SC2651

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO.39 OF 2020

BETWEEN:
DR. HARRY POKA, FATHER SIMON KEWANDE & JOHN YUL BRO
Applicants

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani:  David J, Dowa J, Coates J
2024: 29th October & 1st November

PRACTICE & PROCEDURE – ex parte order by Supreme Court dismissing proceedings for want of prosecution – whether parties aggrieved by dismissal can apply to the Supreme Court to set aside the order made in their absence –application in the nature of an application made after disposal of proceedings - relevant principles to apply – s.155(4) Constitution, Supreme Court Rules, Order 11 Rule 32(1).

Cases Cited:
Duque v Paru [1997] PNGLR 378
Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613
Smith v Ruma Constructions Ltd (2002) SC695
Rangip and Fountain Finance Limited v Peter Loko (2009) N3714
Tulapi v Niggins (2011) SC1111
Wamu Abari v Willie Gumaim (2020) SC1925
Cragnolini v Leia (2023) SC2464

Counsel:
Camillus M. Gagma, for the Applicants
Mercy Tamate with Gaure D. Digori, for the Respondent

JUDGMENT

1st November 2024

1.	BY THE COURT:   INTRODUCTION: This is a ruling on an application to set aside an order of this Court made on 23 September 2024 dismissing the proceedings for want of prosecution and to reinstate the appeal on conviction for hearing inter partes.

2.	The applicants, Dr. Harry Poka, Fr. Simon Kewande and John Yul Bro (the Applicants) move the application pursuant to an Application filed on 24 September 2024 (the Application).  They rely on s.59, s.155(2)(c) and (4), s.185 of the Constitution and Order 11 Rule 9 of the Supreme Court Rules as the jurisdictional basis for seeking the relief sought. 

3.	The Application is supported by the Affidavit of Camillus M. Gagma sworn and filed on 24 September 2024. 
 
BRIEF BACKGROUND FACTS

4.	On 13 November 2020, the Applicants were each convicted after a trial with; one count of misappropriation of the sum of K175,000.00 property belonging to Kundiawa Hospital pursuant to s.383A(1)(a) of the Criminal Code; and one count of Conspiracy to Defraud pursuant to s.407(1)(b) of the Criminal Code.  In addition, Dr. Poka was convicted with one count of Abuse of Office pursuant to s.92(1) of the Criminal Code.

5.	On 19 November 2021, the National Court sentenced the Applicants to three years imprisonment, but the term was suspended on terms.

6.	On 11 December 2022, the Applicants filed one appeal against each of their convictions.

7.	On 18 May 2022, leave to apply for a  review of their sentences was granted.

8.	On 15 July 2023, the Applicants filed their Application to Review their sentences and is pending hearing. 

9.	On 23 September 2024, the appeal on conviction was fixed for hearing.

10.	On 23 September 2024, the appeal on conviction was dismissed for want of prosecution following the non-appearance of the Applicants or their lawyer in Court to prosecute the appeal.

ISSUE

11.	The only issue that falls for determination is whether the application to set aside the order of this Court made on 23 September 2024 dismissing the proceedings for want of prosecution should be set aside.
 
SUBMISSIONS

12.	The Applicants submit that the affidavit of Camillus M. Gagma demonstrates:

1.	Why the order was made in the absence of the Applicants, ie, Mr. Gagma left his office at Ela Beach at around 08:50 am and was driving up the Freeway on his way to Court for the hearing on 23 September 2024 when he experienced a punctured left tyre to his motor vehicle as he approached the tunnel along Waigani Drive and he had to slowly drive to KR Tyre Service on ream nearby with double blinkers on.  He left his vehicle at KR Tyre Service at around 9:20 am for the punctured tyre to be replaced by a new tyre and took a taxi to the Court House arriving at about 9:30 am.  When he entered the Court room soon thereafter, the Court had dealt with the matter and adjourned.     His non-attendance was not intentional. 

2.	There was no delay in filing the Application.

3.	A reasonable explanation has been given for the proceeding not being prosecuted with due diligence.

13.	The Respondent submits that the Applicants have not made out a case for the ex parte order made on 23 September 2024 to be set aside and should be dismissed as:

1.	 The order was entered in the absence of the Applicants and their lawyer failed to appear at the time fixed for hearing of their appeal;
2.	There was no delay in filing the application as it was filed a day after the appeal was dismissed;
3.	The appeal was not prosecuted with due diligence particularly with regards to the appellants’ lawyer not appearing at the time fixed for hearing.  The explanation given by Mr. Gagma, lawyer for the Appellants in his affidavit should not be accepted as counsel had ample time to get to the Court House well before the appointed time for hearing; and
4.	The receipt for the purchase of new tyres shows that it was well past 3:00 pm in the afternoon when the appeal was fixed for hearing in the morning.   

CONSIDERATION AND REASONS FOR DECISION
14.	An appeal commenced in the Supreme Court can be dismissed for want of prosecution on application by a respondent under Order 7 Division 19 (rr.48-51) of the Supreme Court Rules.
15.	Appeals can also be summarily dismissed by the Court on application by a party or on the Court’s own initiative under Order 13 Rule 16(1) of the Supreme Court Rules or in the exercise of its inherent jurisdiction to control the conduct of proceedings before it and to ensure that the business of the Court is conducted in an orderly, fair and timely manner and to ensure that justice is done in a particular case.
16.	There are no express provisions under the Supreme Court Act and the Supreme Court Rules allowing for applications to set aside ex parte orders of the Supreme Court:  Tulapi v Niggins (2011) SC1111.  In that circumstance, the Supreme Court would be devoid of jurisdiction to entertain such an application on the basis that the Supreme Court cannot review its own decisions: Electoral Commission v Patrick Pruaitch & Anderson Mise (2023) SC2416.
17.	In Tulapi v Niggins (supra),  the matter was among a number of Supreme Court matters listed for summary determination.  The appellants did not appear when the matter was called so the appeal was dismissed for want of prosecution.   The appellants then filed an application to have the ex parte dismissal order set aside and the appeal reinstated following the grant of leave by His Honour Injia CJ sitting as a single judge of the Supreme Court.  
18.	Given the non-liquet or lacuna in the law, the Court in Tulapi v Niggins (supra) proceeded to enunciate some principles to consider when dealing with an application to set aside an ex parte order dismissing proceedings for want of prosecution.  They stated that in their opinion, the principles applicable in such an application were the same as those pronounced by the courts in dealing with the relevant provisions of the National Court Rules concerning similar applications.  They had regard to the decisions of Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613, Smith v Ruma Constructions Ltd (2002) SC695 and Rangip and Fountain Finance Limited v Peter Loko (2009) N3714 and stated that the considerations an applicant must satisfy were:
1. 	Why the order was allowed to be entered in the absence of the applicant,
2.	If there is a delay in making the application to set aside, provide a reasonable explanation for the delay; and

3.	There is a reasonable explanation for the proceeding not being prosecuted with due diligence.

19.	The principles of law enunciated in Tulapi v Niggins (2011) SC1111 were pronounced prior to the promulgation of the Supreme Court Rules 2012.

20.	There are no express provisions in the Supreme Court Rules that are similar to Order 12 Rule 8 of the National Court Rules which allows for a party to make application to the National Court to set aside an order made in their absence.  However, Order 11 Rule 32(1) of the Supreme Court Rules seems to set the foundation allowing for an aggrieved party to make an application to set aside an order dismissing a proceeding for want of prosecution made ex parte.   Order 11 Rule 32(1) of the Supreme Court Rules states:  

An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

21.	We are satisfied that the order dismissing the proceedings for want of prosecution in the absence of the Applicants or their lawyer falls within the meaning of Order 11 Rule 32(1).  

22.	There is no issue that the Application was filed and served within 21 days of the order disposing of the proceedings.

23.	Order 2 Rule 1(h) of the Supreme Court Rules is also applicable.  It states:

The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to — …

(h) 	Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed.

24.	In Wamu Abari v Willie Gumaim (2020) SC1925, this Court said in order to enliven Order 2 Rule 1(h), three requirements must be satisfied and these are:

1.	there is a relevant provision in the National Court Rules;
2.	there is no provision in the Supreme Court Rules; and
3.	no order has been made as to the procedure to be followed.

25.	In the present case, the three requirements have been satisfied as:

1.	there is a relevant provision in the National Court Rules namely, Order 12 Rule 8;
2.	there is no similar provision as Order 12 Rule 8 of the National Court Rules in the Supreme Court Rules; and
3.	no order has been made as to the procedure to be followed.

26.	The question of whether an order made in the absence of a party ought to be set aside is a matter of discretion to be exercised on a proper basis.

27.	In the case of Cragnolini v Leia (2023) SC2464, the Court constituted by five judges to resolve a conflict of differing opinions of the Supreme Court as to the interpretation and application of Order 12 Rule 8(3)(a) of the National Court Rules said, in order to be successful, it is incumbent upon the applicant to satisfy the Court:  

1.	Why the judgment or order was allowed to be entered in his absence;
2.	If there is delay in making the application to set aside, provide a written explanation as to the delay; and
3.	By affidavit, state material facts disclosing a defence on the merits or there is an arguable case.   

28.	As to the first requirement, logic and common sense ought to have prevailed, ie, a simple call by mobile phone by Mr. Gagma to the Respondent’s counsel, Mr. Kuvi or the Supreme Court Registry or any of the Associates of judges empanelled to hear the appeal explaining the situation he was purportedly in would have obviated the need for the Court to sit at or about 9:30 am, the time appointed for hearing the appeal upon receiving such information.     There is no evidence from Mr. Gagma that at the material time he did not have a mobile phone on him or that he did not have access to one to make a call to any of the persons mentioned above.  

29.	In addition, his explanation of leaving his vehicle at KR Tyre Service with a Bangladesh man along Waigani Drive at or about 9:20 am for his vehicle’s front left tyre to be fixed and rush to the Court house in a taxi and Invoice/Receipt issued by KR Tyre Service on 23 September 2024 at 3:41:16 pm for the purchase of two new tyres instead of one leaves a lot of unanswered questions and against logic and common sense.  There is no explanation in Mr. Gagma’s evidence as to why the Invoice/Receipt was issued late in the afternoon on 23 September 2024 at 3:41:16 pm and not in the morning.  What happened between Mr. Gagma’s attendance at the Court House in the morning after being at the Court Room at about 9:34 am and 3:41:16 pm is unexplained.   The Invoice/Receipt also does not bear the name of the customer to whom it was issued.  The exercise of the Court’s discretion favours the Respondent.   

30.	As to the second requirement, there is no delay in making the application to set aside.  It was filed within 21 days as per Order 11 Rule 32(1) and after one day of the dismissal order being made.   This favours the exercise of discretion in favour of the Applicants.

31.	As to the third requirement, there is no affidavit evidence from the Applicants themselves stating material facts disclosing an arguable case or that their appeal has merit:   Duque v Paru (1997) PNGLR 378.  Any explanation from Mr. Gagma in his affidavit as to whether the Applicants have an arguable case or their appeal has merit is insufficient and not allowed as it amounts to a legal opinion and is not capable of raising the material facts:  Duque v Paru (1997) PNGLR 378.  This favours the exercise of the Court’s discretion in favour of the Respondent.

CONCLUSION

32.	Two of the three requirements have not been met by the Applicants and this favours the exercise of discretion in favour of the Respondent.   The Application must be dismissed.

33.	The question whether the fact that leave to apply for review of the Applicants’ sentence was granted on 18 May 2022 has any bearing on the Application is an irrelevant consideration.

ORDERS

34.	We now make the following orders:

1.	The application to set aside the dismissal order made on 23 September 2024 is dismissed.
2.	Time for the entry of these orders is abridged.   

Judgment and orders accordingly.

______________________________________________________________
Gagma Legal Services: Lawyers for the Applicants		
Public Prosecutor:  Lawyer for the Respondent