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Gumaim v Abari [2019] PGSC 97; SC1855 (15 July 2019)

SC1855

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 146 of 2016

BETWEEN:
WILLIE GUMAIM
First Appellant

AND:
WINNIE HENAO
as Provincial Police Commander of Eastern Highlands Province
Second Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

AND:
WAMU ABARI
and Others listed in Schedule 1
First Respondent

Waigani: Hartshorn J,
2019: 20^th June
: 15^th July

SUPREME COURT – PRACTICE AND ROCEDURE - Whether a single Supreme Court Judge has jurisdiction to dismiss an application for leave to appeal for want of prosecution

Cases Cited:

Jeffrey Yakopa v. Esther Torato (2010) SC1077
Joseph Kobol v. William Powi (2018) SC1731

Counsel:

Ms. V. Yobone, for the Appellants
Mr. M. Pokia, for the Respondents

15^th July, 2019

1. HARTSHORN J: This is a decision on whether a single Judge of the Supreme Court (Judge) has jurisdiction to dismiss an application for leave to appeal for want of prosecution. If it is determined that a Judge does have such jurisdiction, then the next issue for determination is whether such an application seeking dismissal (dismissal application) should itself be dismissed for want of prosecution.

2. The appellants submit that a Judge does not have the necessary jurisdiction as:

a) s. 5 and s. 10 Supreme Court Act, which provide for circumstances when a Judge does have jurisdiction, does not provide for a Judge to dismiss an application for leave to appeal for want of prosecution;

b) Order 7 Rules 48 and 49 Supreme Court Rules, upon which the respondents rely, only provide for the Court, as distinct from a Judge, to make orders under those Rules. Reference was made to my decision in Joseph Kobol v. William Powi (2018) SC1731 and its consideration of the definition of “Court” in the Supreme Court Rules.

3. The respondents submit to the contrary. They rely upon the decision of Injia CJ (as he then was) in Jeffrey Yakopa v. Esther Torato (2010) SC1077, which, it is submitted, is on point.

Consideration

4. The submissions made by the appellants are, in my view, addressed by Injia CJ in Yakopa v. Torato (supra). I respectfully agree with His Honour’s comments upon, and consideration of, the issues. I reproduce [4] to [7]:

“Both counsel referred me to my ruling in Tom Amaiu v Sir Albert Kipalan & ors (2009) SC991 and submitted that by analogy, the same reasoning in that case applies to an application under O 7 r 53 in respect of a leave application.

5. Order 7 Rule 53 of the SCR provides as follows:

53. 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. I accept the submissions of counsel on this point. A single Judge of the Supreme Court having power to determine a leave application under s 10 (1) (a) of the Supreme Court Act (the Act) has the same power to determine the fate of a leave application based on any grounds provided by or under the SCR. An application to dismiss a leave application under O 7 r 53 (1)(a) which if granted can determine the leave application, comes within the ambit of s 10 (1)(a). The word “appeal” in O 7 r 53 includes a leave application by which “an appeal” is instituted: s 17 of the Act. The term “ the Court” in O 7 r 53 is to be read subject to the power given to a single Judge of the Supreme Court by s 10 (1)(a) of the Act.

7. In a case where a leave application is dismissed by a single Judge under O 7 r 53, the aggrieved applicant would have recourse to the full Court under s 10 (2) of the Act. The proceedings on the application before the full Court is by way of a hearing de novo: Felix Bakani v Rodney Daipo (2002) SC 699; The Independent State of Papua New Guinea v John Tuap (2004) SC 765.”

5. Order 7 Rule 53 Supreme Court Rules is now Order 7 Rule 48 and so the comments concerning Order 7 Rule 53 in Yakopa v. Torato (supra) apply to Order 7 Rule 48.

6. As to the reliance upon my decision in Kobol v. Powi (supra), my consideration of “Court” was in relation to Order 11 Rule 32(2) and (3), and not Order 7 Rule 48. I did, however, mention that Order 1 Rule 7(1) Supreme Court Rules, which contains definitions including “Court” commences with the words:

“(1) In these Rules, unless the contrary intention appears:- .....”

7. The remarks of Injia CJ as to “the Court” in Order 7 Rule 53, now Order 7 Rule 48, may be seen in this context.

8. I am satisfied for the above reasons, that a Judge does have the jurisdiction to dismiss an application for leave to appeal for want of prosecution.

9. In regard to the appellant’s application to dismiss the dismissal application, the appellants submit that the respondents have taken one year and four months to prosecute the dismissal application and this offends Order 4 Rule 49(17) National Court Rules. This order may be relied upon pursuant to Order 2 Rule 1(h) Supreme Court Rules, it is submitted.

10. The application to dismiss the dismissal application was made orally and is not supported by any evidence. Further, the appellants have had sufficient time to file and make an application to dismiss with proper notice being given. They have not and now make an oral application only when faced with the hearing of a dismissal application against their application for leave to appeal. In such circumstances, the court exercises its discretion and refuses the oral application to dismiss. Given this it is not necessary to consider the other submissions of counsel.

Orders

11. The Court orders that:

a) The oral application of the appellants’ to dismiss the respondents’ application to dismiss the application for leave to appeal is dismissed;

b) This matter is adjourned to a date to be fixed for the hearing of the respondents’ application to dismiss the application for leave to appeal filed 8^th February 2018;

c) Costs are reserved.
__________________________________________________________________
Greg Manda Lawyers: Lawyers for Appellants
Mirupasi Lawyers: Lawyers for the Respondents