N11084

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 10 OF 2024

BETWEEN 
ELIZAH BOKIN
-  Appellant -

AND
LIFE OUTREACH MINISTRIES
- Respondent –

Kimbe:  Collier J
2024:  7th November

PRACTICE AND PROCEDURE – appeal from decision of District Court – defendant filed notice of motion to have appeal summarily dismissed for being an abuse of Court process - Order 18 Rule 12(4)(a)(i) and Order 12 Rule 40(1)(c) National Court Rules – principles referable to summary dismissal – abuse of process – appeal provisions in Part XI District Courts Act 1963 – appeal to be lodged within one month after the day when the decision was pronounced – s 220 District Courts Act 1963 – meaning of “pronounce” – whether requirements of s 220 dispensed with pursuant to s 231 District Courts Act 1963.

Facts
The respondent commenced proceedings in the District Court seeking the eviction of the appellant from property claimed by the respondent. The District Court ordered that the respondent was the owner of the property and that the appellant be evicted. The decision of the District Court was delivered 21 November 2023. Section 220 of the District Courts Act 1963 provides that an appeal from a decision of the District Court must be lodged within one month of the orders of the District Courts Act 1963 being pronounced. The appellant lodged an appeal on 11 March 2024, and contended that he was in time for the appeal because he was only served the orders of the District Court on 13 February 2024. The respondent filed a notice of motion seeking orders that the appeal be summarily dismissed as an abuse of process. At the hearing the Court raised with the parties the terms of s 220 and s 231 of the District Courts Act 1963. No application for dispensation pursuant to s 231 of the District Courts Act 1963 was made by the appellant.

Held:
The appeal was filed out of time and was an abuse of process. The appellant was required to lodge an appeal in accordance with s 220 of the District Courts Act 1963 within one month of the pronouncement of the orders of the District Court. No dispensation was given in circumstances where the appellant was present in the District Court when orders were pronounced, there was no reasonable explanation for the delay in lodging the appeal, and the prejudice to the respondent would be significant. Costs followed the event.

Cases Cited:
Inave v Tapoko [2011] N4559
Kanama v Sobendi [2019] PGNC 229
Latu v Kua [2007] N3151
Motor Vehicles Insurance Ltd v Gigmai [2013] N5295
Rabaul Shipping Ltd v Rita Ruru (2002) N2022
Seravo v Bahafo (2001) N2078
Tai v Baker [2023] N10640

Legislation:
District Courts Act 1963
Interpretation Act 1975
National Court Rules 1983

Counsel:
Appellant appeared in person
Mr L. Dos, for the Respondent

REASONS FOR JUDGMENT

7th November 2024

1	COLLIER J: Before the Court are: 
•	a notice of appeal filed 11 March 2024 (notice of appeal) whereby the appellant seeks to challenge the decision of the District Court in DC No. 204 of 2023 made 21 November 2023 (primary decision); and
•	a notice of motion filed by the respondent on 10 October 2024 (notice of motion) seeking the following orders:

1.	Pursuant to Order 18 Rule 12(4)(a)(i) and Order 12 Rule 40(1)(c) of the National Court Rules, the appeal be summarily dismissed for being an abuse of the Court process.
2.	Costs of the appeal by paid by the appellant.
…
•	a notice of motion filed by the appellant on 31 October 2024 (cross notice of motion) seeking the following orders:
1.	The defendant’s application to dismiss the appeal be dismissed
2.	The District Court order be declared null and void for basing its decision on a non-genuine land title without the seal of the Lands Title Commission and District Court seal at the time of filing.
3.	The portion of land described as section 86, allotment 3 & 4 be awarded to the appellant.
4.	The K2000.00 recognizance fee be refunded.
5.	That the costs of this proceeding be met by the defendant.
2	By the primary decision, Mr Elizah Bokin (or Bogin) (appellant) was ordered to vacate the property identified as Portion or Section 86, Allotment 2, Town of Kimbe, WNBP (the property) following the finding of the learned Magistrate below that the appellant had no legal interest in the property.

3	In full, the primary decision of the Magistrate dated 21 November 2023 was:

1.	Both parties in Court.
2.	Title produced in Court.
3.	Complaint read to the Defendant and the Complainant produced a title to the property.
4.	Complainant through its witnesses namely Aron and the Paste of the Complainant Church gave uncontested evidence that Defendant was paid K15,000.00 to move out the Church property. The Defendant admitted receiving the money (K15,000.00) but didn’t want to move out.
5.	However, the Defendant states the Complainant has no valid title.
6.	The Executive Manager Lands, here in West New Britain confirms the title of 	the subject land to be owned by the Complainant.
7.	If the Defendant raises issue on the validity of the title he may raise it at the National Court.
8.	This Court accepts the title as an evidence of ownership and hence, grant the eviction Order sought by the Complainant.
9.	I issue the following Court Orders;
COURT ORDER
1.	The property Portion or Section 86, Allotment 2, Town of Kimbe, WNBP is fully owned by the Complainant Church.
2.	The Defendant, his agents and relatives are ordered to be evicted form the property and give vacant possession to the Complainant within one month from today.
3.	Kimbe Police are ordered use to reasonable force to remove the Defendants after one month, if they refused to give vacant possession to the Complainant.
4.	Parties meet their own cost.
4	At the hearing before me the respondent was represented by its lawyer Mr Dos, however the appellant appeared in person. After it became apparent that the appellant was having difficulty following the proceedings in English, I directed the Court Officer to interpret the proceedings into Tok Pisin for the benefit of the appellant.

5	It is appropriate that I determine the notice of motion, before the cross notice of motion and the appeal are considered.

SUMMARY DISMISSAL: RELEVANT PRINCIPLES

6	In seeking summary dismissal of the appeal, the respondent relied on Order 18 Rule 12(4)(a)(i) and Order 12 Rule 40(1)(c) of the National Court Rules 1983 (National Court Rules) which provide:

ORDER 18
12.	Other matters
…
…
…
(4)	Summary Disposal
(a)	The Court may summarily determine an appeal:
(i)	on application by a party; or
…
and
ORDER 12
40.	Frivolity, etc
(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
…
7	Recently in relation to Order 12 r 40(1) of the National Court Rules and applications for summary dismissal, Shepherd J observed in Tai v Baker [2023] N10640:

The relevant principles which apply to applications to dismiss under each or any of the grounds set out in Order 12 r. 40(1) NCR are well established. The Supreme Court in Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007 (Gavara-Nanu, Davani, Yagi JJ) conveniently summarises those principles at paras. 27 to 30 as follows:
“27.	The terms “vexatious”, “frivolous”, “abuse  of the process of the Court” and “reasonable cause of action” under O.12 r. 40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.
28.	The law with regard to an application for  dismissal  of proceedings based on O.12 r. 40 is settled in our jurisdiction. We note that the  principles  are succinctly set out in Kerry Lerro’s case (supra) and which have more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).
29.	The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The  principles  stated by these cases can be summarized as follows:
(i)	A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.
(ii)	The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.
(iii)	The purpose of O.12 r.40 is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.
(iv)	A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.
(v)	A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.
In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”
8	In my view the principles referable to summary dismissal outlined by Shepherd J are applicable in the present case to consideration of the notice of motion.

EVIDENCE FILED IN THIS APPEAL

9	The appellant filed an affidavit in response to the defendant’s notice of motion on 31 October 2024.

10	In his affidavit in response the appellant deposed, in summary, that:

•	The orders of the District Court were only served on the appellant on 13 February 2024;
•	The filing of the notice of appeal was within one month from the date on which the appellant was served with the orders; and 
•	The one-month time frame for filing a notice of appeal started from the time the orders were served on the appellant.

11	At the hearing appellant also sought to rely on a document described as a “Complementary Affidavit” sworn by him on 31 July 2024 and filed on 1 August 2024. This affidavit was not included in the appeal book filed on 20 May 2024 in this National Court proceeding. It included various annexures referable to claims made by the appellant in that affidavit to the effect that the title of the respondent is invalid. 

12	The respondent’s notice of motion is premised on the basis that the appeal is flawed as an abuse of the process of the Court. For the purposes of my consideration of the notice of motion I consider that the appellant’s Complementary Affidavit is not relevant as it relates to the substantive issues in the appeal.

CONSIDERATION

13	The key reason that the respondent contends that the appeal should be dismissed as an abuse of the Court’s process is because the respondent says that the notice of appeal was filed by the appellant out of time. The relevant legislation governing appeals of this nature from the District Court to the National Court can be found in Part XI of the District Courts Act 1963 (District Courts Act).

14	Section 220 of the District Courts Act outlines the process for instituting an appeal of a District Court decision. That section reads as follows:

(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.
(emphasis added)
15	“Pronounce” is defined by the Oxford English Dictionary as follows:

Pronounce, v.
Transitive. To give utterance to; to utter, speak, articulate (a word or words); to make or produce (a vocal sound)(obsolete)…
Pronounce, n.
Utterance, delivery;…

16	“Pronounce” is not defined by the District Courts Act or the Interpretation Act 1975. However, it is clear that “pronouncement” of the orders below of the Magistrate, for the purposes of s 220, refers to the delivery in Court by the Magistrate of the orders the subject of the appeal. That this is so can be seen, not only from the ordinary meaning of the word “pronounce”, but also, for example, from s 224(1)(b) of the District Courts Act which refers to “reasons…given at the time when the decision was pronounced”. In the present case, the reasons and the orders were pronounced by the learned Magistrate on 21 November 2023.

17	I also note the decision of Poole J in Motor Vehicles Insurance Ltd v Gigmai [2013] N5295. In that case the relevant decision of the District Court was made in the absence of either party. His Honour observed:

24.	The second question is whether there is a reasonable explanation for this delay – the delay being from the time the Applicant was aware the District Court had given it's decision.
25.	In answering this question, one must first consider whether the phrase, in section 220 of the  District Court Act , "the decision is  pronounced" means  simply the formal Order of the Court (in this instance this was confined to making of awards for damages without any statement of formal findings), or the publication of the reasoning based on findings of fact and applications of the law to those facts, which constitute the adjudication upon which the Orders are based.
26.	So as to ensure that a Notice of Appeal is not misleading, vexatious or prejudicial to the Respondent, an appellant must state clear and cogent grounds of Appeal so that the respondent and Court are able to understand the issues in the adjudication which the appellant is raising for consideration. An appellant can not simply appeal from Orders it does not like – it must be able to state where, in the reasoning which gave rise to the Orders appealed from, it says the Court reached wrong conclusions of fact and/or misapplied the law to those facts.
27.	If a party is not informed of the process of findings and reasoning by which a Court reached the decision expressed in its Orders, it is unable to consider whether to appeal.
28.	For this reason, I rule that to "pronounce a decision" within the meaning of section 220(1) of the District Court Act means to express the findings and reasons for judgement which formed the basis of the Orders appealed from.
(emphasis added)

18	In the present case the learned Magistrate pronounced the decision of the District Court, in the presence of both parties, with reasons given and orders made, on 21 November 2023. It follows that the appellant had one month from 21 November 2023 to file any appeal. It is not the case, as the appellant plainly believes, that he was entitled to file the appeal within one month from the date on which he claims to have been served with the orders, as he contended in his affidavit in response, and at the hearing before me on 7 November 2024.

19	The appellant filed the notice of appeal on 11 March 2024. Clearly, the notice of appeal was filed more than 2 months out of time. 

20	In Kanama v Sobendi [2019] PGNC 229, a notice of appeal was dismissed for being filed 4 days out of time. With reference to the decision of Kandakasi J in Rabaul Shipping Ltd v Rita Ruru (2002) N2022, Susame AJ made the following observations concerning the appeal provisions of the District Courts Act:

[14]	In Rabaul Shipping Ltd v Rita Ruru (2002) N2022 Kandakasi J (as he then was) in his discussion of the mandatory requirements of sections 220, 221, 226 & 227 stated;
“The word “shall” is used in these sections. The words used in these provisions are so plain and clear that there is no room for any argument as to when and where an appeal can be lodged and when it should be prosecuted before the National Court. The words of s 220(2) makes it clear that an appeal against a decision of the District Court should be lodged with the Clerk of Court of the District Court by which the conviction, order or adjudication was made.
This must be done within a period of one month from the date of the decision appealed against. By virtue of s 221(2) sealed copies of the notice of appeal should be served on the respondent, or respondents if more than one also within one month from the date of the decision appealed against.”
[15]	His honour went on to state that failure to comply with the requirements of District Courts Act appeal provisions is fatal and renders the appeal non-existent. I adopt His Honour’s pronouncement as that is the position of the law on the issue.
[16]	Appellant cannot come to court and blame the District Court Clerical Staff of their inefficiency and the lack of assistance to file the relevant appeal documents. She was not happy with the decision. She had the right of appeal. Immediately when the decision was pronounced it was her duty to seek advice from the Clerks at the Registry of the process to follow in filing her appeal or alternatively seek legal aid from established law firms practicing in Kokopo or Rabaul or from the Public Solicitor’s Office. I am pretty sure someone in the legal fraternity would have assisted her.
[17]	It is clear from all of the above discussion the appeal was filed in breach of the mandatory requirements of sections 220, 221 & 226 of District Courts Act. It would be an abuse of process for the court to deal with the appeal filed in breach of the appeal provisions in the District Courts Act. The appeal proceedings is therefore frivolous and cannot be sustained. Accordingly, motion seeking dismissal of the appellant’s appeal is upheld.
(emphasis added)
21	I agree with the position adopted by his Honour in Kanama. The appellant’s failure to file his notice of appeal by 21 December 2024 renders the appeal incompetent. 

22	In the interest of justice, it is important to note s 231 of the District Courts Act which confers judicial discretion to waive compliance with the appeal provisions under Part XI. No application pursuant to s 231 was made by the appellant at any stage of the proceedings, however I considered it appropriate to bring this provision to the attention of the parties at the hearing.

23	Section 231 of the District Court Act reads as follows:

231	DISPENSING WITH CONDITIONS PRECEDENT
The National Court may–
(a)	dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and
(b)	on application made ex parte by the party appealing–extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.
24	In Seravo v Bahafo (2001) N2078 (Seravo), Kandakasi J (as he then was) made the following observations in relation to s 231 of the District Courts Act:

I am satisfied that there has been intentional, if not inordinate delay in prosecuting the plaintiff’s application for extension of time. This is critically important given that, the application was for an extension of time to lodge an appeal by the plaintiff after the time period for him to do so had expired. It was therefore, incumbent upon him to take all the steps that need to be taken to proceed with the application promptly and without unnecessary delay. As mentioned above, it was not a difficult thing to do. All that he had to do was to provide an affidavit explaining why the time period for appeal prescribed by the DCA was allowed to expire, show that he as a fair chance of success on appeal with the proposed grounds of appeal and that the making of the application is prompt with no prejudice to the defendant by the delay.
25	In Latu v Kua [2007] N3151 at [11], Lay J distilled the observations of Kandakasi J into the following test for the exercise of the Court’s discretion to waive compliance with the appeal provisions of the District Courts Act:

(1)	There must be a reasonable explanation for delay;
(2)	The ground(s) of appeal must be arguable; and
(3)	There must be no prejudice to the respondent.
26	At the hearing of the notice of motion, Counsel for the respondent submitted that any application pursuant to s 231 of the District Courts Act was required to be made before the expiration of one month from the pronouncement of the orders of the District Court. 

27	I do not accept this submission. The terms of s 231 do not provide, nor imply, that an application for dispensation with the terms of s 220 must be made before the expiration of one month following the pronouncement of the District Court orders. Certainly, the relevant application for dispensation with the requirements of s 220 in Seravo was made after the expiration of one month and no issue with that point was taken by Kandakasi J.

28	While the appellant did not seek dispensation, in the interests of certainty I make the following observations concerning the present appeal and whether the Court should dispense with the requirements of s 220.

29	In relation to the delay in the filing of the notice of appeal by the appellant – the primary decision was pronounced before the appellant in court. While the appellant has claimed that he was not formally served the orders until 13 February 2024, he was plainly aware of the orders prior to service, as he was present when the orders were pronounced in Court. As noted by Susame AJ in Kanama in similar circumstances, the appellant in the present case could have sought immediate assistance to institute the appeal after the primary decision was pronounced, including seeking advice from the Clerks at the Registry, or legal aid on or within one month after 21 November 2023. 

30	The rationale for the belief of the appellant, to which he deposed in his evidence, that he was not required to commence an appeal until after he had been formally served the District Court orders, is not explained in any way. This belief was both incorrect, and inadequate. I am satisfied that no reasonable explanation for the delay in commencing the appeal has been given by the appellant.

31	In relation to whether the grounds of appeal on which the appellant seeks to rely are arguable as contemplated by Lay J in Latu v Kua, those grounds are as follows:

i.	The learned magistrate erred in law and or fact in his ruling when His Worship failed to pay attention to and enquire into the defence raised by the defendant/appellant that the complainant/respondent did not have a title over the subject property and that the proceeding was filed without a title copy as proof of proprietorship.
ii.	The learned Magistrate erred in law and or fact in his ruling by way of being biassed and denying natural justice against the appellant/respondent when His Worship failed to first require the complainant/respondent to file and serve on the defendant/appellant a genuine or valid title copy over the subject property to give fair opportunity to the defendant/appellant to properly respond to the claim of proprietorship or ownership of the subject property.
iii.	The learned Magistrate erred in law and or fact in his ruling when he failed to first enquire into the authenticity of the fake title copy the complainant respondent was relying on which document was known only to the magistrate and the complainant/respondent prior to the ruling this denying the defendant his right to national justice.
iv.	The learned Magistrate erred in law and or fact in his ruling when he prematurely ruled on the matter at the first mention of the District Court proceeding without enquiring into the defence raised by the defendant/appellant that the complainant/respondent did not have 
32	In relation to these grounds of appeal, I note at this stage that:

•	The respondent’s lease was accepted by the learned Magistrate in the District Court as evidence of their title over the property. There has been no credible evidence put before me to suggest that the respondent’s lease is invalid; however
•	The contention that the learned Magistrate should not have determined the District Court proceedings at the first hearing in that Court is arguable. As Batari J observed in Inave v Tapoko [2011] N4559 at [13], the right to be given the opportunity to be heard is within the contemplation of the right to be heard, and the court cannot consider and determine the whole matter, unless the court had first heard what each party has to say on the evidence adduced. 

33	The prejudice that the respondent would suffer however from a dispensation of the requirements of s 220 of the District Courts Act is, however, real and substantial. As Mr Dos for the respondent submitted at the hearing, the respondent presently has a judgment in its favour, and is entitled to the fruits of its litigation. Mr Dos also submitted in Court that the respondent is in the process of constructing a new Church on the property, a submission supported by evidence in the proceeding of a building permit issued to the respondent. For the Court to permit the appeal to proceed notwithstanding the failure of the appellant to properly commence appellate proceedings would be to severely disrupt existing arrangements of the respondent.

34	On balance, notwithstanding that there is one possible arguable basis for the appeal, I am not prepared to dispense with the requirements of s 220 of the District Courts Act in favour of the appellant where there is no reasonable explanation for the delay in instituting the appeal, and where would be significant prejudice to the respondent.

CONCLUSION

35	In the circumstances the respondent has succeeded on the notice of motion. As a result, it follows that the appeal and the cross notice of motion should also be dismissed.

36	The appellant is to pay the costs of the respondent of and incidental to the proceedings, to be taxed if not otherwise agreed.
37.    The Court orders that:
1.	The notice of motion filed by the respondent on 10 October 2024 is upheld.
2.	The notice of appeal filed by the appellant on 11 March 2024 is an abuse of the process of the Court and is dismissed pursuant to Order 18 Rule 12(4)(a)(i) and Order 12 Rule 40(1)(c) of the National Court Rules.
3.	The notice of motion filed by the appellant on 31 October 2024 is dismissed.
4.	The appellant is to pay the costs of the respondent of and incidental to the proceedings, to be taxed if not otherwise agreed.
_______________________________________________________________
Mr L. Dos: Lawyer for the Respondent