Yama v Figa [2019] PGSC 85; SC1853 (27 September 2019)

SC1853

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 40 of 2018

BETWEEN:
PETER CHARLES YAMA,
GOVERNOR OF MADANG
PROVINCE
First Appellant

AND:
MADANG PROVINCIAL GOVERNMENT
Second Appellant

AND:
DOCTOR BOGA FIGA, MANAGING DIRECTOR OF RAMU DEVELOPMENT FOUNDATION LIMITED
Respondent

Waigani: Hartshorn J, Shepherd J and Anis J
2019: April 29^th
2019: September 27^th

Application to dismiss appeal for want of prosecution

Cases Cited:

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) SC874
Magellan Properties Ltd and Anor v. Steamships Trading Company Limited and Anor (2016) SC1518

Counsel:

Mr. B.S. Lai, for the Respondent

27^th September, 2019

1. BY THE COURT: This is a decision on a contested application by the respondent to dismiss this appeal for want of prosecution.

2. The court permitted the respondent to proceed with the application to dismiss for want of prosecution in the absence of representation of the appellants as the court was satisfied that the lawyers on record as the local agents for the appellants had been served with the application and notice of hearing and had been further notified of the amended date of the hearing by personal service at their offices.

Background

3. The appellants filed their notice of appeal on 5^th April 2018. They appeal the decision of the National Court made on 27^th March 2018 (Decision Appealed). The Decision Appealed, amongst others, declared that the decision of the Madang Provincial Executive Council dated 1^st September 2017 (MPEC Decision) to the extent that it revoked the appointment of Daniel Aloi and other members of the board of directors and management of Madang Development Foundation Limited including Dr. Boga Figa, was unlawful and that all persons including Dr. Boga Figa whose appointments were revoked by the MPEC Decision were reinstated.

This application

4. The applicant relies upon Order 7 Rule 48(a) and Order 13 Rule 16(1)(a) Supreme Court Rules for the relief sought.

5. The respondent submits that the appeal should be dismissed as amongst others:

a) The appellants have failed to take further steps to prosecute the appeal since the filing of the notice of appeal on 5^th April 2018. This constitutes want of prosecution of the appeal with due dispatch or diligence as the period of delay is about 13 months;

b) The appellants have breached Order 7 Rules 33 and 34 Supreme Court Rules which are mandatory. This is because the appellants had failed to obtain a settlement date for the index to the appeal book and the appeal book and had failed to notify the respondent of the appointed dates that had been set for the settlement of the index to the appeal book and appeal book;

c) That although the appellants have filed a draft index for the appeal book, they have failed to have it settled together with the appeal book and in so doing they have failed to prepare the appeal with due diligence and without delay.

Consideration

6. As there was no representation of the appellants to defend the application to dismiss for want of prosecution, the court may infer that this is indicative of the appellants not wishing to proceed with their appeal. Counsel for the respondent however, referred this court to the affidavit filed on behalf of the appellants in response to the application to dismiss. This is the affidavit of Joseph Aka which was filed on 2^nd October 2018. Mr. Aka claims that he is the Managing Director of Ramu Development Foundation Limited. He deposes as to various matters, but he does not depose why the appellants have not diligently prosecuted the appeal or what actions have been or are being taken to prosecute the appeal.

7. Mr. Aka’s evidence is of no assistance to the court in its consideration of this application as it does not provide a reasonable explanation of why the appellants have not diligently progressed their appeal and without delay.

8. The notice of appeal was filed on 5^th April 2018 and a draft index was filed on 31^st May 2018. Apart from Mr. Aka’s affidavit, there is no evidence of any other documents being filed by or on behalf of the appellants since. It is about 13 months since the appeal was filed and 11 months since the draft index was filed.

Order 7 Rule 48

9. Order 7 Rule 48 of the Supreme Court Rules provides:

“Where an appellant 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—

(a) order that the appeal be dismissed for want of prosecution;

(b) 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 of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed; or

(c) make any other order that may seem just.”

10. The relevant principles governing this rule and its predecessor Order 7 Rule 53, are well established and 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) SC874.

11. In Joshua Kalinoe v. Paul Paraka (supra), the Supreme Court discussed the rule in this way [17] and [20]:

“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. ......

Turning to the requirements of Order 7 r 53 (a), the question is: Did the appellants fail to do any act required to be done under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence which would warrant, this Court to dismiss the appeal for want of prosecution?”

12. In this instance as referred to, there is no reasonable explanation proffered on behalf of the appellants.
13. As to non-compliance with Order 7 Rules 33 and 34 Supreme Court Rules which are mandatory, we are satisfied that the appellants have failed to obtain a
settlement date for the index to the appeal book and the appeal book and have failed to notify the respondent of the appointed dates that had been set for the settlement of the index to the appeal book and appeal book.

14. In this regard we refer to the decision of Magellan Properties Ltd and Anor v. Steamships Trading Company Limited and Anor (2016) SC1518, in which the Court at [14] and [15] said:

“.... Order 7, Rule 33 of the Supreme Court Rules requires an appellant on filing the notice of appeal to “get” from the registry an appointment to settle the appeal book. Actions mandated by Rules 34, 35, 40 and 41 are referable to the date of that appointment. No time limit by when the appointment must be ‘got’ is stipulated – the rule requires that the appointment be ‘got’ on filing the notice of appeal. “Get” clearly entails more than requesting an appointment – it means that the appointment must be obtained. Order 7 Rule 33 contemplates the appointment must be ‘got’ contemporaneously with the filing of the notice of appeal. The terms of the rule clearly indicate the importance, in terms of prosecuting an appeal, of the appellant immediately making arrangements to settle the appeal book and index. There is a significant difference between seeking an appointment to settle the index and getting such a date. An appellant must not only seek a date, but get a date (Thompson v Karingu (2008) SC954).

15. In this case not only did the appellants fail to “get” an appointment from the Registry on filing the notice of appeal, they waited more than two weeks after filing the notice of appeal and then wrote to the Registrar to request a date for settlement of the appeal book. And then did nothing more.”

15. The Supreme Court in Magellan (supra) dismissed the appeal on the basis that Order 7 Rule 33 had not been complied with.

16. We are satisfied that given the evidence of the delay that has occurred in this instance without any reasonable explanation being proffered and given the non-compliance with Order 7 Rule 33 and 34 Supreme Court Rules, this appeal should be dismissed pursuant to Order 7 Rule 48(a) Supreme Court Rules.

Orders

17. It is ordered that:

a) This appeal is dismissed pursuant to Order 7 Rule 48(a) Supreme Court Rules;

b) The Stay Order granted on 16^th April 2018 is discharged and the Orders of the National Court made on 27^th March 2018 are affirmed;

c) The appellants’ shall pay the respondent’ costs of and incidental to this appeal including the application on a party/ party basis to be taxed if not otherwise agreed.
__________________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Appellants
B. S. Lai Lawyers: Lawyers for the Respondent