N4793

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 120 OF 2011

JACK P KILIPI BE'SOER TRADING AS
JACK KILIPI LAWYERS
Appellant

AND

MARIE LOUISE TERWIEL
Respondent

Goroka: Ipang AJ
2012: 7 & 21 September

CIVIL LAW – Motion to struck out appeal – s. 271 of the District Court Act –Chapter 40 – wrong provision

CIVIL LAW – Motion to struck out appeal – s. 226 of the District Courts Act – set down appeal and gives notice – inappropriate provision

Counsel

Marie Terwie, in person
Jack Kilipi Be'soer, in person

RULING

21st September, 2012

1.	IPANG, AJ: The Respondent Marie Louise Terwiel filed a motion dated 1st August, 2012 seeking the following orders:

1.	The Appellant's appeal be struck out for failing to serve the Notice of Appeal on the Respondent pursuant to Section 271 (2) of the District Court Act, Chapter 40.

2.	Alternatively, the appeal be struck out for the Appellant's failure to enter an appeal for hearing within 40 days after filing the Notice of Appeal pursuant to Section 226 of the District Courts Act, Chapter 40.

3.	Appellant to meet the costs.

2.	The first relief sought under the motion invokes wrong jurisdiction. The s. 271 of the District Court Act, deals with different issue not related to appeal. It deals with Magistrate's Certificate evidence of non-compliance with recognizance. The appropriate jurisdiction for the Respondent to invoke should have been section 221 of the District Courts Act which covers the manner and form the Notice of Appeal should take and the requirements of service to be effected. There is no penalty provision for non-compliance with s. 226 provision of the District Courts Act.

3.	The next provision that the Respondent relied on to move her motion is, Section 226 of the District Courts Act, Chapter 40. Thus, Section 226 provides:

"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."

4. 	The section 226 of the District Court Act has two (2) sub provisions (1) and (2) and both sub provisions contain mandatory steps and the given time frame which the appellant needs to comply with to enter the appeal for hearing. Again, though the provision provides for the mandatory steps to be taken by the Appellant the provision is more descriptive in form and nature. The provision does not contain a sub consequential provision or say a sub penalty provision for non-compliance with sub provisions (1) and (2).

5. 	The appropriate provision that would effectively deal with non-compliance with mandatory requirements of section 226 Appellant to set down appeal and give notice, is section 227 of the District Courts Act, Chapter 40. For convenience sake let me quote s. 227.

"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."

6. 	The phrase "a Court or Magistrate" is use synomously and it means District Court. This is so because it is the decision or the order of the District Court which is appealed against and so after expiry of 40 days requirement to enter the appeal for hearing, District Court can enforce the decision or order as if it has not been appealed against. It is really not within the jurisdiction of the National Court to enforce s.227 of the District Courts Act. The s.227 is more a self executing provision and is wholly within the jurisdiction of the District Court.

7. 	The Respondent has actually invoked wrong provisions or jurisdiction to rely on to move her motion filed on the 1st August, 2012. This court is tasked to do or deliver justice that is based on or according to law. In this application, the Respondent has embarked on wrong provisions which do not grant her power(s) to move and seek orders she is seeking.

8. 	On this basis I struck out her motion with costs. Costs to be agreed if not to be taxed.

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Lawyer for the Applicant/Respondent: In Person 
Lawyer for the Respondent/Appellant: In Person