Kennedy Thomas Kiiark v Norit Luio (2020) SC1964

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ, Mogish & Shepherd JJ
• Judgment Date: 12 June 2020
• Court: Supreme Court
• Citation: (2020) SC1964
• Docket Number: SCA No 172 of 2017
• Year: 2020
• Judgement Number: SC1964

Full Title: SCA No 172 of 2017; Kennedy Thomas Kiiark v Norit Luio (2020) SC1964

Supreme Court: Salika CJ, Mogish & Shepherd JJ

Judgment Delivered: 12 June 2020

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...