N5482
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CIA NO 5 0F 2007

URON SALUM
First Appellant

MATUPI INVESTMENT LTD
Second Appellant

V

TOROKINA CORPORATION LTD
Respondent

Madang: Cannings J
2007: 5, 12 October

MOTION TO STRIKE OUT APPEAL – want of prosecution – relevant considerations to exercise of discretion – whether there has been apparent delay in prosecuting appeal – whether appellant has provided adequate explanation – decision.

The appellants appealed against a District Court ejectment order. They filed the notice of appeal eight days after the District Court decision and filed an entry of appeal the following day but took no other steps to prosecute the appeal in the next nine months. The respondent filed a motion to strike out the appeal for want of prosecution. 

Held:

(1)	There had been a substantial delay in prosecuting the appeal. After more than ten months, the appeal book has not been settled.

(2)	The onus therefore was on the appellant to give a satisfactory explanation for the delay. No satisfactory explanation was given. It is no excuse to say that nothing could be done after the motion to dismiss the appeal was filed. 

(3)	It is incumbent on a party invoking the jurisdiction of the National Court by appeal or review or in any other way to be proactive in getting the matter ready to go before the court.

(4)	The appellant was guilty of inordinate delay, including allowing six months to pass since the respondent moved the court to dismiss the appeal for want of prosecution.

(5)	The motion to dismiss the appeal for want of prosecution was accordingly granted and the entire proceedings dismissed.

Cases cited

The following cases are cited in the judgment:

Dan Kakaraya v Sir Michael Somare (2004) SC762
Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691

MOTION

This was a motion for dismissal on the ground of want of prosecution.

Counsel

B Meten, for the appellant
T M Ilaisa, for the respondent

12th October, 2007 

1. CANNINGS J: This is a ruling on a motion to dismiss an appeal from a decision of the District Court for want of prosecution. Uron Salum and Matupi Investment Ltd appealed against a District Court ejectment order. They filed the notice of appeal eight days after the District Court decision and filed an entry of appeal the following day but took no other steps to prosecute the appeal in the next nine months. The respondent to the appeal, Torokina Corporation Ltd, wants the appeal dismissed.

2. The background is that in 2005 Torokina purchased a parcel of State land called Matupi Plantation, of 200 hectares, and entered into an arrangement with the traditional owners of the land that about 120-130 hectares of the plantation would be returned to the traditional owners, ie Torokina would actually only use about 70-80 hectares. The first appellant, Uron Salum, had been living in the plantation manager's residence for a number of years and took the view that the area of land on which the residence stood was included in the area of land that Torokina agreed to return to the traditional landowners, including him. Torokina took a different view and wanted to occupy the manager's residence. A dispute arose between Mr Salum and Torokina about the right to occupy the residence. The dispute went to the District Court when Torokina brought ejectment proceedings. Those proceedings were successful and the District Court made an order on 3 January 2007 giving Mr Salum 14 days to vacate the residence.

THE ISSUES

3. When hearing a motion to dismiss proceedings for want of prosecution, the court must at the outset focus on two sorts of facts.

4. The first is dates and passage of time. Five dates stand out here:

•	3 January 2007: date of the District Court decision under appeal.

•	11 January 2007: date of filing notice of appeal.

•	12 January 2007: date of filing of entry of appeal to National Court.

•	14 March 2007: date of filing of motion for dismissal of appeal.

•	5 October 2007: date of hearing the motion.

5. That means:

•	Two months passed between when the appeal was instituted and Torokina filed its motion to dismiss;

•	More than six months have passed since Torokina filed its motion to dismiss;

•	It is now nine months since the appeal was instituted.

6. The second sort of facts to focus on is: what is the status of the case? It appears that nothing of substance has been done by the appellants since they purported to enter the appeal on 12 January 2007. The District Court depositions have not been obtained. The magistrate's reasons for decision have not been obtained. No directions to hear or status conference has been organised. No appeal book is in place.

7. In any motion for dismissal on the ground of want of prosecution, two basic issues have to be addressed. First, has there been an apparent delay in prosecuting the matter? If yes, does the person, apparently guilty of the delay have a satisfactory explanation for the delay? (Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691; Dan Kakaraya v Sir Michael Somare (2004) SC762). Mr Meten, for the appellants, concedes there has been a delay, but argues that there is a satisfactory explanation. That is the only contentious issue to determine.

IS THERE A SATISFACTORY EXPLANATION FOR THE DELAY?

8. Mr Meten submits that there is:

1	The appellants have a strong case – the manager's residence is not part of the 70 hectares that Torokina agreed to retain.

2	The interests of justice require that the appeal not be dismissed.

3	Torokina would not be prejudiced as the appellants can be directed to expedite the hearing of the appeal.

4	The National Court has not been sitting much in Madang, so the appeal could not be heard anyway.

5	The appellants' hands were tied once the motion to dismiss was filed.

9. As to 1, 2 and 3 Mr Meten has invited me to assess the merits of the appeal. I tend to think that in determining an application to dismiss for want of prosecution the court should not consider the merits of the appeal but if I am wrong on that point, I point out that I have considered the points raised by Mr Meten. I can only conclude on the basis of the documents on the court's file that the issue of whether the manager's residence is within the 70 hectares is an arguable and controversial point. It is not a clear and unarguable point – and it has not been raised as a ground of appeal. Therefore those reasons are not convincing at all.

10. As to 4, the fact that the court has been sitting only sporadically is not a good reason for not getting the appeal ready.

11. As to 5, the filing of the notice of motion for dismissal did not prevent the appellants taking action to expedite the hearing of the appeal. On the contrary, it should have been a clear signal to the appellants and their lawyers to get the case moving. What an appellant does after a motion to dismiss for want of prosecution is filed, is critical. The appellants could have easily repelled this motion.

12. I conclude that the appellants and their lawyers have sat on this appeal and have provided no satisfactory explanation for the delay, which is now nine months, in prosecuting its appeal. Torokina's motion will be granted.

ORDER

(1)	the motion for dismissal is granted;

(2)	the whole of the appeal is dismissed;

(3)	the District Court order of 3 January 2007 is varied, to allow the appellants a further 14 days from today to deliver peaceful possession of the manager's residence at Matupi Plantation to Torokina Corporation Ltd.

Judgment accordingly.
_________________________________________________________
Okuk Lawyers: Lawyers for the Appellant 
Thomas More Ilaisa Lawyers: Lawyers for the Respondent