Ageva v Gaigo and Resena [1986] PNGLR 160 (1 August 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 160 - Arthur Ageva v Bobby Gaigo and Madaha Resena 

[1986] PNGLR 160

SC327

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ARTHUR AGEVA

V

BOBBY GAIGO

AND MADAHA RESENA

Waigani

Amet J

22 July 1986

1 August 1986

APPEAL - Appeal from Land Titles Commission - No statutory provisions regulating procedure - Conduct of appeal in accordance with justice and commonsense - Appellant to take steps reasonably practicable for expedition - Directions should be sought where necessary - Land Titles Commission Act 1962, s 38.

APPEAL - Practice - Striking out for want of prosecution - Undue delay in prosecuting appeal - Appeal from Land Titles Commission - No statutory provision regulating delay - Powers of Supreme Court applicable - Relevant conditions - Appeal dismissed.

REAL PROPERTY - Land Titles - Appeals from Land Titles Commission - Practice and procedure on - Dismissal for want of prosecution.

The Land Titles Commission Act 1962, s 38, provides for an appeal from a decision of the Land Titles Commission by “a person aggrieved by a decision of the Commission” to the National Court within ninety (90) days. Other than provision for the powers of the National Court on the appeal there are no rules or regulations relating to the practice and procedure to be followed on such appeals.

On an application by a respondent to an appeal from the Land Titles Commission for dismissal of an appeal for want of prosecution,

Held

(1)      In the absence of any statutory provision regulating the practice and procedure on appeals from the Land Titles Commission, the court should entertain the appeal as justice and commonsense demand.

Copland v Bourke [1963] P&NGLR 45, followed.

(2)      Justice and commonsense requires the appellant to take such steps as are reasonably practicable in the circumstances, and, on questions of reasonable time, the times prescribed in existing provisions relating to other appeals to the National Court may be taken into consideration.

Copland v Bourke [1963] P&NGLR 45, followed.

(3)      Where any reasonable doubt arises as to the procedures to be followed, the party wishing to appeal should apply to a Judge for directions.

Copland v Bourke [1963] P&NGLR 45, followed.

(4)      On an application to dismiss such an appeal for want of prosecution, the principles applied by the Supreme Court in respect of appeals to it from the National Court are to be applied.

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148 and Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55, considered.

(5)      In the circumstances the applicant to dismiss had established a prima facie case of delay but the respondent had not established a satisfactory explanation for the delay of twelve months in setting the appeal down for hearing, which was undue and unreasonable in all the circumstances and the appeal ought to be dismissed.

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148, and Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55, applied.

Cases Cited

Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55.

Copland v Bourke [1963] P&NGLR 45.

Tenge Kai Ulo v Acting Public Prosecutor; Joe Kovea Malai v Acting Public Prosecutor; Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume [1981] PNGLR 148.

Application

This was an application by the respondent to an appeal from the Land Titles Commission to dismiss the appeal for want of prosecution.

Editor’s Note

On appeal to the Supreme Court, the decision herein was upheld.

Counsel

B Narakobi, for the respondent appellant.

I Shepherd, for the applicant respondent.

Cur adv vult

1 August 1986

AMET J: This is an application by the respondents that the appeal be dismissed for want of prosecution.

This land dispute otherwise commonly known as “Fisherman’s Island Land Case” has a long and protracted history going back to over twenty (20) years ago. It is not relevant nor necessary for me to restate it for the purposes of this application. Sufficient for the purposes of this application is the more recent chronology of events extracted from the decision of Chief Land Titles Commissioner, Mr Theodore Miriung. The Land Titles Commission opened the rehearing of the dispute over ownership of the island on 29 March 1982 before the then Chief Commissioner, Mr Luke Lucas and was thereafter adjourned. It resumed before the new Chief Commissioner, Mr Miriung on 26 March 1984 and concluded on 1 November 1984. The Chief Commissioner handed down a written decision on 18 April 1985. The appellant filed a notice of appeal, dated 16 July 1985, with the National Court Registry on 18 July 1985.

Mr Ian Shepherd was instructed by the respondents in or about July 1985. On 5 August 1985 he filed a notice of appearance on behalf of the first respondent and deposed to serving the appellants’ lawyer with a sealed copy thereof. On 19 August 1985, Mr Shepherd filed a notice of appearance on behalf of the second defendant and again deposed to serving the appellants’ lawyer with a sealed copy of same. Mr Shepherd, in his affidavit filed in support of the application, further deposed that he spoke to the appellants’ lawyer, Mr Narakobi concerning this matter, once, in or about August 1985 and that he had received no correspondence from either Mr Narakobi, or the appellant in person in relation to the appeal. On 3 June 1986, Mr Shepherd enquired by letter of the Registrar of the National Court if the transcript of the Land Titles Commission hearing had yet been forwarded to the National Court Registry. On 10 June 1986 the Acting Registrar replied that no transcript of the hearing had yet been supplied to the National Court Registry. On 20 June 1986, Mr Shepherd, by letter advised the Chief Commissioner of the dates that the notice of appeal and the notices of appearances were filed and the advice from the National Court Registrar that no transcript had yet been received by the Registry and enquired as to the progress in the preparation of the transcript. On 24 June 1986, Commissioner Oliver advised Mr Shepherd by letter that an examination of the Commission’s file on the matter indicated no copy of the notice of appeal was lodged with the Commission’s Office, nor any notice of appearance, and consequently no transcript of the proceedings was prepared for the National Court.

The respondents contended that the appellant had:

(a)      failed to notify the Land Titles Commission of the appeal;

(b)      failed to enter the appeal for hearing within twenty eight (28) days of 16 July 1985; and

(c)      failed to prepare the appeal book as soon as practical after 16 July 1985.

And consequently, the respondents submitted, the appeal should be dismissed for want of prosecution for the following reasons:

(a)      The length of the delay in setting the appeal down for trial is now twelve (12) months;

(b)      The reasons for the delay are the appellant’s failure to notify the Land Titles Commission of the appeal and his lack of endeavour generally;

(c)      There have been no negotiations for agreement between the parties and, in fact, no contact, verbal or written, since August 1985;

(d)      The transcript of the Land Titles Commission hearing has not been prepared or delivered to the National Court Registry because of the appellant’s failure to notify the Commission of the appeal and appellant’s lack of endeavour generally.

The appellant has contended that after filing of the notice of appeal, a copy of it was served on the Commission’s office by one Rei Geita. He deposed to this fact in his affidavit. Mr Narakobi, lawyer for the appellant deposed to overlooking the necessity of filing any other formal document such as an entry of appeal, recognisance to prosecute the appeal or setting appeal down for hearing. However he contended that in fact there are no set procedures for appeals from the Land Titles Commission. Mr Narakobi further deposed that the delays were not deliberate, but due to difficulties he had in arranging suitable times to set civil matters down for hearing. The main reason for the delay in setting down the matter for hearing related to his uncertainty as to the correct parties giving instructions to him as appellants. In reply to the respondents’ contentions which were admitted, as to the appellant’s failure, to enter the appeal for hearing, or of filing the appeal book, Mr Narakobi deposed that the reasons for not attending to those matters were solely related to his uncertainty as to whether he was still being instructed by Arthur Ageva or whether Arthur Ageva wished to instruct another lawyer. Mr Narakobi deposed that there had been no deliberate delays or attempt to delay prosecution of the appeal.

These are the factual situations as I accept them; that the Chief Commissioner handed down his decision on 18 April 1985, the appellant filed the notice of appeal on 18 July 1985 and served a copy on the office of the Commission. The first and second respondents filed their respective notices of appearance on 5 and 19 August 1985 respectively. No other action was taken subsequent thereto until motion for this application was filed on 14 July 1986.

What then are the statutory provisions for appeal from the decision of the Land Titles Commission. Section 38 of the Land Titles Commission Act 1962 provides for the right of appeal by “a person aggrieved by a decision of the Commission” to the Supreme Court within ninety (90) days. The reference to the Supreme Court now of course refers to the National Court. The ninety (90) days runs from the date on which the written final decision is delivered or handed down by the Commission. Section 38A(1) provides for the powers of the Court on appeal, which are that it may require the Commission to furnish to it:

(a)      The record of the evidence taken by the Commission;

(b)      Copies of all documents before the Commission;

(c)      The record of any inquiries or investigations...; and

(d)      The reasons for the decision,

certified as correct by the Commission.

Section 38A(2) and s 38A(3) provide further powers of the National Court upon the hearing of the appeal.

Section 38B provides that at any stage of any hearing or proceeding before the Commission or the National Court the parties may agree to a settlement of the matter, upon such terms and conditions as are agreed upon.

Other than these there are no provisions relating to the practice and procedure to be followed in respect of appeals to the National Court. There is also no reference as to whether other rules, such as the Local, District, National or Supreme Court appeal rules might apply to an appeal from a decision of the Commission.

In this vacuum, Mr Shepherd of counsel for the applicant/respondents has relied principally on the Supreme Court Rules. These rules of course regulate the practice and procedure of appeals or references before the Supreme Court and so to that extent the precise terms of the various rules relied upon do not apply to this application, which is in relation to an appeal before the National Court. I do not say, however, that the general principles enunciated upon those rules do not have general application to analogous situations or circumstances.

The fact that there are no rules or regulations specifically stipulated to regulate such appeals are not novel, as was one such case in Copland v Bourke [1963] P&NGLR 45, where no rules of the Supreme Court were made regulating appeals under s 22 of the Workers Compensation Ordinance 1951, to the then Supreme Court (National Court). Ollerenshaw J held (at 46) that “the right of appeal exists notwithstanding the absence of the contemplated procedural machinery and that the Court of Appeal should entertain appeals ‘... as justice and commonsense demand’”. His Honour continued at 47:

“In my view an Appellant should take such steps as are reasonably practicable in the circumstances and, in questions of reasonable time, the times prescribed in existing provisions relating to other appeals to the Supreme Court (National Court) may be taken into consideration.

In cases of special difficulty, or, where a reasonable doubt arises, a party desiring to exercise the right of appeal should apply to a Judge for directions.”

In that case the following explanations for the delay of fifteen (15) months, from the filing of the notice of appeal to the hearing, were advanced:

(a)      difficulties in locating and communicating with client;

(b)      since instructions no further steps from December 1960 to November 1961, because of pressure of work and inadvertence.

His Honour continued at 47:

“... This latter contribution to his explanation is unusual, unconvincing and unacceptable.

In my view, and speaking generally, it would be contrary to ‘justice and commonsense’ to allow an appellant to proceed with an appeal after such unreasonable delay.”

The applicants also placed considerable reliance on three applications of similar nature before the Supreme Court in respect of appeals from the National Court to the Supreme Court. These were three separate Supreme Court Appeals, but were heard together because the principles applicable were the same. These were Tenge Kai Ulo v Acting Public Prosecutor; Joe Kovea Malai v Acting Public Prosecutor; Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume [1981] PNGLR 148. It was held that the Supreme Court has an inherent jurisdiction to dismiss appeals for want of prosecution where there is undue delay, what constitutes undue delay depends on the circumstances of each case, and that the onus is on the applicant to dismiss to establish a prima facie case of delay and the onus then shifts to the respondent to the application to give a satisfactory explanation for the delay. (Emphasis mine.)

Kapi J suggested a number of factors to be taken into account in determining whether there was undue delay or whether satisfactory explanation for the delay had been established. These were:

(1)      Mechanics of producing appeal book, typing, compilation of appeal book and shortage of staff;

(2)      Availability of reasons and transcript of evidence;

(3)      No attempt by the appellant to get appeal ready for hearing.

In Burns Philp (New Guinea) Ltd v Maxine George [1983] PNGLR 55, it was held by the Supreme Court that:

(1)      The power to dismiss for want of prosecution remains discretionary;

(2)      The discretion is to be exercised having regard to all the circumstances including, inter alia;

(a)      The length of and reasons for delay on appellant’s part;

(b)      The extent evidence likely to be adduced may lose cogency;

(c)      The availability of transcript; and

(d)      Any negotiations between parties.

Applying these principles then to the accepted facts of this application, I am more than satisfied that a prima facie case has been made out by the applicants for the appeal to be dismissed for want of prosecution on the basis of undue delay. The onus then shifts to the appellant to satisfactorily explain the reasons for the delay in setting down the appeal for hearing.

It is true and I accept and take into account the fact that the Land Titles Commission Act does not contain nor make reference to any rules or regulations which govern the practice and procedure on appeals to the National Court. I adopt however, remarks of Ollerenshaw J in Copland v Bourke (at 47) that “an appellant should take such steps as are reasonably practicable in the circumstances and, in questions of reasonable time, the times prescribed in existing provisions relating to other appeals to the [National] Court may be taken into consideration”. The Local Court, District Court, National Court and Supreme Court Rules should have been used as guidelines of general time frames. Again in Ollerenshaw J’s words, (at 47):

“Where a reasonable doubt arises, the party desiring to exercise the right of appeal should apply to a Judge for directions.”

In the circumstances of the lack of procedural machinery for the processing of appeal formalities I do not consider that the failure to file entry of appeal for hearing, recognisance to prosecute the appeal and of setting the matter down for hearing is fatal. Additionally there would appear to have been some misunderstanding as to who was to obtain or supply the transcript of the Commission’s hearing for the preparation and compilation of the appeal book. To this end I accept the affidavit of Rei Geita that he did serve a copy of the notice of appeal on an employee of the Commission’s Office, though I accept also that there is no such copy of the notice of appeal on the file nor was such a notice ever brought to the attention of the Chief Commissioner, Miriung. Notwithstanding this, I am not satisfied that the appellant had taken such other steps as were reasonably practicable in the circumstances. Such steps I consider would have been to make enquiries with the Commission’s office and the National Court Registry as to who was to obtain the transcript of the evidence and the proceedings. No such enquiries were made in the period of twelve (12) months. If there were continued difficulties or uncertainty, then an application ought to have been made, at the earliest opportunity within the twelve (12) months, to a Judge of the National Court for directions. None of these steps were taken.

Mr Narakobi also in pars six (6) and seven (7) of his affidavit advanced the following as reasons for the delay:

“6.      I say that the delays have not been deliberate, only that I have had difficulties in arranging suitable times to set civil matters down for hearing.

7.       The main reason for my delay in setting this matter down for hearing relates to my uncertainty as to the personalities, clans and individuals actually involved in Roku village; and in giving me instructions.”

Well, all that I can say about this is that par six (6) rather begs the question. The appeal was not even in any state of readiness for Mr Narakobi to have had any difficulty in arranging a suitable time to set it down for hearing, the appeal book had not been compiled. The transcript had not been obtained, even to the date of this judgment, so that it could not possibly have been set down in any case. As to par seven (7), I just do not accept that it would have taken twelve months to have sorted out the correct parties and come to an agreement.

In the words of Ollerenshaw J, again this explanation is “unconvincing and unacceptable”. I find that the appellant through his lawyers has not been diligent in prosecuting this appeal, and has not made real and genuine attempts in the twelve (12) months to get the appeal ready for hearing. The decision was given to the parties when it was handed down — no real attempt was made to obtain the transcript of evidence and relevant documents before the Commission. No attempt was made by the appellant to negotiate any settlement as was a factor considered in Burns Philp (New Guinea) Ltd v Maxine George.

In the end result the question remains, has the respondent to this application established a satisfactory explanation for the delay of the period of twelve (12) months in setting down this appeal for hearing. I find all the explanations unsatisfactory and thus consider that the long delay was undue and unreasonable in all the circumstances. Aggrieved persons who appeal against any decision have an obligation to prosecute that appeal expeditiously so that the respondent who had been successful below is not unduly and unreasonably denied the benefits of a judgment in his or her favour. Adopting again the remarks of Ollerenshaw J, “in my view, and speaking generally, it would be contrary to ‘justice and commonsense’ to allow an appellant to proceed with an appeal after such unreasonable delay”.

In the end result, I uphold the application and dismiss this appeal for want of prosecution for the reasons of undue delay.

I order the respondent/appellant to pay the applicant/respondents costs of this application.

Appeal dismissed for want of prosecution

Lawyer for the appellant: Narakobi and Company.

Lawyer for the respondent: I Shepherd.