Gumaim v Abari [2021] PGSC 94; SC2167 (1 December 2021)

SC2167

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 22 OF 2017

WILLIE GUMAIM
First Appellant

WINNIE HENAO,
PROVINCIAL POLICE COMMANDER, EASTERN HIGHLANDS
Second Appellant

SAM INGUBA, COMMISSIONER OF POLICE
Third Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

V

WAMU ABARI & OTHERS LISTED IN SCHEDULE 1
Respondents

Waigani: Cannings J, Anis J, Narokobi J
2021: 25^th November, 1^st December

PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution – Supreme Court Rules, Order 7, Rule 48 – non-compliance with Court order for prosecution of appeal.

The appellants appealed against the decision of the National Court to find them liable to the respondents in negligence for a police raid of a village and to award the respondents approximately K3.6 million. The respondents filed an application to dismiss the appeal for want of prosecution but it was refused by the Supreme Court and the appeal was referred for relisting. A Judge then gave directions for the appeal to be expedited, including ordering the appellants to serve a draft appeal book on the respondents by 22 January 2021 and to file and serve an appeal book by 29 January 2021. Both dates passed without compliance. On 21 May 2021 the respondents filed another application to dismiss the appeal for want of prosecution under Order 7, Rule 48(a) of the Supreme Court Rules, which provides that “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 ... order that the appeal be dismissed for want of prosecution.” On the date of hearing the application for dismissal in November 2021 the appellants had still not done what was required to be done under the order of the Court. The appellants opposed the application, arguing that the respondents had not been cooperative in helping the appellants to locate the documents necessary to complete the appeal book.

Held:

(1) An appeal is vulnerable to dismissal if the appellant either does not do what is required by the Rules or has not prosecuted the appeal with due diligence. If either situation exists, the Court will consider the extent of the delay and whether there is an adequate explanation for it.

(2) Here the appellants failed to comply with two deadlines set by the Court and this meant that the appeal had not been prosecuted with due diligence. There was no satisfactory explanation for the delay. There was no lack of cooperation on the part of the respondents. The only proper explanation for the delay was a lack of diligence on the part of the appellants’ lawyers. That was not a satisfactory explanation.

(3) Taking into account all the circumstances of the case (including that the police raid at the centre of the case occurred in 2001, there were more than 400 plaintiffs, the judgment against which the appeal was lodged was delivered in 2017) the interests of justice lay in dismissing the appeal.

(4) Appeal dismissed with costs against the appellants.

Cases Cited

The following cases are cited in the judgment:

Dan Kakaraya v Sir Michael Somare (2004) SC762
Donigi v PNGBC (2001) SC691
Gumaim v Abari (2020) SC2008
Mann v Alpar Trading Ltd (2014) SC1382

Counsel

G P Manda & M Alyata, for the Appellants
M Pokia, for the Respondents

1^st December, 2021

1. BY THE COURT: On 25 January 2017 Justice Neill delivered judgment in the National Court at Goroka in a police raid case. His Honour found liability established against certain members of the Police Force and the State and awarded the plaintiffs, Wamu Abari and approximately 450 others, damages of approximately K3.6 million.

2. On 28 February 2017 the defendants appealed to the Supreme Court. They became the appellants. Four and a half years after lodging the appeal, it is yet to be heard. Instead, what has been heard is an application by the respondents (the plaintiffs in the National Court), to dismiss the appeal for want of prosecution under Order 7, Rule 48(a) of the Supreme Court Rules. They also apply for an order that the appeal be summarily determined under Order 13, Rule 16(1)(a) of the Supreme Court Rules.

3. This is not the first time the respondents have applied for dismissal of the appeal. They made a similar application in 2018, which was dismissed by the Supreme Court on 2 October 2020 due to the Court finding that both the appellants and the respondents had contributed to the delay in having the appeal heard (Gumaim v Abari (2020) SC2008).

APPLICATION FOR DISMISSAL OF APPEAL UNDER SUPREME COURT RULES, ORDER 7, RULE 48(a)

4. This rule 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 ... order that the appeal be dismissed for want of prosecution.

5. Mr Pokia, for the respondents, submitted that the appellants have not prosecuted the appeal with due diligence, given the things that have happened, or not happened, since the Supreme Court’s rejection of the previous application for dismissal. Mr Pokia points out that when dismissing that application, the Court ordered, amongst other things:

This appeal shall be listed at the directions hearing of the Supreme Court to be held on 12 October 2020, or on such date to which that directions hearing may be adjourned, for such further directions to be made as may be necessary to expeditiously progress this appeal to substantive hearing.

6. There was in fact a directions hearing on 12 October 2020 before Hartshorn J, at which his Honour set down the appeal to be heard on 15 December 2020. The respondents then applied for variation of that order on the ground that the appeal books were missing vital evidence in the form of about 400 affidavits that had been in evidence in the National Court. That application was contested by the appellants but granted after a hearing before Makail J. His Honour ordered on 2 December 2020:

1. The hearing date of Tuesday 15 December 2020 at 9.30 am is vacated.
   
2. The matter is adjourned for relisting in February 2021 on a date and time to be fixed by the Registrar.
   
3. The appellant[s] shall redo the appeal book to include the 400-plus additional affidavits referred to by the Supreme Court at paragraph 53 of its written decision of 2 October 2020 and forward the draft appeal book to the respondents to comment by or before Friday 22 January 2021.
   
4. If in order, the respondents shall certify and return the appeal book to the appellant[s] to be filed and served by or before Friday 29 January 2021.
   

7. Mr Pokia submitted that the appellants failed to comply with orders 3 and 4: they did not forward the draft appeal book to the respondents to comment by 22 January 2021 and did not file and serve the appeal book by 29 January 2021. Mr Pokia submitted that the appellants had still not complied with their obligations under orders 3 and 4 by the date of filing the respondents’ application for dismissal, 21 May 2021. We presume that by the date of hearing the application for dismissal, 25 November 2021, the appellants had still not complied. The appellants’ continued failure to comply with the orders of 2 December 2020 constitutes a failure to prosecute the appeal with due diligence, and there was no good explanation for it and the appeal should be dismissed, Mr Pokia contended.

8. Mr Manda, for the appellants, did not contest the proposition that there had been a failure to comply with the orders of 2 December 2020 but stressed that there were reasons for that, which were largely to do with a lack of cooperation on the part of the respondents’ lawyers in settling the index to the appeal book and providing missing affidavits that the respondents had insisted be included in the appeal book.

9. Under Order 7, Rule 48, an appeal is vulnerable to dismissal if the appellant either does not do what is required by the Rules or has not prosecuted the appeal with due diligence. If either situation exists, the Court will consider the extent of the delay and whether there is an adequate explanation for it. It is then a matter of discretion whether to order dismissal of the appeal, having regard, in particular, to the interests of justice (Donigi v PNGBC (2001) SC691, Dan Kakaraya v Sir Michael Somare (2004) SC762, Mann v Alpar Trading Ltd (2014) SC1382).

10. We uphold Mr Pokia’s submission that the appellants failed to comply with two deadlines set by the Court (22 January 2021, to serve the draft appeal book, and 29 January 2021, to file and serve the appeal book), and this means that the appeal has not been prosecuted with due diligence.

11. As to whether there is a satisfactory explanation for that lack of diligence, we have considered the exchange of correspondence between the appellants’ lawyers and the respondents’ lawyers in the period after 2 December 2020. We note that the respondents’ lawyers, Mirupasi Lawyers, wrote and served letters dated 4, 7 and 14 December 2020 to the appellants’ lawyers, Greg Manda Lawyers. Each letter was about the contents of the appeal book.

12. Greg Manda Lawyers did not respond until 14 January 2021, enclosing a draft index to the appeal book. On 21 January 2021 Mirupasi Lawyers responded, agreeing with the substance of the draft index and suggesting that an additional document needed to be included. The letter concluded:

Please let us have the draft appeal book for certification.

13. There was no response to that letter until 30 March 2021, when Greg Manda Lawyers said that they had misplaced the letter of 21 January 2021 and only found it on 25 March 2021 and they would compile the appeal book and forward it for certification. The respondents then filed the application for dismissal on 21 May 2021.

14. We find in that exchange of correspondence no satisfactory explanation for the delay on the part of Greg Manda Lawyers in complying with the Court’s orders of 2 December 2020. There was no lack of cooperation on the part of the respondents’ lawyers. The opposite is the case. The letter of 21 January 2021 from Mirupasi Lawyers was for all intents and purposes agreement with the draft index of the appeal book, and it followed a series of letters from Mirupasi Lawyers in December 2020 providing constructive commentary as to the contents of the appeal book, left without a response for a month.

15. The only proper explanation for the delay in complying with the orders of the Court is a lack of diligence on the part of the appellants’ lawyers. That is not a satisfactory explanation.

16. Taking into account all the circumstances of the case (including that the police raid at the centre of the case occurred 20 years ago, in 2001, there were more than 400 plaintiffs, the judgment against which the appeal was lodged was delivered in 2017, the appeal remains un-prosecuted for over four and a half years) the interests of justice lie in dismissing this appeal.

CONCLUSION

17. The application for dismissal of the appeal under Order 7, Rule 48(a) of the Supreme Court Rules will be granted. It is unnecessary to consider the other part of the application, for summary determination of the appeal. It is also unnecessary to deal with the appellants’ application, filed 6 July 2021, for further time to comply with the order of 2 December 2020. Costs will follow the event.

ORDER

1. The application for dismissal of the appeal, filed 21 May 2021, is granted.
   
2. The appeal is dismissed.
   
3. Costs of the appeal shall be paid by the appellants to the respondents on a party-party basis which shall if not agreed be taxed.
   

Judgment accordingly.

_____________________________________________________________
Greg Manda Lawyers: Lawyers for the Appellants
Mirupasi Lawyers: Lawyers for the Respondents