N5448

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 113 OF 2012

PHILIPAI PUPU
Appellant

AND:

PANGIA HEALTH CENTRE
First Respondent

AND

NATIONAL HOUSING CORPORATION
Second Respondent

Mendi: Kassman J
2013: 3rd and 4th December

APPEAL – Decision of District Court – application through motion by respondent to dismiss appeal on the grounds of abuse of process – appellant did not enter into a recognizance with a surety before a magistrate under section 222(1) of the District Courts Act – grounds of – appeal book duly compiled and signed by both parties and ready for hearing – interest of justice – consideration of - appellant has done whatever is reasonably practicable to comply with the provisions of the District Courts Act to progress his appeal –respondents'application dismissed – s231 District Court Act 

Cases Cited:

Moses v Magiten (2000) N2023

Legislation Cited: 

National Court Rules Order 12 Rule 40(1)(c) 
District Courts Act c.40 Section 220(2) 
District Courts Act c.40 Section 222(1) 
National Court Motions (Amendment) Rules 2005, Rule 8
District Courts Act c.40 Sections 220(2) and 222(1) 
District Courts Act Section 231(a) 

Counsel

Karen Rema, for the Appellant
Meapa Kagu, for the First Respondent
Paul Pera, for the Second Respondent

DECISION

4th December, 2013 

1. KASSMAN J: Philipai Pupu ("Pupu") claims he was a lawful tenant of a property described as Allotment 26 Section 3 Pangia, Southern Highlands Province ("the property") owned by National Housing Corporation ("NHC") when orders for his eviction from the property were issued without notice and in his absence by the Mendi District Court on 9 July 2012. Pupu applied to set aside the orders of 9 July 2012 but that application was refused on 25 October 2012.

2. Being aggrieved by those decisions, Pupu filed this appeal on 19 November 2012. Considering the urgency of the circumstances as presented, this Court granted Pupu dispensation from the need for service of the notice of appeal and stayed the eviction orders of the Mendi District Court of 9 July 2012 and 25 October 2012 pending determination of this appeal.

3. NHC now applies for an order that the appeal be dismissed on the basis of an abuse of process. 

4. NHC's Notice of Motion filed on 15 October 2013 cites Order 12 Rule 40(1)(c) of the National Court Rules. 

5. NHC relied on an Affidavit sworn by its in-house lawyer Paul Pera on 8 October 2013 which makes two statements. 

6. Firstly Mr Pera says the Notice of Appeal was not lodged at Mendi District Court. NHC argues that although the Notice of Appeal was filed in the National Court, Pupu had failed to file it in the District Court. NHC submitted this was in contravention of Section 220(2) of the District Courts Act Chapter 40 which provides "An appellant shall give notice of his intention to appeal by lodging, within one 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."

7. Pupu's response to this was made by reference to the affidavit of his lawyer Karen Rema sworn 7 December 2012 where she attests in paragraph 9 to the fact Pupu had served a sealed copy of the Notice of Appeal on the Clerk of the Mendi District Court on 10 December 2012 and confirmation of this was endorsed by a clerk Samuel Tobias on a cover letter from Pang Legal Services to the Clerk of Court which is annexure "B" to Mrs Rema's affidavit. This was not refuted by NHC. 

8. Secondly, Mr Pera says the grounds of appeal relate to the decision of 9 July 2012 and the Appellant seeks orders to quash the decisions made on 9 July 2012 and 25 October 2012 while certain matters raised in the Notice of Appeal were not matters before the District Court on 25 October 2012. Counsel for NHC did not refer to this evidence in his submissions so that is taken to mean NHC has abandoned this argument. 

9. A Mr Meapa Kagu ("Kagu") made appearance as the Officer in Charge of the Pangia Health Centre and said he supported NHC's motion and he relied on his affidavit sworn 15 October 2013. Kagu says in his affidavit he is familiar with the signature of the Clerk of the Mendi District Court which appears in a number of documents identified in the Appeal Book and the signature appearing on the Recognizance of Appeal dated 10 December 2012 is the signature of the Clerk of Court, Mendi District Court. He is adamant the signature is not of a magistrate.

10. NHC relied entirely on this evidence from Kagu and submitted there was abuse of process in that the Recognizance of Appeal was not signed by a magistrate as required by section 222(1) of the District Courts Act Chapter 40 which provides relevantly "… an appellant shall enter into a recognizance with a surety before a magistrate in such sum as the magistrate thinks fit..." (underlining mine).

11. As such NHC argues the appeal is not properly filed and before the court and should be dismissed for this abuse of process.

12. Pupu's lawyers raise issues. Firstly, NHC's notice of motion only cites Order 12 Rule 40(1)(c) of the National Court Rules without indicating clearly what NHC alleges in particular to the "abuse of process". Although the Affidavit of Pera was filed and relied on by NHC, it is only now clear what NHC is alleging to be the abuse of process but the evidence in support is only provided in Kagu's Affidavit. This is a strong argument and was not refuted in any serious manner by NHC other than to argue all they had to do was make reference to the relevant rules of court which they had done.

13. Under National Court Motions (Amendment) Rules 2005, Rule 8 provides "All motions must contain a concise reference to the Court's jurisdiction to grant the orders being sought. Motions not containing such reference …the Court may strike out the motion for being incompetent and for lack of form." This was not raised by any of the parties in argument including Pupu. 

14. NHC's arguments of "abuse of process" are grounded on Sections 220(2) and 222(1) of the District Courts Act Chapter 40. The motion filed by NHC does not cite these laws. As it stands, it is arguable the motion is incompetent for this reason but it is equally arguable, as was put by NHC, that the motion cites this court's jurisdiction to make the orders sought.

15. In the exercise of my discretion, I will allow the motion to stand even though the substantive argument of NHC was not clearly set out in the motion and neither was the affidavit of any assistance to the parties and the court in this regard. 

16. I will now deal with the substantive argument of NHC that the Recognizance of Appeal was not signed by a magistrate as required by section 222(1) of the District Courts Act Chapter 40 which provides relevantly "… an appellant shall enter into a recognizance with a surety before a magistrate …".

17. Pupu argues he had no control over who signed the Recognizance and there is no definitive evidence as to the identity of the person who signed the document and neither is the title of the person who signed stated on the document. Pupu also argues the signature was put above dotted lines and below that are the words "Magistrate/Clerk of Court" and as such the signature could be that of a magistrate. 

18. NHC quite rightly argues the Recognizance was prepared by Pupu and the body of the Recognizance states clearly that Pupu "… personally came before the undersigned, a Clerk of Court of the District Court …" so Pupu cannot now say it could be the signature of a magistrate. 

19. The prescribed form of a Recognizance is provided in the District Courts Regulation Form 72 and there is no provision for the signature of the clerk of court. Form 72 clearly provides the Recognizance may be entered into before a magistrate of the District Court and no other officer of that court.

20. NHC referred to a judgment of the National Court in Moses v Magiten (2000) N2023 in pressing the point that District Courts are creatures of statute and are not courts of record and "… anything to do with them are governed by their enabling legislation, the District courts Act … Consequently, all things done not in accordance with the Act have been held to be null and void and of no effect." In that case, the Court had before it an application for dismissal of an appeal for want of prosecution. When the application was heard, the appellant and his lawyer failed to appear and neither did they file any affidavit in response. The lawyer sought an adjournment by writing a letter to the assistant registrar which was placed before the court but the court refused on finding the respondents had difficulty locating and contacting the lawyer and that was one factor that caused frustration and delay. 
 
21. Here, there is no issue with Pupu's Notice of Appeal. The appeal has in fact been progressed in a timely manner and Pupu's lawyer has been diligent and maintained communication with the court and all parties. In fact the appeal process is at an advanced stage with the Appeal Book duly endorsed by all parties including NHC which was filed on 8 August 2013 so there can hardly be any claim of a lack of diligence on the part of Pupu or his lawyer in the prosecution of the appeal. 

22. It is also arguable that in endorsing the Appeal Book, the respondents including NHC have accepted that the appeal is properly before the National Court for hearing.

23. NHC in effect is raising objection to the competency of the appeal but the substantive document that commenced the appeal, being the Notice of Appeal, is in order. The objection concerns the form of a document that is required to be filed with the Notice of Appeal. 

24. This, in my respectful view, is a distinguishing feature that warrants the exercise of discretion so as to ensure there is a just outcome. To extinguish Pupu's right of appeal in these circumstances would be very unfair after having complied with all requirements of the law with regard to the commencement and filing of the substantive appeal document and after having filed the appeal book duly endorsed by all parties and the only step required being to obtain a date for hearing. Pupu is at the door of justice having lawfully presented himself and having invited all affected parties with him with all being given the opportunity to have their say on his grievance. 

25. Section 231(a) of the District Courts Act provides "the National Court may 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' 

Judgment accordingly
_________________________________________________________
PANG Legal Services: Lawyers for the Appellant
Lawyers for the First Respondent: Nil 
Legal Officer, NHC: Lawyers for the Second Respondent: