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Nukundji v Ten [2021] PGNC 64; N8816 (13 May 2021)

N8816

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 106 OF 2017

BETWEEN:
WESTLEY NUKUNDJI
Appellant

AND:
WILSON TEN
Respondent

Waigani: Miviri J
2021: 22^nd April, 13^th May

PRACTICE & PROCEDURE – Judicial Review & Appeals – Appeal – Against Decision of District Court – Compensation for adultery – Application to dismiss for want of prosecution – 3 Years 6 months – 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:

D. Levi, for Appellant
W. Ten, in person

RULING

13^th May, 2021

1. MIVIRI, J: This is the ruling on the application of the respondent for the dismissal of the appeal which was filed since the 06^th October 2017. The notice of appeal reads:
   

“I Hon. Westley Nukundji, the Second defendant herein, give notice that this is my intention to appeal against an order made by the District Court on 19^th September 2017, whereby the Court made the following orders:

(a) Defendants namely Maryanne David and Westley Nukundji are hereby ordered to compensate Complainant Wilson Ten for committing adultery with each other as follows:- Defendant Maryanne David K300;

Defendant Westley Nukundji K300

(b) The first and second defendants shall pay the cost of K200 each to the Complainant.
(c) Payment shall be made to the Clerk of Court-family Court Port Moresby by 17^th October 2017.
(d) And the grounds of appeal are that the Learned Magistrate erred in law and in fact in finding the First and Second defendants guilty of Adultery, thereby failing to take into consideration that;-

• (i) The main evidence of text messages and call log print outs from Digicel PNG Ltd between the Defendants was unlawfully obtained in breach of section 267 of the National Information Communications Technology Act (NICTA)
  
• (ii) Because the only evidence relied on to find the Defendants guilty of adultery was improperly obtained, both defendants rights to privacy under section 49 of the Constitution had been breached.
  
• (iii) Evidence of call logs and text messages between the defendants themselves were improperly obtained by the Police under the guise of a search warrant when the within proceedings is not a criminal proceeding for which any such search warrant was applicable or needed and therefore the only evidence used to commit the defendants guilty of adultery was collected under such circumstances and was highly improper and contrary to section 267 of the NICTA.
  

(e) The learned Magistrate erred in fact and in law in finding the First and Second defendants were guilty of adultery, thereby failing to take into consideration the following crucial and relevant factors that:

• (i) The complainant failed to produce any other independent witnesses to provide evidence corroborating and substantiating the Complainant’s evidence of the defendants committing adultery with each other, let alone relied on only the evidence provided by the complainant regarding the subject text messages illegally obtained contrary to section 61 (3) and (4) of the Evidence Act and in cases of Hami Yawari v Tolimo English [N1433] [1996] PNGLR 446 and Re Constitutions section 44 and 57. Applications of Chai Chen Sheng and Kiang Chin Chee [1993] PNGLR 105.

(f) In the circumstances, the court erred in law and in fact when it failed to find that the Complainant did not prove his case as no relevant and independent corroborative evidence was adduced to prove the claim of adultery by the Complainant.
(g) And the appellant sought orders that the decision and orders of the District Court made on the 19^th September 2017 be set aside.
(h) The District Court proceedings FC No. 28 of 2016 be dismissed for disclosing no reasonable cause of action or for the Complainant’s failed to prove his case beyond reasonable doubt.
(i) Alternatively, an order that the matter be remitted back to the District Court before another Magistrate for a rehearing.
(j) An order that the Complainant pay for the Second Defendants cost of the proceedings and the Appeal.

Dated the 05^th day of October 2017.

David Levy of Manase & Co Lawyers

Lawyers for the second defendant

2. It is clear that this is a matter that originates from 2016 as is evident from the District Court reference number set out above. The date of the filing of the appeal is a year later on the 05^th October 2017. From that date to the date when the application was made by the respondent for dismissal is 22^nd April 2021. That is almost 5 years that this case has had to endure. And to the time for the actual filing of the appeal which effect was to deny what the respondent had attained by law would be almost 4 years. That is a long time it is inordinate for the hand of Justice to be denied a litigant in person.
   
3. On the record of the proceedings is an affidavit sworn of service by the respondent dated the 15^th April 2021 notifying by annexure “A” a letter dated 14^th April 2021 of the hearing by the assistant registrar of the Court of this matter on the 22^nd February 2021. The appellant and his counsel made no appearance despite service of that. The respondent appeared in person on the 15^th February 2021 evidenced by entry on the court file, there was no appearance by the appellant or his lawyer. And going back 11^th February 2021 still neither the appellant nor his lawyer made appearance, only the respondent. The only time that the lawyer appeared for the appellant is from 22^nd October 2020, 12^th November 2020, 19^th November 2020, and 10^th December 2020. There is no appearance either by the appellant or his lawyer leading up to the date of the application by the respondent.
   
4. And there is no material filed to explain why the non-attendance either by the appellant, or the lawyer except for a rare one on the 09^th December 2020. And which has appearance of counsel on record. On the converse an affidavit of service sworn by the respondent dated the 04^th March 2021 deposes that on the 02^nd March 2021, a letter of notice has been filed and served on the lawyer of the appellant at CHM Building Gordon’s, Port Moresby. The letter is annexure “A” it is addressed to the lawyer for the appellant advising that the matter came on before the court on the 15^th February 2021 and has now been adjourned for trial and hearing to 05^th March 2021 at 9.30am. And it gives notice that this is a final adjournment of the matter. And if there is no attendance the application for dismissal of the respondent will be heard and finalized. It is signed by the respondent. There is a similar affidavit of an earlier appearance and adjournment of the matter from 11^th February 2021 with a similar letter advising the lawyer for the appellant.
   
5. The respondent for a litigant in person has abided by the terms of any orders that the court has made to see this matter out between the parties. Bearing that the appellant has a cause of action clear by the pleadings set out above in the Notice of appeal filed of the 05^th October 2017. But there is no vigour and stamina shown to expedite it to finality. It has been left in abeyance in the foyer of the Court only time and again to be attended to by the respondent, who has been drawn in by the appellant. He instigated and must see it out with the same vigour when he filed. Justice has been denied to the respondent since 2016 when the orders were made against the appellant. He has had to endure for five years denied of justice.
   
6. He filed his notice of motion for dismissal of the appeal on the 12^th October 2020 and served on the 13^th October 2020 evidenced by an affidavit of service sworn of that date on file. Included also was his affidavit that he sought to rely on in the motion filed. And he also filed a submission on the matter dated the 26^th November 2020 which submission he relied on for the dismissal of the proceedings here. There was lapse of three years pointing out in that submission. It was not heard and since has procrastinated in the foyer of the court no gratitude to the appellant and his counsel since for another two years. It is now five years since and no real effort has been evidenced on the part of the lawyers for the appellant or the appellant himself to expedite the appeal. Due diligence in the prosecution of the appeal has not eventuated and justice has been denied to the appellant. He by the material set out above demonstrates no fault to linger the matter in court. The appellant through his lawyers have instigated, yet made no genuine effort to see it out as pleaded.
   
7. There is no material filed against the intent of the respondent since the 26^th November 2020 so as to explain the delay in the prosecution of the matter since. The records of the court leading up do not show attendance either by counsel or the appellant to assist as to why the delay. A judgment at first instance has been placed on hold by the appeal for five years due to the respondent who appears in person faithfully as set out by the records set out above. The Supreme Court voiced in General Accident Fire & Life v Farm [1990] PNGLR 331 (25 July 1990) 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. And here there is correspondence evidenced by affidavits that have been filed by the respondent. Which have drawn no response either from counsel or the appellant. There is failure to explain non-attendance or give effect to the adjournments set out by the Court.
   
8. Suffice to say that no party should be summarily derailed from the judgment 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? It is clear that is not the case by all set out above. Yes, “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.” There is nothing apparent or identifiable to deviate the application that has been made. The material relied leave no other than to dismiss: Putupen v Sevua [2020] PGSC 34; SC1947 (22 April 2020).
   
9. 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 lay litigant in person but it is 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.
   
10. 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 forthwith.
      

Orders Accordingly.

__________________________________________________________________

Manase Lawyers: Lawyer for the Appellants

Nil Representation for the Respondents