N8647
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 109 OF 2017

BETWEEN:
MAKOP TEPOKA
Appellant

AND:
ABOL PAUL PARAKA
Respondent

Waigani: Miviri J
2020: 24th September, 18th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal from District Court – notice of motion – Order 18 Rule 12 (4) (a) (i) & Order 4 Rule 36 & Order 12 Rule 40 (1) (c) NCR – incompetent out of time – Dismissal – Material relied sufficient – Balance discharged – Appeal dismissed – cost in the cause.

Cases Cited:

Aihi v The State (No 1) [1981] PNGLR 81 
Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346 
Rabaul Shipping Ltd v Ruru [2000] PGNC 74; N2022 
Takori v Yagari [2007] PGSC 48; SC 905
Counsel:

J. Issac, for Appellant
R. Obora, for Respondents
					RULING 
18th November, 2020
1.	MIVIRI, J: This is the ruling on the Respondents notice of motion dated the 22nd July 2019 pursuant to Order 18 Rule 12 (4) (a) (i) and Order 4 Rule 36 of the National Court Rules seeking dismissal of the entire proceedings for want of prosecution. Alternatively, pursuant to Order 12 Rule 40 (1) (c) of the National Court Rules also for dismissal. And Costs be awarded to the Respondents and any other orders that court may make considering.

2.	This is the jurisdictional basis upon which summary determination of an appeal can eventuate. And includes where there is default as to the conduct of the proceedings or the proceedings are not prosecuted with due despatch the Court may dismiss the proceedings. And this is the contention of the respondent that the appellant has not demonstrated due despatch in the prosecution of the appeal he has instituted. Because it is from a decision that was made by the District Court on the 22nd August 2017. And as at the date of the motion it would have been three years since without any material to evidence any real and genuine effort to bring the matter to a hearing and finality in the matter. 

3.	Reliance is placed on his own affidavit of 10th May 2019 and where he deposes that on the 10th October 2017 the appellant filed the Notice of Appeal challenging the decision of the Port Moresby District Court of the 22nd August 2017. On the 05th December 2017 notice of intention to defend was entered by his lawyers Raymond Obora which were served on the appellant. By that affidavit he swears and says one year and six months since that filing and service the appellant has not taken any active step to progress the matter to hearing and final determination. The appellant has therefore in all respects unreasonably delayed the prosecution of this appeal. As sitting tenant on the subject land in question the respondent is affected by the delay. And that the delay is inordinate and there is no good reason for it. This includes time to set down the appeal for hearing has elapsed.

4.	In response Justin Issac lawyer for the appellant by affidavit sworn 04th September 2019 and filed the 06th September 2019 deposed that the appellant was the complainant in IPO No 57 of the 2017 applying for an interim Protection Order against the defendant. The District Court upheld and made several orders on the 22nd August 2017 annexure “A” is the orders that were made by the District Court basically preserving status quo in the matter between the parties which were not in the best interest of the appellant because the property subject of the proceedings belonged to the appellant but the defendant was asked to be care taker who turned around and wanted to take over the ownership of the property. 

5.	On the 21st September 2017 Appellant sought to set aside that order unsuccessfully before the District Court and annexure “B” is that order emanating. Being aggrieved the appellant has lodged this appeal. This is a district Court matter on appeal to the National Court and the empowering provision is section 220 of that Act which significantly sets that the institution of the appeal is within one month or 30 days after the date in which the decision is pronounced (Institution of Appeal District Courts Act 1963). 

6.	Here the decision was handed down on the 22nd August 2017 and that he lodged his appeal on the 21st September 2017. Calculating from the date of the decision the appeal would have been filed within time allowed by the 03rd September 2017 because that is the last date for the 30 days allowed. He is therefore out of time by nine (9) days. This is clear non-compliance of the law which effect is that the appeal is not before this Court: Rabaul Shipping Ltd v Ruru [2000] PGNC 74; N2022 (8 December 2000. Non-compliance of the District Court Act in the institution of an appeal is strict and therefore the right of appeal under section 220 of the District Courts Act was operational until the expiration of the 30 days. When that ceased as here he is required to justify by material properly pleaded and placed before the court as to why he should be given leave or permission to argue his appeal even outside of the 30 days allowed. That is the law Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981). 

7.	And no material has been filed for leave to bring it out of time into court by section 155 (4) of the Constitution and within Avia Aihi (supra) which has been followed in many other decisions including Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346 (1 September 1989). Primarily it must be demonstrated by material properly filed before the court that there are cogent and convincing reasons for so opening even in the face of clear evidence as here that there has been a breach in adhering to time limitations imposed by section 220 of the Act. 

8.	Here the proceeding instituted emanates from a claim in property. And as set out above there are orders that have emanated. And which orders are now binding upon the parties because the appeal is now fruitless against it. The appellant and the respondent are bound by the orders that the District Court issued there and then in the light of the fact now clear that the appeal is not holding in favour of the appellant.

9.	But dismissal ultimately denotes that the litigant is derailed from the judgment seat, here the appellant. But is the evidence relied such that there is room to save the action as it were, in my view there is nothing that beats the balance to avoid the impending. It is very clear that the appellant had failed to come within time to file his appeal. The court is slow but must protect its process and integrity by proper case demonstrated: Takori v Yagari [2007] PGSC 48; SC 905 (28th February 2007), where it was held:
“Our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.” 
10.	On the material before me I am not swayed on its strength that there is reason identifiable or apparent in favour that the motion should be denied as pleaded by the respondent. Rather the contrary has been discharged on the balance of preponderance against the appellant that the motion discharges that balance and accordingly it is granted in the terms as pleaded.

11.	The orders of the court are therefore: 

(i)	The appeal is dismissed in its entirety as it is out of time by Section 220 of the District Courts Act.
  
(ii)	The appeal is dismissed pursuant to Order 18 Rule 12 (4) (a) (i) and Order 4 Rule 36 and Order 12 Rule 40 (1) (c) of the National Court Rules as an abuse of process and incompetent for non-compliance of the District Courts Act.

12.	Costs will follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
Lawama Lawyers   		: Lawyer for the Plaintiff/Applicant		
Raymond Obora Lawyers 	: Lawyer for the Defendant