N4714

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No.69 of 2011

BETWEEN:

OPRE WAMA
Appellant

AND:

ALICE PALME
First Respondent

AND:

ALLISONS STRUGGLES LIMITED
Second Respondent

Mt. Hagen: David, J
2012: 21 & 22 May

PRACTICE AND PROCEDURE — appeal from decision of Mt. Hagen District Court — objection to competency of appeal - District Court creature of statute - practice and procedure prescribed by the District Courts Act - mandatory appeal procedure prescribed by the District Courts Act must be complied with strictly - notice of appeal without seal of the District Court – inference drawn - notice of appeal not lodged with the Clerk of the Mt. Hagen District Court in accordance with Section 220 (2) of the District Courts Act – application granted - appeal dismissed - appellant to bear respondents' costs – District Courts Act, Sections 220, 221, 222 and 238 - District Courts Regulation, Section 2.

Cases cited:

The State v The Senior Stipendiary Magistrate, ex parte The Acting Public Prosecutor [1976] PNGLR 344
Kiau Nikints v Moki Rumints [1990] PNGLR 123
ABCO Transport Pty Ltd v Timothy Sakaip (1997) N1577

Counsel:

Leslie Ako Kari, for the Appellant
Veronica Palts, for the Respondents

RULING ON MOTION

22 May, 2012

1.	DAVID, J: The Appellant is appealing against the decision of the District Court given at Mt. Hagen on 30 May 2011 in proceedings commenced by Complaint No.281 of 2010 whereby the District Court ordered that the notice of motion filed by the Respondents there as the Complainants on 3 December 2010 to set aside the ex parte orders of the District Court made on 3 December 2010 be set aside and further ordered that the Appellant there as the defendant be restrained from conducting business from Portions 2529C, 2530C and 2531C Milinch of Hagen and Fourmil of Ramu in the Western Highlands Province.

2.	The Respondents have objected to the competency of this appeal through their notice of motion filed on 8 December 2011 on the basis that the Appellant has failed to lodge the appeal with the Clerk of the Mt. Hagen District Court pursuant to Section 220 (2) of the District Courts Act or alternatively for being an abuse of the process of the Court pursuant to Order 12 Rules 1 and 40 (1)(c) of the National Court Rules. The Respondents rely on the Affidavit in Support of Winston Kapipi sworn on 28 October 2011 and filed on 8 December 2011 to support their application.

3. By his notice of motion filed before the hearing of the Respondents' objection on 21 May 2012, the Appellant principally seeks orders to dismiss the Respondents' objection and for the dispensation of the rules relating to the endorsement or certification of Appeal Books by parties so as to enable him to file the Appeal Book without the Respondents' endorsement or certification. The Appellant relies on his own Affidavit in Support of Motion sworn and filed on 18 May 2012 to support his application and to rebut the Respondents' objection. The Respondents did not take objection to the hearing of the Appellant's motion for short notice.

4. The outcome of the Respondents' application will determine whether I should go on to deal with the Appellant's motion.

5. Ms. Palts of counsel for the Respondents submitted that this appeal is incompetent and should therefore be dismissed primarily because the Appellant has not fulfilled all the requirements of the District Courts Act for the filing of an appeal and in particular for failing to lodge his Notice of Appeal with the Clerk of the Mt. Hagen District Court by which the order the subject of the appeal was made in accordance with Section 220 (2) of the District Courts Act or alternatively, for being an abuse of the process of the Court for not complying with the provisions of the District Courts Act with respect to the lodging of his appeal under Order 12 Rule 40 (1)(c) of the National Court Rules. The Respondents further submitted that the Appellant's Notice of Appeal was defective for want of form as it did not comply with Form 71 of the District Courts Regulation. 

6. It was submitted by Mr. Kari for the Appellant that the Respondents' motion should be dismissed because contrary to the Respondents' assertion, the Appellant fulfilled all the requirements of the District Courts Act for the filing of an appeal in that he filed all appeal documents at the Registry of the Mt. Hagen District Court including the payment of surety in the sum of K500.00 at that Registry. Counsel submitted that the fact that the relevant Recognizance on Appeal entered into by the Appellant on 31 May 2011 was signed by a Magistrate, a copy of which is annexed to the Appellant's affidavit as annexure "OW3", it was sufficient proof by implication that the Appellant's Notice of Appeal was duly lodged in accordance with Section 220 (2) of the District Courts Act. 

7. It is not disputed and which is corroborated by the affidavit evidence before me that:

1.	the decision of the Mt. Hagen District Court appealed was made on 30 May 2011.

2.	aggrieved by the decision, a Notice of Appeal was filed by the Appellant on 31 May 2011.

3.	the Notice of Appeal only bears the seal of the National Court.

4.	the Notice of Appeal does not strictly comply with Form 71 of the District Courts Regulation particularly as to the names of the parties, the reference to the District Court whose decision is being appealed and the indication at the top of the document that it is a form filed in the District Court and specifying the provision(s) of the District Courts Act which requires the use of the form.

5.	a Recognizance on Appeal entered into by the Appellant on 31 May 2011 was signed by a Magistrate and bears both the seals of the Mt. Hagen District Court and the National Court.

6.	the surety fixed by the Magistrate was K500.00.

7.	an Entry of Appeal to National Court was filed by the Appellant on 31 May 2011 and only bears the seal of the National Court.

8. The contested facts for the purposes of the Respondents' motion are that:

1.	the Appellant lodged his Notice of Appeal in the National Court and not with the Clerk of the Mt. Hagen District Court.

2.	the Notice of Appeal in its current form is substantially compliant with Form 71 of the District Courts Regulation. 

9. The only contentious issue arising from the undisputed and contested facts and submissions of counsel is whether the Appellant complied with all the requirements for filing an appeal to the National Court?

10. The District Court is a creature of statute whose practice and procedure is prescribed by the District Courts Act therefore the mandatory appeal procedure prescribed by the District Courts Act must be complied with strictly: The State v The Senior Stipendiary Magistrate, ex parte The Acting Public Prosecutor [1976] PNGLR 344; Kiau Nikints v Moki Rumints [1990] PNGLR 123; ABCO Transport Pty Ltd v Timothy Sakaip (1997) N1577.

11. Appeals from decisions of the District Court to the National Court are governed by Part XI of the District Courts Act. A person aggrieved by a decision of the District Court may appeal to the National Court within one month after the day when the decision was pronounced: Sections 220 (2), 221 (2) and 222 (1). An appeal is instituted when a Notice of Appeal and Recognizance on Appeal (or by giving other security as a Magistrate in writing directs as per Section 222) is lodged with the Clerk of the Court by which the decision appealed was made in accordance with Section 220. According to Section 221 (1) of the District Courts Act, a Notice of Appeal must be in writing and shall state the nature of the grounds of appeal. The Notice of Appeal must be served on a respondent and on the Registrar of the National Court in accordance with Section 238 (1) of the District Courts Act. It is instructive that I set out below Sections 220, 221, 222 and 238:

"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.

222.  Recognizance on appeal.

(1) Subject to Subsection (2), within one month after the day when the decision is pronounced an appellant shall enter into a recognizance with a surety before a Magistrate in such sum as the Magistrate thinks fit, conditioned—

(a) to prosecute the appeal; and

(b) to abide the order of the National Court on the appeal; and

(c) to pay such costs as are awarded by the National Court,

or the appellant may, instead of entering into a recognizance, deposit with the Clerk of the Court by which the conviction, order or adjudication was made such sums of money as a Magistrate in writing directs.

(2) A recognizance under Subsection (1) shall be forwarded without delay by or on behalf of the appellant to the Clerk of the Court by which the conviction, order or adjudication was made.

(3) This section does not apply to the State or the Secretary for Justice, or to a person acting on behalf of the State or the Secretary.....

238.  Service of notice, etc.

(1) A notice, process or document required or authorized by this Part to be served on a person may be served on that person—

(a) by delivering it to him personally; or

(b) by leaving it for him at his usual or last-known place of abode or business with some person, apparently an inmate of or employed at that place and apparently not less than 16 years of age.

(2) The service on a person of a notice, process or document referred to in Subsection (1) may be proved by affidavit, but the National Court may require the person who served the notice, process or document to be called as a witness, or require further evidence of the facts."

12. The Appeal Rules 2005 are intended to be read subject to the procedures prescribed by Part XI of the District Courts Act and other relevant statutes which prescribe a procedure for appeal to the National Court. These Rules set out a comprehensive procedure for the conduct of appeals in the National Court from decisions of the District Court and other statutory bodies or tribunals including addressing, inter alia, matters such as listings, directions hearing, pre-hearing conference, compilation of an Appeal Book including its content and the obtaining of District Court depositions and/or transcripts, filing of written extracts of submissions, hearing of the substantive appeal and the disposition of an appeal. 

13. Section 2 of the District Courts Regulation deals with Forms. It states:

"2. Forms.

(1) Where a provision of the Act or this Regulation is specified in the first column of Schedule 1, the form in Schedule 2 that is specified in the third column of Schedule 1 in relation to the provision, is the form to be used for the purposes of the provision described in the second column of Schedule 1.

(2) The forms in Schedule 2, or similar forms, may be used for the purposes to which they are respectively applicable, and instruments in those forms, or in similar forms, shall be deemed sufficient in law, but those forms, or any of them, may be varied for the purpose of adapting them to circumstances.
 
14. My understanding of the provision is that it is not mandatory for a prescribed form to be used in the exact manner it is arranged. A form can be varied and will be deemed sufficient in law provided it is substantially compliant with the prescribed form. I have perused the Appellant's Notice of Appeal and I am satisfied that it is substantially compliant with Form 71. The Appellant's Notice of Appeal cannot be dismissed for want of form.

15. The Appellant's explanation about the filing of his Notice of Appeal in the District Court is contained in his affidavit from paragraphs 2 to 6. He states that he engaged secretarial services to draft his appeal documents. These documents were filed at the District Court on 31 May 2011. His Worship, Jeremiah Singomat signed the Recognizance on Appeal and the document was sealed in the District Court. He deposes that because he filed the Notice of Appeal, Entry of Appeal to National Court and the Recognizance on Appeal at the same time at the District Court, they were immediately referred to the National Court and sealed there. 

16. The Respondents' evidence about the Notice of Appeal not being lodged with the Clerk of the Mt. Hagen District Court is hearsay. 

17. Of the two documents that should have been filed with the Clerk of the Mt. Hagen District Court namely the Notice of Appeal and the Recognizance on Appeal to signal the institution of the appeal, only the Recognizance on Appeal has the seal of the Mt. Hagen District Court affixed to it. I am at a loss to understand why the Notice of Appeal does not have the seal of the Mt. Hagen District Court affixed to it, when the filing of a Recognizance on Appeal or the provision of other security specified under Section 222 of the District Courts Act is a mandatory requirement that needs to be met subsequent to the filing of a notice of appeal. I reject the Appellant's explanation as to why his Notice of Appeal does not have the seal of the Mt. Hagen District Court. The only conclusion I can infer from the non-sealing of the Appellant's Notice of Appeal with the Mt. Hagen District Court seal, but only with the seal of the National Court is that it was not lodged with the Clerk of the Mt. Hagen District Court in accordance with Section 220 (2) of the District Courts Act. I accept the Respondents' contention in that respect. 

18. I find that the Appellant has not complied with all the mandatory requirements for an appeal to be instituted in the National Court. I will grant the Respondents' application. I therefore dismiss the appeal. 

19. The formal orders of the Court are:

1.	The Respondents' application to dismiss the appeal for failing to lodge the appeal with the Clerk of the Mt. Hagen District Court is granted.
2.	The appeal is dismissed.
3.	The Appellant shall bear the Respondents' costs of and incidental to this application, to be taxed if not agreed. 

_____________________________________________________
P NG Legal Services: Lawyers for the Appellant
Twivey Lawyers: Lawyers for the Respondents