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National Court of Papua New Guinea |
Unreported National Court Decisions
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 April 1997
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. ;ټ The alte alteratioration of the Original Court Summons;
2. Proof of Service of the Ssmmons;
3. &##160;; N60writ written oren or prove of Contract of the agreement;
4.;ټ&##160;; Theor truck was damaged and never was damageamaged by d by myselmyself andf and is n is not root road worthy; and
5. ټ The Complainant Stat States that the truck was used but the truck is not registered.
There were no other documents acnyingabovece ofal. The Asst. Registrar of the National Court then wrote on t on the 14he 14th Juth June 19ne 1995 to the Clerk of Aitape District Court to furnish the following:
1. & The Recognizafce of Appealppeal;
2. &##160; E60; Entry ofaAppe t toNate National Court.
The Assistant Registrar also asked for the date of the deciso be ded. itape Clerk of Court did not rd. So the same request was reas re-dated on the 18th December 1995 and and sent sent to hito 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 s3219(3) of the District Courts Act to Appeal out of time.
(2) There iR no nicogce an Appo Appeal accompanying the notice of Appeal.
This was the last correspondence on the matter. Theretill cogni on A and of Appeal filed by the Appellant.
The RespoRespondentndent appe appeared ared in pein person and made an application to dismiss this Appeal on following grounds:
1. ;ټ That that the appe appellant is not present to prosecute the Appeal;
2. ; That Apnellad did not askt ask for Stay of the Order of Aitape District ;
.ټ <;a; That it is an s an outstanding case from 1995;4. ټ T60; That he is an electofal offfor Lnd may not be present until sometime in October 1997.
I have adjourned to d to consiconsider this Application. Before I make ming I to mollowing observations.
1. LODGING GING OF APOF APPEALSPEALS
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 Magistratstrate.
(1) here no reasons were give given by the Court for the making of the conviction, order or adjudication, the Clerk of the Court the decision of which is appealed at immely athe n of appeal is lodged with himh him, sha, shall noll notify tify the Magistrate who constituted the Court by which the conviction, order or adjudication was made, of the notice of appeal.
(2) Iamedi aelyr bteng nitifietified of a notice of appeal under Subsection (1), the Magistrate shall forward to the Registrar of the National Court a written repettin the ns fo maki the conviction, orn, order oder
or adjr adjudicaudication
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) ofpyhe otder, etc;
>
(b) ټ Tae re bons by the the Magistrate;
(c)  y ofpComplaint;
(d) ҈ ofpy e dthe depositpositions; and
(e) ;ټ C of the edices, (f) ;iginal of e of exhibixhibixhibits usts used ined in the the case or a list of such exhibits. The Aitape Cof Coas fato dothesegs. In fact there iere is no s no response at all from the Clerk on thin this mats matter. ter. 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.
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