|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 72 OF 2013
BETWEEN:
PHILIP TELAKUL
Appellant
AND:
MITCHEL WAKIAS
Respondent
Kokopo: Anis AJ
2015: 18th and 23rd December
DISTRICT COURTS ACT CHAPTER NO. 40 - Appeals - Practice and Procedure - appeal documents in National Court format - documents bear seals and separate filing dates of both the District and National Court Registries
DISTRICT COURTS ACT - mandatory documents to be filed - Notice of Appeal and Recognizance on Appeal - both must be filed together within one month to invoke right of appeal - Section 220 and 222(1) discussed
DISTRICT COURTS REGULATIONS - Practice and procedure - appeal forms 71, 72 and 73 - failure to comply not fatal but should be followed to avoid confusion
Cases Cited:
ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577
Moses v. Magiten (2000) N2023
Counsel:
Robert Asa, for the Appellant
No appearance by the Respondent
RULING
23rd December, 2015
1. ANIS AJ: I reserved ruling on this matter to today from 18 December 2015. Earlier on 15 December 2015, the matter came before me for Directions Hearing. Mr Asa appeared for the Appellant and there was no appearance by the Respondent.
2. When reviewing the matter on 15 December 2015, the Court raised jurisdictional issues with Mr Asa. Areas of concern were whether the appeal was filed within time at the correct registry and whether the appeal court documentations were in order.
3. This Court then issued directions which included this:
The Appellant shall come prepared to address the Court on whether the Notice of Appeal or the appeal has been filed in accordance
with the requirements that are stipulated under the District Courts Act.
4. I indicated to Counsel when issuing the direction on 15 December 2015 that the Court had jurisdiction under the Appeal Rules - 2005 to, at Directions Hearings, inquire, consider and address any issues that may arise so that matters are properly prepared and are
made ready for hearing.
5. By that I now refer to the Court's powers under Order 18 Rule (5) of the National Court Rules (which basically consists of the Appeal Rules - 2005).
6. Order 18 Rule 5(b) states:
(a) At the Directions Hearing, the judge may consider and determine and give such directions as may be necessary for the prompt disposition of the appeal, amongst other things, the following:-
...
(b) Failure to comply with any condition precedent to the right of appeal prescribed by statute.
7. The matter returned back to this Court at 9:30am on 18 December 2015 for presentation of submissions in relation to the jurisdictional issues raised by the Court.
8. Mr Asa appeared. There was no appearance by the Respondent.
9. Mr Asa proceeded and made oral submissions.
10. I reserved my ruling and adjourned the matter to today at 1:30pm.
Relevant facts
11. The Appellant is appealing against a final decision of a District Court which was handed down on 4 July 2013. In that decision,
the District Court awarded a sum of K7, 000 in favour of the Respondent. The Court awarded K7, 000 as outstanding hire car rental
fees owed by the Appellant to the Respondent.
12. The District Court concerned is the Kokopo District Court.
13. According to the National Court's file for the matter, the Notice of Appeal, Recognizance on Appeal and Entry of Appeal were all filed at the National Court on 13 August 2013.
Issues
14. They are:
(i) Whether the Appeal was filed within time.
(ii) Whether the Notice of Appeal and Recognizance on Appeal are firstly in correct format and secondly whether they were filed at the correct Court Registry, and if the answers are both in the negative, whether these errors or defects are fatal to the appeal which is now on foot.
Law/Case law
15. Section 220 of the District Courts Act Chapter No. 40 in my view is express and there is no need for one to look elsewhere for clarity. But having said that, the position could not have been better put or said than by Justice Kandakasi in the case of Moses v. Magiten (2000) N2023.
16. He held and I quote:
The word "shall" is used in these sections. The words used in these provisions are so plain and clear that there is no room for any argument as to when and where an appeal can be lodged and when it should be prosecuted before the National Court. The words of section 220(2) make it clear that an appeal against a decision of a District Court should be lodged "with the Clerk of the District Court by which the conviction, order or adjudication was made". That must be done within a period of one month from the date of the decision appealed against.”
17. I should be reminded that as for the present case, the Court will confine its attention to the rules and laws governing filing of a Notice of Appeal and Recognizance on Appeal.
18. So an aggrieved person, who intends to appeal from District Court to National Court, has a month to do so. In practical terms
what this means is this: - If a decision is for example handed down on the 12th day of a particular month, an appellant will have
until the 12th day of the next month to file his or her appeal. If the appeal is filed a day or more after the 12th day, it would
be out of time.
19. The one month time limitation is prescribed under Section 220 of the District Courts Act.
20. It states:
“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 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.”
(Underlining is mine)
21. Section 222(1) is also relevant for this purpose.
22. It states:
“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.”
23. This Court notes further that the term "Clerk" is defined under Section 1 of the District Courts Act to mean "the Clerk of a District Court".
24. Justice Injia, as he then was (now the Chief Justice), in the case ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577,has clearly pointed out which documents one must file in the District Court to invoke the right of appeal.
25. I quote the relevant part of his decision where he said:
“On 1/10/96, the Appellant filed at the registry of the National Court at Mount Hagen a Notice of Appeal, Recognizance on Appeal
and Entry of appeal to the National Court as required by S. 220 and 222 of the District Courts Act. The filing of a Notice of Appeal and Recognizance on Appeal constitutes the institution of an appeal: S. 220 (1) of the District Courts
Act. In my view, as at the time the National Court granted the leave sought, an appeal had not yet been instituted because no Notice
of Appeal and Recognizance on Appeal had been filed.”
(Underlining is mine)
26. By reading Sections 220 and 222(1) together, this Court's view on point will not differ to what the Court has stated or held in the ABCO Transport's case.
27. I have these to add, on what I think of Sections 220 and 222(1) of the District Courts Act:-An intended appellant must file his or her Notice of Appeal and Recognizance on Appeal together [note the use of the word "and" at Section 220(1) (a)] at the same time within one month with the Clerk of Court. In practical terms, if say the Notice of Appeal is lodged ahead of the Recognizance on Appeal, the Clerk of Court should refuse to accept the Notice of Appeal. However, if the Clerk of Court does not refuse, then he should not file the Notice of Appeal but hold it until he receives the Recognizance on Appeal. The Clerk of Court I think can wait for anyone of the two documents to be lodged but the waiting period should be within the month from the date of the decision being appealed against. If after the expiry of the month and say only one of the two documents is submitted in for filing, the Clerk of Court is obliged to and must reject it.
28. In my view, if the Clerk of Court can apply and follow this simple process, I think a lot of the National Court's time can be saved, that is, from dealing with jurisdictional issues.
Undisputed facts
29. Whilst going through the hearing with Counsel, the following facts were noted which were eventually regarded as undisputed:
(1) the Notice of Appeal, Recognisance on Appeal and Entry of Appeal were all prepared by the Appellant as National Court documents;
(2) all three documents were shown as filed on 13 August 2013 and they all bear seals and stamps of the National Court;
(3) all three documents also bear seals and stamps of the Kokopo District Court.
Submissions/discussions
30. During the hearing on 18 December 2015, I asked Mr Asa to produce to Court his client's court documents namely the Notice of Appeal, Recognizance on Appeal and the Entry of Appeal.
31. Mr Asa handed up his copies in Court and I compared them with those in the Court file before passing them back.
32. I summarise my observations as follows:
(i) Both sets of documents (i.e., the Notice of Appeals, Recognizance on Appeals and Entry of Appeals in the Court's file and from those handed up by Counsel)were similar and consistent;
(ii) Both sets of documents used the National Court format or style with headings as "In the National Court of Justice";
(iii) Both sets of documents were not filed using forms 71, 72 and 73 as provided for under the District Courts Regulation (Chapter 40);
(iv) With regard to filing:
(a) both sets of documents have the District and National Court stamps on them;
(b) the Notice of Appeal and Recognizance on Appeal appeared to have been firstly filed at the District Court Registry on 2 August 2013 and then they both appeared to have been refilled at the National Court Registry on 13 August 2013;
(c) the Entry of Appeal appears to have been filed at both the District and the National Court on 13 August 2013.
33. The Court asked Mr Asa to explain or respond to the issues. Mr Asa made oral submissions and I summarise them as follows:
(1) As to whether the Appeal was filed within time, Mr Asa submitted that the appeal was filed within time because he said the date of the decision appealed against was 4 July 2013 and he said he lodged the Notice of Appeal and Recognizance on Appeal at the District Court Registry on 2 August 2013 which he submitted was within the one month period for appeal;
(2) As to the use of the correct court forms namely forms 71, 72 and 73 as provided for under the District Courts Regulation, Mr Asa submitted that that was a typographical error on their part; but he maintained that despite that, the Court documents were filed and stamped at the correct Court registry which was the District Court Registry on 2 August 2013 which Counsel submitted was within time;
(3) With regard to the Entry of Appeal, Mr Asa submitted that there was no issue with that because he filed the document at the National
Court Registry on 13 August 2013.
34. In all and whilst interacting with Counsel during the course of his submission, it became clear that what the Court had observed
as summarised above was actually what had happened which was basically that the appeal documents were prepared and filed at the District
Court and then they were later re-filed at the National Court some 11 days later.
Decision
35. The filing of Entry of Appeal is not an issue before this Court and as such I will leave that out of the picture for now.
36. With regard to the issue of whether the Appeal was lodged within time, I am satisfied that the appeal was lodged within the one month period.
37. The decision appealed against was made on 4 July 2013. One month after would be 4 August 2013. I note that both the Notice of Appeal and the Recognizance on Appeal were lodged at the Kokopo District Court on 2 August 2013 and they were stamped with the District Court's stamp. I note that 2 August 2013 was within the appeal time period because the last date of appeal was on 4 August 2013. The documents were later forwarded to the National Court. The National Court received the two documents together with the Entry of Appeal and had them sealed on 13 August 2013.
38. With regard to the use of correct forms, during the hearing, Mr Asa tried to apply for leave to amend the court documents so that they could comply with forms 71, 72 and 73 under the District Courts Regulation. That was after he submitted that there were typographical errors made to the appeal documents at the time when they were being prepared. He was basically making references to their headings which were titled "In the National Court of Justice" instead of "In the District Court held at Kokopo".
39. I rejected Counsel's request and I ruled that there was no proper application before the Court at that time. I also pointed out to Counsel that he had plenty of time to correct these errors in the past and that it was pointless to attempt to make such an application orally now when the Court was conducting a hearing on separate issues that were properly before it.
40. But for this purpose, I will not regard the Appellant’s failure to use Forms 71, 72 and 73 under the District Courts Regulation as fatal to his appeal.
41. In doing so, I also make reference to and note Section 44 of the District Courts Regulation which states:
“44. Non-compliance with Regulation, etc.
Non-compliance with this Regulation or departure from the forms shall not render any proceeding void unless the Court before whom the proceeding comes so directs, but the proceeding may be amended or otherwise dealt with in such manner as to postponement, adjournment, or otherwise, and on such terms as the Court thinks fit.”
(Underlining is mine)
42. I note that all the three documents (i.e., Notice of Appeal, Recognizance on Appeal and Entry of Appeal) are set out in generally
acceptable formats.
43. This Court will accept them as they are now.
Summary
44. My answer to whether the Appeal was filed within time is "yes".
45. My answer to whether the Notice of Appeal and Recognizance on Appeal are firstly in correct format is "no". My answer to whether they were filed at the correct Court Registry is "yes, the Notice of Appeal and Recognizance on Appeal were initially filed at the Kokopo District Court Registry on 2 August 2013 which was the correct Court Registry". And lastly, my answer to whether these errors or defects are fatal to the appeal on foot is "no".
46. I note that I have found that the Appellant should have but failed to use forms 71, 72 and 73 under the District Courts Regulation to lodge his appeal. And I have also found that such want of compliance was not critical or fatal to the Appellant's right of appeal.
47. Having made the findings, I think it is important to point out that Court Rules in general are set out or meant to assist litigants and of course the Courts. I would urge lawyers to have regard to them because it seems from experience that a lot of lawyers or litigants are using their own style or format, that is, when preparing appeal documents to appeal from District Courts to the National Court when the forms are already expressly prescribed under the District Courts Regulation. Using court forms other than those prescribed will only create confusion like in the present case. Sometimes that may be fatal, however, fortunately enough for the Appellant in this case, it is not.
48. There is, in my view, enough case law on point and lawyers and litigants should now and at all times ensure the use of the correct forms, that is, forms 71, 72 and 73 which are prescribed under the District Court Regulations whenever they plan to appeal from a District Court to the National Court.
Way forward
49. In relation to the substantive matter, I note that the appeal was lodged in 2013 and since then, there has been no good progress made to it.
50. I will therefore also issue directions to try to expedite the matter to a hearing stage.
THE ORDERS OF THE COURT
The Court Orders accordingly,
_________________________________________________
Warner-Shand Lawyers: Lawyer for the Appellant
Motuwe Lawyers: Lawyer for the Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2015/282.html