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Akape v Surinki Lutheran High School [2021] PGNC 47; N8780 (16 March 2021)

N8780
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 38 OF 2014

BETWEEN
MASOKALI AKAPE
Appellant

AND
SURINKI LUTHERAN HIGH SCHOOL
First Respondent

AND
ENGA PROVINCIAL GOVERNMENT
Second Respondent

Wabag: Makail, J
2021: 5^th & 16^thMarch

PRACTICE & PROCEDURE – District Court Appeals – Entry of appeal – Effect of – Operate as a stay of District Court proceeding and order – District Courts Act – Sections 226 & 227

PRACTICE & PROCEDURE – Objection to competency of appeal – Grounds of – Appeal filed out of time – 30 days – District Courts Act – Section 226

Cases Cited:

Sangam Mote v. Alkan Tololo [1996] PNGLR 404
Sungu Andrew v. Helen John (2001) N2031
Leong Apelis v. Paul Tevlone & Telikom (PNG) Limited (2009) N3896
Kennedy Thomas Kiiark v. Norit Luio(2020) SC1964

Counsel:

Mr.L. Toke, for Appellant
Mr. A. Tukun, for Respondents

RULING

16^th March, 2021

1. MAKAIL J: This is a ruling on two preliminary issues identified at the listing of the substantive application for contempt of Court on 5^th March 2021. They are:

1.1. Whether the District Court proceeding and orders are stayed by operation of Sections 226 and 227 of the District Courts Act, and

1.2. Whether the appeal was filed out of time and incompetent.

2. They arose from an appeal filed by the Appellant against an order of the District Court of 5^th March 2014 and 6^th May 2014. In relation to the first order, the District Court dismissed an appeal by the Appellant against the decision of the Sirunki Joint Village Court to have him vacate a piece of land where the First Respondent school is located, for want of prosecution. The second related to the decision of the District Court to adjourn sine die the Appellant’s notice of motion seeking an order to set aside the order for want of prosecution pending the Appellant to comply with the order of 5^th March 2014 to pay costs.

3. Following the dismissal of the District Court proceeding for want of prosecution, on 29^th April 2014, the District Court made an order to restrain the Appellant and his family members from interfering with the First Respondent’s right of quiet enjoyment of the land. Then on 1^st July 2014 the Respondents commenced contempt proceedings by notice of motion against the Appellant for allegedly breaching the District Court order of 29^th April 2014 and National Court order of 2^nd May 2016.

4. In relation to the application of Sections 226 and 227 of the District Courts Act, Ch 40, the Appellant submitted that an Appellant is required to file an entry of appeal after filing of a notice of appeal. The entry of appeal operates as a stay of the District Court proceeding and orders. He referred to the case of Sangam Mote v. Alkan Tololo [1996] PNGLR 404 to support this submission. I note subsequent National Court cases have adopted this view, some of them are Sungu Andrew v. Helen John (2001) N2031 and Leong Apelis v. Paul Tevlone & Telikom (PNG) Limited (2009) N3896. In 2020, the Supreme Court endorsed this view in Kennedy Thomas Kiiark v. Norit Luio (2020) SC1964.

5. Section 226 of the District Courts Act, Ch 40 states:

“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. Section 227 of the District Courts Act, Ch 40 states:

“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”.

7. In this case the Appellant has filed a notice of appeal on 14^th May 2014 and subsequently an entry of appeal on 13^th June 2014. The entry of appeal has been filed within 40 days after the institution of the appeal, actually, on the 29^th day. The entry of appeal had the effect of staying the District Court proceeding and orders. There could not be an enforcement of the orders including contempt where an entry of appeal has been filed.

8. I uphold this submission. It is consistent with the law under Section 227 of the District Courts Act, Ch 40. While it is noted that there has been no appeal against the District Court order of 29^th April 2014, it has been stayed by operation of Section 227 (supra). Indeed, the entire proceeding in the District Court had been stayed by operation of Section 227 (supra) and there should not have been any activity on the proceeding in the District Court until the appeal has been heard and determined. This included the motion for restraining order and motion for contempt of Court.

9. Thus, any orders made by the National Court such as the one on 2^nd May 2016 to have the Appellant vacate the land has also been stayed. Any attempt to enforce them will amount to an abuse of process and will not be enforced. Moreover, the application for contempt based on these orders is an abuse of abuse.

10. As to the second issue, Section 220 of the District Courts Act, Ch 40 states:

“220. Institution of appeal.

(1) An appeal under Section 219 shall be instituted—

(a) by notice of appeal; and

(b) by entering into a recognizance on appeal, or by giving other security as specified in Section 222.

(2) An appellant shall give notice of his intention to appeal by lodging, within one month after the day when the decision is pronounced, a notice of appeal with the Clerk of the Court by which the conviction, order or adjudication was made”.

11. The Respondents submitted that the appeal is incompetent because it was filed outside the prescribed time for filing of an appeal. It was filed on 14^th May 2014 which was outside 30 days after the decision of the District Court.

12. On a plain reading of Section 220(2), the phrase “within one month after the day the decision is pronounced...” means the regular 30 days does not run from the date of decision but a day after the decision. In this case, the Appellant appealed against two decisions of the District Court. The first decision was made on 5^th March 2014 and the second on 6^th May 2014.

13. The first order of 5^th March 2014 is an ex parte one which dismissed the District Court proceedings for want of prosecution. As it was made ex parte, the Appellant had a right which he is entitled to exercise to apply to the District Court to have it set aside and have the District Court proceeding reinstated. This, the Appellant did by filing the relevant notice of motion on or about 15^th April 2014. Instead of deciding whether to have it set aside, on 6^thMay 2014 the District Court decided to adjourn the matter sine die pending the Appellant to pay the costs order made by the District Court on 29^th April 2014.

14. Thus, time started to run after the date of the decision of 6^th May 2014. The appeal was filed on 14^th May 2014. The time-limitation of 30 days ran from 7^th May 2014 and expired on 6^th June 2014. The appeal has been filed within time. It is competent.

15. The application for contempt by notice of motion filed 1^st July 2016 is dismissed as being an abuse of process. The Respondents shall pay the costs of the application for contempt.

Ruling and orders accordingly.

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