N10426
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 11 OF 2023 [IECMS]

MAPUSU INVESTMENT LTD
First Appellant

AND
EUGENE KEMBEN AS DIRECTOR OF MAPUSU INVESTMENT LTD
Second Appellant

V
GOASA GEITA
First Respondent

AND
BADIRI RESOURCES GUARDS LTD
Second Respondent

Waigani: Miviri J
2023: 20th & 28th July

PRACTICE & PROCEDURE – Judicial Review & appeals –Appeal – Notice of Motion for Dismissal Order 12 Rule 40 (1) (b) NCR – Order 18 Rule 12 (4) (a) (i) NCR – Notice of motion – Dismissal of Appeal – Appeal Filed Late Out of Time – 9 Days Late – Appeal Dismissed – Cost Follow Event.

Cases Cited:
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 
Ihari v Motor Vehicles Insurance Ltd [2006] PGSC 41; SC1317 
Haro v State [2019] PGSC 96; SC1841
Amet v Yama [2010] PGSC 46; SC1064
Coconut Products Ltd v Markham Farming Co Ltd [2018] PGSC 60; SC1717
Aihi v The State (No 1) [1981] PNGLR 81 
Kakaraya v Somare [2004] PGSC 11; SC762
Takori v Yagari [2008] PGSC 3; SC905

Counsel:
J. Lome, for Appellants
G. Bon, for Respondents

RULING

28th July 2023.
1.	MIVIRI, J: This is the ruling on the Respondent’s notice of motion of the 05th July 2023 seeking the dismissal of the entire proceedings pursuant to Order 12 Rule 40 (1) (b) & (c) of the National Court Rules. 

2.	He also seeks costs against the appellant to be taxed if not agreed. And any other orders as discretion by the Court.

3.	The appellant argues that the jurisdictional basis is not there in the Notice of Motion because it is not Order 12 rule 40 (1) (b) & (c) which is not applicable to appeal which is the case here. That the correct Rules to be invoked is Order 18 Rule Order 18 Rule 12 (4) (a) (i) NCR which would be the basis of the notice of motion applying to dismiss this Appeal. That argument is valid and has proper basis because each Rule deals with a particular mode. Here the dismissal is not sought for any other proceedings but an appeal. So, the relevant and applicable rule is Order 18 Rule 12 (4) (a) (i) of the National Court Rules. Therefore, the Notice of Motion is not upheld. 

4.	But examining the notice of appeal is dated the 19th June 2023. And the subject decision appealed against is of the 10th May 2023. And the appeal period appealed for filing is 30 days section 220 (2) and 221 (2) of the District Courts Act 1963.  There is no application filed for leave to file even after the appeal period has expired or outside of the 30 days period by appellant: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). It means the appeal has been filed late and contravening section 220 (2) and 221 (2) of the District Courts Act 1963. That is basis in law and by the Rules Order 18 Rule 12 (4) (a) (ii) for the Court to summarily determine an appeal on its own initiative.

5.	That is the fate that will be given this appeal. It will be dismissed pursuant to Order 18 Rule 12 (4) (a) (ii) for being filed late by 9 days. Diligent prosecution of an appeal including time taken are relevant consideration in the determination of as here: Kakaraya v Somare [2004] PGSC 11; SC762 (1 October 2004). There is no application for leave to file the appeal out of time. It is for good reasons that time in filing appeal is set. Because the Judgement at first instance is deprived its full force in law. The respondent does not benefit from the fruits of the Judgement at first instance. It is incumbent upon the appellant to make sure he abides with the time set to file the appeal. The respondent should not be prejudiced because of that fact. And the court is of record its records will determine if there is compliance in law or otherwise: Kunjil v PNG Power Ltd [2007] PGNC 271; N3879 (23 April 2007). Here the records do not evidence that the appeal was filed within time. It for that reason will be dismissed with costs to follow the event. The Court must of its own volition and discretion protect is own process from abuse: Telikom (PNG) Ltd v Rava [2018] PGSC 39; SC1694 (13 July 2018). Here it is no different and the circumstances posed leave no reason apparent or identifiable other than to dismiss the appeal as abuse of process given that there is breach of the time to file the appeal.

6.	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 there is no other reasonable cause shown by the appellant and by material in response here to so save? An appellant or a party will not invoke the court to play its role due it to administer a matter before court that would be likened to descending into the dispute in the arena. But by the same it is upon the Court to protect its processes and procedure from abuse and decay. And so this is the decision to dismiss this proceedings on the volition of the Court considering that a competent court of Jurisdiction has handed down a decision that has been stopped by this appeal that was filed out of time. By that fact in law within the provisions of section 220 (2) and 221 (2) of the District Courts Act 1963 will be dismissed pursuant.  

7.	Accordingly, the orders of the court are therefore: 

(1)	The Appeal is dismissed pursuant to Order 18 rule 12 (4) (a) (i) of the Rules.
(2)	 Costs will follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
Jeffersons Lawyers       	: Lawyer for the Appellant		
Gibson Bon Lawyers  	: Lawyer for the Respondent.