SC2670
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 144 OF 2023

BETWEEN:
VINCENT YANGWARI
Appellant

AND:
CLEMENT AUKOPI, Collections Manager, Credit Corporation Limit
First Respondent

AND:
PETER AITSI, Chief Executive Officer, Credit Corporation Finance Limited
Second Respondent

AND:
CREDIT CORPORATION FINANCE LIMITED
Third Respondent

Waigani: Gavara-Nanu J
2024: 15th July & 6th December

PRACTICE & PROCEDURE – Application - Dismiss - Want of prosecution 

Cases Cited:
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Girl Guides Association of Papua New Guinea v. Kamong [2022] PGSC 61; SC2255
Kalinoe v. Paraka (2007) SC874
Mann v. Alpar Trading Ltd [2014] PGSC 56; SC132
Norr v. Ikamata [2005] PGSC 13; SC815
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811
PNG Power Ltd v. Yakupa [2019] PGSC 29; SC1801
The State v. Kikala [2023] PGSC 15; SC355
Tulapi v. Alu (2011) SC1177

Counsel:
In Person: Appellant
S. Thoke: for the Respondents

6th December 2024

1.	GAVARA-NANU J:   The respondents make this application pursuant to Order 7 Rule 48 (a) of the Supreme Court Rules 2012, (as amended) in which they seek dismissal of the appeal for want of prosecution. The respondents submit the appellant has failed to prosecute the appeal with due diligence.

A.	Background

2.	This case arose from a loan facility the appellant and his wife took out from the third respondent on 16 October, 2017. The total amount borrowed was K400,000.00 for which the appellant and his wife used a 3-bedroom H-65 high covenant house located at Section 448 Allotment 22, Ensisi Valley which they jointly owned, as security for the loan. The loan was for 10 years at 14 % interest per annum. 

3.	On 13 July, 2018 the appellant took out a second loan from the third respondent for an amount of K250,000.00 to finance another loan he obtained from the Westpac Bank.

4.	The appellant initially managed to keep up with the loan repayments but then fell into arears. In early May, 2019 the respondents issued Demand Notices to the appellant demanding payment of arears in loan repayments. Because of the arrears in loan repayments, the third respondent advertised the security house for sale by public tender in a newspaper on 31 July, 2019 to recover the amount owed.

5.	On 10 August, 2019, the appellant filed an Originating Summons in proceeding titled OS No. 543 of 2019 in which the appellant sought certain orders and declarations. The claims in the proceeding were based on ss. 1, 4 (1), 5 (1) and (2), 7 (1) and (2) and 8 (1) of the Fairness of Transaction Act, 1993, in which the appellant among others, claimed the third respondent being a major financial institution had unfair advantage over him in its (third respondent) dealings with him regarding the two loans. The appellant claimed in the preceding that the mortgage agreements were unfair to him and the Demand Notices issued to him were in breach of ss. 1, 4 (1) and 5 (1) and (2) of the Fairness of Transaction Act, thus were null and void. The appellant also claimed that he did not fully appreciate and understand the consequences of the two loan agreements he had entered into, which he claimed the third respondent ignored and failed to appreciate. 

6.	The appellant’s claims were tried in the National Court, and on 1 September, 2022, the claims were dismissed with costs, on party/party basis.

7.	The Notice of Appeal was filed on 21 September, 2023. On 22 September, 2023 the appellant filed a stay application in the Supreme Court before a single judge of the Supreme Court to stay the decision of the National Court. On 29 September, 2023 the single judge of the Supreme Court stayed the National Court Orders “pending the hearing and determination of the appeal”.    

8.	The draft Index to the Appeal Book was filed on 24 June, 2024. However, the Appeal Book has not been filed. 
 
B.	Submissions

(i)	By the Respondents (Applicants)

9.	The respondents submitted that the appellant has not done anything which can show that he took genuine steps to progress the appeal.  For example, the respondents submitted that the appellant failed to serve the draft Index to the Appeal Book on them for their comments before filing it and the appellant failed to obtain a date with the Deputy Registrar of the Supreme Court to settle the Index. This, they argued, has resulted in the Appeal Book not being compiled and filed. The respondents also submitted that the appellant failed to inform them on the progress of the appeal. They argued that the appellant has not given any reasonable explanation for not preparing and filing the Appeal Book. They argued that these are sufficient grounds to dismiss the appeal. The respondents relied among others on the following cases: General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331; PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811; Tulapi v. Alu (2011) SC1177 and Kalinoe v. Paraka (2007) SC874. 

10.	The respondents submitted that in a letter dated 15 February, 2024, they warned the appellant’s lawyers that because of the failure by the appellant to progress the appeal since obtaining the stay orders against the decision of the trial judge, they were going to file an application for the appeal to be dismissed for want of prosecution. In a letter dated 19 February, 2024 the appellant’s lawyers advised the respondents that they would progress and prosecute the appeal. But despite that assurance, the Appeal Book has not been filed.  

11.	The respondents have calculated the periods of delays from filing of the Notice of Appeal to filing and service of Draft Index to Appeal Book to be at least 9 months and the delay between filing of the Notice of Appeal to uplifting the transcript of proceedings was about 7 months.

12.	The transcript of proceedings was uplifted on 10 April, 2024 and the draft Index to Appeal Book was filed on 24 June, 2024, which was a period of another 2 months 2 weeks. 
 
13.	It was submitted that no good and reasonable explanations have been given by the appellant for these delays, which they argued are inordinate. 

14.	The respondents submitted that they were restrained from dealing with the security house by this Court (through a single judge) by the stay order given on 12 August, 2019. They submitted the appellant had used the stay order and took advantage of it to neglect his contractual obligations under the loan agreements to make loan repayments since 3 February, 2020 which the respondents claim was when the appellant made the last loan repayment. 

15.	The respondents submitted that the delays by the appellant in progressing the appeal were intentional and contumelious. Thus, there was blatant disregard by the appellant to honour his obligations under the mortgage agreements. 

16.	The respondents urged the Court to dismiss the appeal for want of prosecution. 

(ii)	By the Appellant (Respondent)

17.	The appellant submitted that exercise of power by the Court under Order 7 Rule 48 of the Supreme Court Rules to dismiss a proceeding for want of prosecution is discretionary, and the power must be exercised properly and judiciously. It was also submitted that the respondents having raised and relied upon delays by the appellant to prosecute the appeal, they have the onus to show that the delays were inordinate and that no reasonable explanation has been given by the appellant for the delays. It was argued that once the respondents discharged the onus, it will then be for the appellant to give reasonable explanations for the delays.  It was submitted that the appeal should only be dismissed if the delays are inordinate for which no reasonable explanation had been given by the appellant. The delays should be intentional to amount to the conduct of the appellant being contumelious. Following cases were relied upon among others by the appellant: The State v. Kikala [2023] PGSC 15; Sc355; General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd (supra); Norr v. Ikamata [2005] PGSC 13; SC815; Mann v. Alpar Trading Ltd [2014] PGSC 56; SC132; PNG Power Ltd v. Yakupa [2019] PGSC 29; SC1801 and Girl Guides Association of Papua New Guinea v. Kamong [2022] PGSC 61; SC2255. The appellant submitted that he has given reasonable explanations for the delays, therefore the appeal should not be dismissed.

Consideration

18.	The Order 7 Rule 48 (a) of the Supreme Court Rules 2012 (as amended), pursuant to which this Application is made is in these terms: 
  
# Division 19-Time and want of prosecution

48.	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 or a Judge 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.

19.	I accept submissions by the appellant that I have discretion whether to dismiss the appeal or not, and the discretion must be exercised properly and judiciously. It is important in this regard, to note that there is no dispute that the Appeal Book has not been filed. Furthermore, the number of delays and the periods of those delays which the respondents highlighted and relied upon for this application have not been seriously denied.  There is indeed evidence that they are inordinate delays by the appellant in progressing the appeal. 

20.	The question then is whether the appellant has given reasonable explanations for those inordinate delays. 

21.	It appears to me that, by way of explanations for the delays the appellant has referred to his lawyer ceasing to act for him, questionable loan fees being imposed on him by the respondents and delays in obtaining the transcript of the National Court proceedings, as reasons or a part of the reasons for not progressing the appeal. 

22.	In exercising my discretion under Order 7 Rule 48 of the Supreme Court Rules, I can either order summary dismissal of the appeal under Order 7 Rule 48 (a) or order dismissal of the appeal upon non-compliance with conditions I may impose under Order 7 Rule 48 (b) of the Supreme Court Rules. 

23.	In exercising my discretion on whether I should dismiss the appeal summarily under Order 7 Rule 48 (a) or dismiss the appeal upon non-compliance of a condition I may impose under Order 7 Rule 48 (b), I must be guided by the merits of the case, which includes submissions by counsel and other materials before the Court. Thus, having regard to all the materials before me, I have come to an inescapable conclusion that the appeal should be dismissed summarily for want of prosecution under Order 7 Rule 48 (a). In reaching this decision, I have considered the following pertinent factors: -

(i)	The appellant has not filed the Appeal Book, this is fatal to the appeal. I find that the reasons given by the appellant for not filing the Appeal Book are unreasonable and inadequate. 
(ii)	The fact that the appellant’s lawyer had ceased to act for him is not a good and reasonable excuse for not filing the Appeal Book. If he was having difficulty in compiling the Appeal Book, including transcript not being ready, he should have gone to the Court and applied for an extension of time. He failed to avail himself to such an avenue.

(iii)	The fact that he had taken out a stay order against the orders of the National Court, was in my view an added reason for him to prepare and file the Appeal Book diligently and progress the appeal to hearing. 

(iv) 	According to the respondents, the appellant has not made any loan repayments since early 2020. This is not denied by the appellant. That was a continuing breach of the loan agreements he has agreed to and signed. There is no explanation given by the appellant for not honouring the terms of the loan agreements which are binding on him. 

24.	For these reasons, I order that the appeal be dismissed forthwith for want of prosecution.

25.	The appellant shall pay the respondents’ costs of and incidental to the Application, which shall be taxed, if not otherwise agreed.

Orders accordingly.

The Appellant in Person 
Credit Corporation In-House Lawyers: Lawyers for the Respondents