Bore v Wakore [2015] PGSC 10; SC1410 (24 February 2015)

SC1410

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 20 OF 2013

BETWEEN:

AISI IUMA BORE
for and on behalf of members of BEHORI Clan, FURIMUTI village, Sogeri Road Central Province
Appellant

AND:

ELIAS WAKORE & CATHERINE WAKORE
First Respondents

AND:

FOXIE KAEAKA
Second Respondent

AND:

CLEMENT MALAISA, as the Land Titles Commissioner
Third Respondent

AND:

RAGA KAVANA, as the Registrar of Titles
Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Sakora J, Hartshorn J and Poole J
2014: May 1st,
2015: February 24th

Summary Determination

Cases cited:
Tenge Kai Ulo v. Acting Public Prosecutor [1981] PNGLR 148
Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 33
Joshua Kalinoe v Paul Paraka (2007) SC 874

Counsel:
Mr. R. Tuva, for the Appellant
Mr. B. Lakakit, for the First Respondents

24th February, 2015

1. BY THE COURT: This is a decision concerning whether this appeal should be summarily determined. The court heard submissions in support and in opposition from counsel for the first respondents and the appellant.

Background

2. The substantive appeal is against a National Court decision that dismissed an application for judicial review for want of prosecution.

3. In the National Court the appellants had sought to judicially review decisions made by the Land Titles Commission and the Registrar of Titles in January 2000 and May 2002. Those decisions concerned conversion of a portion of customary land belonging to the Behori clan of the Koiari Tribe at Laloki in the Central Province.

4. This appeal was filed on 23rd August 2013 together with an application for a stay. The application for a stay was struck out for want of prosecution on 4th December 2013. The appellant has not taken any action to prosecute the appeal since it was filed and no evidence is before this court on behalf of the appellant in this regard.

5. On 12th December 2013 it was ordered that the first respondents' objection to competency and this appeal were referred to the Registry for listing on 4th March 2014. There was no appearance at the call over on 4th March 2014 on behalf of the appellant. The first respondents prepared and filed an application book for their objection to competency but the appellant has not filed an appeal book or a draft index thereto. The appeal was referred for summary determination on 2nd April 2014 by a single Judge of the Supreme Court when again there was no appearance on behalf of the appellant.

Law

6. Order 13 Rule 16 (1) Supreme Court Rules 2012 is as follows:

"16. (1) The Court may summarily determine a matter:

(a) on application by a party; or
(b) on referral by a Judge; or
(c) on the Courts of initiative; or
(d) upon referral by the Registrar in accordance with the procedure set out in sub rule (2) below or pursuant to s11 of the Act."

7. The power to summarily determine a matter is discretionary, as is the power to dismiss an appeal for want of prosecution pursuant to Order 7 Rule 48 (formerly Rule 53) Supreme Court Rules.

8. There is no reason in my view why the principles governing these rules are not similar since both rules provide for the determination of proceedings. The relevant principles governing Order 7 Rule 48 are found in many case authorities including Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55; General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 33; and Joshua Kalinoe v Paul Paraka (2007) SC 874.

9. In Joshua Kalinoe v Paul Paraka (supra), the Supreme Court said:

"This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya v Somare & Others (2004) SC 762. See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811. Thus if an appellant has delayed in prosecuting his appeal the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances."

10. In this instance almost nine months has elapsed since the appeal was filed and until the referral by a Judge of the Supreme Court for summary determination. During the course of those nine months the appellant has not taken any action to progress his appeal. His application for a stay was dismissed for want of prosecution and no index for an appeal book or the appeal book has been prepared. Further, there have been failures to appear on behalf of the appellant at relevant times. Clearly the appellant or his counsel have been dilatory in the prosecution of the appeal.

11. It is also to be noted that this appeal is against a National Court decision that dismissed the proceeding for want of prosecution. One would have thought that given the National Court decision, the appeal would have been prosecuted diligently.

12. What compounds the adverse position in which the appellant finds himself, is that there is not only no reasonable explanation for the delay, there is not any explanation for the delay in prosecuting the appeal.

13. In this regard we refer to the case of Tenge Kai Ulo v. Acting Public Prosecutor [1981] PNGLR 148 in which it was held amongst others that the onus is on the applicant to dismiss to establish a prima facie case of delay and the onus then shifts to the respondent to the application to give a satisfactory explanation for the delay.

14. In these circumstances we are satisfied that this court is entitled to exercise its discretion in favour of the respondents.

Orders
15. The Orders of the Court are:

a) This appeal is summarily determined.

b) The appellant shall pay the respondents' costs of and incidental to the appeal.
_____________________________________________________________
Tuva & Associate Lawyers: Lawyers for the Appellant
Lakakit & Associates Lawyers: Lawyers for the First Respondents