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Koekoe v Koekoe [2011] PGNC 195; N4504 (8 July 2011)

N4504

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 146 OF 2008

BETWEEN:

GEORGE KOKOE
Appellant

AND:

ROSELYN DARINA KOKOE
Respondent

Kundiawa: Kangwia, AJ
2011: 8 July

PRACTICE AND PROCEDURE – District Court Appeal – Non compliance with requirements of appeal – Non compliance with Directions of Court – No steps taken to prosecute appeal - Inordinate delay to prosecute appeal – Substantial prejudice to Respondent – Appeal dismissed with costs.

Cases cited:

Viviso Seravo v Jack Bahafo (2001) N2078

Counsel:

No appearance for the Appellant
J. Kilage, for the Respondent

8 July, 2011

1. KANGWIA, AJ: The Respondent applied for Orders that the appeal lodged by the Appellant be dismissed for want of prosecution pursuant to Order 4 Rule 36 of the National Court Rules. In support of the application the Respondent relied on her own affidavit dated 14 September 2010 and a supplementary affidavit dated 14th September 2010.

2. The facts discerned from the information before me show that the respondent commenced maintenance proceedings under the Deserted Wives and Children's Act at the Kundiawa District Court. During the hearing the appellant moved for orders to strike out the proceedings for alleged duplicity and related concerns. The District Court's refusal of the Motion triggered this appeal in this Court.

3. Appeals from decisions of the District Court are guided by the provisions under part XI of the District Courts Act Chapter 40 where section 219 provides:

219. Appeal to National Court.

(1.) Subject to Subsection (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information of complaint, may appeal to the National Court from the Conviction, order or adjudication, in accordance with this part.

4. In this case the Appellant has appealed against a decision of the District Court refusing his Motion during the proceedings.

5. Most requirements for an appeal under part XI of the District Court Act have been adequately met by the Appellant. He filed his Notice of Appeal, the Recognizance of appeal and the Entry of appeal to the National Court all on the same day 11 September 2008.

6. Since the service of these requisite documents filed on the respondent on 11 September 2008 the Appellant has taken no further steps to actually prosecute his appeal.

7. The Court notations show that since this matter first came before the Court on 12 October 2009 till now, the Appellant made no appearance. Directions issued by the Court were not complied with. An appeal book from which submissions could be launched has not been filed despite displaying a purported appeal book by the Appellant in Court on 9 October 2008. The Respondent seeks to invoke the Courts discretion under Order 4 Rule 36 (1) of the National Court Rules which state as follows:

36. Want of Prosecution. (5/12)

(1) Where a plaintiff makes default in Complying with any order or direction as to the

conduct of the proceedings, or does not prosecute the proceedings with due

despatch, the Court may stay or dismiss the proceedings.

8. On behalf of the Respondent Ms. Kilage correctly referred the Court to the Law relating to dismissal for want of prosecution in Viviso Seravo v Jack Bahafo (2001) N 2078 where Kandakasi J held that:

" It is now clear Law especially in the Context of Order 10 Rule 5 of the National Court Rules that an application for a dismissal of proceedings for want of prosecution may be granted if:

1. The plaintiff's default is intentional or is allowing for an inordinate and

Inexcusable delay in a prosecution of his claim;

2. There is no reasonable explanation given by the plaintiff for the delay; and

3. That the delay has caused injuries or prejudice to the Defendant.

9. In the present case the appellant filed all required documents on 11 September 2008 except the appeal book. Despite not filing an appeal book the appellant has failed to invoke the Courts inherent discretion to hear him out.

10. There is a clear indication from the non appearance in Court on numerous times, to the inactivity on his appeal since filing his notice to set down for Trial on 11th September 2008, that he intentionally delayed the prosecution of the appeal. I am satisfied there is inordinate delay in the prosecution of the appeal.

11. The grounds upon which the appeal was founded seems wanting in substance and clarity. They are in my view proposed with a clear intention to frustrate any substantive claim against him for maintenance in the District Court.

12. These all culminate at great prejudice to the Respondent in inconvenience, hardship, time and expenses. On the back of a broken marriage with a number of children to fend for, the prejudice to the Respondent is in my view substantial. The application to dismiss for want of prosecution has been made out and I must grant it with costs on a Solicitor client basis.

13. I find that the delay has been 2 months short of 3 years from the orders in the District Court the subject of the appeal. The delay was caused by the appellants' failure to prosecute his appeal. Had no appeal been filed or appeal prosecuted in good time the chances of the Respondent seeking maintenance orders for herself and her children would have proceeded to finality in good time at less expense. It does seem for belated now owing to what has been shown to be a deliberate act by the Appellant to frustrate Court proceedings from being taken against him.

14. In the exercise of the inherent powers of this Court under section 155 of the Constitution I make further orders that any proceedings commenced and Orders made in the District Court shall be back dated to the date the claims were originally launched in the District Court.

15. The formal Orders of this Court are:

1. The appeal filed on 11th September 2008 is dismissed for want of prosecution with costs to the Respondent, on a Solicitor client basis.

2. The Respondent is at liberty to reactivate her claim for maintenance in the District Court, such claim to commence from the date the original claim for desertion and maintenance arose in the District Court.
________________________________________________

No appearance for Appellant
Warner Shand Lawyers: Lawyers for the Respondent