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Kaunga v Wombnga [2015] PGNC 270; N6134 (28 August 2015)

N6134

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTIC]

OS 423 OF 2015-12-01

BETWEEN:

JOHN KAUNGA
Plaintiff

AND

KULAGA WOMBNGA – THOMAS WISIL
Defendant

Mt Hagen: Frank, J
2015:21 & 28 August

PRACTICE & PROCEDURE – Application for extension of time to lodge appeal to – Considerations- Satisfactory explanation for delay – Existence of an arguable ground and demonstration of no prejudice to defendant – Justice of the case favours grant of extension

Cases cited:

Seravo v Jack Bahafo (2001) N2078
In the matter of an Application by Linah Edward (2005) N2804

Counsel

Mr. J. Kaunga, for the Plaintiff
Mr. T. Wisil, for the Defendant

RULING ON APPLICATION

28 August, 2015

1. FRANK J: This is an application by the plaintiff for an extension of time within which to comply with all requirements for the filing and service of his appeal against orders made by the Minj District Court on 20th April 2015 ("orders")
   
2. The plaintiff applied by way of an Originating Summons and a Notice of Motion, both filed on 21 July 2015 seeking the same relief. The application is supported by his affidavit sworn on 26th June 2015 and filed on 21st July 2015.
   
3. The application is ex parte under section 231 (b) of the District Courts Act Ch. No. 40 ("Act"). However, the defendant appeared and I heard him on the application. During the hearing, it was pointed out by the parties that the defendant, Thomas Wisil, issued as representative of the group known as 'Kulaga Wombnga'.
   
4. In an application for extension of time under section 231 (b) of the Act, the issues relevant for my determination are:
   
   1. Whether there is a reasonable explanation for the failure to file and serve an appeal within the one month period and for the delay subsequent to it?
      
   2. Whether there is an arguable case?
      
   100. Whether the respondent to the proposed appeal would be prejudiced by the grant of extension of time? And
        
   4. Having regard to (a), (b) and (c), whether the justice of the case favour the grant of the application: Seravo v Jack Bahafo (21 March 2001) N2078: In The Matter of an Application by Linah Edward (11 February 2005) N2804
      
5. The steps that a person who is aggrieved by and who wishes to appeal against an order of the District Court, are that he must within one month of the date of such order, pursuant to sections 220, 221, 222 of the Act:
   
   1. Lodge a notice of appeal with the Clerk of the District Court at the place where the decision was made: and
      
   2. Serve a copy of the notice of appeal on the respondent(s) to the appeal, in accordance with Section 238 (1); and
      
   100. Serve a copy on the Registrar of the National Court; and
        
   4. Enter into a recognisance (ie a promise) or make a payment into court.
      
6. The plaintiff filed his appeal against the Orders when he complied with the steps in subparagraphs 5(a) and (d) on 30 April 2015, and the steps in subparagraph 5(b) on 18 May 2015 ("Appeal"). He did not comply with the steps in subparagraph 5(c).
   
7. The plaintiff proceeded to compile the Appeal Book. He served a copy of it on the defendant 10th June 2015, on 11th June 2015; he caused the Appeal Book to be lodged at the Mt. Hagen National Court Registry for filing. On 23June 2015, the plaintiff was informed by someone from the Registry that the Appeal Book could not be filed because he had not served copies of the Notice of Appeal and Recognisance on the Assistant Registrar.
   
8. The plaintiff says he is a lay person and resides in Minj, Jiwaka Province. He was of the mistaken belief that because the National Court conducted sittings from time to time in Minj at the Minj District Court, he did not have to serve copies of the Notice of Appeal and Recognisance on the Assistant Registrar at the Mt. Hagen National Court Registry.
   
9. He filled this application on 21st July 2015.
   
10. The defendant says that it is almost three months since the making of the Orders so the plaintiff has not promptly come to court to seek this relief.
    
11. I find that the plaintiff has provided a reasonable explanation why he did not serve copies of the Notice of Appeal and Recognisance on the Assistant Registrar.
    
12. In the Notice of Appeal, the plaintiff says that he is the rightful owner of the land, claiming an equitable interest in it, and had requested an adjournment to enable him to file his defence, which was refused thereby denying him natural justice. As a consequence also, the magistrate did not consider his claim to the beneficial interest in the Land and the defence that title to the Land is bona fide in dispute. Under section 21 (4) of the Act. Such a defence deprives the District Court of jurisdiction over the complaint pursuant to which the Orders were made. An arguable case in law is raised by this ground which would remove the subject matter of the complaint from the jurisdiction of the District Court. The defendant says that the Land Board awarded the Land, a state lease, to the defendant at its meeting in Mt. Hagen, and he has title to the Land, and that plaintiff was given ample time to produce source documents to establish his title to the Land on 20th April 2015, however he failed to do so. The defendant did not put in evidence these matters. If this case, the plaintiff might not have a claim. He may also be pursuing the wrong course of action to establish the interest he claims in the Land. Ultimately, there appears to be competing claims to the beneficial ownership of the Land. A serious issue is raised. The appropriate time when this issue can properly be settled is at the hearing and determination of the Appeal.
    
13. From the terms of the Orders, the plaintiff was in occupation. If he still is, he has not complied with the orders. The defendant who appeared at the hearing of this application did not say that he had taken possession of the Land pursuant to the Orders. If neither party was in possession, any prejudice would, whilst that dispute remains unresolved, affect both equally; however, because the plaintiff was in possession at the time of the Orders, and was enjoying the use of the Land, he would suffer more inconvenience upon the enforcement of the Orders.
    
14. All three considerations favour the plaintiff. There is no other fact or circumstance presented that requires, in the interest of justice, that the discretion of this Court be exercised otherwise. I therefore grant the application for the plaintiff to file an appeal within 14 days of these orders.
    
15. In the ordinary course of events, the 40 days period within which to enter the Appeal under section 227 of the Act will have expired on 30th May 2015. The orders are open for enforcement.
    
16. Given that i have granted the plaintiff's application for extension of time, should the Orders be stayed? I consider that they should to maintain the status quo and give effect to the orders of this court.
    
17. Order 18 Rule 12 (2) (a) of the National Court Rules ("Rules") provide that an application for stay of enforcement of an order appealed from may be made before a judge by Notice of Motion. Rule 13 provides that a judge may dispense with the requirements of these Rules. I dispense with the requirement of the need for the plaintiff to file a Notice of Motion to seek a stay of the Orders.
    
18. In Linah Edward (Supra), Cannings J applied the test in McHardy v Prosec Security and Communications Ltd trading as Protect Security (2000) SC646: Amet CJ, Jalina J and Kirriwom J). Except for the consideration of whether leave to appeal is required, which does not apply in an appeal from a decision of a District Court under Part XI of the Act, I also apply these considerations, which are:
    
    1. Whether there has been any delay in making the application.
    2. Possible hardship, inconvenience or prejudice to either party.
    100. The nature of the judgement sought to be stayed.
    4. The financial ability to the applicant.
    5. Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
    6. Whether on the face of the record of the judgement there may be indicated apparent error of law or procedure.
    7. Balance of convenience.
    8. Whether damages would be sufficient remedy.
    9. The overall interest of justice.
       
19. I have already addressed the consideration set out in subparagraphs (a) to (e) in respect of the issue whether leave should be granted to appeal out of time, which favour the plaintiff. The consideration at subparagraph (f) cannot be made as a copy of the written reasons for the Orders, if there are not made available.
    
20. The plaintiff is personally and immediately affected as he was, at the date when the Orders were made, in occupation of the Land. For these reasons also, the balance of convenience favours the plaintiff. This consideration does not apply to the group that the defendant represents. Damages would suffice for any loss and damage that the party on whose favour this court may determine the Appeal, may suffer as a result of the stay.
    
21. The respect to the financial means of both parties, this goes to the extent of the loss and damage that ultimately, either party will suffer. There is no evidence concerning this of either party, and neither party will suffer. There is no evidence concerning this of either party, and neither party raised this point. The plaintiff is an individual. The defendant, on the other hand, is the representative of a group. The impact of out – of – pocket financial loss of the plaintiff as an individual in prosecuting the appeal would be more than the group represented by the defendant unless he is of substantial means. Otherwise, there is no evidence pointing in favour of either of the parties.
    
22. In the result, I consider that the dispute raised by the competing claims to the beneficial interest in the Land outweighs all other consideration. This favours a grant of a stay of the Orders. I therefore stay the Orders in the terms set out below.
    
23. The orders are:
    
    • 23.1 The plaintiff shall serve sealed copies of the Notice of Appeal and Recognisance on the Assistant Registrar of the Mt. Hagen National Court by lodging these documents at the Mt. Hagen National Court Registry counter before 12:00 noon on Friday 11th September 2015
      
    • 23.2 The time period for compliance with the requirement of entering the appeal for hearing under section 227 of the Act is to be reckoned by reference to the date when the Notice of Appeal and Recognisance have been served in accordance with order No. 23.1 hereof.
      
    • 23.3 The Orders are stayed and shall lapse unless the plaintiff complies fully with these orders.
      
    • 23.4 In the event that the plaintiff complies with order No. 23.1, the Assistant Registrar shall list the Appeal for mention on Monday 14th September 2015 at 0-9:00 am for mention.
      
    • 23.5 Time is abridged.
      

24 I make no orders as to costs.

______________________________________________________

Lawyer for the Plaintiff/Applicant: Nil (plaintiff in person)