Wakerkwa v Zongonau [2024] PGSC 110; SC2649 (31 October 2024)

SC2649

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 174 OF 2022 (IECMS)

BETWEEN:
LEO WAKERKWA for and on behalf of himself and 36 others
Appellant

AND:
JOHN PAUL ZONGONAU
First Respondent

PORT MORESBY DEVELOPMENT GROUP INC
Second Respondent

BONITA WAROME
Third Respondent

LOS KAPO
Fourth Respondent

Waigani: Collier J, Carey J, Coates J
2024: 31^st October

PROPERTY LAW – notice of motion to set aside injunctive orders of single Supreme Court Judge – application to dismiss for want of prosecution – appellants failed to prosecute with due diligence after being granted injunctive orders – order vacant possession of property.

The appellants were West Papuan refugees who resided on a property purchased by the fourth respondent and filed an application under human rights law to remain in the property. The National Court proceedings were dismissed for failure on the part of the appellants’ lawyer to appear. The appellants appealed from the primary Judge’s decision. The appellants were granted a temporary injunctive order preventing the respondents from evicting them. The fourth respondent applied for the matter to be dismissed for want of prosecution and for the injunctive orders to be discharged.

Held:
Appeal dismissed for want of prosecution with costs to be paid by the appellants. There was a plain failure to continue to prosecute the matter and no reasonable explanation provided by the appellants. The temporary injunctive orders of the Supreme Court are discharged pursuant to Order 3 of those orders. The appellants to deliver up vacant possession of the property within 14 days.

Cases Cited:
Kafafi v Victor [2024] SC2616
National Airports Corporation Ltd v Airport Guest House Ltd [2019] SC1867
Kakas v National Housing Corporation [2020] SC2000

Legislation:
Summary Ejectment Act
Supreme Court Rules 2012
Constitution

Counsel
J. Gene, for the Appellants
T. Yamarhai, for the Respondent

REASONS FOR JUDGMENT

31^st October 2024

1. BY THE COURT: Before the Court are the following applications filed by the fourth respondent in Supreme Court proceedings SCA 174 of 2022:
   

(1) A notice of motion filed on 13 December 2023, seeking that orders of Cannings J dated 16 March 2023 be set aside or discharged (Discharge Notice of Motion); and
(2) An application filed on 20 March 2024 for the appeal to be dismissed for want of prosecution (Dismissal Application).

2. The substantive appeal filed 7 November 2022 was from a decision of Tamade AJ of 28 September 2022 summarily dismissing the matter in the National Court for failure by the-then plaintiffs (now the appellants) to appear and to comply with Court directions.
   
3. In our view the Discharge Notice of Motion should be upheld and the appeal dismissed for want of prosecution.

BACKGROUND

4. A brief background of the matter is as follows.
   
5. The appellants are a group of West Papuan refugees currently residing on land described as Allotment 83, Section 47, Port Moresby (the Property). The appellants represented not only themselves but a larger group of refugees. On 16 June 2020 the appellants filed an originating summons in National Court proceedings OS (HR) No. 6 of 2022 seeking, inter alia, a declaration that they and those they represented were authorised long-term occupiers of the Property, and that the Property was transferred to and owned by Port Moresby Community Group for the purposes of housing West Papuan refugees. The appellants also sought, and on 19 June 2020 were granted, an order restraining the respondent and all other persons from evicting the appellants and those they represented.
   
6. We understand that a trial on liability in the National Court was conducted on 8 September 2022 and was adjourned to 19 September 2022. The Court did not sit on 19 September 2022 as it was a public holiday. The matter resumed on 28 September 2022 while the lawyer for the appellant was on duty travel in Popondetta. Although another lawyer appeared for the appellants and sought an adjournment of proceedings, the adjournment request was refused and the matter was dismissed by Tamade AJ.
   
7. On 28 September 2022 Tamade AJ ordered as follows:
   
   1. This matter stands summarily dismissed pursuant to Order 10 Rule 15(2) of the National Court Rules for Ms Kambao’s non-appearance and failing to comply with directions of the court made on 8 September 2022 for failing to file written submissions.
8. The appellants, in a notice of appeal filed on 4 November 2022, sought to appeal that order.
9. In an urgent application filed 13 March 2023, the appellants sought an order restraining the respondent and all other persons from evicting the appellants and those they represented (Injunction Application). The Injunction Application came before Cannings J in the Supreme Court on 16 March 2023. His Honour made the following orders ex parte (Injunctive Orders):
   

In relation to the application of the appellants filed 13 March 2023 it is ordered that:

1. Pursuant to Section 5 (1) (b) of the Supreme Court Act and Order 13 Rule 14 (7) of the Supreme Court Rules, the requirements of service are dispensed with;
2. Pursuant to Section 5 (1) (b) of the Supreme Court Act and Order 3 Rule 2 (b) of the Supreme Court Rules, the respondents and their servants and agents including members of the Police Force are restrained from carrying out eviction exercise against the appellants in relation to their occupation of the property described as Allotment 83 Section 47, Hohola, NCD until further order of this court.
3. This order is subject to the appellants taking due steps to expediate the prosecution of their appeal against the decision of the National Court in OS (HR) No 6 of 2020 of 28 September 2022 and if the appellants' fail to take necessary step to expediate the appeal the respondents are at liberty to approach the court for an order discharging this order.
4. The parties shall appear for a direction hearing before the duty judge regarding the appeal on 3 April 2023 at 9:30am.
10. On 6 July 2023, the appellants filed an affidavit of service of Giolan Peter sworn on 5 May 2023 deposing that the second and third respondents were served with the Notice of Appeal, Injunctive Orders, and a draft index of appeal.
    
11. On 13 December 2023 the Fourth Respondent filed the Discharge Notice of Motion.
    
12. On 20 March 2024 the Fourth Respondent filed the Dismissal Application.
    
13. Since 20 March 2024 the matter has come before the Court for directions on eight occasions. The appellants have made only one appearance, being on 9 April 2024.
    
14. The only document filed by the appellants since 6 July 2023 is a further affidavit of service sworn 10 July 2024 and filed 12 July 2024, which relevantly deposed that the appellants had served on the legal representative for the fourth respondent a letter dated 25 June 2024, the notice of appeal, the application for injunction, the Injunctive Orders, and a draft index of appeal.
    
15. On 24 July 2024, Hartshorn J ordered relevantly that:

...

2. The application seeking to set aside a decision of a single judge of the Supreme Court and application to dismiss for want of prosecution are set down to be heard at 1:30pm of 31st October 2024.
3. The Fourth Respondent shall file and serve a notice of hearing forthwith and shall file an affidavit of service by close of business 30th August 2024.
4. Parties shall file extract of submission and submissions by close of business 4^th October 2024.

5. The matter returns for a status conference at 9:30 am 7th October 2024.

16. On 22 August 2024, the fourth respondent filed an affidavit of service of Frank Barry sworn 19 August 2024, which relevantly deposed that Mr Barry had served the order of 24 July 2024 and the notice of hearing on the legal representative for the appellants.
    
17. The fourth respondent filed written submissions on 3 October 2024. The appellants did not file any submissions.
    
18. By the Discharge Notice of Motion, the fourth respondent sought the following orders:
    
    1. That pursuant to Order 2 rule l(h) of the Supreme Court Rules, Form 11 in Order 4 Division 5 of the National Court Rules be adopted and used as the form for this application.
    2. That pursuant to Order 2 rule l(h) of the Supreme Court Rules Order 1 rules 7 and 15 of the National Court Rules be adopted and applied and pursuant to that rule, section 5(1)(a) of the Supreme Court Act and section 155(4) of the Constitution the requirement under Order 11 rule 25 of the Supreme Court Rules in respect of time for filing and service of this application be dispensed with and time be extended to the date of service of this application on the Appellants.
    3. That pursuant to Order 11 rules 25 and 26 of the Supreme Court Rules and section 155(2) of the Constitution, the orders made on 16th March 2023 be discharged or set aside.
    4. In the alternate, in the event the Court refuses to discharge the orders of 16th March 2023, pursuant to section 5(1)(c) of the Supreme Court Act and section 155(4) of the Constitution, the Appellant deposit a sum of Kl00, 000.00 into the National Court Trust Account as security for costs and damages the Fourth Respondent will have suffered as a result of the restraining orders of 16th March 2023 and progress the appeal to expedited hearing.
5. Cost of this application be paid by the named Appellant Leo Warkerkwa.

6. Any other orders the court deems fits.

19. By the Dismissal Application, the fourth respondent sought as follows:
    

(1) The Appeal is dismissed in its entirety for want of prosecution pursuant to Order 7 Rule 48(a) of the Supreme Court Rules and section 155(4) of the Constitution.
(2) The Appellant and his agents and servants living on the property described as allotment 83, section 47, Hohola, National Capital District (State Lease Volume 17 Folio 4030) shall vacant the property within fourteen (14) days from the date of this order, failing which the police shall assist the Fourth Respondent have possession of the property pursuant to section 155(4) of the Constitution.
(3) The Fourth Respondent and other Respondents' cost of the appeal be paid by the lead Appellant Leo Warkerkwa.
(4) Any other order that may seem just.

SUBMISSIONS OF THE PARTIES

20. The fourth respondent submitted, in summary, as follows:

• The Property was purchased by the fourth respondent on 24 July 2020 when title was transferred to him. Prior to the fourth respondent’s purchase, the Property was owned by Port Moresby Community Development Group (PMCDG). PMCDG acquired the Property on 27 July 1975.
• The appellants have not produced any valid evidence in this Court or the National Court that the Property was transferred from the government to PMCDG for the purposes of housing West Papuan Refugees.
• The only government-recognised refugee camp for West Papua in Papua New Guinea is the East Awin Refugee Camp in Kiunga.
• The fourth respondent has suffered losses from possible rental incomes and has been denied his right to enjoyment of his property by being denied entry to the Property for four years.
• On 30 August 2020 the fourth respondent filed eviction proceedings under the Summary Ejectment Act in the Port Moresby District Court in District Court proceedings DC No 340 of 2023 (District Court proceedings). The District Court proceedings were adjourned sine die pending the outcome of the present proceedings.
• The notice of appeal and injunction application were never served on the fourth respondent. On 9 October 2023 the fourth respondent was given a copy of the Injunctive Orders in an affidavit of the first appellant Leo Wakerkwa sworn 4 October 2023 and filed by the appellants in the District Court proceedings.
• There was an inordinate delay of 17 months from the filing of the application and 12 months from the filing of the draft index of the appeal book before the fourth respondent received the relevant material. There is no evidence filed by the appellants explaining the delay.
• The appellants do not have an arguable case and would not succeed if the matter went to trial.
• The balance of convenience favours the fourth respondent who has been denied the right to his property by Court injunctions.
• The interests of justice support the Injunctive Orders being set aside.
• Order 2 of the Injunctive Orders provides that they be set aside if the appellant failed to prosecute the appeal.
• The Court is empowered to make orders in the interests of justice to make orders requiring the appellants to vacate the Property within 14 days, failing which they will be evicted.
  

21. The appellants did not file written submissions in accordance with the directions of the Court. At the hearing before us Mr Gene for the appellants sought leave to make oral submissions in the interests of justice, and on the basis that the appellants had only recently been served with the direction orders referable to the present hearing. We rejected this application for leave in circumstances where:
    

• the evidence before this Court in an affidavit of service dated 4 October 2024 was that on 3 October 2024 the lawyers for the appellants had been served with a number of letters noting Court dates and directions in this proceeding;
• it is clear that the appellants had failed to appear at directions hearings on multiple occasions;
• we are satisfied that the appellants were aware, through their lawyers, of the requirement to file submissions and failed for unknown reasons to do so;
• we are satisfied that permitting the appellants to make oral submissions at this very late date without notice to the fourth respondent would be contrary to the interests of justice, which is applicable to all parties to this proceeding: PNG Power Ltd v Gura [2014] SC1402.

CONSIDERATION

22. It is convenient to first consider the Dismissal Application.

Want of Prosecution

23. Order 7 Rule 48 of the Supreme Court Rules 2012 reads as follows:

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; or
(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.

24. As submitted by the fourth respondent, relevant principles referable to Order 7 Rule 48 were recently restated by the Supreme Court in Kafafi v Victor [2024] SC2616 as follows:
    
    5. 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.
    6. 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) SC762. See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC811. 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?”

7. The case authorities confirm that where a respondent seeks to dismiss an appeal, in this instance an application for leave to appeal, for want of prosecution, the onus is on him to make a case for the Court to exercise its discretion in his favour. Once the respondent has made a case for want of prosecution, the onus then shifts to the appellant to provide a reasonable explanation as to why the appeal should not be dismissed.
25. On the face of the Supreme Court file it is plain that, since the filing of the draft index of the appeal book on 3 April 2023, there has been a consistent failure on the part of the appellants to take any steps to expedite the prosecution of their appeal. In particular we note the failure of the appellants to appear at any listed Court dates after April 2024, the failure of the appellants to file any documents other than two affidavits of service following the granting of the Injunctive Orders and the filing of the appeal book index, and the failure of the appellants to file any documents in compliance with the Court Orders dated 24 July 2024 in particular submissions.
26. Mr Gene for the appellants submitted orally that the appellants sought another day in Court to properly prosecute the appeal. We are not persuaded of the merit of this submission, and are not satisfied that, if the appellants were given “another day in Court” that they would take any steps in respect of the appeal.
    
27. The appellants’ failure to prosecute the appeal is clearly established. It then falls to the appellants to provide reasonable explanation as to why the appeal should not be dismissed.
    
28. The appellants have provided no explanation of merit to the Court as to why the appeal was not prosecuted, and have given no reason of merit as to why the appeal should not be dismissed.
    
29. It follows that the appeal is dismissed for want of prosecution.

Discharge Notice of Motion

30. Order 3 of the Injunctive Orders stated:
    

This order is subject to the appellants taking due steps to expedite the prosecution of their appeal against the decision of the National Court in OS (HR) No 6 of 2020 of 28 September 2022 and if the appellants fail to take necessary step to expedite the appeal the respondents are at liberty to approach the court for an order discharging this order.

31. In circumstances where we have formed the view that the appellants have failed to prosecute their appeal against the decision of the National Court in OS (HR) No 6 of 2020, we are satisfied that the Injunctive Orders ought be discharged forthwith.

CONCLUSION

32. The fourth respondent has also sought an order for vacant possession of the Property within 14 days, and costs.
    
33. Section 155(4) of the Constitution reads as follows:
    

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

34. The fourth respondent invited the Court to exercise its discretion to order that the appellants vacate the property within fourteen (14) days, failing which the police shall assist the fourth respondent have possession of the property pursuant to the inherent power contained in s 155(4) of the Constitution. The fourth respondent submitted that the reasoning for an order in such terms was that it would alleviate the need for him to return to the District Court for orders to evict the appellants and others residing on the Property.
    
35. The fourth respondent is entitled to enjoyment of his property: National Airports Corporation Ltd v Airport Guest House Ltd [2019] SC 1867 at [12] per Makail J. Indeed, he is entitled to enjoy the Property without further delay (Kakas v National Housing Corporation [2020] SC 2000 at [61]), and without further incurrence of costs, or unnecessary litigation. We consider that the fourth respondent is entitled to an order for eviction in the terms he has sought pursuant to s 155(4) of the Constitution.
    
36. Mr Yamarhai for the fourth respondent submitted that the first named appellant should bear the costs of his client in respect of the proceedings, relying on various affidavits filed in the appeal. In summary, Mr Yamarhai submitted that the first named appellant was the active appellant.
    
37. In our view the appropriate order is that costs should follow the event in the ordinary course.
    

38. The Court orders that:

1. The appeal be dismissed in its entirety for want of prosecution pursuant to Order 7 rule 48(a) of the Supreme Court Rules 2012 and s 155(4) of the Constitution.
2. The appellants and their agents and servants living on the property described as Allotment 83, Section 47, Hohola, National Capital District (State Lease Volume 17 Folio 4030) vacate the property within fourteen (14) days from the date of this order, failing which the police shall assist the Fourth Respondent to have possession of the property pursuant to section 155(4) of the Constitution.
3. The Orders made by Cannings J on 16 March 2023 be discharged.
4. The costs of the Fourth Respondent of and incidental to the proceedings be paid by the appellants on a party-party basis, to be taxed if not otherwise agreed.
   

________________________________________________________________
Office of the Public Solicitor: Lawyers for the Appellants
Supasonix & Alu Lawyers: Lawyers for the Fourth Respondent