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Tawi v Rawa [1997] PGNC 46; N1560 (22 April 1997)

Unreported National Court Decisions

N1560

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 408 OF 1995
BETWEEN:
OSCAR M TAWI - Appellant
And:
RORI RAWA - Respondent

Vanimo

Akuram J
21-22 April 1997

PRACTICE & PROCEDURE - Appeal - District Court - Failure To Comply with Appeal provision - S.219, 220, 221 & 222. - District Courts Act, Ch. 40.

PRACTICE & PROCEDURE - Appeal - District Court - Magistrate’s reasons - Comments not proper - s.225 District Courts Act, Ch. 40 - not complied with.

Counsel:

Appellant No Appearance

Respondent In person

22 April 1997

AKURAM J: This is an appeal against the decision of the AITAPE District Court. It was dated the 13th of April 1995. It is not known when the decision was made by the said Court. It is also not clear as to what are the grounds of Appeal. However, from the hand written Notice of Appeal by the Appellant, the following are said to be such grounds:

1. The alteration of the Original Court Summons;

2. Proof of Service of the Summons;

3. No written or prove of Contract of the agreement;

4. The car or truck was damaged and never was damaged by myself and is not road worthy; and

5. The Complainant States that the truck was used but the truck is not registered.

There were no other documents accompanying the above Notice of Appeal. The Assistant Registrar of the National Court then wrote on the 14th June 1995 to the Clerk of Aitape District Court to furnish the following:

1. The Recognizance of Appeal.

2. Entry of Appeal to the National Court.

The Assistant Registrar also asked for the date of the decision to be provided. The Aitape Clerk of Court did not respond. So the same request was re-dated on the 18th December 1995 and sent to him. Again there was no response. The Assistant Registrar again faxed the same memorandum of 14th June 1995 to the Clerk on the 22-2-96 and no response up until the date of this decision.

Then on the 2nd of August 1996, the magistrate who presided over the case appealed against took an unusual step writing to the Assistant Registrar raising his concern about the procedures of the Appeal. These are:

(1) Leave not granted under s. 219 (3) of the District Courts Act to Appeal out of time.

(2) There is no Recognizance to Appeal accompanying the notice of Appeal.

This was the last correspondence on the matter. There is still no Recognizance on Appeal and Entry of Appeal filed by the Appellant.

The Respondent appeared in person and made an application to dismiss this Appeal on following grounds:

1. That the appellant is not present to prosecute the Appeal;

2. That Appellant did not ask for Stay of the Order of Aitape District Court;

3. That it is an outstanding case from 1995; and

4. That he is an electoral officer for Lumi and may not be present until sometime in October 1997.

I have adjourned to consider this Application. Before I make my ruling I want to make following observations.

1. LODGING OF APPEALS

The Appeals from the decisions of District Courts are lodged at the District Court. The first part of the notice of Appeal must state the date of the decision, the nature of the complaint and the decision itself. The second part of the Notice of Appeal contains the grounds of Appeal including the ground that because of the grounds already stated, the Appellant had suffered substantial miscarriage of justice. None of these matters were ever stated in the Notice of Appeal lodged. The second part can be corrected had the Appellant presented himself in court and explained his grounds of Appeal which could be reduced to proper grounds of Appeal. As they stand now, I am not clear as to his grounds of appeal except to say that Magistrates findings is against the weight of the evidence.

2. COMMENTS BY MAGISTRATE TO THE ASSISTANT REGISTRAR

The Magistrate who presided over the trial of this matter from which the appeal arose had no authority to make such comments. The only comments he can make are as per his reasons for decision pursuant to section 225 which reads:

225. Report by Magistrate.

(1) Where no reasons were given by the Court for the making of the conviction, order or adjudication, the Clerk of the Court the decision of which is appealed against immediately after the notice of appeal is lodged with him, shall notify the Magistrate who constituted the Court by which the conviction, order or adjudication was made, of the notice of appeal.

(2) Immediately after being notified of a notice of appeal under Subsection (1), the Magistrate shall forward to the Registrar of the National Court a written report setting out the reasons for the making of the conviction, order or adjudication. (emphasis added).

The Magistrate therefore is in no position to advise the Registrar as to the procedural requirements or otherwise on the grounds of Appeal nor is he in a position to tell the Registrar whether an Appeal be accepted or not for failure to comply with the District Court Appeal procedures. The tone of the Magistrate’s comments infact tend to imply that he has infact decided on the merits of the Appeal whereas he should really have given his reasons for his decision. However, I have ignored his comments as far as the Appeal is concerned.

3. DUTY OF CLERK OF COURT ON APPEALS

The duties of the Clerk of Court once an Appeal is lodged is set out clearly under section 224 of the District Courts Act. That is, the Clerk shall forward to the Registrar the following:

(a) Copy of the order, etc;

(b) The reasons by the Magistrate;

(c) Copy of Complaint;

(d) Copy of the depositions; and

(e) Copies of the proceedings, plus

(f) Original of exhibits used in the case or a list of such exhibits.

The Aitape Clerk of Court has failed to do all these things. In fact there is no response at all from the Clerk on this matter. This could mean one of the two things. First it could mean that Clerk never received the Notice of Appeal as lodged by the Appellant on the 13th April 1995. I say this because the Appellant has written directly to the Assistant Registrar on the 2nd May 1995 to register the Appeal. This is why the Clerk did not have copies of the Notice of Appeal and so could not do anything. However, she was sent copies of the Notice of Appeal by the Assistant Registrar. Secondly the Registrar should have returned the Notice of Appeal to Aitape Clerk of Court for Registration and return to National Court. The Registrar instead seemed to have adopted the Local Court procedure for filing of the Notices of Appeal which go direct to the Registrar of the National Court according to the Local Court Appeal procedures of the Local Courts Act, Chapter 41.

RULING ON APPLICATION BY RESPONDENT

The Respondent in his application for dismissal of this Appeal gave four reasons which are set out above. I find those grounds genuine. The Appellant has slept over his rights by not following up his Appeal. He is waiting for advise from the Assistant Registrar of the National Court in Madang whereas he did not comply with the Appeal provisions of the District Courts Act Ch. 40, in the first place. Section 231 of the District Courts Act does allow for dispensing with the conditions precedent but that can only be done on reasonable grounds upon application by the Appellant.

For the above reasons I am satisfied that the appellant has not done anything to prosecute this Appeal. I therefore dismiss this appeal for want of prosecution.

Respondent in Person