Mende v Mende [2021] PGNC 226; N9056 (11 August 2021)

N9056

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 53 OF 2019

BETWEEN:
CHARLES MENDE
Appellant

AND:
MARIA MENDE
Respondent

Waigani: Miviri J
2021: 15^th June

APPEAL– Practice and Procedure – Custody over Children – Motion to dismiss – Order 18 Rule 12 (4) (a) (i) NCR Want of Prosecution – Material Relied sufficient – Fruits of Judgment delayed Unnecessarily – Procrastination – Balance discharged – Appeal dismissed – cost follow event.

Cases Cited:

Pruaitch v Manek [2019] PGSC 123; SC1884

Nukundji v Ten [2021] PGNC 64; N8816

Melanesia Trustee Services Ltd v Tongayu [2021] PGNC 81; N8815

Juali v The State [2001] PGSC 17; SC667

General Accident Fire & Life v Farm [1990] PNGLR 331

Takori v Yagari [2007] PGSC 48; SC905
Counsel:

Nil appearance for appellant

E. Waeda, for Respondent

RULING

11^th August, 2021

1. MIVIRI, J: This is the ruling on the respondents Notice of motion of the 27^th May 2021 seeking dismissal of the appeal on the basis of Order 18 Rule 12 (4) (a) (i) of the National Court Rules. That is summarily determine the appeal here applied for by the respondents.
   
2. It calls for summary determination, therefore it must be a very clear case for the Courts discretion to be invoked pursuant. It would not deny a genuine cause of action instituted. It is by its facts and circumstances, ought to be summarily determined. There has been want of prosecution, that there has been no due despatch and diligence in the prosecution of the appeal. It discloses no reasonable cause of action and would amount to a frivolous and vexatious action as such should be dismissed: Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). It would not attain or is attenable at the hands of the Plaintiff instigating. Further the applicant seeks costs of the proceedings to be paid by the Appellant and any other orders as discretion by the Court.
   
3. The notice of motion is supported by affidavit sworn 10^th May 2021 filed the 27^th May 2021 by Maria Mende. She is the respondent/applicant residing at Sabama, Port Moresby. That on the 02^nd June 2021 she effected service personally of the letter to Charles Mende of the 1^st June 2021. Also, the motion and her affidavit. All were served upon one Samson Wambe the lawyer who had carriage on behalf of the appellant.
   
4. What is undisputed and clear is that the family court ordered on 09^th January 2019 for the defendant/Appellant to pay maintenance of the two children the appellant and respondent had together. Enforcement was instituted in the Family Court when the appellant filed the appeal to the National Court on the 04^th July 2019.
   
5. The Respondent became aware of the appeal filed at the National Court when the Lawyer for the appellant/Defendant notified the Family Court Magistrate on the 04^th July 2019, hence the family Court ordered that the proceedings there be stayed pending the outcome of the Appeal matter.
   
6. Since the filing of the appeal the only steps taken by the Appellant was to serve the index on the Respondent on the 12^th August 2019, for her to check the list of documents and return to the Appellant’s Lawyers, which the Respondent did and returned on 02^nd September 2019. The Respondent did file a search of the file on the 19th September 2019, and found the appellant had filed the appeal book. No further steps were taken and so the respondent sought assistance of the Office of the Public Solicitor.
   
7. The Notice of Appeal was filed 14^th July 2019. The initial decision from the district Court the subject of the appeal was made 05^th June 2019 in the FC No. 233 of 2017. There it was ordered that the appellant’s notice of motion filed the 07^th May 2019 seeking to set aside the ex parte orders of the Court at first instance is refused. Further the Complainant/Applicant’s application to commit the defendant to prison will be heard as it was filed first in time.
   
8. This is an appeal that has not gone to a hearing for almost two and half years since being filed. And there are no steps taken constructively, because the filing of the appeal is just another aspect that must be followed with securing a hearing date of the appeal. The affidavit of Maria Mende sworn of the 10^th May 2021 deposes that she is the respondent to the appeal. She applies to dismiss the proceedings for want of prosecution. The family court granted Orders for maintenance on the 09^th January 2019 against the appellant in FC No. 223 of 2017 Maria Mende v Charles Mende. It was served on the defendant at his office on the 06^th February 2019.
   
9. He did not comply with it so on the 14^th to 15^th May 2019, she filed an application with an affidavit in support for him to be committed to prison for not complying with the court order. On the 04^th July 2019 as she was about to move that motion the lawyer for the appellant advised that this appeal had been filed so the Magistrate stayed the application pending. The respondent became aware of the appeal on the 04^th July 2019 when it was served on her at the District Court house in town then.
   
10. And since that service neither the appellant nor his lawyers have taken the necessary steps to prosecute the appeal. The draft to the Index was served on the 12^th August 2019. Respondent commented and returned service on the 02^nd September 2019. She conducted a file search on the 19^th September 2019 at the National Court Registry and found that the Appellant had filed an appeal book. Up to now the appeal has not been prosecuted. In the District Court the respondent was self-represented. But here she thought to get the services of a lawyer securing the public Solicitor.
    
11. Respondent is solely supporting the children of the marriage now. Appellant in the meantime has done nothing to support the children. There respondent applies that the appeal be dismissed so that the matter originally in the District Court takes effect and the children are maintained. The letter annexure “B” to her affidavit is of the 08^th February 2021 and advice that application will be made to dismiss the appeal on behalf of the respondent. That the appellant should get in touch with her lawyer.
    
12. There is no affidavit in reply explaining the delay in the prosecution of the appeal, since when it was first filed on the 19^th September 2019. And as to why it has taken since that date to the date of the application 15^th June 2021. It means the only evidence to be considered in the application is that of the respondent.
    
13. It is clear that two and half years and one month has lapsed since initial filing of the appeal on14^th July 2019. Nothing has eventuated since. The result is that the respondent has had to sacrifice the fruits of the Judgement at first instance. Her two children the subject of the reliefs for maintenance have had to do without so that this appeal is proceeded with. Nothing has been done and the evidence does not support that it has been prosecuted with due diligence. There is on the material presented inordinate delay that has been observed by this Court in Nukundji v Ten [2021] PGNC 64; N8816 (13 May 2021) and Melanesia Trustee Services Ltd v Tongayu [2021] PGNC 81; N8815 (13 May 2021). Both decisions followed the principles affirmed in this regard by the Supreme Court in Juali v The State [2001] PGSC 17; SC667 (30 July 2001) in criminal appeals and in civil in General Accident Fire & Life v Farm [1990] PGSC 13; [1990] PNGLR 331 (25 July 1990). There is in my view from the materials relied and the law set out above an inordinate delay in the prosecution of the appeal by the appellant. The application of the respondent sustains as the materials she advances merit her cause of action.
    
14. Accordingly, she is granted the motion to dismiss as applied. The appeal is dismissed because as the Supreme Court observed in Pruaitch (supra) that “ piecemeal interlocutory applications to National Court and multiple appeals to Supreme Court can constitute abuse of process. Circumstances which give rise to abuse of process are varied and not limited to fixed categories – Court must take into account circumstances of case, prejudice to each of the parties and need for public confidence in administration of justice – Delay in conduct of proceedings and failure to take available procedural steps are factors capable of constituting abuse of process.” This is applicable and relevant here because the prejudice is that the children who are innocent of any of the dispute between the parents are made to suffer unnecessarily without their maintenance and upkeep. Here the father must meet his obligations and meet them well to support the mother, respondent.
    
15. The appellant in my view in the light of all set out above has not been derailed from the seat of Judgment. They are his children, he has failed to honour and must be made to honour by the process of law. That is where the matter now reverts to in the District Court for enforcement as this appeal is without merit and is dismissed forthwith. These views are firm in the light of Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007), that all relevant material for and against have been considered giving the ultimate, which is the dismissal of the proceedings.
    
16. Accordingly, the application by the Respondent by her Notice of motion of the 27^th May 2021 is upheld. The appeal is dismissed by Order 18 Rule 12 (4) (a) (i) of the National Court Rules with costs. The decision at first instance is confirmed with the orders emanating to be executed forthwith upon service of this Judgement.
    
17. The orders of the Court are:
    
    • (i) The appeal is dismissed.
    • (ii) The decision and orders at first instance are affirmed in total.
    • (iii) The Respondent is granted liberty to execute the decision and orders at first instance upon service of this Judgement and orders on the appellant forthwith.
    • (iv) The cost of the proceedings follows the event if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

Solwai Lawyers: Lawyer for the Appellant

Office of the Public Solicitor: Lawyer for the Respondent