months. In this present case I think the period of two (2) months was significant, I am satisfied with the explanation given. From the grounds of draft Notice of Appeal filed, I am also satisfied the plaintiff has an arguable case. Finally, the plaintiff through his employer Mountain Transport Ltd is a big corporation capable of meeting costs associated with the proposed appeal should the appeal fails.

11.	 In conclusion, I am satisfied that the plaintiff has done whatever is reasonably practicable to comply with the provisions of the Act to lodge his appeal in the circumstances. This court now orders that the time for compliance with the conditions precedent for lodging an appeal against the decision given by Goroka District Court on the 23rd March, 2011 is extended to 3:00pm on the 20th December, 2011.

________________________________________

Warner Shand Lawyers: Lawyer for the Applicant