SC2222

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 149 OF 2020

NIXON MANGAPE AS TRUSTEE OF WUAPE SUB/CLAN
Appellant

AND
KAKALE  AMENA PINGIPE
First Respondent

AND
PORGERA DEVELOPMENT AUTHORITY
Second Respondent

AND
KUPIANE YUU ANDUANE COMPANY LTD
Third Respondent

AND
PORGERA JOINT VENTURE
Fourth Respondent

AND
PORGERA LANDOWNERS’ ASSOCIATION
Fifth Respondent

AND
JIMMY KARAP YUWI
Sixth Respondent.

Waigani: Geita J, Dingake J, Berrigan J
2022: 31st March, 1st April 

SUPREME COURT - Practice and Procedure – application to dismiss appeal for want of prosecution – Supreme Court Rules, Order 7, Rule 48 – non- compliance with Court order for prosecution of appeal.

Cases Cited:
Papua New Guinean Cases 

PNG Water Board v Kua ([2021] PGSC 83, SC1101). 
Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1968] PNGLR 133. 
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd [2005] SC811
Norr v Ikamata [2005] SC815

Overseas Cases

Reggentin v Beecholme Bakeries Ltd (1967) 111 SJ 216 
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2QB 229 
Fitzpatrick v Batger & Co Ltd [1967] 1 WLR 706 

Counsel 

Gloria Sikere, for the Appellant
Brian Lakakit, for the First Respondent

1st April, 2022

1.      BY THE COURT: This is an appeal against a decision of Justice Manuhu delivered on 5 October 2020. In that decision his Honour entered summary judgment for the First Respondent against the Appellant.

2.	This is but one of a series of customary land disputes and ownership claims over certain portions of land within SML Zone 7 of the rich Porgera Gold Mine  in Enga Province dating back to 2009. Primarily, the disputes are centred around the claimed uneven distribution of wealth and benefits derived from the mine by land owning clans. The disputing parties have gone before the Local Land Court, ( DC No. 37 of 2018 – Kakale Amena Pingipe vs Nixon Mangape & 5 Ors ) and two National Courts, with the latest National Court decision which is the subject of this appeal. (WS No. 303 of 2009 – Kakale Amena Pingape v Nison Mangape & 5 Ors. ) 

3.	The application by the First Respondent/Applicant is made pursuant to Order 7, Rule 48(a) of the Supreme Court Rules seeking dismissal of the Notice of Appeal file by the Appellant on 13 November 2020 for want of prosecution.

4.	The rule provides:  

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…order that the appeal be dismissed for want of prosecution.

5.	Mr Lakakit, for the respondent, submitted that since filing the Appeal  on 13 November 2020 the appellant has not filed and served a draft Index to the Appeal Book and not obtained court transcripts. After a lapse of ten (10) months and seventeen (17) days a forewarning letter was sent to the appellant on 30 September 2021.  The appellant has failed to comply with the requirements of Order 7 Rule 40 & 41 of The Supreme Court Rules and no explanation has been provided. The appellant’s last activity on the file was by way of an Affidavit of Service of the Appeal to the First Respondent’s Council on 29 January 2021, a file inactivity of more than 16 months. The appellant’s action in defaulting is intentional and inexcusable (see PNG Water Board v Kua 2021 PGSC 83, SC 1101), and there is sufficient evidence before the Court to exercise its discretion to dismiss the appeal for want of prosecution: Reggentin v Beecholme Bakeries Ltd (1967) 111 SJ 216, reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2QB 229 and Fitzpatrick v Batger & Co Ltd [1967] 1 WLR 706.  The appellant’s inaction in prosecuting this appeal has caused injustice to the First Respondent. 

7.	In the case of Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v James the courts laid down the following principle (at 298):

“That the power of the Court to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant.”

Where there is a long delay “a balance must be struck as between the plaintiff and defendant and in the end the Court must decide whether or not in the balance justice demands that the action should be dismissed”. 

8.	It is clear from the material before us that there has been undue delay on the part of the appellant. 

9.	The appeal was filed on 13 November 2020. It was a further two months before the notice of appeal was served on the first respondent.  Despite a letter of forewarning some ten months, two weeks after the filing of the appeal, on 21 September 2021, and the filing of this application on 30 September 2021, no other steps have been taken by the Appellant to progress the appeal to date.  There has been no attempt by the Appellant to compile the index to the Appeal Book, and no attempt to obtain the transcript of the lower court proceeding.  None of this is disputed by the Appellant.  

10.	Moreover, no attempt has been made by the Appellant to provide any explanation to this Court for the delay.  As the Court observed in PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd [2005] SC811, “the absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected”.  It is this kind of delay which the Courts allude to as "intentional  and contumelious ": Norr v Ikamata [2005] SC815.  For obvious reasons, bald assertions that the application should be dismissed in “the interests of justice” on the part of the Appellant’s lawyer in such circumstances are quite meaningless. 

11.	Accordingly, we grant the First Respondent’s application and order that the appeal be dismissed.  

Conclusion

12.	The application for dismissal of the appeal under Order 7, Rule 48(a) of The Supreme Court Rules will be granted. Costs will follow the event.

	ORDER

1.	The application for dismissal of the appeal, filed 13 November 2020, is upheld.

2.	The appeal is dismissed.

3.	Cost of the appeal shall be paid by the appellants to the respondents on a party-party basis which shall not be taxed if agreed.

Judgment accordingly.
________________________________________________________________
Mawa Lawyers: Lawyers for the Appellant
Lakakit & Associates Lawyers: Lawyers for the Respondent