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Bike v Moses [2025] PGNC 303; N11446 (13 August 2025)

N11446

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


CIA NO. 33 OF 2024


BETWEEN
PAUL BIKE in his own capacity ad all occupants of Portion 84 Granville, Port Moresby
Appellant


AND
KAILU TOM MOSES
First Respondent


AND
DAKA KYAGALI
Second Respondent


WAIGANI: PURDON-SULLY J
4, 13 AUGUST 2025



PRACTICE AND PROCEDURE – appeal from decision of District Court – Respondents file notice of motion to have appeal summarily dismissed for being incompetent and an abuse of Court process - Order 18 Rule 12(4)(a)(i) and Order 18 Rule 7(1) (c) and Order 18 Rule 5(c) of National Court Rules – appeal provisions in Part XI District Courts Act 1963 – requirements for institution of appeal – the requirement to enter into a recognisance and surety under s 222(1) discussed - whether the appellant was non-compliant with Court directions – whether costs should be awarded on an indemnity basis
EVIDENCE – Affidavit evidence – failure to sign each page of affidavit - National Court Rules, Order 11 Rules 22(5) - affidavit inadmissible.


Cited cited
Kui Valley Business Group Incorporated v Mosley [2011] PGNC 278; N4548
Bokin v Life Outreach Ministries [2024] N11084
Motor Vehicle Insurance Limited v Gigmai [2013] N5295
In the Matter of an Application by Linah Edward [2005] N2804
Moses v Magiten [2000] PGNC 73; N2023
Handii Mahon Investments Ltd v Kiwiki Enterprise Ltd [2018] PGNC 173; N7263
Dui v Life Outreach Ministries Inc [2004] PGNC 269; N10937
Opi v Telikom PNG Ltd [2020] PGNC 168; N8290


Counsel
Mr M Leo for applicant (Respondent to Appeal)
Mr F Baundo, for the respondent (Appellant)


REASONS FOR JUDGMENT


  1. PURDON-SULLY J: By Notice of Motion filed 29 May 2025 the respondents to an appeal filed 11 September 2024 seek the following orders:
    1. Pursuant to Order 18 Rule 12 (4)(i) of the National Court Rules (NCR) the appeal be dismissed.
    2. Pursuant to Order 18 Rule 7(1) (c) of the NCR the within appeal be dismissed for noncompliance of the Court’s directional orders issued on 14 April 2023.
    3. The appeal be dismissed for the abuse of the Court process for filing the within appeal out of time.
    4. Pursuant to s 155(4) of the Constitution and Order 18 Rule 5(c) of the NCR, the appeal be dismissed for the appellant’s non-compliance with the requirements for an appeal provided for under s 222 of the District Court Act.
    5. Costs
  2. It is clear that the rule relied upon at Term 1 of the Motion is a misdescription and is meant to refer to Order 18 Rule 12 (4) (a)(i). No issue was taken by the appellant respondent in that regard.
  3. The applicants outlined the basis for the dismissal of the appeal at C of written submissions filed 18 June 2025 as follows:
    1. The appellant did not file the Notice of Appeal within the 30 days from the pronouncement of the decision.
    2. The appellant did not comply with the Appeal Recognizance provided for by statute.
    1. The appellant failed to meet other procedural requirements necessary for the appeal process, including the non-payment of the conditional Recognition (sic) of appeal fees, which constitutes a statutory requirement for the filing of an appeal which failure renders the appeal defective.
    1. The appellant has not complied with the directional orders issued by the Court on 14 April 2024.
  4. During the course of the hearing the applicants abandoned the first ground, namely that the Notice of Appeal had been filed out of time.
  5. The material relied upon is otherwise detailed at E of the applicants’ written submissions.
  6. The Motion is opposed by the appellant/respondent.
  7. In these reasons for purposes of convenience, I shall refer to the respondent to the application as “the appellant” and the applicants who are the respondents to the appeal as “the applicants”.

CONSIDERATION

  1. The applicants seek the dismissal of the appeal pursuant to Order 18 Rule 12(4)(a)(i), Order 18 Rule 7(1) (c) and Order 18 Rule 5(c) of the NCR and s 155 of the Constitution.
  2. Order 18 Rule 12(4)(a)(i) provides:

ORDER 18
12. Other matters
...
...
...
(4) Summary Disposal

(a) The Court may summarily determine an appeal:

(i) on application by a party; or
...


  1. Order 18 Rule 7(1) (c) provides:

....

(c) Summary determination of appeals which fail to comply with directions issued at the Directions Hearing or otherwise fail to comply with procedures prescribed by the relevant statute.

  1. Order 18 Rule 5(c) provides:

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 –

...

(c) Dispensation or waiver of any condition precedent to the right to appeal prescribed by statute.

COMPETENCY ISSUE

  1. The appellant raises a preliminary issue seeking dismissal of the motion on competency grounds. It is submitted that:
    1. the applicants did not cite a jurisdictional basis for Order 3 in its motion and that all the rules cited are either non-existent or incorrect or improper.
    2. the affidavit in support by the first applicant is defective or non-compliant with the mandatory requirement under Order 11 Rule 22(5) of the NCR which provides that each page of an affidavit shall be signed by the deponent and by the person before whom it is sworn, the first applicant not signing pages 1 and 2 of the document.
  2. With respect to the first ground of complaint, Order 4 Rule 49 (8) of the NCR provides that all motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. With respect to Term 3 of the orders sought, however, namely that the appeal be dismissed for the abuse of the Court process for filing the appeal out of time, the applicants did not press for that order at the hearing.
  3. With respect to the second ground of complaint, under Order 4 Rule 44 of the NCR, where a notice of motion is based on facts or facts and documents, then the facts and documents must by produced by way of an affidavit.
  4. In support of their motion the applicants rely upon the affidavit of the first applicant. Mr Moses described as “Affidavit in Support” of their notice of motion and filed the same date as the motion. The other later affidavits relied upon go to matters of service.
  5. Order 11 Rule 22 of the NCR details the requirements of an affidavit, subsection (5) providing that one such requirement is:
  6. The requirement is in mandatory terms, clear from the use of the word “shall”. It is a requirement that is not based on the pedantic. The basic function of a court of law is to receive evidence, make a finding of fact based on the evidence and apply the law to the facts in order to decide an issue in a just, fair and impartial manner. To that end there are safeguards and qualifications provided under the NCR to protect the integrity of the evidence and the processes of the court. A party desiring to rely on an affidavit in support of an application must comply with the legal requirements governing the execution of affidavits (Kui Valley Business Group Incorporated v Mosley [2011] PGNC 278; N4548 per Yagi J at [15]).
  7. The affidavit of the first applicant is not signed on each page as required by the relevant rule. As such the evidence of the deponent, the first applicant, is not properly authenticated.
  8. A failure to comply with the Order 11 Rule 22 renders the affidavit defective and therefore inadmissible.
  9. That being the only affidavit in support of the notice of motion, and no application having been made on behalf of the applicants that the Court dispense with the requirements of the rules pursuant to Order 4 Rule 49 (20), or otherwise exercise its discretion to grant leave to the applicants to rely upon the affidavit, it is a defect which renders the notice of motion incompetent. On that basis the notice of motion should be dismissed.

MERITS OF APPLICATION

  1. However, even if the applicant’s notice of motion was not incompetent for the reasons given below the notice of motion should be dismissed on its merits.
  2. It is the applicants’ contention that the appellant failed to comply with the relevant legislation governing appeals of this nature from the District Court to the National Court found in Part XI of the District Courts Act 1963 (DCA).
  3. Section 220 of the DCA outlines the process for instituting an appeal from a District Court decision as follows:

(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.


(Emphasis added]

  1. Orders are “pronounced” for the purposes of s 220 when they are delivered in Court by the Magistrate whose orders are the subject of the appeal (Bokin v Life Outreach Ministries [2024] N11084 at [16] – [17] citing with approval Motor Vehicle Insurance Limited v Gigmai [2013] N5295 at [24] – [28]).
  2. In the present case, the orders were pronounced by the learned Magistrate on 15 August 2024. The notice of appeal was filed on 11 September 2024, a date within one month after the day on which the decision was pronounced. There can be no question then that the notice of appeal was filed within time, the applicants’ having abandoned that ground, as earlier noted, during the course of the hearing.
  3. Section 221 (2) of the DCA goes on to provide that within one month after the day on which the decision is 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.

  1. Section 238 provides for service in the following terms:

SERVICE OF NOTICE, ETC.

(1) A notice, process or document required or authorized by this Part to be served on a person may be served on that person–

(a) by delivering it to him personally; or

(b) by leaving it for him at his usual or last-known place of abode or business with some person, apparently an inmate of or employed at that place and apparently not less than 16 years of age.

(2) The service on a person of a notice, process or document referred to in Subsection (1) may be proved by affidavit, but the National Court may require the person who served the notice, process or document to be called as a witness, or require further evidence of the facts.

  1. On the evidence, service of the notice of appeal was effected on the first applicant’s son at the first applicant’s residence on 23 September 2024 and on second applicant on 25 September 2024.
  2. Section 222 of the DCA then provides that, subject to Subsection (2) (which is not relevant for present purposes), 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.

  1. The appellant filed his notice of appeal and a recognizance on the same day on 11 September 2024.
  2. The Recognizance on Appeal is in these terms:

RECOGNIZANCE ON APPEAL

Be it remembered that, on 10 September, 2024, PAUL BIKE and all occupants of

Portion 84, Granville, Port Moresby, C/- Gibson Bon Lawyers, P O Box 637, PORT

MORESBY 121, National Capital District came before the undersigned, a Magistrate of a District Court, and acknowledged themselves to owe to the State the sum of K500.00 to be made and levied of their several goods and chattels, lands, and tenements respectively to the use of the State if PAUL BIKE and all occupants of Portion 84 Granville, Port Moresby, fail in the condition endorsed.

Taken and acknowledged before me the day and year first above-mentioned at Port Moresby.


MAGISTRATE


CONDITION

The condition of the recognizance is such that whereas on May, 2024, a Complaint was made by Kailu Tom Moses and Daka Kyagali, C/- Leo & Company Lawyers, P O Box 1723, PORT MORESBY, National Capital District against PAUL BIKE and all occupants of Portion 84, Granville, Port Moresby, C/- Gibson Bon Lawyers, P O Box 637, PORT MORESBY 121, National capital District.

AND WHEREAS the substantive matter in DC No. 159 of 2024 - Kailu Tom Moses & Daka Kyagali vs- Paul Bike & Ors were heard by the District Court at Port Moresby and the Court made the following Orders in its Decision on 15th August, 2024:


(1) The Defendants, their servants, agents and relatives occupying the property known as Portion 84, Milinch 84, Granville Fourmil Port Moresby, National Capital District (Subject Land) shall voluntarily deliver vacant possession of the land Property of the Complainant within two months from today. The two months will lapse on 15h October, 2024.
(2) If the Defendants, their servants, agents and relatives occupying the Subject Land fail to voluntarily deliver vacant possession of the Subject Land to the Complainant within the two months as ordered by the Court, then AN ORDER is made for them to be evicted pursuant to Section 6 of the Summary Ejectment Act 1952, after the lapse of the two monthsfrom today.
(3) In the case of Order No.2 herein above, a Warrant of Possession is issued and is directed to the members of the Police Force to enter the Subject Land by force, if necessary, and give vacant possession of the Subject Land to the First Complainant if the Defendants fails to voluntarily deliver vacant possession of the Subject Land to the Complainant within the two months as ordered by this Court.
(4) The Clerk of Court shall issue a Warrant of Possession in the prescribed form forthwith, to take effect on I6h October 2024.
(5) The Court File is closed.

AND WHEREAS PAUL BIKE and all occupants ofP0ftion 84, Granville, Moresby have given notice of their intention to appeal from the Decision and Orders to the District Court to the National Court.

If therefore PAUL BIKE and all occupants of Portion 84, Granville, Port Moresby shall duly prosecute without delay such appeal and abide the order of the National Court on the appeal, and pay such costs as may be awarded by the National Court, then the recognizance to be void, or else to stand in full force and virtue.

  1. Whether the appellant had met the requirements of the recognizance was an issue that took up a considerable amount of Court time. It is submitted on behalf of the applicants that there was non-compliance with the DCA by reason of the failure of the appellant to pay the amount of K500 in the Notice of Recognizance rendering the appeal defective.
  2. To that end the applicants rely upon the Certificate To Accompany Appeal Papers dated 17 September 2024 being Annexure E to the affidavit of the first applicant filed on 29 May 2024 which certificate is signed by the Acting Clerk of the Court. The relevant part of that document reads:

...

AND I DO FURTHER CERTIFY that the APPELLANT has not paid the sum of K500.00 as surety at Treasury Office, Waigani, being the amount set by the District Court to be lodged in respect of the prosecution of the appeal.

...

  1. It is unclear to me what is meant by that certification and speculation to that end is unhelpful. However, if it is relied upon by the applicants to support the proposition that the appellant was under a legal requirement to pay the money, and having failed to do so, such failure rendered his appeal incompetent, then that contention must be rejected.
  2. This is because by virtue of s 222 (1) the appellant has a choice. He can either enter into a recognizance and surety that he promises to prosecute the appeal, abide by the National Court decision and pay any costs awarded against him and if he breaks that promise then he has to pay the amount of the surety fixed by the Magistrate or he can pay the amount directed by the Magistrate to the Clerk of the District Court. That exposition of the law was outlined by Cannings J in In the Matter of an Application by Linah Edward [2005] N2804. It is one with which I respectfully agree.
  3. One of those two options must be done within one month after the District Court decision. If neither is done, then this can render the appeal incompetent and liable to be struck out by the National Court.
  4. In this case the appellant chose the first option. He filed a Recognizance, and he did so within the statutorily required period. It is clear from its terms that it was a conditional pledge of money only, made by the appellant before the Court, not a payment required to be made at that time, the conditions set out in the body of the document, one where he recognised he owed the money to the State as a debt if he breached the relevant conditions. The obligation to pay however is avoided if the conditions attached to it were not breached.
  5. In consequence the Court accepts the submission on behalf of the appellant that the appeal was not defective and thus incompetent by reason of the appellant’s failure to make a payment of K500 as directed by the Magistrate.
  6. It is further submitted on behalf of the applicants that an appeal is rendered non-existent if an Entry of Appeal is not filed in accordance with s 227 of the Act.
  7. Pursuant to s 226 (1) of the DCA, within 40 days after the institution of an appeal, the appellant is required to enter the appeal for hearing on a date to be fixed by the Registrar of the National Court. Pursuant to subsection (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.
  8. Section 227 then provides for a failure to enter appeal for hearing. It states that 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.
  9. An entry of appeal is a document that tells the Court that the appeal is ready to be heard by the National Court (Moses v Magiten [2000] PGNC 73; N2023; Handii Mahon Investments Ltd v Kiwiki Enterprise Ltd [2018] PGNC 173; N7263; see also my consideration of this issue in Dui v Life Outreach Ministries Inc [2004] PFNC 269; N10937).
  10. The appellant filed an entry of appeal on 23 September 2024. The entry was filed within 40 days after the institution of the appeal on 11 September 2024.
  11. There is no persuasive evidence to suggest that at that time, namely 23 September 2024, the appeal was not ready to be entered because, on the evidence, the depositions and all relevant papers from the District Court were sent under cover of the Certificate from the Acting Registrar that accompanied the documents dated 17 September 2024, a certificate the applicants put into evidence.
  12. It is further submitted that the appellant failed to comply with the following court directions made on 14 April 2025:
    1. The Appellants shall draft and serve a Draft Index to Appeal Book on the Respondents within seven (7) days as at the date of this Order.
    2. The Respondents shall respond or comment on the Draft Index, if any within seven (7) days after service of the Draft Index on it.
    3. The Parties shall file and settle the Draft Index to Appeal Book at the Waigani National Court Registry within three (3) days after compliance with terms 1 and 2 of this Order.
    4. The Appellants shall draft, compile and serve a Draft Appeal Book on the Respondents within twenty-one (21) days after compliance with terms 1, 2 and 3 of this Order.
    5. The Respondents shall respond or comment on the Draft Appeal Book, if any within fourteen (14) days after service of the Draft Appeal Book on them.
    6. The Parties shall then file and settle the Draft Appeal Book as the Appeal Book at the Waigani National Court Registry within seven (7) days after compliance with term 5 of this Order.
    7. After full compliance with all of the preceding terms of this Order, the Appellants shall immediately liaise with the Court Registry to set the matter for Pre-Hearing Conference pursuant to Order 18, Rule 7 of the National Court Rules and shall notify the Respondents immediately of the date.
    8. Parties are at liberty to seek variation of any term of this Order only by a proper application made in this Court.
  13. The appellant accepts that while he complied with Orders 1 and 3 he was otherwise non-compliant with the directions to advance his appeal. On his case, this was because the applicants did not comply with Order 2 and the appellant’s ability to comply with the balance of the directions was otherwise hampered by the necessity to deal with the applicants’ Notice of Motion to dismiss filed on 29 May 2024.
  14. I am not satisfied that the appellant’s non-compliance with the orders of 14 April 2024 warrants dismissal of the appeal. The Court should be slow to remove a party from the seat of justice.
  15. On any fair view of the evidence the appellant has prosecuted his appeal. He filed his notice of appeal, Recognizance and entry of appeal within the prescribed periods. While there was a delay in the listing of the matter before the Court, that delay could not be occasioned to the appellant. The appeal was filed on 11 September 2024, however the first return date before the Court was 17 March 2025 at which time neither party or their legal representatives were in attendance. The reason for that is not in evidence. It may have been an issue to do with notification of the hearing date to the parties. My perusal of the file endorsements suggests some otherwise overall scheduling difficulties by the Court.
  16. The Court directions were made on 14 April 2025. The applicants were not represented at that hearing date. The applicants’ lawyers did not come on to the record until 29 May 2025.
  17. The appellant filed the Index to the Appeal Book on 27 May 2025. The appellant served a sealed copy of the Draft Index on the respondent’s lawyers on 16 June 2025.
  18. The matter came before me on 25 July 2025. The applicants’ lawyers were not present. The applicants’ notice of motion was then listed for hearing on 4 August 2025 with an order that in the event the applicants failed to appear then the motion would be dismissed. Pursuant to a further order made, on 29 June 2025 the appellant’s lawyers notified the applicants’ lawyers of the adjourned date for hearing of their notice of motion.
  19. Against that background, this is a not a case where the appeal can be said to have languished for want of action on the part of the appellant. Delving into who was at fault for non-compliance with the directions of 14 April 2025 is unlikely to be a rewarding endeavour. There is, however, some merit in the submission on behalf of the appellant that the litigation was unlikely to progress as intended and in accordance with the directions made given that shortly after the making of the directions the applicants engaged a lawyer who filed their notice of motion to dismiss the appeal.
  20. For these reasons the applicants’ notice of motion lacked merit.
  21. The appellant seeks costs on an indemnity basis. Costs are discretionary. Indemnity costs are rare orders (Opi v Telikom PNG Ltd [2020] PGNC 168; N8290).
  22. The filing of this notice of motion was misconceived and unmeritorious, taking up an unnecessary amount of Court time on a busy day. It involved the early abandonment by the applicants’ of a key ground of their application, namely the purported filing of the appeal out of time. That ground was wholly without merit. The applicants contended that the orders appealed against were pronounced on 22 July 2024, not 15 August 2025, a date clearly wrong, not only on a plain reading of the published judgment that had the 15 August 2025 under the words in bold type Decision, but other documents relied upon and annexed by the first applicant to his evidence filed on 29 May 2025, namely the further order of the District Court dated 17 October 2024, the notice of appeal, Recognizance of Appeal and entry of appeal.
  23. To compound matters on this point, the parties in the National Court were represented by the same lawyers in the District Court. It would be difficult to accept that neither the applicants nor their legal representative would have been unaware of the date the matter was heard before the learned Magistrate or the date he delivered his decision. Both dates were otherwise reflected on the front cover of the published reasons, as is the usual practice in this jurisdiction.
  24. The best that can be said is that neither the applicants and/or their lawyer properly read the documents they chose to put into evidence.
  25. While the notice of motion was a waste of Court time, on balance, I am not persuaded the evidence rises to the level of indemnity costs on the authorities. The order for costs should be that the applicants and/or their lawyers pay the costs on the usual basis. The order for costs sought that includes the applicants’ lawyer is appropriate for the reasons outlined.
  26. I make the following orders:
    1. The Notice of Motion filed on 29 May 2025 be dismissed.
    2. The respondents to the appeal pay the appellant’s costs of the Notice of Motion on a party party basis to be agreed or taxed.
    3. The appellant draft and serve a Draft Index to Appeal Book on the Respondents within seven (7) days as at the date of this Order.
    4. The respondents to the appeal respond or comment on the Draft Index, if any within seven (7) days after service of the Draft Index on them, failing which the appellant be at liberty to file the Draft Index as prepared.
    5. The appellant file and settle the Draft Index to Appeal Book at the Waigani National Court Registry within three (3) days after compliance with terms 1 and 2 of this Order.
    6. The appellant draft, compile and serve a Draft Appeal Book on the respondents to the appeal within twenty-one (21) days after compliance with terms 3, 4 and 5 of this Order.
    7. The respondents shall respond or comment on the Draft Appeal Book, if any, within fourteen (14) days after service of the Draft Appeal Book on them.
    8. The appellant shall then file and settle the Draft Appeal Book as the Appeal Book at the Waigani National Court Registry within seven (7) days after compliance with Term 7 of this Order and shall be at liberty to file the document failing the respondents’ compliance with Term 7.
    9. The matter be listed for Pre-Hearing Conference pursuant to Order 18, Rule 7 of the National Court Rules on 6 October 2025 at 9.30 am.
    10. The parties are at liberty to seek variation of any term of this Order only by a proper application made in this Court.
    11. Time to abridge,

________________________________________________________________
Lawyers for the applicants: Leo & Company Lawyers
Lawyers for the respondent/appellant: Gibson Bon Lawyers

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