SC1297

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 182 OF 2010

BETWEEN

STEVEN PUNAGI
Appellant

AND

CATHOLIC DIOCESE OF MOUNT HAGEN BOARD OF TRUSTEES
Respondent

Waigani: Hartshorn, Yagi & Makail, JJ
2013: 29th October & 20th November

SUPREME COURT – PRACTICE & PROCEDURE – Application to dismiss – Want of prosecution – Application for leave to appeal – Inordinate delay of two and half years – Reasons for delay unsatisfactory – Application for leave not prosecuted with due diligence – Application for leave dismissed for want of prosecution – Supreme Court Rules, 2012 – Order 7, rule 48.

Cases cited:

Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81 
Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691
Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762
Paul Bari -v- John Raim (2004) SC768 
Boyepe Pere -v- Emmanuel Ningi (2003) SC711

Counsel:

Mr J Bokomi, for Appellant 
Mr D Kop, for Respondent

RULING

20th November, 2013

1.	HARTSHORN, J: I have had the benefit of reading the draft judgment of Makail J. and I agree with his reasoning and conclusions. I would uphold the application of the respondent and order the respondent's costs to be paid by the appellant.

2.	YAGI, J: The respondent's application for dismissal of the application for leave to appeal was heard by the Court on 29th October 2013. The respondent contends that the appellant failed to diligently prosecute the application for leave since filing his application on 15th December 2010.

3.	I too had the opportunity of reading the draft judgment of Makail, J. In my view his Honour has carefully and correctly examined the history and background of the proceedings, the relevant facts, the contentions of the parties and in applying the applicable laws and principles reached a conclusion that the application for leave to appeal should be dismissed for want of prosecution.

4.	Having read the draft judgment of his Honour, I find absolutely no basis at all to differ from the reasons and conclusions reached by his Honour. I concur that the application by the respondent should be granted in terms of the orders proposed.

5.	MAKAIL, J: This is an application to dismiss an application for leave to appeal for want of prosecution pursuant to O 7, r 48 of the Supreme Court Rules, 2012. Order 7, Rule 48 states: 

"48.	Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may -

(a)	order that the appeal be dismissed for want of prosecution; or

(b)	fix a time peremptorily for the doing of the act and at the same time order that upon non compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed; or

(c)	make any other order that may seem just."

6.	The application was filed on 10th July 2013 and is the third application filed by the respondent to dismiss the application for leave for want of prosecution. The first two have been dismissed. It is based on the second leg of r. 48, that is the appellant has not "otherwise prosecuted his appeal with due diligence." On 15th December 2010, the appellant filed the application for leave to appeal against the decision of the National Court of 14th December 2010 dismissing his appeal against a District Court order for want of prosecution. 

7.	The onus is on an applicant who seeks dismissal of proceedings to establish that there is a delay and it is inordinate. In Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81, the Supreme Court held that where an appellant fails to prosecute an appeal and fails to give an explanation for the delay, the appeal will be dismissed for want of prosecution. In that case, the delay was one year and two months. The Court dismissed the appeal for want of prosecution.
 
8.	In this case, from 15th December 2010 to 10th July 2013 is a period of two years and six months of delay. The respondent submitted that the delay is inordinate and the application must be dismissed. But is there an explanation for the delay? Why should the application for leave not be dismissed? The appellant is obliged to explain why it should not be dismissed: Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691 and Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762.

9.	In his affidavit in response filed on 02nd October 2013, the appellant offered the following explanation:

•	Inability to secure services of a lawyer;

•	His lawyers required him to pay a deposit fee of between K10,000.00 and K20,000.00 and he does not have the money;

•	His funds in the company account had been frozen by the Court pursuant to a District Court order; and

•	He spent time attending District Court eviction proceedings.

10.	He also said in his affidavit and submitted that the respondent made two earlier applications to dismiss the application for want of prosecution and were dismissed. This application is an abuse of process as it is res judicata. Finally, citing Paul Bari -v- John Raim (2004) SC768 where it was held that where leave is not required but mistakenly sought, the application is incompetent and thus should be dismissed and Boyepe Pere -v- Emmanuel Ningi (2003) SC711 which held the contrary view where the proposed grounds disclosed an arguable case, the appellant further submitted that the proposed grounds of appeal in the leave application are meritorious and established an arguable case, thus the application should not be dismissed.
 
11.	The application for leave has been pending hearing for two and a half years since it was filed on 15th December 2010. All it required was for the appellant to secure a date for hearing from the Registry and inform the respondent. According to the affidavit in response of the appellant, apart from saying that his previous lawyers had ceased to act for him on an unspecified date, he does not say what steps he took between 15th December 2010 and 11th March 2013 to list the application for leave for hearing. It appears the lack of activity prompted the respondent to file the first application to dismiss it on 11th March 2013. As the respondent failed to attend the hearing on 08th April 2013, that application was dismissed by the Chief Justice for want of prosecution.

12.	The application for leave was, however adjourned to 06th May 2013 at 9:30 am for hearing. This was the first time a hearing date for the leave application was mentioned by the appellant. On 06th May, it was not listed and was adjourned by the Registry to 09th May for hearing. On that date, it was further adjourned to the Registry after the respondent unsuccessfully applied before Kassman, J sitting as a single Judge of the Supreme Court to dismiss it. It was on the respondent's request that the Registrar relisted the application for leave for hearing on 15th May. It came before Kassman, J for the second time and the appellant sought a further adjournment because he wanted to engage a lawyer to represent him. It was adjourned to the Registry pending the appellant to retain a lawyer.

13.	While he was looking for a lawyer, on 21st May, the respondent filed a second application for want of prosecution and subsequently on 26th June, filed a supplementary application to have the appellant vacate the premises, the subject of the dispute. On 10th July, Batari, J sitting as a single Judge of the Supreme Court heard and dismissed both applications for being incompetent and an abuse of process. On 24th July, the application for leave came before Kassman, J for the third time and as the appellant had yet to retain a lawyer, was further adjourned to 14th August. On 09th August, Bokomi Lawyers filed a notice of appearance for the appellant. 

14.	It is apparent from these events that between 15th December 2010 and 11th March 2013, there was no activity on the matter and this prompted the respondent to file the first application to dismiss. The appellant submitted that he was unable to secure a lawyer to represent him because he had no money and this was the main reason for the lack of activity for that period. 

15.	It is also apparent that between 08th April 2013 when the first application for want of prosecution was dismissed and 10th July 2013, the hearing of the application for leave did not proceed because the appellant had not retained a lawyer to represent him. This was the reason for not prosecuting it for that period. Again, he was unable because he had no money to pay the lawyers' legal fees. 

16.	The respondent submitted that the reasons offered by the appellant are unsatisfactory. If the appellant says that he has no money to engage a lawyer, it has produced evidence of bank statement of the appellant's company, bank deposit slips and receipts of rental payments to the appellant's company, which sufficiently establish that the appellant is not impecunious. In response, the appellant submitted that the Court reject this evidence because they were obtained illegally.

17.	In any legal proceedings before the Courts, litigants can be self represented or represented by counsel. If the appellant had been unable to secure services of a lawyer to represent him, it was open to him to represent himself. This option was available and he has not explained why he was not able to prosecute the application for leave in person. Any diligent litigant having difficulty retaining services of a lawyer would take on that responsibility. That is the most reasonable and prudent thing to do under the circumstances. If he had done that, it would not have been necessary for him to pay lawyers to represent him and it would not have been necessary for him to look for K10,000.00 to K20,000.00 which he claimed was the deposit fee to pay his lawyers. 

18.	 Similarly, it would not have been necessary for him to access funds in the company account which he said had been frozen by a District Court order. Additionally and for present purpose, it is not necessary to consider whether the appellant had no money to engage a lawyer in light of the evidence that bank statement of the appellant's company, bank deposit slips and receipts of rental payments to the appellant's company show sufficient funds under the control of the appellant and whether these documents were obtained illegally. For these reasons, the reason that the appellant has been unable to retain a lawyer does not satisfactorily explain the delay, if not it is irrelevant.

19.	What is relevant though is, since the engagement of Bokomi Lawyers on 09th August, what have they done to prosecute the application for leave bearing in mind that this application was pending? What have they done to avert the danger of having the application for leave dismissed for want of prosecution? There is no evidence from the appellant or Bokomi Lawyers to show what steps they took to list the application for leave for hearing after it was adjourned by Kassman, J on 24th July to the Registry. The appellant has failed to explain this aspect.

20.	With regards to the reason that he had spent time attending to the District Court eviction proceedings and was unable to attend to the application for leave, he has not established how these proceedings have denied him the opportunity or prevented him from prosecuting the application for leave. In any case, it does not relieve him from the obligation to prosecute the application for leave. This reason is also unsatisfactory. 

21.	As to his submission that the proposed grounds of appeal are meritorious and establish an arguable case, it is not a relevant consideration in an application for want of prosecution and for this reason, it is misconceived and rejected.

22.	Finally, the appellant's submission that the application for want of prosecution is an abuse of process and res judicata is misconceived because the Court did not dismiss the first application on its merits but for want of prosecution. This was because the respondent failed to attend the hearing. Similarly, the second application for want of prosecution was dismissed by Batari, J as being an abuse of process. The present application was contested and considered on its merits and it has been established that there has been an inordinate delay of two and a half years and the appellant has not satisfactorily explained the delay. This submission is misconceived and is rejected.

23.	I conclude that the appellant has not been diligent. He has not prosecuted the application for leave with due diligence. Therefore, the application to dismiss must be upheld and the application for leave must be dismissed for want of prosecution with costs to the respondent to be taxed if not agreed.

Ruling and orders accordingly.
________________________________________

Jimmy Bokomi Lawyers:  Lawyers for Appellant
Daniel Kop Lawyers: Lawyers for Respondent