N10937

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 18 OF 2024

BETWEEN:
PASTOR AMAI DUI
Appellant

AND:
LIFE OUTREACH MINISTRIES INC.
Respondent

Waigani: Purdon-Sully J
2024: 26 July  

DISTRICT COURT APPEAL- Practice and Procedure – Whether filing of Entry of Appeal on the same date as filing of Notice of Appeal was an abuse of process – Motion to dismiss upheld

Cases Cited:
Moses v Magiten [2000] PGNC 73; N2023
General Accident & Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331

Legislation:
National Court Rules, Order 12 Rule 40(1)(c)
District Courts Act (Ch.40), ss 220, 221, 226, 227, 231

Counsel
Mr A Lora, for the Applicant
Mr N Yagon, for Respondent/Appellant

DECISION
6th August 2024

1.	PURDON-SULLY J: By Notice of Motion filed 3 July 2024, the applicant who is the respondent to an appeal filed 18 April 2024 (the appeal) seeks the dismissal of the appeal:
a.	pursuant to Order 40(1)(c) of the National Court Rules (NCR) on the basis of abuse of process;
b.	pursuant to Order 4 Rule 37 of the NCR for failure to comply with the requirements of s 221 (2)(a) and s 226 of the District Court Act (the Act).
c.	security for costs
2.	 The application is opposed by the appellant.
3.	In these reasons I shall refer to the applicant who is the respondent to the appeal as the applicant and the appellant as the respondent/appellant.
4.	The applicant is a Christian mission registered under the Associations Incorporation Act whose primary mission is preaching the word of God from the Holy Bible.  It is the registered owner of land situated at Allotment 33 Section 306 Hohola (Gerehu) Port Moresby NCD (“the Church land”) on which is located its church and other buildings including a residence occupied by the respondent/appellant.  The applicant has owned the Church land since 4 October 1990 pursuant to a special purposes lease under s 63 of the Land Act (Chapter 185) for a period of 99 years dated 3 July 1991 and entered on 4 July 1991.
5.	The respondent/appellant was a Pastor with the applicant who following a dispute was asked in 2021 to leave the Church land. He refused.  The respondent/appellant then issued a Summons against the applicant in the Port Moresby District Court (DC CV: 313 of 2021) seeking a restraining order to prevent the applicant from evicting him from the Church land.
6.	The Summons was dismissed on 27 October 2021 for want of jurisdiction and abuse of process.  The respondent/appellant did not appeal that dismissal.
7.	The applicant commenced eviction proceedings in the District Court at Port Moresby. 

8.	On 11 April 2024, an eviction order was made (the District Court order) in the following terms:
1.	The Defendants, Mr Amai Dui and his family members, agents, relatives or associates shall immediately deliver up a free and vacant possession of the property known as Allotment 33 Section 306 Port Moresby (Gerehu) to the rightful legal owner, Life Outreach Ministries Inc. commencing ayt any time from now and ending on 30 April 2024.
2.	Between now and 30 April 2024 the Defendant and his family members, agents, relatives or associates are restrained from locking the date (sic) to the Complainant's church building or other building situate inside the subject property being Allotment 33 Section 306 at Port Moresby (Gerehu).
3.	If the Defendant and his family members, agents, relatives or associates fail to comply with the terms in Order 2bto to vacate the property by 30 April 2024, a Warrant shall be issued under s 6of the Summary Ejectment Act to have the defendant evicted immediately.
9.	On 18 April 2024, the respondent/appellant filed a Notice of Appeal against the District Court order.  On the same date the respondent/appellant filed an Entry of Appeal.  
10.	The respondent/appellant continues to reside on Church land.  He asserts an interest in the Church land based on his residence over a period of 27 years including the effecting of improvements.  It is unchallenged that the respondent/appellant has taken no steps over that period of time, including since the making of the District Court order, to crystallise by way of court application his asserted interest, a position that existed at the date of hearing of the this motion.
11.	On the evidence of Mr Ira, the Church Administrator, in his affidavit filed 9 July 2024:
a.	the respondent/appellant continues to reside on the Church land bringing his relatives, causing stress and anxiety for him and church workers, including the Church Pastor (para 5);
b.	on 1 July 2024 the respondent/appellant told him and church workers to stop work, threatened to chase them out and lock the Church gate;
c.	Mr Ira and “...my family are living in constant stress and anxiety as he continues to live here and his mood towards us is toxic” (para 6).
12.	That evidence was not denied in the affidavit of the respondent/appellant filed 10 July 2024 or by any later sworn affidavit.

THE ARGUMENTS
13.	Relying on the legal principles enunciated in Moses v Magiten [2000] PGNC 73;N2023 (Moses), in summary it is contended on behalf of the applicant that the filing of the Entry of Appeal is an abuse of process as the appeal had not been set down for hearing by the time the application to dismiss had been filed, the respondent/appellant not having complied with the mandatory requirement in s 226 of the District Court Act to set the matter down for hearing within 40 days of fling of an appeal.
14.	Further the Notice of Appeal and Entry of Appeal were not served on the Respondent until after the Application was filed on 3 July 2024 in breach of the provisions of the District Court Act 1963.  The appeal was served on 17 July 2024.
15.	Further, there is no reasonable cause of action, as there is no bona fide dispute as to title, the respondent/appellant having not sought to assert and enforce any interest in the Church land, the respondent/appellant instead filing the appeal to be able to continue his residence at the Church land which has impacted the mission and operations of the applicant. 
16.	It is submitted on behalf of the respondent/appellant that in terms of his conduct in prosecuting his appeal the respondent had difficulties effecting service of his Notice and regard should be had to the fact that the respondent/appellant was acting for himself at the time he instituted the appeal and was not otherwise aware of the relevant legal principles in relation to the filing of an Entry of Appeal.  
17.	Further, it is the respondent/appellant’s case that he may rely upon equitable remedies open to him in asserting an interest in the Church land such that based on authority his appeal has merit. 

THE ISSUE

18.	The principal issue for determination which I propose to consider first is whether the appeal amounts to abuse of Court process where it is unchallenged that when the Entry of Appeal was filed the appeal was not ready for hearing.  If the Court finds that failure to amount to an abuse of Court process, it is not necessary to consider the other issues that arise on the submissions.

APPEAL PROVISIONS
19.	Appeals from the District Court to the National Court are governed by Part XI of the Act.
20.	By way of overview of the relevant procedures on appeal, sections 220, 221, 226, 227 and 231 of the Act provide:

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 on 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.

221.	Notice of appeal.
(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.
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.
227.	Failure to enter appeal for hearing.
If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.
......

231. 	Dispensing with conditions precedent.

The National Court may—

(a) 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; and

(b) on application made ex parte by the party appealing—extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.

CONSIDERATION
21.	It is trite law that a Court should be wary in extinguishing the constitutional right to be heard by way of the right to appeal (General Accident & Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd (1990) PNGLR 331).  However, it is also trite law that the practice and procedures associated with appeals exist for good reason.  They provide for the orderly management of the work of the Court and as a safeguard against abuse.  
22.	Any appeal that does not meet the mandatory requirements of the Act is at risk of being dismissed as an abuse of process (Moses (supra)).  
23.	The respondent/appellant was required to file his Entry of Appeal within 40 days of the filing of his appeal.  This requirement underscores the need for expedition of the hearing of appeals given that it is the applicant who has the benefit of the District Court order following a judicial hearing and determination.  
24.	It is unchallenged that the respondent/appellant filed his Entry of Appeal on the same day as he filed his Notice of Appeal. In doing so he was signifying to the Court that his appeal was ready for hearing (see [4] of the Entry of Appeal).  However, it is also unchallenged that the appeal was not ready for hearing at that time or at the time of the hearing of this motion seeking to dismiss the appeal (over 3 months after the institution of the appeal). That circumstance attracts the application of Order 12 Rule 40(1)(c) which is the provision that that allows for the dismissal of proceedings where the proceedings are an abuse of process of the Court, as specifically pleaded by the applicant in its motion.  
25.	The respondent/appellant’s asserted difficulties in effecting service of his appeal on the applicant (denied by the applicant) and his self-represented status at the time is not an explanation that the Court finds persuasive such as to excuse his non-compliance.  Ignorance of the law is not an excuse.  There is good reason for this.  It ensures that the law is applied consistently and equally such that everyone is held to the same legal standards, ensures the need for personal responsibility on the part of those who seek the assistance of the Court to inform themselves and comply with the required legal standards and, importantly, addresses the impact on the administration of justice if the Court was required to investigate and verify an individual’s knowledge and ignorance of the law.  
26.	On Moses, Kandakasi J (as he then was) said this:
There is a further reason to dismiss the appeal. The Appellant filed an entry of his appeal to the National Court on the same day of the lodgment of the appeal. That meant that as of the 15th of July 1999 the appeal was ready for hearing. However, the matter was not in fact ready for hearing at that time or at the time of the hearing of the motion seeking to dismiss the appeal for want of prosecution. To my simple mind, the filing of the entry of appeal to the National Court was an abuse of process. This is because, I consider 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 in my view 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 Act. I consider 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 1983. A failure to set a matter down for trial in accordance with that rule, attracts the application of Order 10 rule 5, which is the provision that allows for the dismissal of a case for want of prosecution. The equivalent of that rule in the case of appeals from the District Court to the National Court, in my view, 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. Clearly in my view, there is legislative intent to have all appeals from District Courts heard after the lapse of 40 days from the date of the lodgment of an appeal. Any delay in that therefore, has to be satisfactorily explained if a dismissal and or an enforcement of the decision appealed against is to be avoided. A failure to provide such an explanation is fatal to an appeal.
27.	The decision of Moses remains good law. Having stood the matter down and afforded Counsel for the respondent/appellant an opportunity to consider that authority, no cogent argument was thereafter advanced as to why it should not be followed in the circumstances of this case. 

CONCLUSION AND ORDERS

28.	For the reasons given, the appeal should be dismissed.  The District Court order stands. This means that the respondent/appellant should forthwith quit the Church property. A failure to do so may result in the issuing of a warrant for his ejection.  It remains open to the respondent/appellant to otherwise pursue what rights he may have with respect to the Church land or what avenues of appeal may be open to him if he wishes to challenge this decision.  However, neither circumstance would entitle the respondent/appellant to remain on the Church land contrary to the District Court order.  Those who seek the assistance of the Court are required to respect its orders.
29.	I make the following orders:
a.	The Appeal filed 18 April 2024 be dismissed.
b.	The respondent/appellant pay the costs of the applicant to be agreed or taxed.
c.	Time to Abridge
________________________________________________________________
Adano David Lorawi Lawyers: Lawyers for the Applicant
Public Solicitor’s Office: Lawyers for the Respondent/Appellant