N822

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KIAU NIKINTS

V

MOKI RUMINTS

Mount Hagen
Woods J

16 March 1990

INFERIOR COURTS - District Courts - Appeal from - Recognisance to prosecute appeal - Not condition precedent - No power to dispense with - Failure to file invalidating appeal - District Courts Act (Ch No 40), ss 222, 231.

APPEALS - Practice and procedure - Appeal to National Court - Appeal from District Court - Recognisance to prosecute appeal - No power to waive - Failure to lodge invalidates appeal - District Courts Act (Ch No 40), ss 222, 231.

PRACTICE AND PROCEDURE - National Court - Appeals to - Power to dispense with conditions precedent - Recognisance to prosecute appeal - Not condition precedent - No power to waive - District Courts Act (Ch No 40), ss 222, 231.

Under the District Courts Act (Ch No 40), s 222, when an appeal to the National Court is lodged, the appellant is required to deposit a sum of money or enter into a recognisance as security for the due prosecution of the appeal.

Under s 231 of the District Courts Act, the Court has power to dispense with strict compliance with conditions precedent to the right of appeal.

Held

Because the requirements of s 222 of the District Courts Act are mandatory requirements subsequent to the institution of an appeal, they cannot be waived and non-compliance invalidates the appeal.

Appeal

This was the hearing of an appeal to the National Court from the District Court on which objection to jurisdiction to hear the appeal was made.

Counsel

S Norum, for the appellant.
J Hasu, for the respondent.
P Ume, for the Electoral Commission.

16 March 1990

WOODS J: The appellant here is appealing against an order made on 27 June 1989 by the District Court whereby the magistrate allowed certain amendments to be made to an election petition to the District Court. The basis of the appeal is that the magistrate had no power to allow the amendments once the statutory period in which to appeal had expired.

At the hearing of this appeal, the respondent has objected to the hearing of the appeal on the basis that the appellant has not fulfilled requirements under the District Courts Act (Ch No 40) for the filing of an appeal and, in particular, has failed to file a recognisance to prosecute the appeal in accordance with s 222 of the District Courts Act.

Appeals from the District Court to the National Court are creatures of statute and one must look at the procedures and conditions set out in the statute to find the ambit of the power of the court. The requirement to file a recognisance is mandatory although there is a later section, s 231, which gives a power to dispense with certain requirements. However, s 231 only gives power to dispense with compliance with conditions precedent to the right of appeal and a recognisance is a condition which must be complied with following the institution of an appeal, so I find that there is no scope within s 231 for me to waive compliance with s 222.

The appeal that the appellant is making is itself challenging a technicality waived by the magistrate in the District Court. In fact, the appellant is saying that the magistrate has allowed dispensation of technical requirements before the original petition could be heard by the District Court. If I grant the appellant here a dispensation for not complying with the requirements for appealing to the National Court, is not the same argument applicable to the defendant in the matter before the magistrate? If you want equity you must come with equity, you must come with clean hands or you must strictly comply yourself. If you take a technical point, you must yourself technically comply. In this case, the appellant is taking a technical point on what the magistrate did; however, he has failed to comply with technical requirements before this Court.

I am not saying that I am dealing with the substance of the law on election petitions, I am merely dealing with the technicalities of appealing from a magistrate to the National Court. I find that the appellant has not complied with the requirements for an appeal and I therefore dismiss the appeal.

Appeal dismissed

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Lawyer for the appellant: J Mek Teine.
Lawyers for the respondent: O’Connor & Hasu.
Lawyer for the Electoral Commission: Secretary for Justice.