Paliwa v Kombul [2018] PGSC 30; SC1686 (29 June 2018)

SC1686

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APPEAL NO. 97 OF 2015

BETWEEN
MALLY PALIWA & 257 ORS
Appellants

AND
BILLY KOMBUL
First Respondent

AND
WINNIE HENAEO PROVINCIAL POLICE COMMANDER W.H.P.
Second Respondent

AND
SAM INGUBA – POLICE COMMISSIONER OF PAPUA NEW GUINEA
Third Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Manuhu, Kangwia & Foulds JJ
2018: 29^th June

SUPREME COURT APPEAL – practice and procedure – application for dismissal of appeal for want of prosecution –applicants not prosecuting appeal with due diligence – delay in prosecuting appeal inordinate – no reasonable explanation given for delay - application to dismiss appeal upheld - appeal dismissed

Cases cited:

Kalinoe v. Kereme (2017) PGSC 26; SC 1631

Counsel:

Mr Kumura, for the Appellant
Mr Mark Uoo Leo, for the Respondents

JUDGMENT

29^th June, 2018

1. BY THE COURT: This is an application ("the application") by the respondents in this appeal ("the appeal"). The appeal was filed and served on 7 August 2015. Under order 7, rule 48 of the Supreme Court Rules the respondents filed this application on 14 March 2018 in which they seek the following orders:

1. That pursuant to order 7, rule 48 of the Supreme Court Rules, the entire Supreme Court appeal be dismissed for want of prosecution;
   
2. Costs be paid by the appellants, to be taxed if not agreed.
   
3. Any other orders, the court deems fit.
   

2. The application is supported materially by the affidavits of Mark Uoo Leo sworn on 6 March 2018 and filed on 14 March 2018 and Faith Barton-Keene, Solicitor General, sworn on 4 March 2018 and filed on 5 April 2018. Order 7, rule 48 of the Supreme Court rules provides:

48. Where an applicant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may:-

1. order that the appeal be dismissed for want of prosecution; or
   
2. fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance, the appeal shall stand dismissed for want prosecution, or subsequently, and in the event of non-compliance, order that it be so dismissed; or
   

100. make any other order that may seem just.
     

3. The hearing of this application and careful consideration of the affidavits in support and response particularly that of Mally Paliwa filed on 21 June 2018, revealed the following facts, observations and findings which are germane to the determination of the application:

1. The appellants have failed to take any action on the appeal from the date of filing on 7 August 2015 for approximately two years and 10 months ("the delay ").
   
2. The only material issues raised in the application, are first, whether the delay of 2 years and 10 months was an inordinate delay and second, whether the plaintiff's explanation for the delay is reasonable.
   
3. The appellants did not take any step at all to prosecute the appeal resulting in the respondents writing to their lawyers on 27 November 2015 and 30 November 2016 advising them that the appellants had not taken any steps to advance the appeal and putting them on notice that if they failed to take steps to progress the appeal within 7 days from the dates following the letters they had instructions to file and serve a notice of objection to competency or failing that they would file an application to dismiss the appeal for want of prosecution.
   
4. The appellant's explanation for the delay as set out in paragraphs 17 to 26 inclusive in the appellant's written submissions of 25 June 2018, which accords with the affidavit of Mally Paliwa, the first appellant, filed on 21 June 2018 and John Kumura filed on 21 June 2018.
   
5. In summary, they say that they were one party in a two-party tribal small fight which began, escalated into a full scale tribal war which was finally resolved by peace treaty on or about 27 December 2017.
   
6. There is no evidence as to how the war started or what it was about.
   
7. There is no evidence as to what part the appellants or any of them played or the rank that any one of them held in the war.
   
8. There is no evidence as to how far the village was from Mount Hagen, the location of then lawyer, or whether there was any more than one means of access, road or otherwise, for the appellants or any one of them, to him.
   
9. In paragraph 12 of the affidavit from Mally Paliwa he says "the delay in prosecuting our appeal is that we did not see our lawyers to progress the matter due to the tribal fight we are located at the back stop the tribal fight cut off our access to our lawyers (sic). We could not travel to Mount Hagen and it was risky to travel to Mount Hagen. We the plaintiffs were all displaced; we had lost so much and could not even contribute and raise the funds to progress our appeal under the circumstances."
   
10. The road to Mount Hagen was closed but there is no evidence as to how long it was closed.
    
11. Notwithstanding the statement made by Mr Paliwa in the last preceding paragraph, in paragraphs 6, 7, 8 and 9 of the affidavit of the appellant's then lawyer, Kumoro Sino, filed on 21 June 2018, he deposed to the following:
    

"In mid-2016, the plaintiffs came to my office. I advise them of the need to file the draft index to the appeal book and fix it for settlement. I further advise them of the approximate cost of my attendance to filing and setting the draft index to the appeal book in the Supreme Court in Waigani.

The appellants did not come back to my office until early 2017. At that point I realised that the costs of my engagement was going to cause problems to the appellants. The reason being that I have be (sic) down to Port Moresby every time to attend to this matter. This includes costs of airfares, transport and accommodation in Port Moresby. Roughly costs around 3000 kina in disbursements for a one-day attendance in Port Moresby. This is minus the professional costs of time spent by myself.

I also realised that as the plaintiffs are all villagers that they faced difficulties in securing funds to facilitate for my travel Port Moresby. I then advised them that it is in their interests to secure the services of a Port Moresby based law firm to reduce the costs.

Sometime towards the end of 2017 the appellants advised myself that they had secured the services of a Port Moresby based lawyer. I returned the instructions and their files in the matter to the appellants."

4. The facts, our observations and findings in subparagraphs 1-11 above lead us to conclude that on any view the delay was clearly inordinate and exhibits numerous instances of lack of due diligence on behalf of the appellants in prosecuting the appeal. Indeed in paragraph 16 of the appellant's submissions, Counsel for the appellants concedes "the lengthy delay in not prosecuting the appeal diligently."In itself that concession would be sufficient for us to dispose of the appeal finally and completely upon a finding of inordinate delay. Such a finding in all probability would render consideration of the reasons for the inordinate delay otiose. In this case we make a finding that the delay was inordinately lengthy. Such finding would in all probability render consideration of the appellant's explanation for the delay otiose. See Kalinoe v Kereme (2017) PGSC 26; SC 1631 (3 November 2017) at paragraphs 8, 9 and 10.

5. However, if we are wrong in the last preceding paragraph, in relation to the appellants' explanation for the delay we remain unconvinced. Rather, we find that the explanation for the delay is highly implausible, given, at the very least that the appellants found themselves able to visit Mr Sino in Mount Hagen on two occasions between the filing of the appeal at the end of 2017. Moreover within that time they were able to communicate (there is no evidence as to how they communicated) with their lawyer sufficiently to enable them to instruct him to pass their file to their new solicitors in Port Moresby.

6. Finally, closer scrutiny of the conversations which took place between Mr Sino and the appellants and Mr Sino's thoughts and observations about costs imparted to them leads us to conclude that it was not the inter tribal war which was the main cause of the delay but rather their lawyers part and projected costs which, he deposes, he made clear to them and suggested that they change to solicitors in Port Moresby.

7. Bearing all those considerations in mind we find that the delay was inordinate and not satisfactorily explained and would therefore exercise our discretion against the appellants’ to allow the application and dismiss the appeal with costs to follow the event.

8. We make the following orders:

1. That the appeal filed on 7 August 2015 is dismissed for want of prosecution.
   
2. That the appellants pay the respondents’ costs of and incidental to the appeal.
   

Ruling and orders accordingly.
_______________________________________________________________
Kumura Lawyers: Lawyers for Appellants
Greg Manda Lawyers: Lawyers for the Respondents