N7265
PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE] 

CIA No. 08 OF 2018 
BETWEEN:
HANDII MAHN INVESTMENT LIMITED
Appellant

AND:
KIWIKI ENTERPRISE LIMITED
First Respondent
AND:
 
PIUNDE LIMITED
Second Respondent
Kundiawa: Liosi J 
2018: 26th February & 3rd April

PRACTICE AND PROCEDURE – Appeal from Decision of Kundiawa District Court – Objection to competency of Appeal – District Court creature of statute – Practice and procedure described by District Courts Act – Mandatory Appeal Procedures prescribed by the District Courts Act must be complied with strictly – Notice of Appeal not sealed by Kundiawa District Court – inference drawn – Filing Notice of Entry of Appeal when appeal not ready – Abuse of process – Filing of Notice of Appeal, Entry of Appeal and Recognizance on Appeal simultaneously – Inference drawn – Abuse of process of court. 
Case cited:
ABCO Transport Pty Ltd v. Timothy Sakaip [1997] N1577
Kiau Nekints v. Moki Rumints (1990) PNGLR 123 
Rabaul Shipping Ltd v. Rita Ruru [2000] N2022
William Moses v. Otto Benal Magiten [2000] N2023
Senior Stipendiary Magistrate, Ex parte, the Acting Public Prosecutor (1976) PNGLR 344

Counsel: 

Mr. M Yawip, for the Plaintiff/Applicant 
Mr. P Kewa, for the Respondents
DECISION
3rd April, 2018   
1.	LIOSI J: By a Notice of Motion filed on 16th February 2018, the first respondent moves the Court for the following orders that: 

(1)	The requirement of the rules in respect to service of this motion and the affidavit in support be dispensed with pursuant to Order 1 Rule 7 of the National Court Rules 1983 and Rule 20 of the National Court Motions (Amendment) Rules 2005. 

(2)	Pursuant to Rule 13 of the National Court Appeals Rules 2005, Order 12 Rule 40(1) of the National Court Rules 1983 and Section 155(4) of the Constitution, the entire appeal be dismissed for being incompetent and an abuse of process on the grounds of non-compliance of mandatory requirements stipulated under Sections 220, 221, 226, and 227 of the District Court Act.  

(3)	If the order sought in paragraph 2 herein is not granted or, alternatively, if the Court wish to proceed initially with the stay application filed on 12th February, 2018.

(i)	The notice of motion filed on the 12th February, 2018 is incompetent on the ground that it does not confer any jurisdiction of the court to grant the orders sought in the motion and be dismissed pursuant to Rule 8 of the National Court Motions (Amendment) Rules 2005. 

(ii)	 or, alternatively, the stay application be dismissed pursuant to Order 12 Rule 40(1) of the National Court Rules 1983 and Section 155(4) of the Constitution, on the ground that there are no special or exceptional circumstances warranting the continuation of the stay orders granted on 12th February 2018. 

(4)	Costs of this proceeding be borne by the Appellant. 
Background
 
2.    The proceeding concerns a property located in Kundiawa Town which was purchased by Kiwiki Enterprise Limited. This property is described as Allotment 01, Section 08 Kundiawa, Simbu province (hereinafter “the Property”).

  3.   The appellant is the sitting tenant to the property and currently runs the property as a fuel service station. In 2013, he leased the property from the second respondent. He did major improvements to the property after being domant for some time. The property was run down and neglected for over eight years. 

4.    In 2015, Piunde Limited went into liquidation and the property in dispute was placed in liquidation by the Order of the National Court on the 25th of March 2015. James Kruse was appointed as the liquidator. On the 22nd of November 2016, the property was advertised for tender. Upon a successful bid the property was sold and transferred to the first respondent. 

5.    The first respondent then filed proceedings in the District Court to evict the appellant. The appellant filed originating summons proceedings at Waigani National Court styled OS No. 606 of 2017. The District Court proceeding was then stayed pending the determination of the National Court proceedings. The appellant had tendered for the property and requested the liquidator to sell the property to it, on the basis that, it did considerable amount of improvement on the property which resulted in the appreciation of the value and further that it was the sitting tenant and should have been given priority on the sale. 

6.   On the 25th of January 2018, the originating summons proceedings styled OS No. 606 OF 2017 at Waigani National Court was dismissed. Based on the decision of the National Court, the first respondent then filed and moved the ex parte application at the Kundiawa District Court for orders for immediate eviction which were granted and which is the subject of this appeal. 

7.    In it’s submission, the first respondent states facts which it says relates to mandatory requirements which the appellants has not complied with in relation to appeal procedures prescribed under part XI of the District Court Act. 

Issues 

8.    Whether the appellant has complied with all the mandatory requirements for appeal procedures prescribed under part XI of the District Court Act. If the answer is no, does that amount to abuse of court process warranting a dismissal of the entire appeal? 

9.     The first respondent has asserted that the appellant hasn’t complied with all the mandatory requirements of the appeal procedures. A number of mandatory requirements are set out in the appeal procedures under part XI of the District Courts Act. The first respondent however seems to have concentrated its argument on the issue as to when the entry of appeal to the National Court should be filed. 

10.   Before I address the issue of entry of appeal, I address the other mandatory requirements first which the first respondent argues the appellant has breached. 

11.    Firstly, it argues that S.220 (2) of the District Court Act was breached. Whilst the notice of appeal was lodged within time, it failed to lodge the appeal with the Kundiawa District Court. This is confirmed by affixing the seal of the Kundiawa National Court only and not the Kundiawa District Court. It is therefore an abuse of process under S.220 (2) of the District Court Act and so the proceedings must be dismissed. The appellant has not addressed this issue. It is clear that the notice of appeal has only the National Court seal. In the absence of any opposing arguments and evidence from the appellant, I accept this provision was breached. The first respondents further contend that form 71 was not complied with. I do not accept this as the notice of appeal does contain names of the parties and reference to the District Court whose decision is been appealed against. 

12.   Secondly, the first respondent also submits that the appellant did not comply with the surety fee as ordered by the Magistrate and only paid K500.00 filing fee. I however have the K10, 000.00 receipt on file which reads surety fee. In the circumstances this was complied with. 

13.   Thirdly, the first respondent further contends that the recognizance on appeal failed to comply with form 72 of the District Court Regulations when the recognizance was filed. Whilst it contains the names of the parties, the reference to the District Court whose decision is been appealed against is not contained. This requirement appears to have been partly fulfilled. In the circumstances I find it was breached. I now address the issue relating to the Entry of Appeal.

Entry of Appeal

14.    The requirement to file entry of appeal to the National Court is provided for under Section 226 of the District Courts Act. Section 226 states; 

(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. 
	
15.    The first respondent argues that filing of entry of appeal is a kin to serving and filing a notice to set down for trial of a writ of summons matter before the National Court pursuant to Order 10 Rule 4 of the National Court Rules 2011. A failure to set down for trial in accordance with that rule attracts the application of Order 10 Rule 5 which is the provision that allows for dismissal of the case for want of prosecution. He draws an analogy and submits this is the same scenario here. 

16.  If the entry of appeal is filed together with the notice of appeal and recognizance of appeal than it was prematurely filed.  The requirement to file and serve an Entry of Appeal to the National Court is to tell the court and all concerned that an appeal is ready for hearing. That is obvious from the words “for hearing on a date to be fixed by the Registrar of the National Court” used in section 226(1) of the District Courts Act. As submitted earlier, the situation is similar to filing and serving a notice to set down for trial of a writ of summons matter before the National Court pursuant to Order 10 Rule 4 of the National Court Rules 2011. The equivalent of that rule in the case of appeals from the District Court to the National Court is section 227 of the Act which renders an appeal non-existent if an entry of an appeal to the National Court is not filed in accordance with section 226 of the Act. 

17.   The fact here is that the Entry of appeal to the National Court was filed simultaneously with the Notice of Appeal and the Recognizance of Appeal on 08th February 2018. 

18.   Section 220 of the District Court Act provides for institution of an appeal. It states; 

(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.”
           
19.   Section 221 deals with the notice of appeal; 
         It states; 

(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. 
 
20.   Section 222 deals with recognizance on appeal 
         It states; 

(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 Attorney-General, or to a person acting on behalf of the State or the Attorney-General.”

21. Both the notice of appeal and recognizance on appeal are filed simultaneously within thirty (30) days after the date of the decision of the Magistrate. Further, recognizance on appeal is filed to assure the Court that the applicant will prosecute the appeal with due diligence within forty (40) days wherein he is required to file an Entry of appeal to the National Court. 
	
22.   Section 226 deals with the entry of appeal. 
         It states; 

(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. 

23.   The first respondent argues that the Entry of Appeal should not have been filed simultaneously with the Notice of Appeal and the Recognizance of Appeal. The entry of appeal should only be filed within the (40) days period but only after all necessary steps have been taken to ensure the appeal is ready for hearing. He submits this is obvious from the words “for hearing on a date to be fixed by the Registrar of the National Court”. 

24.   He goes onto cite the cases of William Moses v Otto Benal Magiten N2023, Senior Stipendiary Magistrate, Ex parte, the Acting Public Prosecutor (1976) PNGLR 344, Kiau Nekints v. Moki Rumints (1996) PNGLR 123, ABCO Transport Pty Ltd v. Timothy Sakaip N1577 and Rabaul Shipping Ltd v. Rita Ruru N2022. 

25.   Both the cases of William Moses v. Otto Benal Magiten (supra) and Rabaul Shipping Ltd v. Rita Ruru (supra) stand for the proposition that it is an abuse of process for a party to file an entry of appeal to the National Court without getting the appeal ready for hearing by or before filing the entry of appeal. 

26.    I do agree with counsel that the District Court are creatures of statute and so their practices and procedures are prescribed by the District Courts Act. Therefore the mandatory appeal procedures must be complied with as stated by Kandakasi J in the case of William Moses v. Otto Magiten (supra). 

27.   Whilst I agree with Kandakasi J, I will also go further to add this. The requirement to file entry of appeal is provided for by Section 226 which states; 
   
(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. 

28.   Whilst I do not agree that it is akin to filing and serving a “Notice to set down for trial’’ it is nonetheless provided for by a separate provision other than that which provides for a Notice of Appeal and Recognizance on Appeal. This means that they cannot be filed together because Section 221 and 222 states that both documents “shall” be filed within 1 month from the pronouncement of the decision. 

29.    Section 266 clearly states that with 40 days after institution of an appeal the appellant “shall’’ enter the appeal for hearing. Note the use of ‘’shall’’ which is mandatory. In my view therefore the entry of appeal can only be filed within 40 days after filing the notice of appeal. Clearly then this means that the entry of appeal cannot be filed together with the notice of appeal and the recognizance of appeal. Consequently, Section 226 was breached when the Entry of Appeal was simultaneously filed with the Notice of Appeal and the Recognizance of Appeal on 8th February 2018. 

30.    In my view committal of one of this breaches has the potential to have the appeal dismissed. In this case I am satisfied that more than one (1) mandatory requirement has been breached under part XI of the District Court Act. 

31.  Ultimately, I dismiss the appeal for been incompetent and an abuse of process. 
 
32.    The formal orders of the Court are; 
 
1.	Appeal is dismissed for been incompetent and an abuse of process.
2.	The surety fee of K10, 000.00 is refunded. 
3.	Costs follow the event.    
_____________________________________________________________
Public Solicitor:  Lawyer for the Plaintiff/Applicant
Boma Lawyers:  Lawyer for the First Respondent