N11126

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 13 OF 2024

BETWEEN:
DAN NALI
Appellant

AND
KLINKI PMV ASSOCIATION INC
Respondent

LAE: DOWA J
5 DECEMBER 2024; 13 JANUARY 2025

APPEAL-Against District court orders decision of lower Court can only be set aside on appeal if there is obvious error showing substantial miscarriage of justice-there being no obvious error on the face of the record in convicting the appellant for disobeying earlier court orders, all grounds of appeal not made out and appeal dismissed. 

Cases cited

Nil

Counsel

D Nali, the appellant, in person
S Toggo for the respondent 

DECISION

1.	DOWA J:	This is an appeal against conviction from a decision made by the Bulolo District Court on 18th April 2024 convicting the Appellant of breaching orders of Court made earlier. 

	Background Facts

2.	The Appellant is the former Chairman of the Klinki PMV Association Inc, the Respondent, in the current proceedings. The appellant is currently a member of the Morobe Provincial Land Transport Control Board. The appellant was voted out as chairman of Klinki PMV Association in 2018. It is alleged despite being voted out; the Appellant continued to hold himself out as an official involved in the PMV Association misleading the PMV operators. On 19th March 2020, the District Court in Lae issued restraining Orders against the appellant and others from calling meetings on behalf of the Respondent and to recommend issuance of the PMV Blue Plates in Route 2. The interim restraining orders were made permanent on 2nd December 2021. The appellant and 5 others were convicted and placed on good behaviour bond for three months.

3.  	It is alleged that despite the restraining orders against the Appellant and two others, the appellant continued to breach the terms of the orders by collecting money from PMV operators for Blue Plates and called meetings for PMV Association members and operators. 

4.	As a result, the Respondent filed a Notice of Motion in February 2024 seeking an explanation from the Appellant why he should not be punished for breaching the terms of the orders of 19th March 2020 and 2nd December 2021.

District Court Decision

5.	On 18th April 2024 the Presiding Magistrate made the following orders:	
1.	The Defendants, Dan Nali and Kawa Ewa is convicted for breaching the Court Orders of 19th March 2020 and 2nd December 2021. 
2.	The Defendants Dan Nali and Kawa Ewa is sentenced to six (6) months in prison.
3.	The whole of six (6) months is suspended on the following conditions:
a.	The Defendants Dan Nali and Kawa Ewa shall not call meeting of the Klinki PMV Association, deal with the members of Klinki PMV Associations in Bulolo and Wau Waria District, make recommendations for issue of PMV blue plate and all other activities of Klinki PMV Association Inc.
b.	In the event that the Defendants Dan Nali and or Kawa Ewa breach any of these orders, Dan Nali and or Kawa Ewa shall be brought before this Court and sentenced to six(6) months in prison.
4.	The Defendants Dan Nali and Kawa Ewa shall pay the cost of the proceedings to be taxed if not agreed. “

Grounds of Appeal

6.   The Appellants appeal the decision of the District Court. The grounds of appeal as stated in the Notice of Appeal filed 11th May 2024 are:

1.	Bulolo District Court Magistrate has not considered the facts contained in the affidavit pursuant to section 35 of the Evidence Act made his decision on 18th April 2024.

2.	The Bulolo District Court Magistrate was bias.

3.	The District Court orders of 19th March 2020 and 2nd December 2021 is unjust by depriving our liberty to contest in the Klinki PMV Associations General election complying to the Klinki PMV Associations constitution or bylaws.

4.	The learnt District Court Magistrate failed to take into consideration Section 27 of the District Court Act, as the Klinki PMV Association has debt over expired Certificate since 2003.”

Hearing

7. 	The appeal was heard on 5th December 2024. Both parties appeared and presented their submissions. The matter was adjourned to 13th January 2025 for decision which I now deliver. 

Issues

8.	The issues for consideration emanated from the grounds of Appeal are: 

a)	Whether the Learned Magistrate erred in failing to consider the appellant’s evidence and submissions in his decision. 
b)	Whether the Learned Magistrate was biased in his decision. 
c)	Whether the decisions of 19th March 2020 and 2nd December 2021 were unjust depriving the appellant from being elected to a leadership position in the Respondent Association.
d)	Whether the Learned Magistrate failed to consider the Respondent’s certificate of registration being expired. 

Ground 1. Whether the Learned Magistrate erred in failing to consider the appellant’s evidence and submissions in his decision. 

9.	The appellant submits the learned Magistrate failed to consider the evidence presented by the appellant refuting the allegations. I have considered the evidence that was presented before the lower Court. The Respondents evidence was presented by at least three deponents. The affidavit evidence was supported by correspondence and meeting minutes and previous court orders. The appellant filed rebuttal evidence denying the allegations.

10.	In assessing evidence, it appears the learned Magistrate accepted the version presented by the Respondent’s witnesses. The law allows for the Magistrate to exercise discretion and draw conclusion from facts presented. Was he wrong in the exercise of that discretion. Is there clear error manifest in the assessment of the evidence. I note that the orders made on 19th March 2020 and 2nd December 2021 were to restrain the appellant and Kawa Ewa from conducting meetings and being involved in the issuing of PMV blue plates especially for Route 2. They were restrained from holding themselves out as officials carrying out the affairs of the PMV operators and the Klinki PMV Association. There was evidence that the appellant and Kawa Ewa breached the terms of the restraining orders in that Kawa Ewa proceeded to form his own Kaindi PMV Association, while the appellant proceeded to collect finances from PMV operators. There was also evidence of the appellant and Kawa Ewa conducting a meeting for the PMV operators, although it is said to be conducted for and on behalf of the Morobe Land Transport Control Board.

11.	Although the allegations were strenuously refuted by the appellant, the learned Magistrate proceeded to find for the Respondent and convicted the appellant and Kawa Ewa. Again, this is exercise of discretion. There was evidence before his Worship to reach the decision. This Court can not disturb the findings unless there is clear miscarriage of justice. This Court can not detect any obvious error on the decision. This ground of appeal is therefore dismissed.

Ground 2. Whether the Learned Magistrate was biased in his decision. 

12.	The appellant alleges the learned Magistrate was biased in his decision. This is a serious allegation. There are however no details given. There are no reasons, facts and evidence given in support of the ground of appeal. There is no record of the matter being raised before his Worship at the time of hearing. This ground is not made out and shall be dismissed.

Ground 3. Whether the decisions of 19th March 2020 and 2nd December 2021 were unjust depriving the appellant from contesting leadership in the Respondent Association

13.	The appellant alleges that the restraining orders issued on 19th March 2020 and 2nd December 2021 were unjust, depriving him from contesting a leadership role in the Respondent Association. I have studied the orders and evidence and note that the orders do not restrict the appellant from seeking an executive position in Klinki PMV Association. In fact, the orders of 2nd December 2021 directed the parties to resolve the executive issues within three months. There is no evidence whether that direction was carried out. Further there is evidence that there was a meeting of members of the Association on 25th September 2022 where the executives of the Association were appointed for a further term. There is no evidence of the appellant attending and raising the issue in that meeting.

14.	Furthermore, the orders were made years back. The appellant did not appeal the decisions back then. The time for appealing the two decisions lapsed. It is too late to raise the issue now in this appeal. 

15.	For these reasons, this ground of appeal is not made out and shall be dismissed.

Ground 4. Whether the Learned Magistrate failed to consider the Respondent’s Certificate of Registration being expired

16.	The appellant submits that the learned Magistrate failed to consider that the Respondents Certificate of Registration expired and has not been renewed. The legal implication is that the Respondent did not have legal capacity to sue, and the proceedings are thus incompetent. This is a valid point which goes to the competency of the proceedings.

17.	I have perused the records of proceedings in the appeal book and find no record of the issue being raised in the lower Court. The learned Magistrate can not be blamed if the matter was not brought to his attention during the hearing.

18.	I also note there is no evidence presented to show the details of registration, certificate of registration, renewal notices, and company extracts from the register of Associations Incorporation division of IPA. In the absence of these information, this Court can not make any findings nor to draw any conclusions.

19.	For these reasons, this ground of appeal should fail.

Conclusion

20.	In conclusion, the Court reiterates, the Learned Magistrate exercised his discretion in the decision he made as allowed by law. For this Court to set aside the orders of the lower Court, there must be an error that manifests miscarriage of justice pursuant to Section 230 (2) of the District Court Act. I find there are no obvious errors in the decision. I have reached a conclusion that all grounds of appeal have been unsuccessful and the appeal shall be dismissed and the decision of the District Court affirmed.

 	Costs

21.	 The final issue is cost. The Respondent has successfully defended the appeal and shall be entitled to the costs of the appeal. 

Orders

22.     The Court orders that:

1.	The Appeal is dismissed.
2.	The orders of the District Court made on 18th April 2024 is affirmed.
3.	The Appellant shall pay the Respondent’s cost, to be taxed, if not agreed.
4.	Time be abridged.

________________________________________________________________ 
Lawyers for the Respondent: Toggo Lawyers