N8927
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 93 OF 2018

BETWEEN:
RAYMIL ALPHONSE YAPHINA
Appellant

AND:
ROSELYN STANLEY
First Respondent

AND:
JACKSON TAKARRY AS CHAIRMAN OF EAST BOROKO VILLAGE COURT
Second Respondent

Waigani: Miviri J
2021: 10th June, 6th July

PRACTICE & PROCEDURE – Judicial Review & Appeals – Appeal – Against Decision of District Court – Customary Land – Application to dismiss for want of prosecution – 3 Years – due diligence to Prosecute – Materials sufficient  – Motion granted – Appeal dismissed – cost follow event.

Cases Cited:
General Accident Fire & Life v Farm [1990] PNGLR 331 
Takori v Yagari [2008] PGSC 3; SC905 
Putupen v Sevua [2020] PGSC 34; SC1947 
Counsel:

A. Rake, for Appellant 
A. Token, for First Respondent

					RULING 
 06th July, 2021
1.	MIVIRI, J: This is the ruling on the first respondents notice of motion of the 23rd November 2020 filed 12th November 2020 for summary dismissal for want of prosecution pursuant to Order 18 Rule 12 (4) (a) (i) of the National Court Rules (NCR).

2.	He also seeks the costs of the proceeding of and incidental. Abridgment and any other orders on the discretion of the Court.

3.	Want of prosecution denotes that the proceeding opened since the filing of the appeal 03rd October 2018 per notice of appeal, has been stagnant at the discretion of the appellant. That there has been procrastination of the matter. No real or genuine effort has been displayed by the appellant in the prosecution of the appeal. The respondent has been unnecessarily drawn into the proceeding and has been made to suffer and not enjoy the fruits of Judgement at first instance through no fault of his.

4.	A judgment at first instance has been placed on hold by the appeal for three years due to the appellant denying the decision at first instance in favour of the respondent. The Supreme Court voiced in General Accident Fire & Life v Farm [1990] PNGLR 331 that where there is no due diligence in the prosecution of an appeal and there is no explanation on file it is discretionary upon the court to exercise to dismiss the proceedings for want of prosecution. Because the rules of court require timely execution and if there is no adherence to the rules, it is a basis to exercise that discretion. 

5.	At the same time, the balance is a litigant should not be summarily drawn off the seat of Justice without justice cause and basis. The rules of Court are not a means to an end, caution must be exercised judicially, suffice to say 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 is there reasonable cause shown by the appellant and by material in response here to so save? The Supreme Court has voiced that, “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.” 

6.	It must be very clear that there is nothing apparent or identifiable to deviate the application that has been made here. That is the material relied leave no other than to dismiss: Putupen v Sevua [2020] PGSC 34; SC1947 (22 April 2020). This is of course on the balance of preponderance in the hands of the applicant, here the respondent to discharge. What then is the material relied for the purposes of the application relied by the respondent?

7.	On the record of the proceedings is an affidavit sworn of the 12th February 2021 by the appellant which is filed specifically in response to this motion of the 12th November 2020. He deposes that the matter was mentioned on the 13th December 2019 and on that day, he successfully set aside an ex parte order for dismissal of the proceedings. It was going towards Christmas and generally the holiday period and the hearing of the substantive matter should have proceeded February and March 2020. In March 2020 it did not eventuate because of Covid19 also effecting the court. And up to October 2020 it did not progress. Then the respondent had changes to his Lawyers that also contributed to the efficiency in the disposal of the matter. And in the midst of which came this application now pursued by the respondent. Which was adjourned to the registry last year 2020 and a letter annexure “A” was written to the registry to list and to bring this matter forward. But because of the factors beyond my control, it did not get off as I wanted to. And there is merit in the grounds of the appeal.

8.	There is no independent verification from his evidence apart. In itself the reasons he advances are not substantive to set aside the contention of the respondent. He adds to what the respondent advances.

9.	That is responded to by the affidavit of Roselyn Stanley of the 12th May 2021. She is the first Respondent to this proceeding who deposes that the matter has been adjourned a number of times on the part of the appellant request and up to the present there is really nothing substantive advanced to continue the proceedings. And she made a similar affidavit of the 12th November 2020 on the basis of which application to dismissal was granted, was set aside and the proceeding reinserted back into the records of the Court. 

10.	There is in effect a period of a year without movement of the matter forward. The reasons advanced in the material when weighed on both sides does not advance substantive grounds that all has been done within the discretion and prerogative of the appellant to expedite the hearing, if indeed it bears merit as contended. There is no urgency to bring the matter to a hearing since when it was first handed down in the District Court ordered 06th September 2018 entered dated 12th September 2018. The appeal was filed 03rd October 2018. From that date to today 06th July 2021 no real substantive action has been taken by the appellant to move this matter to a hearing. It is in total now three years and the respondent has had to endure that fact. The facts set out above do not merit that this proceedings be continued on the record of the proceedings because the party instituting the appellant is not interested to pursue it with vigour to finality.

11.	The respondent’s contentions that there is no vigour and stamina shown to expedite it to finality is made out on the balance of probabilities and his motion for dismissal is granted in the terms as he has pleaded. He instigated and must see it out with the same vigour when he filed. Justice has been denied the respondent since 2018 when the orders were made against the appellant. He has had to endure for three years being denied of justice.

12.	Though not pleaded by the respondent litigant the total aggregate is that Order 18 Rule 12 (4) (a) Summary disposal of the National Court Rules fits the scope here, “The Court may summarily determine an appeal: (i) on application by a party; or (ii) on Court’s own initiative; or (iii) upon referral by the Registrar in accordance with the procedures set out in (2) below.” Here the application is by a respondent open to the court given the facts here to invoke that to dismiss this appeal. Accordingly, the court invokes and dismisses this appeal in its entirety forthwith. Cost will follow the event forthwith.

13.	The formal orders are: 

(i)	Application for dismissal of the appeal is upheld.
(ii)	The appeal is dismissed forthwith.
(iii)	Costs will follow the event.

Orders Accordingly.
__________________________________________________________________
Rake Lawyers: Lawyer for the Appellants		
Office of the Public Solicitor: Lawyer for the Respondents