SC1964

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 172 OF 2017

BETWEEN
KENNEDY THOMAS KIIARK
Appellant

AND
NORIT LUIO
Respondent

Waigani:  Salika CJ, Mogish & Shepherd JJ
2020:  26th May & 12th June

SUPREME COURT - appeal against refusal by National Court to dismiss appeal from District Court – whether refusal by National Court to dismiss appeal was wrongful exercise of judicial discretion by primary judge – whether conditions precedent to appeal from District Court to National Court prescribed by Part XI of District Courts Act are so mandatory as to exclude exercise of judicial discretion – s.231 of District Courts Act confers discretion on National Court to waive compliance with conditions precedent to appeal from District Court (1) if there is reasonable explanation for delay (2) ground(s) of appeal are arguable, and (3) no prejudice to respondent – whether filing of original of notice of appeal from decision of District Court in National Court Registry instead of with Clerk of District Court is serious breach of s.220(2) and 221(2)(b) of District Courts Act – no serious breach because current Order 18 Rule 5 of National Court Rules (as amended in 2005) allows original of notice of appeal to be filed in National Court Registry – statutory intervention required to resolve conflict between these provisions - s.227 of District Courts Act operates as automatic stay of District Court decision if entry of appeal is filed within 40 days from date of filing of notice of appeal – circumstances in which motion for stay of District Court decision is required - no denial of right to be heard after “no objection” to motion is conveyed to primary judge – appeal to Supreme Court dismissed – matter remitted back to National Court to progress appeal at National Court level to expedited hearing

Held

1.	Section 231 of the District Courts Act confers judicial discretion on the National Court to waive compliance with the conditions precedent prescribed in Part XI of the Act to appeal from the District Court to the National Court if the primary judge can be satisfied that (1) there is reasonable explanation for delay (2) the ground(s) of appeal are arguable, and (3) there is no prejudice to the respondent.

2.	Whereas s.220(2) and s.221(2) of the District Courts Act require an appellant to lodge the original of a notice of appeal against a decision of the District Court with the Clerk of that District Court and to then serve a copy of the notice of appeal on the Registrar of the National Court, Order 18 Rule 5(1) of the National Court Rules (amended in 2005) contemplates the lodgment of an original of the notice of appeal with the Registrar of the National Court, not with the Clerk of the District Court.  Until such time as that conflict is statutorily resolved, s.231 of the District Courts Act operates to confer judicial discretion on the National Court to allow the original of a notice of appeal from a decision of the District Court to be lodged with the Registrar of the National Court.

3.	 Section 227 of the District Courts Act operates as an automatic stay of the decision of the District Court the subject of the appeal to the National Court for a period of 40 days after the filing of a notice of appeal. That stay lapses at the expiration of the 40-day period and the decision of the District Court can thereafter be enforced by a Court or Magistrate unless within that 40-day period the appellant has filed in the National Court Registry an entry of appeal in Form 73 of Schedule 2 of the District Courts Act.

4.	If an appeal is not ready for hearing by the National Court during the 40-day stay period from date of filing of a notice of appeal, an appellant should apply to the National Court by notice of motion either pursuant to Order 18 Rule 12(2)(1) of the National Court Rules, or if urgent then ex parte by notice of motion pursuant to Order 18 Rule 12(3) of the National Court Rules, for a stay of the District Court decision pending determination of the appeal or until further order of the National Court.  

5.	Appeal dismissed because the respondent had provided the primary judge with a reasonable explanation for two-month delay as at the date of the appellant’s filing of his motion seeking dismissal of the appeal for want of prosecution, the delay was not inordinate and there was no evidence of prejudice to the appellant.  The matter was remitted back to the National Court for directions to expedite the appeal to substantive hearing.  

Cases Cited: 

Curtain Bros (PNG) Ltd v UPNG (2005) SC788
State v Akoita (2009) SC977
Napitalai v PNG Ports Corporation Ltd (2010) SC1016
Lupari v Somare (2010) SC1071
PNG Power Ltd v Gura (2014) SC1402
O’Neill v Eliakim (2016) SC1539
Rabaul Shipping Ltd v Ruru (2000) N2022
Mote v Tololo [1996] PNGLR 404
Andrew v John (2001) N2031
Apelis v Tevlone (2009) N3896
In the matter of an Application by Linah Edward (2005) N2804  
 Moses v Magiten (2000) N2023
Seravo v Bahafo (2001) N2078
Latu v Kaogo (2007) N3151 
Haiveta v Wingti [1994] PNGLR 189

Counsel: 

Mr M. Koimo, for the Appellant 
Mr D. Aigilo, for the Respondent 

DECISION
12th June 2020 

1.	BY THE COURT:  This is a decision on a contested appeal against a National Court order which refused an application to dismiss a civil appeal from the District Court. 

Background

2.	The appellant and the respondent in this appeal each assert ownership to the exclusion of the other of the State leasehold for a residential property known as Allotment 59 Section 529, Hohola, National Capital District which is located at Gerehu Stage 3B (the property).  Inexplicably there are two entirely different State leases for the property, both of which purport to have been issued by the Deputy Registrar of Land Titles.  

3.	The appellant relies for his title on State Lease Volume 33 Folio 140 which is registered in his name and which he says reflects his purchase of the property from the National Housing Corporation in January 2014, the transfer instrument conveying title to him having been registered against this State Lease on 17 May 2016.   

4.	The respondent is the former tenant of the property.  He contends that at all material times he was the lawful tenant of the property from the National Housing Corporation. However he says that he completed his purchase of the property from the National Housing Corporation in October 2017 and that the instrument of transfer of the property into his name was registered against a different State Lease Volume 88 Folio 183 on 17 October 2017.  

5.	On 27 February 2017 the appellant instituted eviction proceedings DC No 81 of 2017 against the respondent in the District Court at Port Moresby. The respondent was then occupying the property as tenant of the National Housing Corporation. The appellant challenged that tenancy in the eviction proceedings and asserted that he had pre-existing indefeasible title to the property by virtue of State Lease Volume 33 Folio 140. 

6.	On 3 April 2017 the respondent duly filed his notice of intention to defend the District Court eviction proceedings in DC No 81 of 2017.  He did this in person.  

7.	On 18 April 2017, having engaged Steven Nining of Yansion Lawyers to represent him, the respondent filed an application in DC No 81 of 2017 seeking an order that the District Court summarily dismiss the eviction proceedings on the ground that the suit was an abuse of process because two previous similar evictions proceedings against the respondent in the District Court had already been dismissed and there had been no appeal to the National Court against either of those dismissals. 

8.	The respondent’s application to dismiss in the District Court eviction proceedings was contested by the appellant.  It was heard on 24 April 2017 by his Worship Garry Unjo, who then adjourned the matter to 3 May 2018 for delivery of his reserved decision on the application.

9.	When the respondent and Mr Nining attended at the District Court at Port Moresby on 3 May 2018 to receive his Worship’s reserved decision, the matter was not listed.

10.	On 27 July 2017 Mr Nining reported to the respondent that he had ascertained as a result of a file search he had conducted at Port Moresby District Court earlier that day, that on 12 July 2017 his Worship had delivered his reserved decision in connection with the respondent’s application to dismiss without any prior notification having been given in that regard by the Court to Mr Nining or, it seems, to the appellant. By that decision, his Worship had refused the respondent’s application to dismiss and had instead made a final order to the effect that the respondent vacate the property “before the end of September 2017”.  

11.	The respondent was aggrieved by his Worship’s decision. The respondent’s reaction on being apprised of his Worship’s ruling and the eviction order that had been made was one of confusion. The respondent took the position that his Worship’s decision had denied him a fair trial because if his Worship had been minded to decline to grant his threshold application to dismiss, based as it was on the ground of duplicity of proceedings, the case should then have been listed for trial on the substantive issues, which went to the disputed title to the property and the validity or otherwise of the respondent’s tenancy arrangements with the National Housing Corporation. Instead what had happened was that his Worship, on hearing a preliminary issue, had made a final decision in the proceedings by issuing an eviction order against the respondent, and this had deprived the respondent of any opportunity to present his defence on the merits at a substantive hearing in DC No 81 of 2017.

12.	On 9 August 2017 the respondent filed copies of his notice of appeal and District Court recognizance on appeal in the National Court Registry at Waigani against his Worship’s decision of 12 July 2017.  This was within the one month time limit allowed by s. 221 of the District Courts Act. The appeal was allocated CIA No 85 of 2017 by the National Court Registry.

13.	Contemporaneous with the filing of copies of the notice of appeal and recognizance in the National Court, the respondent also filed a notice of motion seeking an ex parte order for the stay of the District Court order of 12 July 2017 for his eviction from the property. The notice of motion was supported by an affidavit from the respondent and his undertaking as to damages.  He filed these five documents in person as he had no lawyer acting for him in connection with his National Court appeal at that stage. No date for the hearing of the respondent’s motion for a stay of the District Court’s eviction order was allocated by the Registry.

14.	The appellant was informed of the respondent’s National Court appeal when he went to Port Moresby District Court some time in August 2017 or early October 2017 in his endeavour to enforce the eviction order of 12 July 2017 which had been made against the respondent. A subsequent search by the appellant at the National Court Registry disclosed that the appeal had been filed by the respondent as CIA No 85 of 2017.  The appellant then consulted his lawyer, Mr Michael Koimo of Kipes Law, who filed a notice of appearance for the appellant in CIA No 85 of 2017 on 10 October 2017. 

15.	On 13 October 2017 Kipes Law filed a notice of motion and affidavit in support from the appellant seeking dismissal of the appeal in CIA No 85 of 2017 for want of prosecution and for enforcement of the District Court’s order of 12 July 2017 for eviction of the respondent from the property. This was because the respondent had not as at that date served copies of his appeal documents on the appellant and the respondent had not filed any entry of his appeal in the National Court.  

16.	There is no dispute that the appellant’s notice of appearance, notice of motion and affidavit in support filed by Kipes Law in CIA No 85 of 2017 were served on the respondent’s executive assistant on 23 October 2017.

17.	On 25 October 2017 Jaminan Lawyers filed a notice of appearance in the National Court Registry for the respondent in CIA No. 85 of 2017.  This was followed by the filing by Jaminan Lawyers on 6 November 2018 of an affidavit sworn the same day by the respondent in reply to the affidavit of the appellant in support of the latter’s motion for dismissal of the appeal.

18.	 The appellant’s motion for dismissal came on for contested hearing the next day before the primary judge, His Honour Justice Gavara-Nanu, on 7 November 2017.  Mr Koimo appeared on that occasion for the appellant.  Mr Christopher Jaminan appeared for the respondent.  No objection was taken by Mr Koimo to short service of the respondent’s affidavit sworn on 6 November 2017.

19.	The appellant by his counsel submitted to the primary judge on 7 November 2017 that the appeal should be dismissed for want of prosecution and the District Court’s eviction order be enforced because a period of more than two months had elapsed since the notice of appeal was filed and the respondent had yet to serve the appeal documents on the appellant in breach of s.221 of the District Courts Act - which requires that service of a copy of a notice of appeal be served on the respondent to the appeal within one month after the day on which the decision the subject of the appeal was pronounced, in this case one month after the eviction order was made on 12 July 2017.  The appellant’s counsel also submitted that an additional reason why the appeal should be dismissed was because the respondent had failed to file his entry of appeal with the National Court Registry within the 40-day period allowed by s. 226 of the District Courts Act or at all, that 40-day period having commenced the day after the respondent had filed his notice of appeal on 9 August 2017.

20.	In reply, the respondent’s counsel relied on the respondent’s affidavit evidence to the effect that the reason why the appeal documents had not been served on the appellant was because up until the respondent’s engagement of Jaminan Lawyers on or about 24 October 2017 to act for him on the appeal, the respondent had been seeking the services of a lawyer he could afford, and that the lawyer would then effect service of the appeal documents on the appellant and  prosecute the appeal for the respondent.

21.	The primary judge, having heard the appellant’s motion and having before him the affidavit material of both parties in connection with that motion, was satisfied with the respondent’s explanation for delay and refused the appellant’s application to dismiss the appeal.  On then being apprised at that hearing of the respondent’s motion filed on 9 August 2017 seeking a stay of the eviction order, the primary judge granted that motion and stayed the District Court’s eviction order of 12 July 2017 pending determination by the National Court of the respondent’s appeal in CIA No 85 of 2017.

22.	The appeal now before this Court, SCA No 172 of 2017, is the appellant’s appeal against the primary judge’s interlocutory order made by the National Court in CIA No 85 of 2017 on 7 November 2017 which refused the appellant’s motion for dismissal of the appeal and stayed the eviction order made by the District Court.

Grounds of this appeal 

23.	The appellant’s notice of appeal to this Court contains eight grounds of appeal, which we summarise as follows:

1.	That the primary judge erred in law and in fact when he exercised his discretion to refuse the appellant’s application to dismiss because:
(a)		the respondent’s notice of appeal to the National Court, filed on 9 August 2017, was not served on the appellant within 1 month of filing or at all prior to the hearing of the appellant’s application to dismiss, in breach of s.221(2)(a) of the District Courts Act, and the respondent failed to file any entry of the appeal with the National Court within 40 days of the filing of his notice of appeal, in breach of s. 226(1) of the District Courts Act. [Appeal Ground 3.1];
(b)	the appeal process prescribed by Part XI of the District Courts Act, breached in part by the respondent, is mandatory and the fact that the respondent filed his notice of appeal to the National Court in person was an irrelevant factor which His Honour should not have taken into account. [Appeal Ground 3.2];
(c)	the reasons given by the respondent for his non-compliance with the mandatory appeal process were not sufficiently justifiable or convincing for His Honour to have satisfied himself that the appellant’s application to dismiss should be refused. [Appeal Ground 3.3];
(d)	the District Court depositions were [not] properly certified and filed with the National Court at the time of the hearing of the appellant’s application to dismiss. [Appeal Ground 3.4].

2.	That His Honour erred in law and in fact when he exercised his discretion to grant the respondent’s motion to stay the eviction order made by the District Court pending the determination of the appeal in the National Court because:
(a)	the respondent’s motion was defective in that it sought an interim stay order pursuant to: 
(i)	Rule 12(2)(g) of the National Court Appeals Rules 2005, but that sub-rule does not exist;
(ii)	Order 18 Rule 12(3) of the National Court Rules, but that sub-rule was not applicable as it only applies to  urgent ex parte applications for a stay and the respondent had already failed to prosecute his motion for a stay for more than 64 days after the date of the filing of his notice of appeal; Section 155(4) of the Constitution was wrongly invoked as the National Court Rules already provide for the procedure to obtain a stay.  [Appeal Ground 3.5]
(b)	The lawyer for the respondent did not fully address His Honour on the law relating to grant of a stay.  [Appeal Ground 3.6];
(c)	The lawyer for the appellant did not address His Honour in response to the respondent’s motion for a stay and the appellant was thereby denied the right to be heard in response to that motion.  [Appeal Ground 3.7]; 
(d)	When His Honour was informed by the lawyer for the appellant that there was no objection to the use of the respondent’s affidavit in support of the motion for a stay, His Honour proceeded to forthwith grant the stay instead of allowing the lawyer for the appellant to address the Court in response to the respondent’s motion, and in so doing denied the appellant the right to be heard on the motion.  [Appeal Ground 3.8]  

24.	We consider that all eight of the appellant’s grounds of appeal can be reduced to consideration as to whether the primary judge fell into error by exercising his judicial discretion to:
(a)	refuse the dismissal application made by the appellant; 
(b)	grant the stay order sought by the respondent.

Submissions

25.	The essence of the appellant’s submissions regarding the primary judge’s refusal to dismiss the appeal is because first, compliance with each and every requirement of the appeal process set out in Part XI of the District Courts Act is said to be mandatory and that the primary judge had no judicial discretion at all to waive compliance; secondly, even if compliance with those requirements is not mandatory if reasonable explanation to avoid dismissal can be given, the appellant’s reasons in this instance for non-compliance were so unsatisfactory and unreasonable that they should not have persuaded the primary judge to exercise his discretion to refuse the appellant’s application to dismiss.  As to the stay order, it was argued that the primary judge denied the appellant the right to be heard on the appellant’s motion for a stay immediately prior to when the stay was granted.  

26.	The respondent’s submissions were directed towards the sufficiency of the reasons given by the respondent for his delay in service of the appeal documentation and why the appeal had not been prosecuted by him in a timely manner. The respondent submitted that he had given a reasonable explanation to the primary judge for the delay, which was attributable to the respondent having initially endeavoured without success to locate a lawyer he could afford who would act for him on the appeal, that the delay in prosecuting the appeal was not intentional or inordinately long and that the respondent was able to now progress the appeal as he had recently engaged a lawyer to act for him. A further submission was made for the respondent that events had overtaken the circumstances which were before the District Court when it made the eviction order on 12 July 2017 because shortly after the eviction order was made, the respondent had completed his purchase of the property from the National Court Housing Corporation and he had as from October 2017 been occupying the property as alleged owner and not as tenant; that there was a very real and genuine ongoing dispute between the respondent and the appellant as to who has ownership of the State leasehold of the property, given that there are two very different State leases for the property.  

27.	As to the stay order, the respondent submitted that when the primary judge ruled that the appellant’s application to dismiss was refused, it followed that the primary judge should grant the stay of the eviction order almost as of right because otherwise there would be no utility in the respondent pursuing his appeal to the National Court against the eviction proceedings in the District Court.   

Review of exercise of discretion by primary judge 

28.	Before embarking on a consideration of the merits of this appeal, we remind ourselves of this Court’s role in an appeal from the exercise of judicial discretion. We reproduce below the following passage from Curtain Bros (PNG) Ltd v UPNG (2005) SC788:

“The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion.  Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred.  These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 – 113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.  Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”.” 

29.	This oft-cited passage has been approved and adopted by the Supreme Court in many cases: see for instance State v Akoita (2009) SC977, Napitalai v PNG Ports Corporation Ltd (2010) SC1016, Lupari v Somare (2010) SC1071, PNG Power Ltd v Gura (2014) SC1402 and O’Neill v Eliakim (2016) SC1539. 

Consideration

The appellant’s application to the National Court to dismiss the appeal from the District Court 

30.	The appellant’s primary position is that the reasons given by the respondent for his failure to serve the appeal documents on the appellant and his failure to file his entry of the appeal in time did not allow or justify the exercise of the primary judge’s discretion in favour of the respondent because compliance with the appeal process prescribed by Part XI of the District Courts Act (the Act) is mandatory.  

31.	Part XI of the Act, which comprises ss. 219 to 246, sets out the practice and procedure prescribed by the Act for civil and criminal appeals from the District Court to the National Court. These provisions set out various time limits for the filing and service of prescribed documents and other conditions precedent to the right of appeal. These provisions also define the powers of the National Court on appeal and cater for the enforcement of District Court orders affirmed on appeal and other related matters. 

32.	Section 219(1) provides that a person who is aggrieved by a conviction, order or adjudication of a District Court may appeal to the National Court in accordance with Part XI of the Act.  This is the statutory provision which establishes an appellant’s right of appeal.

33.	Section 220(1) requires an appeal under s.219 to be instituted by notice of appeal and by the appellant entering into a recognizance on appeal or by giving other security as specified in s.222.  

34.	Section 220(2) stipulates that:

“220(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.”

35.	The content and time for service of a notice of appeal is prescribed by Section 221 which states:

“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.” [emphasis added]           

36.	In a civil appeal not involving the State, s.222 requires an appellant to sign a recognizance with a surety before a Magistrate in such sum as the Magistrate thinks fit whereby the appellant agrees to prosecute the appeal, to abide by the order made by the National Court on the appeal and to pay such costs as are awarded by the National Court.  The recognizance must be signed within one month after the day on which the decision appealed against was pronounced. Alternatively, an appellant can, instead of signing a recognizance, within that same month deposit with the Clerk of Court such sum of money as a Magistrate in writing directs as security for the appellant’s prosecution of the appeal. 

37.	Section 224 stipulates that the Clerk of the relevant District Court shall forward to the Registrar of the National Court immediately after a notice of appeal is lodged in the District Court certified true copies of the subject order, the reasons given by the Court for the making of the order, the depositions and all other proceedings which were before the Court relating to the order.

38.	Section 226 provides that the appellant shall, within 40 days after the institution of an appeal, enter the appeal for hearing on a date to be fixed by the Registrar of the National Court.  The entry of appeal is made by delivering to the Registrar of the National Court the prescribed form, signed by the appellant or his lawyer and containing the prescribed particulars.  Entry of appeal operates as notice to the National Court and all concerned that the appeal is ready for hearing: Rabaul Shipping Ltd v Ruru (2000) N2022.

39.	The forms prescribed by ss. 220, 221, 222 and 226 of the Act for this appeal process are contained in Schedule 2 of the District Courts Regulation Chapter No. 40.  The form for a Notice of Appeal is Form 71. The form for a Recognizance on Appeal is Form 72.  The form for an Entry of Appeal to the National Court is Form 73. 

40.	Section 227 of the Act states:

“227. 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.”

41.	It was held in Mote v Tololo [1996] PNGLR 404 (Injia J, as he then was) that the filing of an entry of appeal for hearing by an appellant under Section 227 within the 40-day time limit from date of filing of a notice of appeal has the effect of automatically staying enforcement of the District Court decision appealed against: approved and applied in Andrew v John (2001) N2031 (Kandakasi J as he then was) and Apelis v Tevlone (2009) N3896 (Gavara-Nanu J).  
 
42.	Once that 40-day period expires, the automatic stay of the District Court decision is extinguished and application must be made to the National Court by the appellant for a stay under the discretionary powers of the Court if enforcement of the decision by the District Court is to be avoided: In the matter of an Application by Linah Edward (2005) N2804 (Cannings J).  
43.	Order 18 Rule 12(2)(1) of the National Court Rules expressly provides that application for a stay of enforcement of a District Court order appealed from may be made before a Judge.  Order 18 Rule 12(3) of the National Court Rules allows for an urgent ex parte application for a stay to be made before a Judge by prior arrangement with the Registrar   
44.	If an appeal is not ready for hearing by the National Court during the 40-day stay period from date of filing of a notice of appeal, an appellant should apply to the National Court by notice of motion either pursuant to Order 18 Rule 12(2)(1) of the National Court Rules, or if urgent then ex parte by notice of motion pursuant to Order 18 Rule 12(3) of the National Court Rules, for a stay of the District Court decision pending determination of the appeal or until further order of the National Court.   
45.	Section 228 requires the Registrar of the National Court to give notice of the hearing of the appeal to the respondent and to the Clerk of the Court from which the appeal has emanated not less than seven days before the day fixed for the hearing of the appeal.  The form prescribed by former Order 18 Rule 5 of the National Court Rules for a Notice for Hearing of Appeal used to be Form 69 in Schedule 1 of the National Court Rules.  However former Order 18 of the National Court Rules was repealed in 2005 and replaced by a new Order 18 containing Rules 1 to 14 with Schedules A, B and C.
   
46.	The current Order 18 Rules 5(1) and (2) of the National Court Rules relevantly provide:

“5.	Directions Hearing
(1)	Upon receipt of the Notice of Appeal by the Registrar, the Registrar shall fix a date for Directions Hearing before the Judge to take place within 14 days.
(2)	Notice of the Directions Hearing shall be in the form in Schedule A, and it shall be given to the Appellant at the time the Notice of Appeal is filed, and cause a copy to be forwarded to the Respondent.”

47.	The Registrar accordingly has a duty to give an appellant a duly completed notice of directions hearing form in the form prescribed in Schedule A of Order 18 of the National Court Rules as soon as a notice of appeal is filed at the National Court Registry. The Registrar must also cause a copy of the notice of directions hearing to be forwarded by the Registry to the respondent. This however does not relieve the appellant from compliance with s.221(2) of the District Courts Act, which still requires that a copy of the notice of appeal be served by the appellant on the respondent within one month after the date of the order appealed against. Order 18 Rule 5(2) of the National Court Rules is a procedural requirement which is in addition to s.221(2) of the Act. 

48.	Applying the procedural requirements of Part XI of the Act to the circumstances of this case, there is no dispute that the respondent filed his notice of appeal within the one-month period allowed by s.220(2).  The eviction order of the District Court having been made on 12 July 2017, the respondent had one calendar month after that date within which to file his notice of appeal, that is to say until 13 August 2017. The notice of appeal in this instance was filed on 9 August 2017.  The respondent exercised his statutory right of appeal within time. 
 
49.	However, one of the submissions made by the appellant before us is that the respondent breached s.220 (2) of the Act by filing his notice of appeal with the National Court Registry instead of lodging it with the Clerk of Port Moresby District Court.  We pose the question: Is that breach of any consequence in the context of the primary judge having exercised his discretion to refuse the appellant’s application to dismiss the appeal?

50.	Order 18 Rule 2 of the National Court Rules (as inserted by the 2005 Amendment) states that civil appeals commenced by notice of appeal shall be listed in the Appeals List as “CIA No …. of …. (year)”.  In this instance the original of the respondent’s notice of appeal is on the National Court’s file.  It was allocated CIA No. 85 of 2017. 

51.	Order 18 Rule 5(1) of the National Court Rules speaks of receipt by the Registrar “of the Notice of Appeal”, implying that this is the original of the notice of appeal.  Order 18 Rule 5 does not refer to receipt by the Registrar of a copy of the notice of appeal, although s.221(2)(b) of the Act is clear that it is a copy of the notice of appeal, the original of which has been lodged with the Clerk of the District Court pursuant to s.220(2), which is to be served by the appellant on the Registrar of the National Court within one month after the day on which the decision was pronounced which is the subject of the appeal.

52.	We are well aware that a practice has long since developed in the National Court Registry for acceptance of filing purposes of an original of a notice of appeal in Form 71 of Schedule 2 of the Act, signed by the appellant, rather than requiring that a copy of that notice of appeal as lodged by the appellant with the Clerk of the District Court be served on the Registrar of the National Court to initiate the appeal.  Until such time as this conflict is resolved by legislative amendment to ss.220(2) and 221(2) of the Act or by other statutory intervention, we consider that the technical infraction of these particular provisions in the Act by the respondent having filed the original of his notice of appeal in the National Court Registry instead of Port Moresby District Court is not a condition precedent to his statutory right of appeal and is of no significance in the circumstances of this case given the amendments which were made to Order 18 of the National Court Rules and which came into effect on 27 September 2005.  It is clear from the appellant’s own testimony that the respondent delivered a copy of his notice of appeal as filed in the National Court to the Clerk of the District Court, because there is no dispute that the Clerk then forwarded to the National Court Registrar the Magistrate’s reasons for decision, depositions and certain other documents required by s.224 of the Act.  In view of the 2005 amendments to Order 18 of the National Court Rules, the appellants submissions in this regard protesting breach of s.220(2) are without merit and can be disregarded. 
 
53.	What is of more substance in terms of the appellant’s submissions is whether any adverse consequences should flow from the respondent’s failure not to have:
(a)	served on the appellant a copy of the respondent’s notice of appeal within one month from date of the District Court’s eviction order 12 July 2017 in breach of s.221(2)(a) or at all prior to the National Court hearing of the appellant’s application to dismiss; and   
(b)	filed an entry of the appeal with the National Court Registry within 40 days after his notice of appeal was filed on 9 August 2017.
 
54.	Section 221(2) of the Act required in this instance that a copy of the respondent’s notice of appeal be served by or on his behalf on the respondent by 13 August 2017, that being one calendar month after the eviction order was made on 12 July 2017. 

55.	The appellant’s notice of motion seeking summary dismissal of the appeal was filed in CIA No 85 of 2017 on 13 October 2017. It claimed that the appeal should be summarily dismissed under Order 18 Rule 12(4)(a)(i) of the National Court Rules for want of prosecution because a period of over two months had elapsed since the eviction order was made by the District Court. 

56.	Section 226(1) of the Act required that the respondent’s entry of appeal be filed with the National Court Registry within 40 days after the appeal was commenced on 9 August 2017, that is to say by 20 September 2017. 
 
57.	According to the appellant, the respondent’s entry of appeal had still not been filed at the time of the National Court hearing of the appellant’s application to dismiss on 7 November 2017. 

58.	The respondent admits that he did not effect service of a copy of his notice of appeal on the appellant within the required time limit of one month after the date of filing of his notice of appeal, or indeed by the time of the hearing of the appellant’s application to dismiss on 7 November 2017.  The actual delay between the date of filing of the respondent’s appeal on 9 August 2017 and the date of filing by the appellant of his notice of motion in the National Court on 13 October 2017 was two calendar months and 1 day.   The explanation given by the respondent for his non-compliance in this regard is set out in paras. 4 and 5 of his affidavit sworn on 6 November 2017:

“4.	I admit I did not prosecute the Appeal since I filed it to the day the Respondent filed his application to dismiss the Appeal for want of prosecution.
5.	The reasons why I did not prosecute the Appeal during that time are as follows:
(a)	I did not serve the Appeal documents on the Respondent which I intended to do as soon as I engaged a lawyer who could then effect service of the Appeal documents and prosecute the Appeal.
(b)	Since I filed the Appeal I have come to learn from the National Department of Lands & Physical Planning and the National Housing Corporation that the purported purchase of the property by the Respondent was done fraudulently. …
(c)	I was unable [to] obtain the full time services of a lawyer since I filed the Appeal because the lawyers I approached earlier were too expensive for me to retain.
6.	From the time I filed the Appeal to the date the Respondent filed the Application to dismiss for want of prosecution, a period of 2 months and 4 days had lapsed and this is the first time the Appeal has come before the Court and the first time the Respondent has come to Court.
7.	Apart from the foregoing, events have now overtaken the factual background giving rise to this Appeal in that I have purchased the Property, the subject of this Appeal, and am the legitimate Proprietor of the Property. …”

59.	We observe at this juncture that the issue of who has the lawful title and ownership of the State leasehold of the property, whether before or after the eviction order was made by the District Court on 12 July 2017, is irrelevant to the matters now before this Court. The issue of who has lawful title to the property, if it continues to be in dispute, as it no doubt will, is a matter for another forum to decide on another occasion.  We disregard that issue for the purposes of this present appeal, raised by the respondent in his explanation to the primary judge, as we consider it had no bearing at all on the issue of the exercise of the primary judge’s discretion to refuse the appellant’s application to dismiss.

60.	The appellant’s primary submission is that notwithstanding the explanation given by the respondent to the primary judge for not prosecuting his appeal with due despatch, the time limits which are prescribed by s.220(2) of the Act for service on the appellant of a copy of the notice of appeal and by s.226 of the Act for the filing by the respondent of his entry of appeal in the National Court Registry are mandatory conditions precedent to the respondent’s statutory right of appeal and that therefore the primary judge had no judicial discretion to waive the respondent’s non-compliance with those time limits.
  
61.	The appellant relies in this regard on observations made by Kandakasi J (as he then was) in Moses v Magiten (2000) N2023 as authority for the proposition that strict compliance with the procedural requirements of Part XI of the Act is mandatory such that any non-compliance with those requirements divests a court of discretion to waive compliance.  We do not agree that this is a correct statement of what His Honour said in the Moses case.  We set out hereunder the text of His Honour’s explanation of the effect of non-compliance with those sections in Part XI of the Act which regulate the appeal process from the District Court to the National Court:    
“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.  Then by virtue of section 221(2), sealed copies of the Notice of Appeal should be served on the respondent or respondents if more than one, also within a period of one month from the date of the decision appealed against.
Once an appeal has been lodged and served in the above manner, an appellant is obliged by section 226 to enter the appeal for hearing by the National Court within a period of 40 days from the date of lodgement of his appeal.  A failure to do so attracts the application of section 227, which renders the appeal non-existent.  The combined effects of sections 226 and 227 in my humble view is that an appeal should be ready for hearing before the National Court within 40 days from the date of its filing.  
There would of course be exceptions to that.  If the delay in having an appeal heard within such a period can be excused by reason of say, the District Court depositions and or transcripts not being made available despite requests and follow ups on such requests by an appellant, or that the magistrate’s reasons for decision are not available, or that there is no judge to hear the appeal, or that the appellant is seriously ill and or such other factors exist which prevent an appellant from promptly prosecuting his appeal, the effect of non compliance of section 226 could be avoided.  The onus is always on an appellant to show such factors exist if there is an application to dismiss for want of prosecution or non compliance of section 226 of the Act.  If an appellant fails to prove by appropriate evidence the existence of such factors, the appeal should be dismissed for want of prosecution.”  				[emphasis added]

62.	His Honour put it another way in the Moses case when he said:

“… for primarily the absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.”

63.	We observe that nowhere in the Moses case does Kandakasi J use the word “mandatory” or enunciate any principle of law to the effect that an appellate court has no discretion to waive compliance with any of those provisions in Part XI of the Act which deal with the appeal process.  What His Honour was saying is that strict observance of the procedural sections in Part XI of the Act which govern an appeal is required and that an appeal should be dismissed by the National Court unless an appellant can satisfy the Court that he has a reasonable explanation for any delay in prosecuting the appeal.  
  
64.	We further note that in the Moses case, no reasonable explanation had been offered by the appellant for a delay of 1 year 5 months to avoid dismissal of the appeal and there was no indication given to the Court in that case that the appeal would be prosecuted in the immediate future. 

65.	We are critical of the lawyer for the appellant in the appeal before us because he either intentionally or inadvertently omitted to make any reference in the appellant’s submissions to s.231 of the Act.  Section 231 significantly provides:
“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.”

66.	The judicial discretion which s.231 expressly confers on the National Court in its appellate jurisdiction was considered by Kandakasi J in Seravo v Bahafo (2001) N2078. In that case the plaintiff, a member of parliament, applied by originating summons to the National Court for an extension of time pursuant to s.231 of the Act to lodge an appeal 6 months late against a decision of the Goroka District Court where the time limit of one month to do so prescribed by s.220(2) had already expired. The defendant, being the complainant in the District Court proceedings, countered by filing an application to dismiss the OS proceedings for want of prosecution. His Honour, when dismissing the proceedings, had this to say:

“The plaintiff’s claim is for an extension of time under s.231 of the DCA to file and serve an appeal out of time.  That as of necessity meant that his application for extension of time had to be pursued as a matter of urgency and with due diligence.  The records however, do not show that the plaintiff has been diligent in the prosecution of this claim.  Since the issue of the proceedings on the 27th September 2000, a period of almost six months has passed.
…
There is no doubt that the plaintiff has not shown any interest in having this matter dealt with expeditiously. It seems he was more worried about his parliamentary responsibilities even at a time when parliament was and is not in active sittings.  Further, I fail to see how the plaintiff could ignore such a substantial liability against him and seek to come under the protection of a supposed busy parliamentary schedule.  There was nothing much or substantial required of the plaintiff in respect of his application.  All that he had to do was to provide an affidavit explaining why he could not lodge his appeal within time and show that he has a good chance of success on the appeal and that the delay has not caused any prejudice to the defendant.
…
I am satisfied that there has been intentional, if not inordinate delay in prosecuting the plaintiff’s application for extension of time. This is critically important given that the application was for an extension of time to lodge an appeal by the plaintiff after the time period for him to do so had expired.”

67.	In Latu v Kaogo (2007) N3151 Lay J, when referring to those principles enunciated by Kandakasi J in the Seravo case which are applicable to the exercise of discretion by the National Court under s.231 of the Act to waive compliance with conditions precedent to the right of appeal from a decision of the District Court to the National Court, observed as follows: 

“Again Kandakasi J has considered what should be shown in making an application under this section and held that (1) there must be reasonable explanation for the delay, (2) the ground must be arguable, and (3) no prejudice has or will be suffered by the respondent, because the appellant failed to come within the time prescribed.  … I will adopt those tests and will seek to apply them in this case.”  

68.	His Honour’s reasoning in the Seravo case puts paid to any suggestion by the appellant before us that compliance with those conditions precedent to the right of appeal prescribed by Part XI of the Act is mandatory to the point where any non-compliance, irrespective of whether reasonable explanation is given or not, divests the National Court in its appellate jurisdiction of discretion to waive compliance with those conditions precedent.  The situation is the reverse.  Section 231(a) of the Act expressly confers on the National Court the power of waiver “if in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act”. 

69.	Reverting to the present case, the primary judge in his ex tempore ruling on 7 November 2017 addressed the issue of the respondent’s delay, which he found to be two months at the time when the appellant filed its application to dismiss for want of prosecution.  The primary judge also addressed the respondent’s reasons for that delay.  His Honour stated at pp. 11-12 of the transcript:

“This is an application for the appeal to be dismissed for want of prosecution.  The application is made under Order 13 Rule 12(4)(a)(i) of the National Court Rules.  The period complained of is … two months from the date of the decision. The decision appealed against was made on 12 July 2017 and this application was filed on 13 October 2017, so just a little bit over two months and the respondent says that the appellant has failed to prosecute the appeal with due dispatch or diligence.
… the Court has a wide discretion to decide as to whether there has been a delay and if there is a delay, whether it is inordinate or undue … when the Court comes to consider those issues …, the court has to take into account all the circumstances, one of which in this case is that the appellant filed the application in person.  In other words, he did not have a lawyer at the time.  I note that Jaminan Lawyers filed their appearance on 25 October 2017.  In my view the Court has to be mindful of the fact that the requirements under the District Courts Act, [which] in this case relate to appeals, are legal requirements which when persons are appealing on their own are sometimes daunting and difficult to understand.
In this case, the appellant filed the documents himself and the requirement by which recognizance of appeal has to be filed and to set down the appeal for hearing are legal requirements which sometimes the lay people do not understand. 
…
I note that the depositions have been forwarded to the National Court and as I said, these are matters which involve legal requirements.  And in the circumstances in my view, two months is not an inordinate delay. Although there may have been inactivity, the fact that Jaminan Lawyers were only engaged on 25 October 2017 is a factor which I have to bear in mind.  In the circumstances and in the exercise of my discretion, I do not think that it would be fair for me to dismiss the appeal for the reasons that I have stated.  The application is therefore refused.  Parties to pay their own costs.”

70.	We consider that the reasons given by the primary judge for his finding that the respondent had offered a reasonable explanation for delay so as to avoid dismissal of the appeal can, in the context of the facts of this case, be summarised as follows:

•	when the respondent filed his notice of appeal in the National Court within time, he did so in person.  He had not engaged a lawyer at that point to assist him.  

•	an appellant who acts in person in filing and pursuing an appeal (in this instance the respondent before us) can have difficulty in understanding the legal requirements prescribed by the Act which govern the practice and procedure for appeals from the District Court to the National Court.

•	the delay of two months complained of by the applicant when he filed his application for dismissal was not inordinate.

•	the respondent had explained that his delay in effecting service of the appeal documents on the appellant and in not filing his entry of appeal in time was occasioned by his endeavours to try to locate a lawyer he could afford who would act for him on the appeal.

•	it took the respondent until just before 25 October 2017 to engage a lawyer to act for him on the appeal, namely Mr Jaminan from Jaminan Lawyers, and this was less than 2 weeks before the hearing on 7 November 2017 of the appellant’s application to dismiss the appeal for want of prosecution.

•	that in all these circumstances it would be unfair to dismiss the appeal.

71.	 We find no fault with the primary judge’s exercise of his judicial discretion to refuse the appellant’s application to dismiss.  The respondent had provided acceptable reasons for his two-month delay at the time the appellant filed his application to dismiss, the delay was not inordinate.  The respondent’s reasons were reasonable. The respondent was initially acting for himself. If, as the appellant contended, a lawyer had assisted the respondent to draft the notice of appeal, that was unproven. The notice of appeal could just as readily have been drafted for the respondent by a member of the staff of the District Court Office or the National Court Registry or by some other person altogether who may have had limited legal training. The respondent needed time to locate an experienced lawyer whose legal fees he could afford and who was prepared to take over from him the prosecution of the appeal. That is not an unreasonable explanation, given that only two months inactivity was the period complained of when the appellant filed his application to dismiss. The primary judge took all of these factors into account. Moreover, no evidence of prejudice to the appellant because of the respondent’s two-month delay was proferred by the appellant. We in turn are satisfied that when the primary judge dismissed the appellant’s application, he did so in the proper exercise of his judicial discretion under s.231 of the Act. We are further satisfied that the dismissal of the appellant’s application was arrived at by the primary judge in the overall interests of the justice of the case. The primary judge then properly directed that the appeal should return before the National Court the following Monday for directions to progress the appeal to substantive hearing. The appellant’s Grounds 3.1, 3.2, 3.3 and 3.4 in the appeal before this Court are dismissed.

The respondent’s application to the National Court to grant a stay of the eviction order made by the District Court  

72.	The respondent’s notice of motion seeking a stay was filed in the National Court Registry at the same time as the respondent filed his notice of appeal on 9 August 2017.  The respondent’s notice of motion sought ex parte orders that service of the application be dispensed with, that the order of the District Court made on 12 July 2017 be stayed until the determination of the substantive appeal pursuant to s.155(4) of the Constitution, Rule 12(2)(g) of the National Court Rules and Order 18 Rule 12(3) of the National Court Rules and that the National Housing Corporation and National Housing Estate Limited be restrained from any further dealings with the property pending the outcome of the appeal. 
    
73.	The transcript of the proceedings before the primary judge on 7 November 2017 shows at p.12 para. 12 that the matter of respondent’s application for a stay, which up until that time had not been allocated a hearing date and had not previously been dealt with by the Court, was brought to the attention of the primary judge by Mr Koimo, the lawyer for the appellant. Mr Koimo alerted the primary judge to the respondent’s motion for a stay as soon as the primary judge had announced the Court’s order refusing the appellant’s application for dismissal of the appeal. 

74.	The transcript contains the following exchange regarding the respondent’s motion for a stay which took place between bench and counsel for the two parties, commencing at p.13 para. 5:
HIS HONOUR:  … there is a motion on foot.  I did not see that.
MR KOIMO:  Yes, there is a motion on foot but we submit that there was no date given since the filing of that motion. So our submission is that a date be given so parties can argue that motion.
HIS HONOUR:  Well, are you prepared to argue it now?
MR KOIMO:  We have covered some of our submissions when we made the application for want of prosecution. We actually made submissions in relation to that as well.
HIS HONOUR:  Yes. So ---
MR KOIMO:  Mr Jaminan can just address the court now on the stay and your Honour can made a decision.
HIS HONOUR:  Mr Jaminan?
MR JAMINAN:  Yes your Honour.  In respect of the appropriate case authorities I would not be in a position to assist the court.
HIS HONOUR:  But the application for stay pending determination, you would want to stay the appeal, do you not?
MR JAMINAN:  Yes, we do.
HIS HONOUR:  I mean the orders?
MR JAMINAN:  Yes your Honour?
HIS HONOUR:  So what do you want to do?
MR JAMINAN:  Your Honour, I would ask that a ---
HIS HONOUR:  Those issues have been covered from Mr Koimo’s point of view.
MR JAMINAN:  Yes
HIS HONOUR:  So he is inviting you to make your application. 
MR JAMINAN:  Very well your Honour. I will move on the motion.

75.	The transcript then shows that Mr Jaminan for the respondent addressed the primary judge by reading out the content of the respondent’s motion for a stay (the application) and then referred to various paragraphs in the respondent’s affidavit sworn on 9 August 2017 which was filed in support of the application. The transcript continues at p.14 para. 26:

HIS HONOUR:   So you rely on that affidavit?
MR JAMINAN:   Yes.
HIS HONOUR:  All right.  Mr Koimo, do you have any objection to the application?
MR KOIMO?  Your Honour, is that the affidavit of 6 July?
MR JAMINAN:  That is the affidavit of 9 August 2017.  It is a bound copy.
MR KOIMO:  No objection, your Honour.
HIS HONOUR:  Yes, thank you.  Application granted.  The reason for that is that the application to dismiss has been refused and that the matter is going to proceed.  The matter is now being ordered to go before directions hearing on Monday.  It is only fair that the decision of the District Court given on 12 July 2017 be stayed until the full determination of this appeal. So orders in terms of paragraphs 2 and 3 and the parties to pay their own costs.  All right thank you.

76.	Ground 3.8 of the appellant’s grounds of appeal asserts to the effect that the primary judge erred in fact in the exercise of his discretion when he allegedly denied the appellant the right to be heard in response to the respondent’s application. The basis for this ground is that it is pleaded in the appellant’s notice of appeal before us that the primary judge asked the appellant’s lawyer Mr Koimo if there was objection to the use of the respondent’s affidavit sworn on 9 August 2017, and that when Mr Koimo replied “no objection”, the primary judge went straight to giving his decision on the respondent’s application allowing Mr Koimo no opportunity to respond. 
 
77.	 When considering whether the primary judge erred in the exercise of his judicial discretion in granting the respondent’s application for a stay, we address Ground 3.8 in the appellant’s notice of appeal first. 

78.	The appellant’s assertions in Ground 3.8 as pleaded in his notice of appeal are factually incorrect.  The appellant’s lawyer seriously misunderstood the primary judge’s line of questioning of him.  The transcript clearly shows that when the primary judge enquired of Mr Koimo if there was any objection to the respondent’s application, meaning the application for a stay, Mr Koimo was mistaken as to the primary judge’s question because Mr Koimo replied: “Your Honour, is that the affidavit of 6 July?”.  Mr Jaminan briefly interposed and clarified Mr Koimo’s understanding of which affidavit the respondent was relying on in support of the respondent’s application by saying: “That is the affidavit of 9 August 2017. It is a bound copy.”  Mr Koimo then replied to the primary judge’s question as to whether there was any objection to the application, to which Mr Koimo replied: “No objection, your Honour”.  
 
79.	In our view the primary judge was properly entitled to proceed with making his decision on the application for a stay, especially because earlier in the transcript it shows that Mr Koimo had categorically said, with reference to the application for stay: “We have covered some of our submissions when we made the application for want of prosecution.  We actually made submissions in relation to that as well”.  

80.	There was accordingly no denial of the appellant’s right to address the primary judge in response to the respondent’s application for a stay.  The primary judge did not err in his discretion to grant the stay.  It was the appellant’s lawyer who erred by misunderstanding the primary judge’s line of questioning.  Ground 3.8 of the appellant’s notice of appeal is dismissed.

81.	As an aside, we observe that para. 2 of the appellant’s notice of appeal before us states that the appeal lies without leave as the grounds constituting the appeal are questions of law and or mixed fact and law. However Ground 3.8 pleads error of fact alone by the primary judge in the exercise of his discretion and not error of mixed fact and law. No grant of leave from the Supreme Court to appeal on this ground was ever sought by the appellant pursuant to s.4(2)(c) of the Supreme Court Act.  Ground 3.8 is therefore incompetent and warrants dismissal on this basis alone: Haiveta v Wingti [1994] PNGLR 189 (Amet CJ, Kapi DCJ, Los, Salika, Jalina JJ).

82.	Grounds 3.6 and 3.7 of the appellant’s notice of appeal are dismissed because given Mr Koimo’s “no objection” to the respondent’s application, this meant that neither the appellant’s lawyer (Ground 3.6) nor the respondent’s lawyer (Ground 3.7) were required to address the primary judge on the law relating to a grant of stay of the eviction order made by the District Court.   

83.	In challenging the stay order made by the primary judge, the appellant pleaded in the only remaining ground in the notice of appeal before us, Ground 3.5, that the respondent’s application seeking a stay was procedurally defective because it sought interim orders pursuant to:

•	Rule 12(2)(g) of the National Court Appeals Rules 2005, which is non-existent, and no leave was sought by the respondent’s lawyer to correct that defect when the application was moved 
•	Order 18 Rule 12(3) of the National Court Rules, but that sub-rule allegedly has no application to the circumstances of this appeal because of want of prosecution for more than 64 days
•	 s.155(4) of the Constitution, which was wrongly invoked because the National Court Rules already provide for the procedure for obtaining a stay order.

84.	We agree with the appellant that Rule 12(2)(g) of the National Court Appeals Rules 2005 does not exist.

85.	However, we disagree that Order 18 Rule 12(3) of the National Court Rules has no application to the circumstances of this appeal.  That sub-rule applies to ex parte applications for a stay.  It provides:

 “12(3) Urgent Applications
 Urgent ex parte applications for a stay or other interlocutory applications may be made before the [Appeals] Judge by prior arrangement with the Registrar.  If the [Appeals] Judge is not available, they may be moved before the Motions Judge who is the Duty Judge for the circuit month.”

86.	The motion which contained the respondent’s application for a stay was filed at the same time as the respondent filed his notice of appeal within time on 9 August 2017.  The ex parte application was procedurally necessary to avoid enforcement of the eviction order by the District Court because we infer that the respondent knew that he would not be in a position to file his entry of appeal by 20 September 2017, being 40 days from when he filed his notice of appeal on 9 August 2017.  As previously observed by us in this decision, entry of appeal operates as notice to the National Court and all concerned that an appeal is ready for hearing. The respondent obviously knew when he filed his notice of appeal on 9 August 2017 that it was unlikely the appeal would be ready for hearing towards the end of September 2017, hence the need for his filing of an urgent ex parte motion seeking a stay of the eviction order made by the District Court.  When he filed his notice of appeal on 9 August 2017, the respondent was still looking for a lawyer he could afford who would represent him, who could prosecute the appeal and get the appeal ready for hearing. 

87.	We consider that it was not the fault of the respondent that his ex parte application for a stay was not allocated a hearing date by the Registrar.  The respondent’s application remained on the Court’s file without allocation of a hearing date. It was Mr Koimo for the appellant who first brought that application to the attention of the primary judge as soon as the appellant’s application for dismissal of the appeal was refused by His Honour in the proceedings before the Court on 7 November 2017.  

88.	The protection of the automatic stay which attended on the respondent’s filing of his notice of appeal expired on 20 September 2017 by operation of s.227 of the Act. There was no prospect of the respondent being able to notify the National Court by the filing of an entry of appeal by 20 September 2017 that the appeal was ready for hearing. The respondent had no choice but to file an urgent ex parte application for a stay before the 40-day period for filing of an entry of appeal expired. The respondent did this. Order 18 Rule 12(3) applied to the circumstances of the respondent when he filed his application for a stay.  The appellant’s submission on this point is without merit.

89.	We find that as soon as the primary judge ruled that the appellant’s application to dismiss was refused and the respondent’s application for a stay was brought to the primary judge’s attention, there would in any event have been no utility in the primary judge refusing the respondent’s application for a stay.  If the stay had not been granted, the prejudice to the respondent would have been substantial and very real.  The appellant would then have been at liberty to have applied to the District Court under s.227 of the Act for enforcement of that Court’s order for the eviction of the respondent from the property, thereby defeating the whole purpose of the appeal and the respondent’s right of appeal.  The prejudice to the respondent had the stay not been granted by the primary Judge substantially outweighed any prejudice to the appellant at that point in time. 

90.	Even if Mr Koimo had not been under any misapprehension as to the primary judge’s line of questioning when the application for stay was being moved and the primary judge had directed that the respondent’s application for a stay should proceed on to a contested hearing, we consider that the respondent was in no position to resist a stay of the eviction order made by the District Court because the stay was necessary in all the circumstances to do justice to the respondent’s right of appeal by not allowing the eviction order to be enforced pending the determination of the appeal.  The appeal would have been rendered futile if the stay had not been granted.

91.	We repeat that it was Mr Koimo who indicated to the primary judge that there was no objection to the respondent’s application for a stay.  Whether made under a misapprehension or not on the part of Mr Koimo, this indication by Mr Koimo to the primary judge was in our view unequivocal and was made within minutes after the primary judge had announced his order refusing the appellant’s application for a dismissal of the appeal from the District Court.  The response of “no objection” by Mr Koimo effectively negated Grounds 3.5 to 3.8 in the appellant’s notice of appeal before this Court.  That negation included the appellant’s pleading in Ground 3.5 that s.155(4) of the Constitution was wrongly invoked in the respondent’s application.  

92.	For the reasons we have given, Grounds 3.5 to 3.8 in the appellant’s notice of appeal before us are dismissed.

Conclusion 

93.	Having regard to those factors which define the Court’s role in an appeal from the exercise of judicial discretion which are so well expressed in Curtain Bros (PNG) Ltd v UPNG (supra) and which we commented on earlier in this decision, we find that this is not a case where the primary judge exercised his discretion upon wrong principles of law in refusing to grant a dismissal of the appeal and in granting a stay of the eviction order made by the District Court on 12 July 2017. The primary judge did not allow extraneous or irrelevant matters to guide or affect his determination in that regard, nor was he was mistaken on any facts.  The primary judge took into account matters which were relevant to his consideration.  He applied proper principles in his ruling that the application to dismiss should be refused.  As for the primary judge’s exercise of his discretion to stay the eviction order, we find that the primary judge did so because the appellant by his lawyer signified that there was no objection to the respondent’s application for the stay. The primary judge, in the exercise of his discretion, was entitled to act on that absence of objection to grant the stay.  We find no error of law or fact on the part of the primary judge.  The appeal is dismissed in its entirety, costs to follow the event.

94.	We make one final observation.  This appeal was predicated on the appellant’s contention that the respondent had failed to prosecute his appeal to the National Court with due despatch. The period of delay complained of in the appellant’s application for dismissal filed on 13 October 2017 was a period of two months.  The primary judge’s decision in respect of that application was delivered just three weeks later, on 7 November 2017.  The appellant filed his notice of appeal to the Supreme Court against the decision of the primary judge on 6 December 2017. A period of 2 years 6 months and 5 days has elapsed since then. The appellant has himself been unusually dilatory and has not prosecuted this appeal with any despatch.  Had there been serious prejudice to the rights that the appellant contends he has in the property, he would surely have ensured that this appeal was progressed to hearing in the shortest possible time frame. He has not.  In the meantime, the respondent has had the benefit of the stay of the eviction order granted by the primary judge.  We will direct that this case be remitted back to the National Court for directions to be made to progress this appeal to expedited hearing.  

ORDER 

1.	The appeal is dismissed.

2.	The matter is remitted back to the National Court to be listed before the Appeals Judge for the National Court for directions to expedite the appeal in CIA No. 85 of 2017 to substantive hearing.

3.	The appellant shall pay the respondent’s costs of the appeal, such costs to be taxed if not agreed.
________________________________________________________________
Kipes Lawyers:			Lawyers for the Appellant
Jaminan & Partners Lawyers:	Lawyers for the Respondent