N7623

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 01 OF 2018

BETWEEN:
NGIP AGMARK LIMITED
First Appellant

AND:
JOHN NIGHTINGALE
Second Appellant

AND:
JUNIAS TAMUR
Third Appellant

AND:
INARA LAITIA
Respondent

Kokopo: Anis J
2018: 23 November & 19 December

DISTRICT COURT APPEAL – motion to dismiss – section 226(1)(2) – District Courts Act Chapter No. 40 – appeal book not ready before filing entry of appeal – delay in prosecuting the appeal – whether good explanation provided for the delay

Cases Cited:

Joycelyn Thomas v. Bradsady Thomas (2011) N5142
William Moses v. Otto Benal Magiten (2000) N2023
Rabaul Shipping Limited v. Ria Ruru (2000) N2022
Pacific Equities & Investments Ltd v. Teup Goledu (2008) N5397
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811

Counsel:

Mr P. Yange, for the Appellants
Mr J. Biar, for the Respondent

RULING

19th December, 2018

1.	ANIS J:	The respondent applied to dismiss the appeal.  The application was contested, and it was heard on 23 November 2018.  I reserved my ruling to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The matter evolved from the District Court.  There, the respondent sued the appellants for breach of contract.  The respondent claimed that he or his group had in 2008 signed an agreement with the appellants.  Under the purported agreement, the respondent alleged that customary land was rented to the appellants for K1,300 per month.  The respondent claimed that since 2016, the appellants ceased to pay the rent or usage fee.  He commenced proceedings in the District Court and sought enforcement of the contract which included payment of outstanding rents which he claimed had been due under the agreement.  On 20 January 2017, the District Court granted the relief sought by the respondent.

4.	On 27 January 2017, the appellants applied to, amongst others, set aside the Court order of 20 January 2017.  On 7 April 2017, His Worship Magistrate Kerker (trial magistrate) dismissed the appellants’ application.  The appellants have appealed that decision which is pending before the National Court.  

MOTION

5.	I refer to the respondent’s notice of motion (motion).  It reads, and I quote in part:

(1)	Pursuant to Section 226(1)(2) of the District Courts Act 1963, this Appeal be dismissed in its entirety for failure to prepare the Appeal Book by or before filing an entry of appeal;
(2)	Alternatively, this appeal be dismissed for want of prosecution pursuant to Order 10 rule 9A(15)(1)(a), (2)(a) of the National Court Rules and Section 155(4) of the Constitution.

6.	In support, the respondent relies on two (2) affidavits, namely, the affidavit of Mr Biar filed on 9 November 2018 and the affidavit of Mr Karai filed on 14 November 2018.  The appellants on the other hand filed one affidavit which is the affidavit of Mr Yange which was filed on 23 November 2018.

ISSUES

7.	The main issues in my view are, (i), whether the appellants were required to file their appeal book within 40 days pursuant to section 226 of the DCA, and (ii), whether there has been a delay in prosecuting the appeal, and if so, whether appellants have provided a genuine or satisfactory explanation for the delay.

SECTION 226

8.	The practice and procedures for filing appeals from the District Court to the National Court, in CIA proceedings such as this, are expressed by Statute, in this case, under the District Courts Act Chapter No. 40 (DCA).  The respondent in this case, cited purported failure under section 226 of the DCA.  The section reads, and I quote in part:

226.	Appellant to set down appeal and give notice.

(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.

WHETHER SECTION 226 WAS BREACHED

9.	“Did the appellants comply with this mandatory requirement under section 226 of the DCA?”  Both counsel have addressed that in their submissions.  Evidence were also called in that regard.

10.	The notice of appeal in this case was filed at the District Court registry on 11 December 2017, that is, pursuant to section 220(2) of the DCA.  A sealed copy was delivered to the National Court which was refiled there on 12 January 2018.  As for the entry of appeal, it was required to, and it was filed at the National Court on 12 January 2018, that is, pursuant to section 226(2) of the DCA.  Now, section 226(1) of the DCA requires the appellants to, within 40 days after filing their notice of appeal, file their entry of appeal.  “Was that done?”  The entry of appeal in this case was filed on the 32nd day from the date the notice of appeal was filed.  So, the answer to the question, in my view, is, “yes, the entry to appeal was filed in compliance with section 226(1) of the DCA”.  Had it been filed outside the 40 days, it would have been in breach of the section, and the appeal, in my view, would have failed.  This is of course not the case.

11.	However, the above finding is not the essence of the respondent’s arguments.  He firstly argues that the entry of appeal was filed when the appeal book was not ready or when the appeal was not ready for hearing.  The impression I got from submissions by counsel was that it is only after or only when the appeal book or the appeal is ready for hearing, that the appellants should file their entry of appeal within the 40 days.  But when looking at sections 226(1) or 226(2), there is no express requirement for that.  See case: Joycelyn Thomas v. Bradsady Thomas (2011) N5142.  In fact, there is no provision in the DCA that deals with the readiness, filing, or serving of the appeal book.  Section 226 simply states that the entry of appeal must be filed within 40 days after the date of filing the notice of appeal.  The only relevant rule that addresses appeal book is Order 18 of the National Court Rules (NCR).  Order 18 Rule 6 addresses appeal books that are to be filed in relation to appeals from the District Court to the National Court.  I need not repeat them all here.  But perhaps it is worth noting Order 18 Rule 6(5)(g) which states, and I quote in part, An Appeal Book must be delivered to the Court and served on the other party seven (7) days before the date fixed for the Pre-hearing Conference.  Under the said rule for example, there are various occasions where the matter may be called before it is ready for hearing, such as, directions hearing, adjournments, Pre-hearing Conference and Status Conference.  In the practical sense, it is, in most cases, rare that once a District Court appeal is lodged, that it would be ready for hearing within 40 days from that date at which it is filed.  The requirements for production of court depositions and the reasons for ruling are amongst the common areas or causes for delays of appeals that go before the National Court.

12.	I note that the respondent’s counsel refers to case law, namely, William Moses v. Otto Benal Magiten (2000) N2023 and Rabaul Shipping Limited v. Ria Ruru (2000) N2022.  Let me only address one of them which I believe should be sufficient for this purpose.  In the William Moses case, I note that the Deputy Chief Justice Ambeng Kandakasi, then Justice Kandakasi, after stating the mandatory requirement of section 226, expressed his opinion of what may be expected of a party during the 40 days period after a notice of appeal is filed but before filing of an entry of appeal.  That was where His Honour has said that an appellant should prepare the appeal for hearing before he or she should file the entry of appeal.  The express requirement of section 226, which I have stated above, is also held by Justice Kawi in the case of Joycelyn Thomas (supra).  Justice Kawi’s decision, in my view, is not inconsistent with William Moses but it rather distinguishes what may be termed as “good practice” from “the actual requirement” of section 226 of the DCA.  His Honour held, and I quote in part:

(1)	Section 226 of the District Courts Act relates to the requirement that after lodging the appeal, the Appeal must then be entered for hearing within 40 days. This is a mandatory requirement. Entry of Appeal to the National Court within 40 days of lodging the appeal, is not the same as filing an Appeal Book. These are two different processes. 
(2)	Rule 9 of the Appeal Rules 2005, imposes a mandatory obligation upon an appellant to compile an appeal book and have it filed before the appeal is fixed for hearing. 
(3)	There is however no requirement either under the District Court Act or under the Appeal Rules 2005 to have appeal Books filed and served within 40 days. The mandatory requirement of Entering an Appeal for Hearing to the National Court within 40 days cannot be implied into and extended to say that there is a requirement to file Appeal Books within 40 days.
(4)	It may be a statutory requirement and good practice to file appeal books within 40 days, but there is no legal requirement that Appeal Books must be filed and served within 40 days. Failure to file an appeal Book within 40 days does not attract any legal consequences.

13.	Let me add the following.  If an entry of appeal is lodged outside the 40 days requirement under section 226 of the DCA, it would be in direct breach of the said section and may have fatal consequences.  If the entry of appeal is filed within time but the appeal is not ready on the 40th day from the date the notice of appeal was lodged, it is arguable or discretionary if an application is filed for the appeal to be dismissed for want of prosecution or for undue delay.  Evidence would have to be called or causes would have to be shown, to explain the delay and why the appeal should not be summarily dismissed.  So, for the present case, it is clearly misconceived, in my view, for the respondents to argue that because no appeal book was filed within the 40 days period under section 226, that it therefore means that section 226 has been breached.  The Court’s power to consider delay in this manner remains discretionary.

14.	These said, I will now address the respondent’s second argument, that is, delay and whether there was or were satisfactory explanations given by the appellants.

SATISFACTORY EXPLANATION?

15.	Firstly, I do not think the parties dispute the fact that there was some form of delay.  The notice of appeal was filed on 11 December 2017.  To the date when the respondent’s notice of motion was filed, the delay would be about 11 months.  I also note that the appeal book has not been compiled and the matter appears not ready for hearing.

16.	In my view, I am satisfied that there is delay in prosecuting the appeal.  The onus now is on the appellants to provide a satisfactory explanation.  See cases:  Pacific Equities & Investments Ltd v. Teup Goledu (2008) N5397 and PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811.

17.	I refer to the affidavit of Mr Yange that was filed on 23 November 2018.  He attaches a draft Index to Appeal Book.  He deposes that the appeal book could not be finalised because not all the depositions have been furnished to his clients by the District Court.  And Mr Yange makes specific reference to an unfurnished document, namely, notice of motion that was supposedly filed on 7 February 2017.  Mr Yange deposes that the District Court Clerk has not provided the correct document and the reason was that the District Court files could not be located.  At the hearing on 23 November 2018, Mr Yange however informed the Court that the Clerk of Court had just informed him at lunchtime that day (i.e., 23 November 2018) that he had located the Court files.  Mr Yange informed the Court that he should now compile the appeal book and have that filed.

18.	“Are these valid or satisfactory reasons?”  I ask myself.  In my view, I would not say that the reasons provided are totally satisfactory.  The appellants had various options that were available to them which they could have exercised against the Clerk of Court to obtain the court files or the document or documents that they were after.  They did not nothing except following up at the registry.  That said, it seems to me that the issue has been resolved because the files have now been located.  There is a further reason why I feel that I should be cautions and not exercise my discretion hastily in favour of the application or in favour of the respondent.  That reason is the interest of justice.  The interest of justice, in my view, is for this Court to hear or to deal with the substantive matter than to shut out the appellants.  The delay, as I see it, cannot be blamed totally on the appellants.  The missing District Court files were, to an extent, beyond the appellants’ control.

SUMMARY

19.	I therefore am disinclined to exercise my discretion and dismiss the appeal.

20.	So, let me say these.  In regard to the first issue, whether the appellants were required to file their appeal book within 40 days pursuant to section 226 of the DCA, my answer is “no”.  And in regard to the second issue, whether there has been a delay in prosecuting the appeal, and if so, whether appellants have a genuine or satisfactory explanation, my answer is this.  “It is not disputed that there has been a delay.  But I am satisfied of the explanations that were provided by the appellants to the extent that is enough to retrain myself from exercising my discretion.  And when I also add the consideration interest of justice, it gives extra weight against the exercise of my discretion.

COST

21.	Cost is discretionary.  In this case, I will order cost not in the usual way but rather against the appellants.  I note that it was at the time when the respondent’s application was pending and heard, that the appellants had received positive news from the Clerk of Court.  It is therefore not unreasonable to assume that the respondent’s application may have had an impact on the steps that had been taken by the appellants in terms of settling the appeal book for hearing.  The other reason is this.  It is not disputed that there has been a delay in progressing the matter by the appellants.  Therefore, I am inclined to and as stated, will award cost of the notice of motion in favour of the respondent.

THE ORDERS OF THE COURT

22.	I make the following orders:

1.	The notice of motion filed on 9 November 2018 is refused.

2.	The appellants shall pay the respondent’s cost of the application on a party/party basis to be taxed if not agreed.

3.	Time for entry of this appeal is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.
______________________________________________________________
Islands Legal Services:	Lawyers for the Appellants
Namani & Associates Lawyers:	 Lawyers for the Respondents