N8685
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (APP) NO. 435 OF 2019

BETWEEN:
ERE KARIKO (Jnr)
Appellant

AND:
SHIRLEY MORABANG
Respondent

Waigani: Miviri J
2020: 05th November

PRACTISE & PROCEEDURE –Judicial Review & appeals – Appeal – Application for Dismissal – Want of Prosecution – Order 10 Rule 5 & Order 4 Rule 36 (1) NCR – Maintenance orders – No reasons why appeal prosecuted – Appellant out of time leave granted to appeal –No Substantial reasons demonstrated – Overall interest of Justice – Discretionary – Balance discharged – Dismissal of appeal – cost follow event.

Cases Cited:

Duque v Paru [1996] PGSC 17; [1997] PNGLR 378 (18 October 1996).
Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). 
Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020),  
Counsel:

I. Dalu, for Plaintiff
L. Ipato, for Respondent

					RULING 
 07th December, 2020
1.	MIVIRI, J: This is the ruling of an application made by the Respondent by amended notice of motion of the 28th October 2020 to dismiss the appeal for want of prosecution pursuant to Order 10 Rule 5 and Order 4 rule 36 (1) of the National Court Rules.

2.	Order 10 Rule 5 basically provides for discretions on dismissal of the proceedings as here should there be failure after closure of pleadings in setting the matter down for trial. In plain the proceedings were the subject of leave to file appeal out of time. Leave was granted and appeal was filed out of time on the 25th July 2019. No doubt he was in dire need to be heard even though he was out of time because the justice of the case warranted granting of leave to file appeal out of time. That was a year ago from today 07th December 2020. It is almost a year and five months and the appellant after putting stop to the decision of the District Court sort to leisure away whilst the subject of the proceedings has been made to dwell at his will.

3.	Order 4 Rule 36 (1) is where default has been made by the plaintiff in an order or direction as to the conduct of the proceedings liberty is granted application to be made to either stay or dismiss the proceedings. 

4.	In support of her application the respondent has sworn an affidavit dated the 21st October 2020 and filed the 28th October 2020 which was served on the respondent on the 03rd November 2020 by Lawyer Livai Ipato, an affidavit sworn as of the 3rd November 2020 filed 04th November 2020. Notice has been given of this proceeding by this motion, the supporting affidavit and affidavit of search confirming no activity on the file from the appellant’s end since the filing by leave.

5.	Relevant particulars of the affidavit of Shirley Morabang are that she is the respondent and that pursuant to a District Court maintenance Order appellant has partly complied with the payment of K400.00 every fortnight for the upkeep of the child. And term 4 of that order was that the appellant would pay half of the school fees and medical expenses of their child as and when it fell due. Terms one two and three were paid by the respondent. And the remaining balance of K 5 656.50 was that which the appellant was to have paid for outstanding school fees. He did not pay.

6.	Respondent commenced proceedings to enforce the orders for maintenance which the court accorded in favour of the respondent on 19th February 2019. After hearing the appellant as to how he intended to pay up that money it ordered him to pay within 2 months expiring on the 31st June 2019 the K 5, 656. 50 because failure was equivalent to 3 months imprisonment in light labour bomana Corrective Institution.

7.	Appellant failed to comply with the order and was late to appeal but was granted leave after hearing by the court. Since than appellant has not taken any meaningful step to see out the appeal he filed. The effect is that the respondent has been seriously affected so much so that her daughter has had to stay home in 2018, 2019, and 2020 because of the non-payment of fees. She has missed most of 2019 and was forced to repeat her year six this year 2020. And she has had to obtain bank loans to pay the school fees of the daughter. Payment has been per term which has affected her, and it has been a strain on finance and upkeep.

8.	Against this the appellant has filed an affidavit dated the 03rd November 2020 deposing that he has not been ignorant in pursuing the appeal. He cannot afford the services of private Lawyers so has been content with the public Solicitors office lawyers. That he is one of the many clients of that office. And because of that fact has not been given the attention because of the numbers who seek assistance from that office. He waited on Lawyer I Dalu to inform on the progress. And says that 2020 was not a good year because of the outbreak of Covid 19 hence because of the restriction it was difficult to bring the matter on in court. 

9.	Further affidavit is of Lawyer I Dalu sworn and filed of the 04th November 2020. He confirms that the initial decision from which appeal was lodged was of the District Court of the 08th May 2019. That he was out of time to file the appeal so sought leave which was successfully obtained.  And deposes that the month of September and October he was allocated to other priority matters especially trials and contested applications before the court. And that is what he did ending that year. 

10.	He swears that 2020 was a very disruptive year because of covid 19 because of the state of emergency that was declared two months into year pertaining. It affected his attendance to this matter from April up to June 2020. In July 2020 he was in Kokopo attending the Supreme Court. And attaches his boarding pass going and returning. 

11.	From the 25th July 2019 todays date 07th December 2020 it is one year five (5) months and the appellant has done nothing constructive to see out this appeal to finality. and the respondent has had to put up with that fact all along. No doubt the suffering of the subject of the maintenance orders cannot be downplayed in this duration. The combined effect of the affidavit material of the appellant is that the reasons he advances comparably with the time that was accorded of one (1) year five (5) months in my view is more than sufficient time within which to settle the appeal once and for all. He was out of time that was the more reason to see that it was finalized. He sat out on it. 

12.	And his lawyer included. The file is not the personal property of the lawyer but of the office of the Public Solicitor. Another lawyer could have taken the file and carried on in court. Filing of an appeal with the leave of the Court, the permission of the court to come out of expired time and to be accorded time to air must be returned in the same by the litigant here the appellant. Obviously, it is very disrespectful to the court both by the client appellant and the lawyer inclusive. This is a Lawyer by this conduct will not last long in the profession. It should not be taken lightly as to what consequences are in site upon the lawyer if this is continued. Especially with a sworn affidavit filed in the highest court of primary jurisdiction that there were other priority matters especially trials and contested applications before the court. So, what was the status of this matter? Was it a priority even if it came out a tight corner at the discretion of the court? It was out of time and accorded by the discretion of this court? Could it not have been one of the priority matters to be accorded prime time to see out?

13.	It is a very lame excuse to assert the machinery of the justice was impaired and in disability for over a year and half and to seek on that basis to continue to procrastinate this matter at the expense of the lawyer and client: Duque v Paru [1997] PNGLR 378 (18 October 1996), to the misery of the respondent and the child.

14.	This is the highest Court of primary jurisdiction and is overloaded with work to the brim and time is precious including for the respondent, let alone the child the subject of this maintenance proceedings leading to this appeal. It is as if the father of that child is treating that child no less than a human being with this attitude. It must be stopped, and responsibility exerted where it is due. The child is dependent on the family for its eventual survival and upkeep into the world at large. If this is the way a child is meant to be treated the court will do what the law calls it to do to protect the rights, liberties and freedom of all including this child, the subject of this maintenance appeal.

15.	I am mindful on the other side of the balance that no party should be summarily derailed from the judgement seat without proper consideration due because the courts will be slow to so grant: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). But there is reasonable cause shown by the respondent as against material by the appellant. The equilibrium sways in favour of the respondent and accordingly by the powers of this court vested under Section 155 (4) reinforced to the orders pleaded by the respondent this appeal stands dismissed forthwith with costs following on an indemnity basis against the appellant and counsel.

16.	The aggregate of the facts and circumstances with the law set out above is that the conduct of the appellant and his lawyer are so improper, unreasonable, and blameworthy that punishment is warranted. And as shown earlier before this court in Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020), this is negligence rather than professionalism. Therefore, it follows that cost be accorded to see out those who defy that they pay for their conduct. In the flip a Lawyer should not be stopped from serving his client to the best and of discharging his duty without fear or favour, but the fundamental is that the wheels of Justice must or ought to run without abuse. 

17.	Costs will therefore be on an indemnity basis upon the appellant to follow the event.

18.	The formal orders of the court are: 

(a)	The application is upheld.

(b)	The appeal is dismissed forthwith. 

(c)	Cost will be on an indemnity basis to follow the event.
Orders Accordingly.
__________________________________________________________________
Office of the Public Solicitor: Lawyer for the Plaintiff /Applicant		
Murray & Associates: Lawyer for Defendants