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Pyako v Ganai [2025] PGSC 122; SC2821 (5 December 2025)

SC2821

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 75 OF 2024

ROLAND PYAKO
Appellant

AND
HER WORSHIP TRACY GANAI
First Respondent

AND
DAVID TU RAII
Second Respondent

WAIGANI: MIVIRI J, CARMODY J, CROWLEY J
27 NOVEMBER, 5 DECEMBER 2025

SUPREME COURT – PRACTICE & PROCEDURE – Appeal – Dismissal of Appeal – Section 226 District Court Act Appellant Set Down Appeal and Notice – Section 227 Failure to Enter Appeal for Hearing – Section 231 Dispensing with Condition precedent – No Basis to – No Entry of Appeal Filed – No Appeal in Law – Exercise of Discretion to Dismiss Appeal – No Error In Law Apparent or Identifiable – Appeal Dismissed – Decision At First Instance Confirmed – Cost Follow Event.

Facts
The appellant appeals against the dismissal of his appeal in the National Court arguing that section 226 and 227 of the District Court Act empowered because he had filed an entry of appeal with a cover page that was misdescribed. The court erred not to exercise its discretion under section 231 not to waive the requirement of sections 226 and 227 to enter the appeal and to hear it.

Held:

1. Section 226 and 227 of the District Court Act are mandatory. And entry of appeal must be filed.
2. It was not filed here.
3. There was no material upon to exercise discretion under section 231.
4. The National Court did not err in dismissing the appeal.
5. There was no appeal as there was no entry of appeal.
6. No error was apparent or identifiable in the decision at first instance.
7. Decision at first instance confirmed.
8. Appeal is dismissed
9. Costs follow event.
   

Cases cited
Kiiark v Luio [2020] PGSC 54; SC1964
Moses v Magiten [2000] PGNC 73; N2023
Kingal v State [2008] PGNC 147; N3498

Counsel
L. Aigilo for appellant
R. Awalua for the respondent

DECISION

1. BY THE COURT: This is the decision of the Court on the appeal of the appellant contending that section 226 and 227 of the District Court Act was not a mandatory requirement for an entry of appeal to be filed. And that his failure in not filing it did not render the proceedings a nullity and therefore unlawful to be dismissed. In so doing the National Court had erred in dismissing his appeal. That decision was vitiated and should be set aside and the appeal revived on the record to be heard.
   
2. The matter originated from an appeal that the appellant had lodged against the decision of the Port Moresby District Court of the 29^th November 2023 which granted orders for eviction of the appellant over a property that was transferred to the Second Respondent. He instituted ejectment proceedings against the appellant on the 12^th October 2023 which was granted in his favour. The Magistrate granting the second respondent eviction and vacant possession within 14 days of real property to which the second respondent held title, hence the appellant aggrieved appealed to the National Court. He had lodged an entry of appeal which had a defect to the covering page. But he argued that that was cured by the page over the page from the cover. Which was within the forms depicted out by section 226 of the District Court Act. He had entered the appeal filed consistent and on terms with section 226 of the Act. And settled what was raised by section 227 of that Act. He had stayed the original orders of the District Court against himself. He had a lawful entry of appeal. If this was so in law, appellant also went to lengths to file a stay on the orders of the Court separately and took out a caveat on the subject property. A second proceeding instituted for the same purpose covered by section 227 of the Act. To which he had complied with the entry of appeal filed. Given these circumstances he argued that under section 231 the National Court had discretion to open the door for his appeal. And it was erroneous in law when it did not.
   
3. He argued in aggregate that there was an error apparent identifiable to dismiss his appeal on that basis. The Court at first instance therefore fell into error. It was further not an abuse of process on his part, and the appeal should be revived to a full hearing on the merits. And his arguments were supported by Kiiark v Luio [2020] PGSC 54; SC1964 (12 June 2020) in that under section 231 of that Act the National Court had discretion to waive the requirements of section 226 and 227. Given his facts here where only the cover was misdescribed, the document in the preceding page was within the principal form required of section 226 entry of appeal. And given the matter relating to the dispute over the real property, the National Court still had discretion given these facts to allow the appeal to hear it on its merits. And reliance was sought further upon Moses v Magiten [2000] PGNC 73; N2023 (1 December 2000) and Kingal v State [2008] PGNC 147; N3498 (1 October 2008).
   
4. We have taken that invitation to examine each of these cases and view that the ratio decidendi in all common and fundamental are that where there is no entry of appeal filed in accordance with sections 226 and 227 there is no appeal in law on record. It is a mandatory requirement by read of the word, shall” there. The orders adjudication decision at first instance remains alive enforceable against the party loosing. Which is the correct view and operation of the law argued by the respondent. We hold that to be the correct operation of the law. And holding as such we read that the words of section 226 and 227 read together are mandatory because of the use of the word “shall.” The failure to file a proper entry of appeal consistent with the requirements of section 226 read with 227 of the Act warranted the actions of the Court at first instance in dismissing the appeal. There was no error apparent or identifiable and the appeal does not have the legs to stand and should be dismissed with costs. That is the correct position of the authorities of Kiiark (supra), Moses(supra), and Kingal (supra).
   
5. We will reinstate the relevant and pertinent facts in this dispute found by the Court at first instance at page 4 of the Judgement in these terms:
   

“g. The appellant issued legal proceedings against the NDB in the National Court (HR (OS) No 4 of 2021). On the 26^th April 2022 consent orders were made in those proceedings which inter alia provided that the appellant pay to the NDB the sum of K 150, 000 within 2 months of that date with the appellant to then file a Notice of Discontinuance.

h. The appellant did not make the payment as ordered.

i. The land was then offered for sale by tender as a Mortgagee Sale by way of public notice.

j. The second respondent successfully tendered for the property and on 1^st September 2023 entered a contract of sale with NDB.

k. On 2^nd October 2023 the appellant filed a human Rights Enforcement Application asserting breach of his human rights by the NDB, the Lawyers for the NDB and his (unnamed) Lawyer.

l. The Appellant also lodged a caveat over the land.

m. By letter dated 9^th October 2023 the NDB wrote ot the Registrar of Titles inter alia seeking removal of the caveat and change of ownership on the title.

n. On 12^th October 2023 the second respondent issued eviction proceedings in the District Court.

o. On 26^th October 2023 the land was transferred to the NDB as mortgagee exercising power of sale.

p. On 1^st November 2023 the second respondent acquired title to the land.

q. On 29^th November 2023 the Port Moresby District Court handed down a decision in favour of the second respondent.

r. On 8^th December 2023 the appellant filed a document titled Notice of Intention to appeal in the District Court at Port Moresby.

s. On 11^th December 2023 the appellant filed a Notice of Appeal and Recognizance of Appeal in the District Court.

t. On 12^th December 2023 the Appellant filed a Notice of Appeal in the National Court.

u. On 12^th December 2023 the Appellant filed an Entry of Appeal incorrectly described on its cover sheet as a Notice of Appeal.

v. On 22^nd December 2023 on the appellant’s application, orders were made by the National Court to stay the eviction order the subject of appeal and restrain the second respondent from executing the eviction orders and interfering with land pending further order.

w. On 9^th January 2024 the Appellant filed an Amended Notice of Appeal and Amended Recognizance in the District Court.

x. On 20^th February 2024 the second respondent filed a notice of motion seeking dismissal of the appeal.

y. On 20^th March 2024 the Appellants current lawyers filed a Notice of Change of Lawyers.

z. On 11^th April 2024 the Appellant filed a draft Appeal Index.

aa. On 14^th May 2024 the second respondent’s application to dismiss was heard and a decision was reserved.

bb. On 3^rd June 2024, on the Court relisting the matter, the Court brought to the attention of the parties the existence of the misdescribed Entry of Appeal filed 12^th November 2023 and sought further submissions in writing.”

6. These facts in our view establish that apart from the misdescribed document with the Notice of Appeal on the 12^th December 2023, there is no entry of appeal filed. To our mind the requirements of section 219, 220, and 221 of that Act, in aggregate was that 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. And which notice would be served within one month after the decision made at first instance. And here too he entered recognizance of the appeal. It was all within that one month after the decision was made. And within 40 days after the institution of the appeal, “the appellant shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court.

(2) An entry shall be made by delivering to the Registrar of the National Court a memorandum in the prescribed form, signed by the appellant or by his lawyer and containing the prescribed particulars.

227. FAILURE TO ENTER APPEAL FOR HEARING.

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

7. He did not file an entry of appeal within 40 days after instituting the appeal following section 226 of the District Court Act. We do not find the prescribed form on the record of the Court at first instance. There is therefore no entry of appeal. We confirm that it means in law the orders at first instance remained intact and in force. They could be enforced as if there was no appeal on foot. There was in fact and in law no appeal on foot so much so that the orders at first instance were stayed. In the case of the appellant, we hold that he knew there was no entry of appeal, so he filed proceedings 22^nd December 2023 and orders were made by the National Court to stay the eviction order the subject of appeal and restrain the second respondent from executing the eviction orders and interfering with land pending further order. This is specific orders staying the orders of the District Court issued for his eviction from that property. It is apparent from this conduct clear and unambiguous that he accepted that he had not complied with the law set out under sections 226 and 227 of the District Court Act in entering his appeal. He sought to avoid the effects of section 227 by that action he filed restraining the execution of the orders of the District Court.
   
8. We hold that the correct law set out by the cases relied by the appellant and the first respondent set out above, are clear and unambiguous that section 226 and 227 are mandatory provisions, shall as opposed to may, and therefore incumbent upon the appellant to comply forthwith. He did not comply, so the court at first instance was in law and fact correct to exercise its discretion to dismiss the appeal as it did. In so doing it had not fallen into any error apparent or identifiable. The decision at first instance is sound in law and stands.
   
9. In the aggregate we are not convinced that this appeal has merit in law. Accordingly, we dismiss it and confirm the decision at first instance by the National Court. We do not see any merit to consider the other grounds of the appeal as all hinge on this ground which we find no merit to hold the appeal. What is apparent is that this appeal is without any foot in law or fact and must be dismissed. And this we do. We further order that Costs will follow the event. The formal orders of the Court are: -
   
   • (i) The Appeal is without merit in law and fact.
   • (ii) It is dismissed forthwith.
   • (iii) The Decision of the National Court at first instance is confirmed forthwith.
   • (iv) The costs will follow the event
     

Orders Accordingly.
_________________________________________________________________
Lawyers for the appellant: Laken Lepatu Aigilo Lawyers
Lawyers for the second respondents: Awalua & Associate Lawyers