Sunga Andrew v Helen John (2001) N2031

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 19 January 2001
• Citation: (2001) N2031
• Court: National Court
• Year: 2001
• Judgement Number: N2031

Full Title: Sunga Andrew v Helen John (2001) N2031

National Court: Kandakasi J

Judgment Delivered: 19 January 2001

N2031

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP CIA NO. 52 of 2000

BETWEEN:

SUNGA ANDREW

Applicant/Appellant

-V-

HELEN JOHN

Respondent

LAE: KANDAKASI, J.

2001: 19 JANUARY

INFERIOR COURTS — Appeals — Appeals to the National Court — Appeal from District Courts — Application for stay pending determination of appeal — Filing of entry of appeal to the National Court contrary to s.226 of the District Courts Act (Chp.40) — No automatic stay of District Court orders — Application for stays must be made promptly — Guidelines set by the Supreme Court for determination of stay applications apply with necessary modification to applications for stay of District Court orders pending appeal — District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227.

APPEALS — PRACTICE & PROCEDURE — Appeal to National Court — Appeal from District Court — Filing of entry of appeal to National Court contrary to s. 226 of the District Courts Ac — No automatic stay — Application for stay of District Court orders pending determination of appeal — Application filed outside the time limits for filing of entry of appeal to the National Court — No reasonable explanation for delay — No arguable case shown — Doubtful whether correct procedure for appeals met — Application dismissed — District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227.

PRACTICE & PROCEDURE — National Court — Appeals to — Filing of entry of appeal to National Court contrary to s. 226 of the District Courts Ac — No automatic stay — Application for stay of District Court orders pending determination of appeal — Application filed outside the time limits for filing of entry of appeal to the National Court — No reasonable explanation for delay — No arguable case shown — Doubtful whether correct procedure for appeals met — Application dismissed — District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227- National Court Rules 1983, Order 10 Rule 4 & 5

Cases cited:

William Moses v. Otto Benal Magiten, (1st December 2000) N2023

Sangam Mote v. Alkan Tololo [1996] PNGLR 404

The State v.Philip Kapal & Others [1987]PNGLR 302

Gary McHardy v. Prosec Security and Communication Ltd Trading as Protect Security (30th June 2000) SC646

Counsel

Applicant/Appellant in person

Respondent in person

INTERIM RULING

19 January, 2001

KANDAKASI, J: This is an application to stay orders for payment of maintenance of K50.00 per month until the child the subject of the order attains the age of 16 years and confinement expenses of K150.00 by the Wau District Court. The orders sought to be stayed were made on the 1st of March 2000. The Applicant/Appellant (hereinafter "the Applicant") lodged an appeal against the decision on the 9th of March 2000.

On the 9 of January 2001, an Entry of Appeal to the National Court was filed. At the same time, a notice of motion seeking a stay of the orders of the Wau District Court was filed. The motion was fixed for hearing on the 19th of January 2001. I heard the motion on that date and refused it. At that time I gave my reasons in brief orally. This constitutes my reasons in full.

The Motion

The notice of motion seeks the following orders:

1. That the order of the Wau District Court of 1st March 2000 and subject of these proceedings be stayed until the National Court makes a decision on this appeal.

2. Any other orders this Honourable Court deems fit.

In support of the motion, the Applicant swore to and filed an affidavit also on the 9th of January 2001. The Applicant deposes to the fact of District Court orders and the appeal against them. He also deposes to having received the depositions without specifying when he received them. He further deposes at paragraph 3 of his affidavit that he is seeking a stay of the orders because "[t]he 'appeal book' will not be ready until Monday the 5th of February, 2000, as advised by the Clerk of the National Court".

No explanation whatsoever is given as to the reason or reasons for the delay in a prompt prosecution of the appeal after its lodgment on 9th of March 2000. There is also no explanation for the delay in filing the Entry of Appeal to the National Court within 40 days as required by s.226 of the District Courts Act (Chp.40)(hereinafter "the Act").

The Respondent, who appears to be an ordinary villager, seems to have been kept in the dark regarding the delay in the prosecution of the appeal. Because of that status, it seems she did not take any step to apply for a dismissal of the appeal for want of prosecution and or enforce the orders, the subject of the appeal and this application. So she was only waiting to be advised on the progress of the appeal. She was however, surprised when she was served with a sealed copy of the motion and affidavit in support of this application, which made it obvious that the appeal was not yet ready for hearing.

On the Court's inquiry, the Applicant told the Court that he chose not to comply with the District Court orders because he did not accept them. Yet, he did not apply for and obtained an order staying the running of those orders and a period of 10 months passed without any compliance of those orders and a prompt prosecution of the appeal. By virtue of his filing and proceeding with this application, I am of the view that, the Applicant knew that without a stay order, he was obliged to comply with the orders, but he chose not to. That in my view, amounts to a deliberate decision not to comply with an order he was required to comply with in the absence of a stay order or a quashing of the same by the National Court. He was therefore, in continuos and deliberate contempt of the orders sought to be stayed.

The Relevant Law

In William Moses v. Otto Benal Magiten, (1st December 2000) N2023, I said at page 6 of the judgement:

It is now settled law that District Courts are not courts of record and are creatures of statute. Therefore their powers, functions and anything to do with them are governed by their enabling legislation, the District Courts Act (Ch.40) (hereinafter "the Act"). Consequently, all things done not in accordance with the Act have been held to be null and void and of no effect: see The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577.

Then at pages 6 to 7 of that judgement, I quoted in full the provisions of sections 220, 221, 226 and 227 of the District Courts Act (Ch. 40) and said these in respect of those provisions:

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 the lodgment of his appeal. A failure to do so attracts the application of section 227, which renders the...