Igara (t/as Yumi Construction) v Boga [1999] PGNC 51; N1899 (11 June 1999)

Unreported National Court Decisions

N1899

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP NO. 129 OF 1999
BETWEEN: &#AVI IGARA (TRADING AS YUMS YUMI CONSTRUCTION)
APPELLANT
AND: MR & MRS GODI BOGA
RESPONDENTS

Goroka

Kirriwom J
4 June 1r>11 June 1999

CoCounsel

Mr K. Kot for the Applicant

Mr K. Wogaro for the Respondent

RULING

11 June 1999

KIRRIWOM J: The applicant moves this court by motion for the respondent’s appeal pending before the Court to be struck-out for these reasons:

(1) e anceal pas lodged on 16/1 16/12/98 the applicant had not effected service on the applicant all relevant papers pertaining to tpeal ding oticeppeal>

(2) &#160ce lndginodging theg theg the appe appeal, nal, no sero serious attempts were made to speedily prosecute this appeal within reasonable time.

The facts are that the applicant was awarded a sum of K7,965.27 by the District Court Goroka against the respondent for breach of contract ie for failing to complete a construction maintenance work at the residence of the applicants as per their oral agreement and for which K8,000 was already paid in advance to the respondent. The applicants wepresentedented by their Lawyers at that time, however the respondent appeared in person. After judgement was delivered he soughtices of counsel and by the time he decided to appeal, he was already time-barred. An applicpplication for extension of time was made to this Court which was granted conditionally on the appellant depositing with the Court the judgement debt awarded to the applicant by the Court. This total sum of K7,965.27 was duly paid and the appeal was lodged. Since 16/12/98 nothing had happened so the applicant seeks orders of this Court for the appeal pending to be struck out and the Order of the District Court to be enforced by paying the amount deposited with the Court to the Applicants.

Mr Wogaro gives no satisfactory explanation as to why no service was effected of the Notice of Appeal on Mr & Mrs Godi Boga or their lawyers, Kot & Co, since the appeal was lodged. He says ‘by mid April the draft appeal book was in place but his attempts to serve the appeal documents and draft index to appeal book for the respondent’s endorsement were fruitless’. He then goes on to explain his own precarious position of being locked out of his office by the landlord for non-payment of rent towards the end of April 1999 At this point in time the lawyer still can’t access his office, hence his file on the matter.

Whilst I am almost convinced that the appellant since filing the appeal has not taken any reasonable steps to prosecute his appeal. I think there may be injustice done to the appellant if the delay had been largely the fault of the lawyer. I will therefore decline the order sought by the Applicant but I give the following directions.

1. ټ T60; That the appellant sfall file and serve the appeal book within 14 days from today.

2. ـ T6at the appeal be l be placed on Call-Ovst anps ben to prosecute itout delay. .

.

3

3. Award costs is thpliaptionationhe Apnt. Rdent to pay.

La

Lawyers for the Applicant: Kot & Co.

Lawyers for the Respondspondent: ent: Narakobi Lawyers