George Solomon v David Raim (2020) N8428

• Jurisdiction: Papua New Guinea
• Judge: Narokobi J
• Judgment Date: 27 July 2020
• Court: National Court
• Citation: (2020) N8428
• Docket Number: CIA No 133 of 2019
• Year: 2020
• Judgement Number: N8428

Full Title: CIA No 133 of 2019; George Solomon v David Raim (2020) N8428

National Court: Narokobi J

Judgment Delivered: 27 July 2020

N8428

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 133 OF 2019

BETWEEN:

GEORGE SOLOMON

Appellant

AND:

DAVID RAIM

Respondent

Madang: Narokobi J

2020: 24th and 27th July

DISMISSAL OF PROCEEDINGS – application to dismiss for non-compliance with Sections 226 and 227 of the District Court Act – whether requirements mandatory – considerations for exercise of discretion – application refused

PRACTICE AND PROCEDURE – application to dismiss for disclosing no reasonable cause of action pursuant to Order 12 Rule 40(1) of the National Court Rules – principles to consider for exercise of discretion – application refused.

An appeal was lodged against the decision of the learned District Court magistrate granting an order to evict the appellant from the property he is residing in. The Respondent filed an application to dismiss the appeal on two grounds – firstly, for not non-compliance with Sections 226 and 227 of the District Court Act, Chapter 40 in that the notice of appeal, entry of appeal and recognizance of appeal were filed simultaneously; and secondly that the appeal discloses no reasonable cause of action as the respondent was the registered proprietor of the property.

Held:

(1) The National Court is granted power pursuant to Section 231 of the District Court Act to waive strict compliance with Part XI of the District Court Act, which includes Sections 226 and 227 upon being satisfied that there is reasonable explanation provided, grounds of appeal are arguable and there is no prejudice suffered by the respondent: Kiiark v Luio (2020) SC1964 followed.

(2) If anything, since the non-compliance demonstrated diligence on the part of the appellant to prosecute the appeal, and that there is an arguable case, this is an appropriate case for the National Court to exercise the court’s discretion under Section 231 of the District Court Act and allow the appeal to proceed, Handii Mahn Investment Ltd v Kiwiki Enterprise Ltd (2018) N7265 distinguished.

(3) The appeal pleads that the property occupied by the appellant may be a different section and allotment to the property asserted ownership over by the appellant and also raises issue of equitable interest in the property. Due to the growing body of case law on the non-application of the Summary Ejectment Act to a person who has demonstrated an equitable interest in property, the appellant has shown an arguable case for substantive hearing and the application to dismiss for disclosing no reasonable cause of action should also be refused.

Cases Cited:

The following cases are cited in the judgment:

Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The State [1992] PNGLR 150,

Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396,

Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74,

HandiiMahn Investment Ltd v Kiwiki Enterprise Ltd (2018) N7265

Kiiark v Luio (2020) SC1964

Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675, Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143,

Moses v Magiten (2000) N2023

PNG Forest Products Pty Ltd v Independent State of Papua New Guinea [1992] PNGLR 85

Siso Naso v National Housing Corporation (1999) N1947

Takori v Yagari (2007) SC905

Yagon v Nowra No 59 Ltd [2008] PGNC 82; N3375 (16 May 2008).

Counsel:

Mr. S. Mark, for the Respondent.

Mr. S. Asivo, with leave of the court for the Appellant.

RULING

27th July, 2020

1. NAROKOBI, J: Before me is a motion by the Respondent to dismiss an appeal from a District Court decision for non-compliance with Sections 226 and 227 of the District Court Act, Chapter 40 and for disclosing no reasonable cause of action pursuant to Order 12 Rule 40(1)(a) of the National Court Rules. The application is opposed, and I reserved my ruling to today.

A BACKGROUND AND ISSUES

2. The proceeding is an appeal from the District Court in relation to a summary ejectment done pursuant to the Summary Ejectment Act, Chapter 252. The defendant in the District Court is aggrieved by the decision of that court and has appealed to the National Court.

3. The issues are as submitted by the Respondent, and they are:

· Whether the appeal should be dismissed for non-compliance with Sections 226 and 227 of the District Court Act, Chapter 40; and

· In the alternative, whether the appeal should be dismissed for disclosing no reasonable cause of action pursuant to Order 12 Rule 40(1)(a) of the National Court Rules?

4. I address the two issues separately. Resolving each of the issue in favour of the Respondent will have the effect of terminating the proceedings.

B THE LAW AND APPLICATION OF THE LAW TO THE ISSUES

1) First Issue

5. In relation to the first issue, Section 226 of the District Court Act is in the following terms:

“226. Appellant to Set Down Appeal and Give Notice.

(1) Within 40 days after the institution of an appeal, the appellant shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court.

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

6. The respondent says that the provisions of Section 226(1) makes it clear that Entry of Appeal must be filed after the institution of an appeal, and not simultaneously with the appeal.

7. Section 227 of the District Court Act than follows by stating that within 40 days, the appellant should enter the appeal for hearing:

“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.”

8. Sections 226 and 227 are read together to provide that if entry of appeal is not entered after 40 days of entry of appeal, the District Court order takes effect.

9. The respondent relies on the National Court case of Handii Mahn Investment Ltd v Kiwiki Enterprise Ltd (2018) N7265 where his Honour Liosi J held at para 29:

“Section 266 (sic) clearly states that with 40 days after institution of an appeal the appellant “shall’’ enter the appeal for hearing. Note the use of ‘’shall’’ which is mandatory. In my view therefore the entry of appeal can only be filed within 40 days after filing the notice of appeal. Clearly then this means that the entry of appeal cannot be filed together with the notice of appeal and the recognizance of appeal. Consequently, Section 226 was breached when the Entry of Appeal was simultaneously filed with the Notice of Appeal and the Recognizance of Appeal on 8th February 2018.”

10. After reading that decision, I see that the court did not address its mind on Section 231 of the District Court Act. Section 231 states:

“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.”

11. Section 231 of the District Court Act was considered by the Supreme Court in Kiiark v Luio (2020) SC1964, where the Court held:

“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.”

12. The Supreme Court went on to explain the National Court’s decision of Kandakasi J (as he then was) in Moses v Magiten (2000) N2023 that the requirements of Part XI of the District Court Act, which includes Sections 226 and 227, should be complied with, but does not prevent the National Court from exercising its discretion to consider the appeal if a reasonable explanation is provided for the non-compliance. The Supreme Court said at para 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.”

13. How does Handii Mahn...