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Kapi v PNG Rehabilitation Centre [2025] PGNC 105; N11233 (7 April 2025)

N11233

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO 6 OF 2024

BETWEEN:
RUTH KAKAS KAPI AND OTHER ILLEGAL OCCUPANTS OF SECTION 452, ALLOTMENT B11, HOHOLA, NCD
Appellant

AND:
PNG REHABILITATION CENTRE
Respondent

WAIGANI: PURDON-SULLY J
31 MARCH, 7 APRIL 2025

APPEALS - District Courts - Appeal to National Court – Whether manner of institution of appeal was an abuse of process where Entry of Appeal filed at same time as Notice of Appeal when matter not reading for hearing – purpose of Notice of Appeal and Entry of Appeal considered - whether the Court should exercise its discretion under s 231 of the Act to relieve the appellant of strict compliance with the Act – ss 226 and 227 of the District Courts Act

Cases cited

Moses v Magiten [2000] PGNC 73; N2023
Haino v Sai [2006] PGNC 5; N3063
NGIP Agmark Ltd v Laitia [2018] PGNC 512; N7623
Kiiark v Luio [2020] PGSC 54; SC1964
Solomon v Reim [2020] PGNC 205; N8428
Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844
Pyako v Ganaii [2024] PGNC 205
Numapo v Eliakim [2020] PGSC 56; SC1965
Seravo v Bahafo (2001) N2078
Latu v Kua (2007) N315
Rabaul Shipping Ltd v Ruru [2000] N2022

Counsel
M Tumul for the appellant
L Aigilo for the respondent

DECISION

1. PURDON-SULLY J: The proceedings before the Court concern an appeal filed on 31 January 2021 against a order of the District Court at Port Moresby made on 23 January 2024. This is the Court’s decision on a competency issue as to whether the filing by the appellant of her entry of appeal on the same day as her notice of appeal amounted to an abuse of process.
   
2. The matter was raised by the Court and the respondent on 2 September 2025 at the hearing of the appellant’s Notice of Motion filed 11 September 2024, the appellant seeking leave to file an Amended Notice of Appeal. The matter was then adjourned to enable the Plaintiff’s Counsel an opportunity to consider the decision of Moses v Magiten [2000] PGNC 73; N2023 (Moses) and make further submissions. The appellant then filed a Notice of Motion on 27 March 2025 seeking the court’s leave to waive strict compliance with ss 226 and 227 of the District Courts Act (the Act) to allow for the Entry of Appeal to be accepted as having been properly filed.
   
3. The appellant submits in summary that the filing of the Entry of Appeal on 31 January 2024 was not an abuse of process because:
   
   1. The entry of appeal was filed within the 40 days from when the appeal was instituted thus its is complaint with s 226 (2) of the Act;
   2. The entry of appeal is in the appropriate form and was filed at the National Court Registry thus it complies with s 226 (2) of the Act.
   100. The appellant filed the entry of appeal with the intention of prosecuting her appeal and has done whatever is reasonably practicable to comply with:
        1. The provisions of the Act
        2. The procedures of the National Court, and
        3. All directions of the Court.
   4. The appellant has provided reasons as to why the appeal could not be heard within the 40 days.
      
4. Reliance is placed on the decisions of Haino v Sai [2006] PGNC 5; N3063; NGIP Agmark Ltd v Laitia [2018] PGNC 512; N7623; Kiiark v Luio [2020] PGSC 54; SC1964 and Solomon v Reim [2020] PGNC 205; N8428.
   
5. The appellant brings her application under order 18 r 12(2) (b) of the National Court Rules (NCR), s 231 of the Act and s 155(4) of the Constitution.
   
6. Order 18 r 12(2)(b) of the NCR states:
   

(2) Motions

....

(b) The practice and procedure for Motions shall be those applying to Motions under the National Court Rules.

7. Section 231 of the Act provides:
   

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.

8. Pursuant to s 155(4) of the Constitution the Supreme and National Court have an inherent power to make, in such circumstances as seem proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. There is a long line of authority that makes clear that where remedies are otherwise available, the provision would not apply (Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 at [41]). For the reasons I shall shortly outline, I am satisfied that the provision would not apply in the circumstances of this case given remedies available to the appellant under other law. No specific submissions were advanced on behalf of the appellant to the contrary.
   
9. The respondent opposes the application and seeks the dismissal of the appeal as an abuse of process in that the appellant has failed to comply with the provisions of s 226 of the Act. It is submitted on behalf of the respondent, in summary, that the Court has the power under Orders 10 r 9A (15)(1) & (2) and Order 12 r 40(1) of the NCR to dismiss proceedings when its processes are abused. The provisions of ss 226 and 227 of the Act are mandatory and a failure to comply with the mandatory requirements renders the appeal non-existent. It is contended that while the Court has a discretion to waiver compliance with the provisions of s 231 of the Act by reasons of factors that have prevented the appellant from promptly prosecuting the appeal, more than a year has passed since the filing of the notice of appeal, the 40 day time period having lapsed, with the appellant failing to evidence a reasonable explanation for the delay. The Court should thus dismiss the appeal having provided the appellant with an opportunity to be heard after adjourning the matter to enable the parties to consider the issues raised by the Court. Reliance is placed on the decisions of Moses, Pyako v Ganaii [2024] PGNC 205; N10871; Kiiark v Luio [2020] PGSC 54; SC1964; Seravo v Bahafo (2001) N2078; Latu v Kua (2007) N315 and Numapo v Eliakim [2020] PGSC 56; SC1965.
   

THE ISSUE

10. The issue before the Court is whether the appellant is in breach of s 226 of the Act and, if so, whether the Court should exercise its discretion under s 231 of the Act to waive strict compliance and allow for the Entry of Appeal filed by her on 31 January 2024 to be accepted as being properly filed in the appeal proceedings.
    

RELEVANT PROVISIONS UNDER THE DISTRICT COURTS ACT

11. The following provisions of the Act are relevant to the issue for determination.
    
    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 on 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.

221. NOTICE OF APPEAL.

(1) A notice of appeal under Section 220 shall be in writing, and shall state the nature of the grounds of appeal.

(2) Within one month after the day on which the decision was pronounced, a copy of the notice of appeal shall be served by or on behalf of the appellant on—

(a) the respondent, or on each of the respondents if more than one; and

(b) the Registrar of the National Court.

222. RECOGNIZANCE ON APPEAL.

(1) Subject to Subsection (2), within one month after the day when the decision is pronounced an appellant shall enter into a recognizance with a surety before a Magistrate in such sum as the Magistrate thinks fit, conditioned–

(a) to prosecute the appeal; and

(b) to abide the order of the National Court on the appeal; and

(c) to pay such costs as are awarded by the National Court,

or the appellant may, instead of entering into a recognizance, deposit with the Clerk of the Court by which the conviction, order or adjudication was made such sums of money as a Magistrate in writing directs.

(2) A recognizance under Subsection (1) shall be forwarded without delay by or on behalf of the appellant to the Clerk of the Court by which the conviction, order or adjudication was made.

(3) This section does not apply to the State or the Attorney-General, or to a person acting on behalf of the State or the Attorney-General.

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.

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.

CONSIDERATION

12. Part XI of the Act, which comprises ss 219 to 246, sets out the practice and procedure prescribed by the Act for civil and criminal appeals from the District to the National Court. They prescribe time limits and conditions precedent for the right to appeal. They define the powers of the National Court on appeal. In Kiiark v Luio (supra) the Supreme Court (Salika CJ, Mogish and Shepherd JJ) considered these provisions in detail (at [31] – [45]).
    
13. It is helpful at this juncture, however, to consider the purpose of a notice of appeal and entry of appeal. The fact that both are required to be filed suggest a different purpose. It is a view reinforced by a plain reading of s 220(1) which requires an appeal instituted under s 219 of the Act to be instituted by a notice of appeal within one month after the day when the decision appealed against is pronounced, and s 226 that prescribes a different time limit with respect to the entry of appeal, namely within 40 days after the institution of the appeal.
    
14. A notice of appeal is the first document that is filed in Court, signalling to the Court and to the other party to the appeal that the appellant’s intention is to challenge the lower court's decision. It must be in a prescribed form (Form 71). It must be filed within a specified time frame. It must be registered with the Clerk of the Court at the registry which made the order. It must be served on the other party to the appeal and a copy must be served on the National Court.
    
15. In a civil appeal not involving the State a recognisance of appeal must also be entered into within one month after the date on which the decision appealed against was pronounced. The recognisance is a promise by the appellant that the appeal is genuine, will be prosecuted without delay and the appellant will abide by the order of the National Court and pay any awarded costs. It is in a prescribed form (Form 72). The importance of a recognizance and the obligation that rests on the appellant in prosecuting his appeal with due diligence on lodgement was considered in Rabaul Shipping Ltd v Ruru [2000] N2022,
    
16. An entry of appeal is the formal document which is filed to bring the appeal before the National Court for review. It is filed once the appeal record and other necessary documents are before the appellate court. Its filing is a signal to the National Court that the appeal is ready to be heard and the matter can be brought from the District Court up to the National Court (Kiiark v Luio at [38]). It must be filed within a specific timeframe, namely within 40 days of the filing of the notice of appeal (s 226 (1)). Its purpose is clear from its prescribed form (Form 73) contained in Schedule 2 of the District Courts Regulation Chapter No 40, and signed by the appellant or his lawyers in the following terms:
    

District Courts Act

Act, Sec,226 Form 73.

ENTRY OF APPEAL TO THE NATIONAL COURT

To the Registrar of the National Court

1. The name of the appellant is
2. The name of the respondent is
3. The cause or matter of the appeal is a conviction (or order or adjudication) of
4. I request that the appeal be set down for hearing before the National Court on
   

Dated
(Signature of Appellant or his Lawyer)

[Underlining for emphasis]

17. The process of bringing the appeal into the National Court is one meant to be facilitated by s 224 of the Act which stipulates that the Clerk of the relevant District Court shall forward to the Registrar of the National Court immediately after a notice of appeal is lodged into District Court certified copies of the subject order, the reasons given by the Court making the order and the depositions and all other proceedings which were before the Court relating to the order. In practice, however, delays often arise in ensuring this occurs. It is incumbent on the appellant, however, with the clock ticking, and only 40 days within which to file an entry of appeal to take all necessary and reasonable steps to ensure that the relevant documents are before the Court. Once the 40 days period expires, the provisions of s 227 of the Act are triggered and the automatic stay of the District Court decision is extinguished and application must then be made to the National Court for a stay under the discretionary powers of the Court if enforcement of the decision by the District Court is to be avoided (Kiiark v Luio (supra) at [42]).
    
18. That the entry of appeal is a notification to the National Court that the matter is ready for hearing is supported by Moses (supra) where Kandakasi J (as he then was) said:

There is a further reason to dismiss the appeal. The Appellant filed an entry of his appeal to the National Court on the same day of the lodgment of the appeal. That meant that as of the 15th of July 1999 the appeal was ready for hearing. However, the matter was not in fact ready for hearing at that time or at the time of the hearing of the motion seeking to dismiss the appeal for want of prosecution. To my simple mind, the filing of the entry of appeal to the National Court was an abuse of process. This is because, I consider the requirement to file and serve an entry of appeal to the National Court is to tell the court and all concerned that an appeal is ready for hearing. That in my view is obvious from the words "for hearing on a date to be fixed by the registrar of the National Court" used in section 226(1) of the Act. I consider the situation is similar to filing and serving a notice to set down for trial of a writ of summons matter before the National Court pursuant to Order 10 rule 4 of the National Court Rules 1983. A failure to set a matter down for trial in accordance with that rule, attracts the application of Order 10 rule 5, which is the provision that allows for the dismissal of a case for want of prosecution. The equivalent of that rule in the case of appeals from the District Court to the National Court, in my view, is section 227 of the Act which renders an appeal non existent if an entry of an appeal to the National Court is not filed in accordance with section 226 of the Act. Clearly in my view, there is legislative intent to have all appeals from District Courts heard after the lapse of 40 days from the date of the lodgement of an appeal. Any delay in that therefore, has to be satisfactorily explained if a dismissal and or an enforcement of the decision appealed against is to be avoided. A failure to provide such an explanation is fatal to an appeal.
[Emphasis added)

19. While the facts in Moses are different to the present case what is relevant is the principle enunciated and the reasoning underlining that principle. In filing an entry of appeal on the same day as the filing of the notice of appeal, the appellant was telling the Court that the appeal was ready for hearing, a circumstance that was not correct, the learned Judge finding that doing so amounted to an abuse of process.
    
20. If, as the Supreme Court said in Kiiark v Luio at [38], that the entry of appeal “operates as a notice to the National Court and all concerned that the appeal is ready for hearing”, then the filing of an entry of appeal when the appeal is not ready for a hearing is an abuse of process. The appellant is telling the Court something that is wrong.
    
21. In so concluding the Supreme Court, in Kiiark v Luio, cited with approval Rabaul Shipping Ltd v Ruru [2000] N2022, a decision of Kandakasi J (as he then was), handed down on 8 December 2000, the week following His Honour’s decision in Moses. As with Moses, the matter concerned inter alia the filing of a notice of appeal and entry of appeal at the same time. In reiterating the principles enunciated in Moses, His Honour went on to make observations with respect to the filing of a recognisance when he said:

There is a further reason to dismiss the appeal. The Appellant filed an entry of his appeal to the National Court on the same day of the lodgment of the appeal. That meant that as of the 15th of July 2000 the appeal was ready for hearing. However, the matter was not in fact ready for hearing at that time or at the time of the hearing of the motion seeking to dismiss the appeal for want of prosecution. To my simple mind, the filing of the entry of appeal to the National Court was an abuse of process. This is because, I consider the requirement to file and serve an entry of appeal to the National Court is to tell the court and all concerned that an appeal is ready for hearing. That in my view is obvious from the words "for hearing on a date to be fixed by the registrar of the National Court" used in section 226(1) of the Act. I consider the situation is similar to filing and serving a notice to set down for trial of a writ of summons matter before the National Court pursuant to Order 10 rule 4 of the National Court Rules 1983. A failure to set a matter down for trial in accordance with that rule, attracts the application of Order 10 rule 5, which is the provision that allows for the dismissal of a case for want of prosecution. The equivalent of that rule in the case of appeals from the District Court to the National Court, in my view, is section 227 of the Act which renders an appeal non existent if an entry of an appeal to the National Court is not filed in accordance with section 226 of the Act. Clearly in my view, there is legislative intent to have all appeals from District Courts heard after the lapse of 40 days from the date of the lodgment of an appeal. Any delay in that therefore, has to be satisfactorily explained if a dismissal and or an enforcement of the decision appealed against is to be avoided. A failure to provide such an explanation is fatal to an appeal.

In William Moses v. Otto Benal Magiten case, I inadvertently omitted to comment on the importance of entering into a recognizance on appeal. I take the opportunity to do so in this case. The whole intent and purpose of entering into such a recognizance is to promise to the court and all concerned that the appeal for which the recognizance is given will be prosecuted without delay. Such recognizance typically end, as in the present case, with the words:

If therefore Rabaul Shipping Limited shall duly prosecute without delay such appeal and abide the order of the National Court on the appeal, and pay such costs as may be awarded by the National Court, then the recognizance to be void, or else to stand full force and virtue.

Apparent from such words is the fact that, an appellant obligates himself/herself of a duty to "prosecute the appeal without delay". That is in addition, in my view, to the general position at law that, an appellant is obliged to prosecute his appeal without delay at the risk of the appeal being dismissed for want of prosecution. There is no corresponding duty on a respondent to an appeal save to sign appeal books and agree to a date for hearing when an appeal is ready. Otherwise, they have no other obligation but do always have the right to apply for a dismissal of the appeal if there is no reasonable explanation for any delay in the prosecution of an appeal.

The comments and observations I made in William Moses v. Otto Benal Magiten case equally applies to the present case. The present case is one in which, the Respondent (appellant) did not have his appeal filed with the Kimbe District Court as is required by section 220(2) of the Act. There is also, no prove (sic) of the Notice of Appeal and the other documents being served on the Applicant (Respondent) in accordance with the requirements of section 221(2) of the Act. Further the Recognizance on Appeal was not served on the Clerk of the Kimbe District Court in accordance with section 222(2) of the Act though the entering into and filing of the same was in accordance with the provisions of section 222 of the Act. Furthermore, the filing of the Entry of Appeal to the National Court was not in accordance with the intent and or spirit of section 226(1) of the Act as elaborated and discussed and applied in the William Moses v. Otto Benal Magiten case. These on their own or collectively, provide the basis to dismiss the appeal.

There is however, an additional reason to dismiss the appeal. That is the fact that the Respondent (appellant) has failed to prosecute the appeal promptly despite its own undertaking as per the Recognizance on Appeal entered into on the 28th of April 2000 and generally in line with the duty to prosecute the appeal promptly. That duty in my view also emanates from section 226 of the Act, which speaks of getting an appeal ready for hearing within 40 days from the date of the lodgment of the appeal. Despite the indication by virtue of filing the Entry of the Appeal to the National Court on the 1st of May 2000, that the appeal was ready for hearing as at that time, they have not in fact gotten the appeal ready for hearing. All that the Respondent through its lawyers did was write a single letter to the Clerk of the Kimbe District Court on the 24th May 2000. They did not follow up on that at any stage expressing concern over the delay. They now argue that if the Applicant raised with them concerns over the delay they would have done something about it. I have not been pointed to any authority to support that argument. They did not apply to the National Court for say orders compelling the District Court Clerk and the magistrate concerned to furnish the depositions and reasons for decision without delay and or within a specific period. They then argued that, they relied on the court system to get the depositions and reasons and hence the appeal ready for them. Again I am not aware of such a system and I have not been referred to any authority to support that position.

After the delivery of the decision in the William Moses v. Otto Benal Magiten (supra) and the draft of my judgment in this matter, my brother, Justice Injia, provided me with a copy of the Supreme Court decision in Joe Chan & PNG Arts v. Mathias Yambunpe (unreported but number judgement delivered on 16th December 1997) SC537. I am very much obliged to His Honour for drawing that case to my attention. The case confirms that the principles governing want of prosecution and the case law built around Order 7 Rule 53 of the Supreme Court Rules applies to Appeals from the District Courts to the National Courts. Hence, it confirms my view that those principles do apply to appeals from District Courts to the National Court.

[Emphasis added]

22. Learned Counsel for the appellant referred the Court to a decision of Injia DCJ (as he then was) in Haino v Sai [2006] PGNC 5; N3063 where the learned Judge said at [5]:
    

In a situation where an entry of appeal is filed within the 40 days, the question whether the entry of appeal was genuine or an abuse of process is a discretionary matter to be decided after taking into account all relevant circumstances and considerations. If for instance the appellant files an entry of appeal early within the 40 day period but is not actually ready for hearing, but he files it in anticipation of getting the appeal ready for hearing before the 40 days expires, and if he takes meaningful steps to prepare the appeal for hearing in the remaining days of the 40 day period, then it is unreasonable exercise of discretion to dismiss the appeal simply because the appeal was entered for hearing at a particular point in time. If the appellant simply files an entry of appeal and does not take any meaningful steps at all to prepare the appeal for hearing on the date to be appointed by the Court, then it is only proper that the appeal be dismissed for that reason. The critical factor here is not the timing of the filing of the entry of appeal within the 40 days but meaningful steps taken within the 40 days to prepare the appeal for hearing before or after filing the entry of appeal. In order to decide this question fairly and properly, the question should be considered after the expiry of the 40 day period.

[Emphasis added)

23. In considering those observations the facts of the case before the learned Judge are relevant. The appellant had filed a copy of his notice of appeal dated 14 November 2005 in the National Court Registry on 18 November 2005. On the same day, the entry of appeal dated 14 November 2005 was filed. The District Court depositions were supplied to the Registrar on 16 November 2005, that is two days later. The 40 days expired on or about 24 December 2005. A draft index was filed on or about 3 January 2006 together with a request to the Registrar for an appointment to settle the index of the appeal book. At the hearing of the matter on 14 February 2006 the draft index had yet to be settled, the Appeal Book thus not filed and a date for the hearing yet to be fixed.
    
24. Each case must turn on its own facts and it is clear that the steps taken by appellant to progress his appeal and the arguability of the appeal are likely weighty matters that would inform the Court’s discretion when considering the question of dismissal (see for example Solomon v Raim [2020] PGNC 205; N8428). However, what is relevant on the facts in Haino v Sai is that there was overall no undue delay, the appellant progressing his appeal, indeed the District Court documents received within a very short time after the filing of the entry of appeal, a possible relevant consideration, along with other factors, in informing the Court’s discretion. It would be wrong however, in my respectful view, to draw from the observations of the learned Judge some broad licence to litigants to file an entry of appeal with the notice of appeal as a matter of general practice or routine. In my view that would not only encourage lazy practice but would ignore the purpose of the two documents and indeed, the recognizance of appeal and the work expected of an appellant prior to the filing of the entry of appeal to prosecute their appeal with due diligence by meeting their duty that emanates from section 226 of the Act, which speaks of getting an appeal ready for hearing within a stipulated time period.
    
25. It is a duty that settles on the appellant. Any submission advanced to suggest that the Court should attach some weight to a failure by the respondent to somehow motivate the appellant to ensure that their appeal is ready to be brought into the National Court for review within stipulated time frames or any failure by a respondent to the appeal to pursue an application for want of prosecution, should be rejected. I am aware of no authority or provision under the Act to suggest that the respondent to an appeal, who is required to do little in the course of its progression, should assume some role of oversight or duty to the appellant or the Court with respect to the appellant’s clear obligations.
    
26. While it is not unusual for delays to occur in obtaining the formal records from the District Court and there may be other legitimate reasons for delay beyond the control of the appellant, in those circumstances the appellant is able to seek the Court’s leave to extend time. However, given the prescribed time limits for the filing of the entry of appeal and the effects of a failure to do so, any application to extend time, should in most cases be brought within the 40 days period with an explanation for the delay. This is because in the majority of cases, and save for some unforeseen or exceptional circumstance, the appellant should be well aware within the 40 days period how their preparation for the appeal was proceeding and would in the normal course have sufficient time to file an application within that period of time to seek an extension of time to comply.
    
27. Indeed, it could be argued that the bar required to be met for the exercise of the Court’s discretion in favour of a non-complaint appellant after the expiry of the 40 day period is a much higher one, given the clear legislative intent that appeals be heard expeditiously and the existence of mandated time frames and in light of the expectation of the Court and all the parties that those who seek the Court’s assistance should prosecute their matter with due diligence.
    
28. The Court has the power to relieve a party of strict compliance with the relevant provisions of the Act on application made after the expiration of the 40 days period, the Court’s power to do so grounded in s 231 of the Act. It is a power to be exercised on proper grounds made out by the appellant (Kiiark v Luio (supra) at [65] – [68]).
    
29. While the Court is aware that its earlier decision in Pyako v Ganaii [2024] PGNC 205 is the subject of appeal, and thus awaits the contribution and assistance provided by the Supreme Court on the topic, based on the above analyses, in my respectful view, the practice of routinely filing an entry of appeal on the same day as the notice of appeal should cease unless the appeal is ready for hearing on that day. The fact that doing so, on the oral submission of learned Counsel for the Plaintiff, has become common practice does not make it good practice, the decision of Moses and Rabaul Shipping still good law some twenty-four (24) years later. An overview of the process to be followed on an appeal from the District Court to the National Court can be thus stated:
    
    1. The notice of appeal is filed along with the recognizance of appeal within one month after the day when the decision is pronounced at which time the notice of appeal should also lodged with the Clerk of the Court by which the order or adjudication was made
    2. A copy of the appeal is then served on respondent/s to the appeal and the Registrar of National Court, again within one month after the day on which the decision was pronounced (the Supreme Court in Kiiark v Luio (supra) at [52] noting however the practice that had developed in the National Court Registry for acceptance for filing purposes of an original notice of appeal in Form 71 rather than a copy and the reasons for that.
    100. The appellant should make haste to seek court depositions and reasons for the decision from the District Court being the documents necessary to progress the appeal. The appellant should ensure timely follow up with the District Court as required with a proper record of such contact maintained to support any application for an extension of time.
    4. On receipt of the necessary documents from the District Court the appeal should then be ready to be moved into the National Court, the appellant filing an entry of appeal to that effect requesting a hearing date.
    5. The entry of appeal must be filed within 40 days of the filing of the notice of Appeal to avoid an application for dismissal and the triggering of s 227 of the Act.
    6. On the filing of the entry of appeal the National Court is able to progress the matter to a hearing by the making of directions as appropriate.
    7. If the appellant is unable to file the entry of appeal within the required 40 day period then the appellant should file a notice of motion either pursuant to Order 18 r 12(2)(1) of the NCR or if urgent, then ex parte by notice of motion pursuant to Order 18 r 12(3) of the NCR for a stay of the District Court decision pending determination of the appeal or until further Order of the National Court (Kiiark v Luio (supra) at 4).
    8. The Court may, pursuant to s 231 of the Act, waive compliance with the conditions precedent in the Act to appeal from the District Court to the National Court, such application to be supported by evidence to satisfy the Court that there is a reasonable explanation for the delay, the grounds of appeal are arguable and there is no prejudice to the respondent (Kiiark v Luio (supra) at [67]).
       
30. The above process, if met, would, in my view, support the clear legislative intent to have appeals to the National Court from the District Court heard with expedition given that any delay in the hearing of the appeal impacts the respondent to the appeal who as a consequence of the filing of the notice of appeal and the automatic stay of the decision of the District Court the subject of the appeal for a period of 40 days after the filing of the notice of appeal, is deprived of the fruits of a lower court order following a judicial determination.
    
31. Turning now to the facts of this case, the appellant’s Notice of Appeal was filed on 31 January 2024. The appellant was required to file an entry of appeal within 40 days of the filing of her Notice of Appeal, that is by 11 March 2024. She did so on 31 January 2024, the same day that she filed her Notice of Appeal and entered her Recognizance.
    
32. Her Entry of Appeal was filed in accordance with the prescribed Form 73. At [4] of the document she requested that the appeal be set down for hearing before the National Court. At the time she made that request, however, the appeal was not ready for a hearing as none of the District Court documents had been obtained. That did not happen on the submissions of the respondent until 16 April 2024, 76 days after the appeal was filed. It was noted that at the hearing on 2 September 2024 the Court was informed that the endorsements made by the Presiding Magistrate were illegible and the appellant was securing certified typed transcripts of proceeding before the District Court to be tendered into the evidence at the substantive hearing. The matter remains unready for hearing as the appellant has now filed a notice of motion seeking to amend her grounds of appeal, that application yet to be determined.
    
33. The filing of the Entry of Appeal on 31 January 2024 was irregular and the Entry of Appeal defective as the appeal was not ready for hearing. As a consequence, no proper entry of appeal is before the Court the appellant now well out of time as the time period stipulated by s 226 has lapsed.
    
34. The appellant seeks to be excused of her compliance with s 226 and 227 and seeks that the Court exercise its discretion in her favour. Based on the principles enunciated in Kiiark v Luio applicable to the exercise by the Court of its discretion under s 231 of the Act, she must meet the following tests:
    
    1. There must be a reasonable explanation for the delay.
    2. The grounds of appeal must be arguable.
    100. No prejudice has or will be suffered by the respondent.
         
35. In informing my discretion as to whether I should grant leave I take into account the following matters:
    
    1. Both Counsel have had an opportunity to consider the issues raised and make submissions. Both have fulsomely assisted the Court to that end, for which I thank them.
    2. The appellant appears to have filed her entry of appeal based on a practice that has developed in this jurisdiction whereby the document is filed at the same time as a notice of appeal. She has otherwise taken reasonable steps to progress her appeal. This is not a case where the appeal has languished with an unexplained lack of activity in prosecuting the proceedings or the non-attendance by the appellant at court hearings. Some of the delays have been Court related necessitating adjournment.
    100. The notice of appeal raises arguable grounds of appeal, including, importantly, the failure by the learned Magistrate to consider evidence relied upon by the appellant.
    4. There is no evidence of any significant prejudice to the respondent in granting the orders sought, conscious as I am of the time that has passed and that even a short delay may give rise to a prejudice to the respondent who has the benefit of a court order, factors that must also be balanced against the seriousness of depriving a litigant the right to be heard on appeal.
       
36. Taking into account these matters I make the orders sought by the appellant as follows:
    1. That pursuant to Order 12 Rule 12(2)(b) of the National Court Rules and section 231 of the District Courts Act leave be granted to waive strict compliance with sections 226 and 227 of the District Courts Act to allow the Appellant’s Entry of Appeal filed 31 January 2024 to be accepted a being properly filed in these proceedings.
    2. Costs be in the cause.
    3. Time to abridge.

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Lawyers for the appellant: Tumul Legal
Lawyers for the respondent: Laken Lepatu Aigilo