Midan v Lisio [2010] PGSC 41; SC1086 (3 December 2010)

SC1086

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 60 OF 2007

BETWEEN

JOHN MIDAN & JOHN POSAI
Appellants

AND

OSCAR LISIO as the
CHAIRMAN OF DIRECTORS OF KANDRIAN TIMBER INVESTMENTS LIMITED
Respondent

Waigani: Sakora, Mogish & Makail, JJ
2010: 02nd September & 03rd December

SUPREME COURT - PRACTICE & PROCEDURE - Application to dismiss for want of prosecution - Failure to prosecute appeal - Grounds of - Failure to settle draft index to appeal book - Draft index to appeal book eventually settled by Deputy Registrar of Supreme Court - Ex-parte settlement - Failure of obtain transcripts of National Court proceedings - Reasons for failure unsatisfactory - Application for dismissal upheld - Appeal dismissed - Supreme Court Rules, 1984 - Order 7, rules 40, 41, 42, 43 & 53(a).

SUPREME COURT - PRACTICE & PROCEDURE - Preliminary application - Grounds of - Competency of application to dismiss for want of prosecution - Want of form - Omission of phrase "to appear and show cause" - Omission of whose affidavit in support is being relied upon and the date of swearing of affidavit - Purpose of - No real prejudice shown - Preliminary application refused - Supreme Court Rules, 1984 - Order 7, rule 53 & Form 11.

Cases cited:

Ben Keimali -v- Air Niugini Limited & Ors (2010) SC1061
Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691

Counsel:

Mr N Kubak, for Appellants
Mr G Gileng, for Respondent

03rd December, 2010

RULING

1. BY THE COURT: In this appeal, the appellants and the respondent are landowners of Alimbit-Anduru timber project area in Kandrian in West New Britain Province. They had established a landowner company called Kandrian Timber Investments Limited to represent their interest in the project. Dispute arose between them over the composition of the board of directors of the landowner company following the election of the respondent and other persons as directors. The respondent was then elected chairman of the board of directors. The appellants commenced proceedings in the National Court in OS No 269 of 2006 to nullify their election. That proceeding was subsequently discontinued by agreement of the parties. Despite the discontinuance of the proceeding, the appellants continued to dispute the election of the respondent and others including interfering with monies of the landowner company at Westpac bank.

2. The respondent subsequently commenced fresh proceeding in OS No 407 of 2006 to seek orders to stop the appellants from interfering with the operations of the landowner company including monies held at Westpac bank. The case went before Sevua, J on at least two occasions where his Honour stayed the proceeding and ordered the parties to convene a fresh meeting of shareholders to elect the directors.

3. On 23rd October 2006, the shareholders held a meeting at Liamo Reef Resort and elected the respondent and others as directors for the second time. The appellants still disputed their election on the basis that they were not properly elected. On 08th December 2006, the respondent filed an application to declare the meeting of 23rd October 2006 valid and their election as directors of the landowner company proper. On 23rd May 2007, Kandakasi, J granted the respondent's application and declared the respondent and others duly elected directors based on the meeting of shareholders of 23rd October 2006. Aggrieved by that decision, on 26th July 2007, the appellants appealed to the Supreme Court.

4. Pending the appeal, on 17th February 2010, the respondent filed an application to dismiss the appeal for want of prosecution pursuant to Order 7, rule 53(a) of the Supreme Court Rules. At the hearing of the application, the appellants raised a preliminary objection in relation to the competency of the application. That objection was based on the respondent's non compliance of Form 11 of the Supreme Court Rules. This is our decision on both applications.

Preliminary application - Competency of application to dismiss

5. In respect of the preliminary application, it was argued by Mr Kubak of counsel for the appellants that the form of the application was not in accordance with Form 11 of the Supreme Court Rules because the form did not include the phrase "to appear and show cause" and the requirement to state whose affidavit(s) in support of the application is being relied upon and the date of swearing of the affidavit(s) were also missing. He argued that while the respondent may have substantially complied with the procedural requirements in terms of form, it must not be forgotten that the Court is being asked to exercise its discretion to dismiss the appeal for want of prosecution and such discretion must be equally applied to the appellants' preliminary application so as to maintain consistency and fairness in the circumstances. If the Court is to fairly exercise its discretion, it is clear that the Court should exercise it in favour of the appellants and dismiss the respondent's application to dismiss the appeal for want of prosecution because the application to dismiss is clearly incompetent.

6. Mr Gileng of counsel for the respondent urged us to refuse the preliminary application on the basis that the respondent had substantially complied with the Supreme Court Rules and in particular, Form 11. That is to say, while the phrase "to appear and show cause" is missing and the application did not state whose affidavit(s) in support of the application is being relied upon and the date of swearing of the affidavit(s), the Supreme Court Rules are not an end to themselves but a means to an end. That means, notwithstanding the omissions, the appellants are not being prejudiced by the application because they were fully aware of the nature and grounds of the application, hence have appeared to oppose it.

7. We have considered Form 11 and also the document titled the "Application to dismiss for want of prosecution" filed by the respondent and we agree with Mr Kubak that the phrase "to appear and show cause" is missing, and that the application does not state whose affidavit(s) in support is being relied upon and the date of swearing of the affidavit(s). Technically, the application is incompetent but we must also agree with Mr Gileng's submissions and would dismiss the preliminary application because as he had correctly pointed out, the respondent had substantially complied with the Supreme Court Rules and in particular, Form 11.

8. That is to say, while the phrase "to appear and show cause" is missing and the application does not state whose affidavit(s) is being relied upon and the date of swearing of the affidavit(s), the Supreme Court Rules are not an end to themselves but a means to an end. That means, notwithstanding the omissions, the appellants are not being prejudiced by the application. No issue had been taken as to service of the notice of application and the supporting affidavit of Mr Gileng sworn on 15th February 2010 and filed on 17th February 2010. Neither had the appellants argued that they were not informed by the respondent that he would be relying on the affidavit of Mr Gileng (supra) to support the application. Further, the appellants had not argued that they were short served the application. Hence, we take it that they had been served with those documents and also within a reasonable time to prepare their response to the application.

9. They were also well aware that the respondent would be relying on the affidavit of Mr Gileng (supra) to support the application. Further, we consider that the purpose of having Form 11 in the Supreme Court Rules is to ensure that a party whose appeal is subject of a dismissal application is given sufficient notice so that it may respond to the application. This is where the principles of natural justice come into play. A party must be heard in his or her defence before judgment is passed on that party. In the present case, it is clear to us based on Mr Kubak's in depth submissions in opposition of the application that the appellants were well aware of the nature and grounds of the application. In our view, the appellants have not shown any real prejudice in this case. For these reasons, we find no merit in the preliminary application and dismiss it.

Substantive application - Application to dismiss

10. We turn to the substantive application. The respondent claimed that the appellants failed to diligently prosecute the appeal and relied on the affidavit of Mr Gileng (supra) to demonstrate that more than two and a half years had gone by since the appeal was filed on 26th July 2007 and the appellants had yet to set it down for hearing. The delay had been caused by the appellants' failure to first, settle a draft index to the appeal book and secondly, obtain transcripts of the National Court proceedings for purposes of preparing the appeal book.

11. First, in relation to the appellants' failure to settle the draft index within a reasonable time following the filing of the notice of appeal on 26th July 2007, Mr Gileng explained that following receipt of the draft index on 08th October 2007, the respondent objected to the inclusion of certain documents in the draft index and gave reasons for the objections to the appellants' lawyers. Despite the objections, the appellants failed to exclude them before the settlement of the draft index. When asked if there was any provision in the Supreme Court Rules or the Supreme Court Act for parties to confer and agree on the contents of the draft index prior to settlement, he was unable to refer to any but suggested that it was a good and sound practice for parties to do that because it saved time and money.

12. Further, on 26th June 2008, the appellants' lawyers went ahead and settled the draft index before the Deputy Registrar of the Supreme Court without their knowledge and input. As a result, the objected documents were included in the final index and ultimately, the appeal book. When it came to their attention, they protested and insisted that the documents be removed from the appeal book. Besides, they had expected the Deputy Registrar to accept their objections and exclude the documents at the settlement but that had not happened. When the draft index was finally settled on 26th June 2008, almost one year had gone by since the filing of the appeal.

13. Secondly, in relation to the appellants' failure to obtain transcripts of the National Court proceeding for inclusion in the appeal book following the filing of the appeal on 26th July 2007, he argued that the appellants had not taken any active and meaningful steps to obtain copies of the transcripts of the National Court proceedings from the Court Reporting Services. As a result of the appellants' failure to attend to these two matters, the appeal had been outstanding for more than two and a half years. This was an inordinate delay and the appeal should be dismissed.

14. In opposing the application, the appellants relied on an affidavit of Mr Kubak sworn on 26th August 2010 and filed on 27th August 2010. First, Mr Kubak conceded that there had been a delay of two and a half years but strenuously argued that the respondent was equally responsible for the delay. This was because, following the respondent's lawyers request to exclude certain documents from the draft index, the respondent's lawyers made no serious efforts to attend numerous dates appointed for settlement of the draft index before the Deputy Registrar. As a result, the settlement of the draft index was deferred more than once. That further delayed the preparation of the appeal book and ultimately, the prosecution of the appeal. Eventually, on 26th June 2008, the draft index was settled in the absence of the respondent's lawyers.

15. Secondly, the respondent changed lawyers from Blake Dawson Lawyers to Posman Kua Aisi Lawyers and the office file was transferred to a wrong law firm (Kunjip Lawyers) which delayed the settlement of the draft index and finally, despite numerous requests to the Court Reporting Services, the transcripts of the National Court proceedings before Sevua, J were not provided until 22nd February 2010. In any event, at the hearing of the application, the appellants have relented and decided to exclude them from the appeal book.

16. From the parties' arguments, it is common ground that the appeal had been outstanding for more than two and a half years. This is the length of delay and even though more than two and half years had passed, the appellants had yet to set it down for hearing because they have yet to prepare and file an appeal book. We are, therefore satisfied that the delay was long and inordinate. The question therefore, is, is there a reasonable explanation for the delay?

17. This is a case where the respondent is arguing that the settlement of the draft index without his lawyers' input prejudices his defence of the appeal as documents he had requested for exclusion in the appeal book had not been excluded. Further, there are no transcripts of the National Court proceedings upon which an appeal book can be prepared and filed for the purposes of the hearing. On the other hand, there is the appellants' argument that the draft index had been settled before the Deputy Registrar, hence there was nothing left to be settled except the preparation of the appeal book and although numerous attempts had been made, except for one, no other transcripts of the National Court proceedings had been provided. That was the cause of the delay.

Settlement of draft index to appeal book

18. In relation to the first ground of dismissal of the appeal, we think the parties have misapprehended the procedural requirement in relation to the preparation, filing and settling of a draft index to that of settling an appeal book. It is therefore necessary and worthwhile that some time be devoted to looking at these two procedural requirements before determining the application for dismissal.

19. These are two distinct procedural requirements. First, the preparation and filing of a draft index is provided for under Order 7, rules 40 and 41 of the Supreme Court Rules. Rule 40 states that "[a] draft index of the papers which are to constitute the appeal book shall be prepared and filed in the registry before the date appointed for settlement." Also, according to rule 40, the draft index is the document containing the list of papers constituting the appeal book. That rule does not state how the draft index is to be settled. Further, it does not state who is responsible for preparing and filing the draft index. However, rule 41 states that, "[t]he appellant shall serve the draft index on the respondent a reasonable time before the appointment to settle the appeal book but no later than two clear days before settlement."

20. Secondly, according to Order 7, rule 42(b) of the Supreme Court Rules, at the date appointed for settling the appeal book, the Registrar shall also settle the draft index in accordance with rule 43(m) of the Supreme Court Rules. Order 7, rule 43(m) states that, the appeal papers shall be paginated and the documents arranged beginning with the notice of appeal and ending with the certificate of correctness. In our view, the contents of the draft index should be or at least be in conformity with the documents set out in Order 7, rule 43(m)(1)-(9). If that is done, at the date of settling the appeal book, the Registrar should be able to settle the draft index with less disagreement between the parties.

21. It is also noted that rules 42 and 43(m) do not state if the settlement of the draft index before the Registrar shall take place inter-parties. In practice, it is done inter-parties so that both parties are heard by the Registrar before the draft index is settled. But experience has shown that, settlements of draft indexes do take place ex-parte. Where it takes place ex-parte, invariably it may be because one party may have on numerous occasions failed to attend settlement on appointed dates and we should say, such cases are not unusual and uncommon in this jurisdiction. In such instances, settlement would take place ex-parte if prior adequate notice is given to the other party of the date appointed for settlement.

22. As for the procedural requirement for settlement of an appeal book, Order 7, rule 42 requires the Registrar inter-alia, to determine the documents and matters to be included in the appeal book and also the order of inclusion and such other matters as he thinks fit concerning the preparation of copies of the appeal papers. Further, the appeal papers shall be paginated and the documents arranged beginning with the notice of appeal and ending with the certificate of correctness. This is the settlement of the appeal book and experience has shown that in most cases, the settlement of the draft index and settlement of the appeal book take place at the same time. The actual preparation or compilation of the appeal book may take place at some future dates.

23. Having discussed the distinction between the two procedural requirements, it must be re-emphasised that the preparation and filing of a draft index is so vital in an appeal. In Ben Keimali -v- Air Niugini & Ors (2010) SC1061, the Supreme Court emphasised that the preparation and filing of a draft index is vital in the preparation and readiness of appeals in this terms:

"In our view, the preparation and service of a draft index is a fundamental requirement under Order 7, rules 40 and 41 of the Supreme Court Rules because it starts the whole process of preparation of an appeal book. Further, it impinges on the entire preparation and readiness of the appeal. Without it, parties would not be able to prepare and settle the appeal book, and without an appeal book, there cannot be any hearing. A draft index contains the documents that constitute the appeal book and generally, it would contain all the relevant documents used in the National Court. Some of the documents are those that Order 7, rule 43 speaks of. For example, affidavits, written reasons for decision, orders and so forth."

24. As to who should prepare and file the draft index, the Supreme Court observed that:

"Its preparation, filing and service is so crucial in an appeal that in our view, it is incumbent on an appellant to ensure that it is prepared, filed and served on the respondent before the date appointed for the settlement of the appeal book. That responsibility is never on the respondent and it is inexcusable if an appellant fails to do that."

25. We would add, because Order 7, rule 41 states that the appellant shall serve a draft index on the respondent within a reasonable time before the appointment to settle the appeal book, it is implicit in that rule that the appellant is the party required to prepare, file and serve the draft index on the respondent. We would further suggest that as it is the appellant's appeal, the duty to prepare, file and serve a draft index is on the appellant. As to the consequence of an appellant's failure to prepare and file a draft index, the Supreme Court in the above case further observed that:

"In a case where an appellant fails to prepare, file and serve a draft index on the respondent, we are of the view that it amounts to a fundamental breach of Order 7, rules 40 and 41 of the Supreme Court Rules. The consequence is, the appeal may be dismissed for want of prosecution on this ground alone."

26. Again, we would add, in a case where an appellant fails to attend settlement of a draft index on more than one occasion without a reasonable explanation, it would amount to a fundamental breach of Order 7, rules 42(b) and 43(m) of the Supreme Court Rules. The consequence is, the appeal may be dismissed for want of prosecution on this ground too.

27. Turning to the present case, the appellants were duty bound to prepare, file and serve a draft index on the respondent before the date appointed for settlement. They were also duty bound to attend the settlement of the draft index and ensure that the draft index is settled within a reasonable time. A failure to attend to any one or all of these procedural requirements may result in the appeal being dismissed for want of prosecution. From our perusal of Order 7, rules 40 to 43, we cannot find anywhere in those rules or any other provision in the Supreme Court Rules or the Supreme Court Act stating that parties may confer and agree on the content of a draft index prior to settlement of the draft index. Indeed, when one of the members of the Court asked Mr Gileng during the hearing to point to any provision in the Supreme Court Rules or the Supreme Court Act providing for parties to confer and agree on the contents of the draft index prior to settlement of the draft index, he was unable to refer us to any. This is where we think the respondent's lawyers misapprehended the procedural requirement on settlement of a draft index.

28. And while we accept Mr Gileng's submissions that it has been and is a good and sound practice for parties to confer and agree on the content of a draft index prior to settlement because it saves time and money, we are not persuaded that it is a procedural requirement in the Supreme Court Rules. It may be a good practice and should be encouraged by the Court because amongst other reasons, it saves time and money if parties are able to agree on the content of the draft index prior to settlement. In a case where parties are unable to agree to all or some of the documents, they may refer them to the Registrar for decision at settlement. This is where the Registrar in the exercise of his power under Order 7, rule 42 of the Supreme Court Rules may decide to include or exclude the document or documents.

29. But as far as we are concern, it is not a procedural requirement for parties to confer and agree on the content of a draft index prior to settlement. Hence, we find there was no legal foundation for the respondent to insist upon the appellants to exclude the objected documents from the draft index prior to settlement and also after the settlement by the Deputy Registrar ex-parte. As a result, they have misled to some degree, the appellants' lawyers even after the draft index was settled by the Deputy Registrar ex-parte on 26th June 2008.

30. In our view, the respondent's lawyers had numerous opportunities to attend the settlement and raise their objections to the inclusion of documents in the draft index. They did not. That was the proper time and avenue for them to raise the objection before the Deputy Registrar. In that regard, there is evidence from the appellants that the settlement of the draft index had been adjourned a number of times, three to be precise. The first was on 15th August 2007, the second on 11th December 2007, and the third on 08th April 2008. The settlement was deferred on these occasions because the dates and times were not convenient to either parties, more particularly the respondent's lawyers. The draft index was finally settled on 26th June 2008 after the appellants' lawyers attended and asked the Deputy Registrar to proceed with the settlement without the respondent's lawyers.

31. Apart from the dispute in relation to the content of the draft index, two events occurred, which, in our view, also contributed to the delay in the settlement of the draft index. These events were first, the resignation of Mr Gileng from Blake Dawson Lawyers in December 2007 and the forwarding of the office file on the appeal by Blake Dawson Lawyers to a wrong law firm (Kunjip Lawyers) which was eventually retrieved by Mr Gileng at Posman Kua Aisi Lawyers on 22nd September 2009.

32. After Mr Gileng, the lawyer who had conduct of the appeal had left Blake Dawson Lawyers in December 2007 and joined Posman Kua Aisi Lawyers in early 2008, it appeared the appeal was left unattended until 08th April 2008 when Blake Dawson Lawyers sent a letter to the appellants' lawyers advising them that they were transferring the office file on the appeal to Mr Gileng at Posman Kua Aisi Lawyers. Apparently, it was mistakenly forwarded to Kunjip Lawyers and it took sometime to retrieve it. When it was eventually received by Mr Gileng on or about 22nd September 2009, it was one year and two months after the settlement and almost two years after the objections to the draft index were first raised on 08th October 2007.

33. As the settlement of the draft index proceeded and concluded before the Deputy Registrar, in our view, there was nothing more to be determined as far as the draft index was concern and we are not satisfied with the respondent lawyers' explanation that they raised their objection to the documents and expected the Deputy Registrar to exclude them at the settlement. We are also not satisfied that as the Deputy Registrar did not exclude those documents, they were entitled to insist on the appellants' lawyers to remove them from the appeal book. If they were aggrieved by the decision of the Deputy Registrar to include those documents, they could and should take it up before the Supreme Court either at the directions hearing or substantive hearing. They could and should point out to the Supreme Court that the documents were irrelevant for the purposes of the appeal. It was then up to the Supreme Court to decide whether the documents were irrelevant or not. For now, there was therefore, no legal foundation for the respondent's lawyers to continue to maintain their objection to the inclusion of the documents prior to and after settlement.

34. In our view, when the respondent's lawyers continued to object to the inclusion of the documents with the appellants' lawyers, even after settlement, they contributed to the delay in the prosecution of the appeal. In our view, the dispute over the content of the draft index had protracted the appeal and both sides are equally responsible for the delay in the prosecution of the appeal. For these reasons, we are not satisfied that the appellants had been guilty of failing to settle the draft index, hence the delay in the prosecution of the appeal. We dismiss this ground of dismissal.

Provision and availability of National Court transcripts

35. The second ground for dismissal of the appeal is based on the failure of the appellants' lawyers to obtain the transcripts of the National Court proceedings for inclusion in the appeal book. In this regard, it is noted that the appeal is against the decision of Kandakasi, J of 23rd May 2007. It is also noted that on 05th June 2007, the Court Reporting Services provided the transcripts of the National Court proceedings before Kandakasi, J to the appellants' lawyers. It is further noted that after the settlement of the draft index on 26th June 2008, a period of one year and eight months had lapsed and the appellants had yet to prepare and file an appeal book.

36. The appellants' lawyers also sought to include the transcripts of the National Court proceedings before Sevua, J in the appeal book because they were directly related to the issues raised in the appeal. The issues surrounded the elections of the respondent and others as directors of the landowner company following the meeting of shareholders of 23rd October 2006. Furthermore, it is noted the transcripts of the National Court proceedings before Sevua, J were not provided to the appellants' lawyers until 22nd February 2010. This is about two years and seven months after the filing of the appeal on 26th July 2007. The respondent's lawyers objected to the inclusion of the transcripts of the National Court proceedings before Sevua, J on the basis that they were irrelevant. The appellants' lawyers maintained their position throughout the period up until the date of hearing when they decided to relent on their position.

37. In our view, the issue is not whether the transcripts of the National Court proceedings before Sevua, J were relevant and ought to have been included in the appeal book. The issue is whether the appellants' lawyers had taken reasonable steps to obtain the transcripts of the National Court proceedings before Sevua, J. That is the issue here because the issue of whether or not they should be included in the appeal book had been decided by the Deputy Registrar at settlement on 26th June 2008. She decided, they should be included in the appeal book notwithstanding the respondent's objection. As we said above, if the respondent and his lawyers were aggrieved by that decision, it is a matter for them to take up either at the directions hearing or substantive hearing before the Supreme Court.

38. Proceeding on that premise, the preparation of the appeal book is very much dependent on the availability of the documents that were used in the National Court including the transcripts of the National Court proceedings. The Supreme Court in Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691 observed that:

"In any event, an appellant is required to obtain the relevant transcripts. That means in our view, a request for the transcripts if required, to be made promptly. This should be done at the time of lodging the appeal as there is nothing else to be done to facilitate the making of such a request and that nothing could be done unless the transcript is first obtain if we strictly go by the rules."

39. We consider that the obtaining of transcripts of the National Court proceedings is an integral part of the preparation of an appeal for hearing because they form the appeal book. Order 7, rule 43(h) of the Supreme Court Rules states that, "[w]here the transcript of evidence is reproduced, the name of the witness together with a notation indicating whether the evidence given is in chief (IC), cross examination (XX) or re-examination (RX) shall appear on right hand side of each page." The transcripts of the National Court proceedings are some of the documents that form the appeal book because they are necessary for the determination of the issues in the appeal. They are records of what transpired in the National Court and will enable the Supreme Court to identify the issues for determination. In our view therefore, it is the responsibility of an appellant to obtain them from the Court Reporting Services. That responsibility is never on the respondent.

40. In the present case, from the evidence before us, it seemed that most of the documents were available to the appellants' lawyers. It is also not disputed by the respondent that on 05th June 2007, the transcripts of the National Court proceedings before Kandakasi, J were provided to the appellants' lawyers. The documents that seemed to have caused controversy and subject of debate between the parties were the transcripts of the National Court proceedings before Sevua, J. They were not provided to the appellants' lawyers until 22nd February 2010. The question therefore, is, is there evidence from the appellants showing steps taken by them to obtain these transcripts from the Court Reporting Services?

41. It appears from reviewing the affidavit of Mr Kubak (supra) that on or around 26th July 2007, a request was made to the Court Reporting Services for provision of the transcripts of the National Court proceedings. Following the provision of transcripts of the National Court proceedings before Kandakasi, J of 23rd May 2007 to the appellant's lawyers on 05th June 2007 by the Director of Court Reporting Services, Mr Kubak noted that it was incomplete because it did not include the transcripts of National Court proceedings before Sevua, J. On an unspecified date, he immediately instructed the firm's legal clerk Mr Jerry Hulamari to obtain copies of the transcripts of the National Court proceedings before Sevua, J.

42. A further follow up resulted in a second lot of transcripts of the National Court proceedings comprising of 26 pages and dated 23rd May 2007 being forwarded to the appellants' lawyers on an unspecified date. On perusal of the transcripts, Mr Kubak realised that it was still incomplete. In fact, the Court Reporting Services provided the same transcripts of the National Court proceedings before Kandakasi, J of 23rd May 2007. As a result, he sent his legal clerk Mr Hulamari once more to obtain the transcripts of the National Court proceedings before Sevua, J. Again, Mr Kubak does not state in his affidavit when he directed Mr Hulamari to do that and if Mr Hulamari attended at the Court Reporting Services and at what dates to obtain them.

43. Eventually the Director of Court Reporting Services advised Mr Kubak by a letter dated 22nd February 2010 that a 44 page transcript of the National Court proceeding was ready for collection. It appeared this was the transcripts of the National Court proceedings before Sevua, J. When it was collected, he noted that it was certified on 06th March 2009 and appeared to have been sitting there all that time.

44. In our view, the dates, times and number of attendances at the Court Reporting Services are so crucial to the determination of whether or not the appellants and their lawyers had made reasonable efforts to obtain the relevant transcripts. In order to prove that the appellants had made reasonable efforts in obtaining the relevant transcripts, there must be evidence of the dates, times and the number of attendances at the Court Reporting Services before the Court to satisfy us that the appellants had made reasonable efforts to obtain the transcripts. The Supreme Court took this position in Ben Keimali's case (supra), where it said:

"Secondly, with respect, we reject his submission that he was unable to prepare the draft index and prosecute his appeal quickly because he did not receive the transcript of the National Court proceeding in good time. We reject this submission because in our view, there is no evidence in relation to when he attended and requested the staff of the National Court Transcript Division to provide the transcript. We are also not satisfied that his evidence at paragraph 9 of his affidavit that he, "requested for the transcript but it was not given to me until 25th August 2009 [and] I have checked on the transcript since 2007" is sufficient explanation of what he did to obtain the transcript. It is vague and lacks particularity.

We expect and are entitled to know when he attended the National Court Transcript Division to request the transcript, how many times he attended and made the requests, to whom he made those requests and why the transcript was not ready in good time for collection to be satisfied that he has done every thing within his power and control to discharge the onus bestowed upon him in the Supreme Court Rules to obtain the transcript. We are, therefore, not satisfied that he has made serious efforts to obtain the transcript of the National Court proceeding from the National Court Transcript Division."

45. In our view, Mr Kubak's evidence is insufficient and unsatisfactory. It failed to establish the steps taken by the appellants to obtain the transcripts of the National Court proceedings before Sevua, J following the initial request in or around 26th July 2007 because it is vague and lacks particulars. He does not state when Mr Hulamari attended at the Court Reporting Services to follow up the relevant transcripts. Neither does he state the number of times Mr Hulamari attended at the Court Reporting Services. These are relevant matters to enable us to determine whether or not the appellants had taken reasonable steps to obtain the relevant transcripts.

46. As they are missing in the evidence of the appellants, we are not satisfied that the appellants have sufficiently explained the efforts they have made to obtain the relevant transcripts. Further, they become crucial because there was a lapse of two years and seven months between 26th July 2007, which is the date of appeal and 22nd February 2010, which is the date when the appellants' lawyers received the relevant transcripts from the Court Reporting Services that must be sufficiently explained by the appellants. However, if we take 28th June 2008 being the date of settlement of the draft index as the date to compute time, again, a period of one year and eights months had lapsed and must be explained by the appellants. Again, Mr Kubak does not state in his affidavit (supra) if he or Mr Hualmari attended at the Court Reporting Services to follow up on the relevant transcripts, dates, times and number of attendances during that period. In our view, his evidence is vague and lacks particulars.

47. We are, therefore, not satisfied that the appellants and their lawyers had made serious efforts in obtaining the relevant transcripts from the Court Reporting Services. Indeed, we believe they made no serious efforts to obtain the relevant transcripts after they received the same transcripts of the National Court proceedings before Kandakasi, J on the second occasion. It was only after the respondent filed this application on 17th February 2010 that they re-visited the Court Reporting Services. We say this because there is evidence at paragraph 13 of Mr Kubak's affidavit (supra) that the transcripts of the National Court proceeding before Sevua, J were certified on 06th March 2009, indicative of their availability from that date but it appeared the appellants' lawyers had not collected them. They had been sitting there for almost one year until 22nd February 2010 when they were eventually collected. We think the appellants' action was merely a reaction to the respondent's application. In our view, their attempt to rectify the default comes a little too late.

48. Further, in our view, it is also too late for them to relent on their position and seek to exclude the transcripts of the National Court proceedings before Sevua, J because first, they initially had sought their inclusion in the appeal book and their request was approved by the Deputy Registrar at the settlement on 26th June 2008. Secondly, they had given the respondent the impression and led him to believe that these transcripts were to be included in the appeal book even though the respondent had objected to their inclusion. They must now accept the consequences that may follow if they failed to obtain them for inclusion in the appeal book. We believe, that was the main reason for the delay because the unavailability of these transcripts delayed the preparation of the appeal book, even though the draft index was settled by the Deputy Registrar on 26th June 2008, some one year and eight months ago. As a result, no appeal book was prepared, certified and filed to date.

49. For the foregoing reasons, we are of the view that the appellants have failed to provide a satisfactory explanation for their failure to obtain the relevant transcripts from the Court Reporting Services. We uphold this ground and dismiss the appeal for want of prosecution with costs.

Ruling and orders accordingly.
__________________________________________
Norbert Kubak & Co Lawyers: Lawyers for the Appellants
Posman Kua Aisi Lawyers: Lawyers for the Respondent