Ngip Agmark Ltd v Laitia [2018] PGNC 513; N7624 (19 December 2018)

N7624

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 06 OF 2018

BETWEEN:
NGIP AGMARK LIMITED
First Appellant

AND:
JOHN NIGHTINGALE
Second Appellant

AND:
JUNIAS TAMUR
Third Appellant

AND:
INARA LAITIA
Respondent

Kokopo: Anis J
2018: 23 November & 19 December

DISTRICT COURT APPEAL – motion to dismiss – section 226(1)(2) – District Courts Act Chapter No. 40 – appeal book not ready before filing entry of appeal – delay in prosecuting the appeal – whether good explanation provided for the delay

Case cited:

Joycelyn Thomas v. Bradsady Thomas (2011) N5142
William Moses v. Otto Benal Magiten (2000) N2023
Rabaul Shipping Limited v. Ria Ruru (2000) N2022
Pacific Equities & Investments Ltd v. Teup Goledu (2008) N5397
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811

Counsel:

Mr P. Yange, for the Appellants
Mr J. Biar, for the Respondent

RULING

19^th December, 2018

1. ANIS J: The parties in this appeal are identical to the other related appeal, namely, CIA 01 of 2018. The respondent, who is also the respondent in proceeding CIA 01 of 2018, filed two (2) applications at the same time in both these appeals to dismiss them, namely, CIA 01 of 2018 and this appeal that is CIA 06 of 2018. The applications were filed on the same date on 9 November 2018. They were both contested, and they were heard together on 23 November 2018. I reserved my rulings thereafter to a date to be advised.

2. This ruling (in relation to the respondent’s notice of motion to dismiss this appeal) is delivered immediately after my first ruling (in relation to the respondent’s notice of motion to dismiss the appeal) in proceeding CIA 01 of 2018.

BACKGROUND

3. The respondent, like in proceeding CIA 01 of 2018, was the complainant in the District Court proceeding. This was his claim. He claimed that he signed a valid agreement with the appellants on 27 December 2013. He claimed that based on the agreement, he leased his customary land for a sum of K1,500 per month, over to the appellants to use to store metals for their business operations. He said the agreement went well until in January of 2016 when the appellants stopped paying him the monthly rental. He commenced proceeding in the District Court and sought orders to enforce the agreement and for payment of the outstanding rental fees. On 20 January 2017, the District Court granted the respondent his relief.

4. On 27 January 2017, the appellants applied to, amongst others, set aside the Court order of 20 January 2017. On 7 April 2017, His Worship Magistrate Kerker (trial magistrate) dismissed the appellants’ application. The appellants have appealed that decision which is pending before the National Court.

MOTION

5. I refer to the respondent’s notice of motion (motion). It reads, and I quote in part:

(1) Pursuant to Section 226(1)(2) of the District Courts Act 1963, this Appeal be dismissed in its entirety for failure to prepare the Appeal Book by or before filing an entry of appeal;

(2) Alternatively, this appeal be dismissed for want of prosecution pursuant to Order 10 rule 9A(15)(1)(a), (2)(a) of the National Court Rules and Section 155(4) of the Constitution.

6. In support, the respondent relies on two (2) affidavits, namely, the affidavit of Mr Biar filed on 9 November 2018 and the affidavit of Mr Karai filed on 14 November 2018. The appellants on the other hand filed one affidavit which is the affidavit of Mr Yange which was filed on 23 November 2018.

ISSUES

7. The main issue in my view are, (i), whether the appellants were required to file their appeal book within 40 days pursuant to section 226 of the DCA, and (ii), whether there has been a delay in prosecuting the appeal, and if so, whether appellants have provided a genuine or satisfactory explanation.

FINDINGS

8. The notice of motion, the evidence, the issues and the arguments by counsel are the same, or if not, identical to those filed and argued in the related proceeding CIA 01 of 2018. This was also confirmed by both counsel at the hearing on 23 November 2018.

9. In this case, I will simply adopt my reasonings and findings that I have made in my earlier ruling in CIA 01 of 2018, which was delivered first in time or before this ruling. In that ruling, I refused to exercise my discretion and dismissed the respondent’s application filed on 9 November 2018.

10. Similarly, or based on the said reasonings and findings, I will refuse the respondent’s notice of motion that was filed in this appeal on 9 November 2018. Because I have adopted my reasonings and findings for this application from my earlier ruling in the related matter, I have nothing further to add.

THE ORDERS OF THE COURT

11. I make the following orders:

1. The respondent’s notice of motion filed on 9 November 2018 is refused.
   
2. The appellants shall pay the respondent’s cost of the application on a party/party basis to be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly.
___________________________________________________________
Islands Legal Services: Lawyers for the Appellants
Namani & Associates Lawyers: Lawyers for the Respondents