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Ageva v Gaigo [1987] PNGLR 12 (26 February 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 12 - Arthur Ageva v Bobby Gaigo

[1987] PNGLR 12

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ARTHUR AGEVA OF ROKU VILLAGE ON BEHALF OF GAIBUDOBU,

KURUI AND TANOMOTU CLANS OF ROKU VILLAGE

V

BOBBY GAIGO (DECEASED) OF LUARIMA CLAN,

NAIME DAURE (DECEASED) AND ALL THE IDIHUS OF TATNA VILLAGE

AND MADAHA RESENA OF TATANA VILLAGE

Waigani

Kapi DCJ Bredmeyer Cory JJ

26 February 1987

APPEAL - Appeal from Land Titles Commission - Practice and procedure on - No statutory provisions regulating procedures - Conduct of appeal in accordance with other established procedures - Duty of appellant to have record below and appeal papers provided - Supreme Court Appeal (Land Titles Commission) Rules 1968 (repealed).

REAL PROPERTY - Land Titles - Appeals from Land Titles Commission - Practice and procedure on - Dismissal for want of prosecution - Repeal of Supreme Court Appeal (Land Titles Commission) Rules 1968.

APPEAL - Practice - Striking out for want of prosecution - Undue delay in prosecuting appeal - Relevant considerations.

Held

(1)      The Supreme Court Appeal (Land Titles Commission) Rules 1968 were repealed on Independence and are no longer in force.

(2)      In the absence of express rules regulating the practice and procedure on appeals to the Land Titles Commission, the appellant must take all such steps as are reasonably practicable in the circumstances to get the appeal prepared and heard. He must be reasonably diligent and expeditious in the taking of those steps; in other words he should not be guilty of unreasonable delay. To ascertain what steps are reasonable and what timetable for the taking of those steps is reasonable, the courts will be guided in general terms by other appeal rules in this jurisdiction and elsewhere, including even the repealed 1968 Appeal Rules.

(3)      In the circumstances, the appeal has been properly dismissed for want of prosecution as the appellant had made no real and genuine attempt over a period of one year to get the appeal ready for hearing and had failed to provide a satisfactory answer for the delay.

Decision of Amet J in Arthur Ageva v Bobby Gaigo [1986] PNGLR 160, affirmed.

Appeal

This was an appeal to the Supreme Court from a decision of Amet J striking out an appeal from the Land Titles Commission to the National Court for lack of prosecution.

Counsel

M Enda, for the appellant.

I Shepherd, for the respondent.

26 February 1987

KAPI DCJ BREDMEYER CORY JJ: This is an appeal against a decision of Amet J (namely Arthur Ageva v Bobby Gaigo [1986] PNGLR 160). The appellant before us, and before the Judge below, was aggrieved by a decision of the Land Titles Commission handed down on 18 April 1985 in relation to Fishermans Island. Mr Narokobi filed an appeal notice in the National Court on 18 July 1985. In July 1986, a year later, Mr Shepherd, for the respondents, applied to have the appeal struck out for lack of prosecution. He succeeded in that application before Amet J.

Amet J decided the application on the basis that there were no applicable rules governing appeals from the Land Titles Commission to the National Court. We think the learned trial Judge was right in that view and desire to elaborate a little on how that came about. Prior to Independence appeals from the Land Titles Commission were governed by the Supreme Court Appeal (Land Titles Commission) Rules 1968. Those rules were made under the provisions of the Papua and New Guinea Act 1949-1966 (Aust). That Australian Act was repealed at Independence by the Papua New Guinea Independence Act 1975 (Aust). Under normal principles of statutory interpretation, the repeal of an Act repeals any rules or regulations made under that Act unless there is a specific savings provision. The 1968 Rules were repealed by the Australian Act and not by the Laws Repeal Act 1975. The latter Act repealed laws including subordinate legislative enactments such as rules but not subordinate enactments made under an Australian Act which “extends of its own force” to Papua New Guinea. The Supreme Court Appeal (Land Titles Commission) Rules 1968 were made under an Australian Act which applied of its own force to colonial Papua New Guinea. Because the 1968 Rules were not repealed by the Laws Repeal Act they were not adopted immediately after Independence by Sch 2.6 of the Constitution.

Even if the 1968 rules had not been repealed by the Papua New Guinea Independence Act 1975 (Aust), they were, in any event, repealed by the National Court Rules 1983. Order 1, r 3 of those Rules repealed all previous rules of the National Court other than rules created by legislation.

In the absence of any rules governing the conduct of appeals from the Land Titles Commission to the National Court s 185 of the Constitution is relevant. That section provides:

“LACK OF PROCEDURAL PROVISION

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

We agree with the trial Judge that in the absence of specific rules the appellant must take all such steps as are reasonably practicable in the circumstances to get the appeal prepared and heard. He must be reasonably diligent and expeditious in the taking of those steps; in other words, he should not be guilty of unreasonable delay. To ascertain what steps are reasonable and what timetable for the taking of those steps is reasonable, the courts will be guided in general terms by other appeal rules in this jurisdiction and elsewhere, including even the repealed 1968 Appeal Rules.

We turn now to the trial Judge’s exercise of his discretion. In our view he took into account the proper matters and did not take into account any improper or irrelevant matters.

Mr Narokobi deposed in his affidavit that the “main reason” for the delay was because of his uncertainty as to the personalities, clans and individuals involved in Roku Village and in his instructions. He was initially asked to appeal by Rei Geita of Roku Village. He was not one of the named parties in the hearing before the Land Titles Commission, so Mr Narokobi lodged the appeal in the name of the person who was the only named party from Roku Village, viz, “Arthur Ageva of Roku Village on behalf of Gaibudobu, Kurui and Tanomotu clans of Roku Village”. Mr Ageva did not give Mr Narokobi instructions to appeal on his behalf. When he later found out that his nephew, Rei Geita, had held meetings, raised money and instructed Mr Narokobi to lodge the appeal, he was upset. Arthur Ageva told Mr Narokobi that Mr Geita was not the proper spokesman. Thereafter Mr Narokobi took no steps to prosecute the appeal other than advising Mr Ageva to see a separate lawyer, advising both Mr Ageva and Mr Geita that he could not continue acting if there was a conflict of interest, and, on a number of occasions, advising them to resolve their differences and come back to see him when they were agreed. Unhappily agreement on who should represent the three clans from Roku was not reached until after they had been given notice of the respondent’s application to strike out the appeal in July 1986.

As we see it, the problems Mr Narokobi had in getting instructions are between him and his clients, they are not an excuse for the delay in the conduct of litigation between the appellant and the respondent. The appellant has a duty vis-à-vis the respondent, in whose favour the decision in the Land Titles Commission was made, to take all steps as are reasonably practicable to prosecute the appeal within a reasonable time.

The appellant cannot justify the delay in this case on the failure of the Land Titles Commission to prepare the appeal papers. The Commission does, in practice, prepare the papers necessary for the hearing of an appeal from it to the National Court. It had not prepared the appeal papers in this case. We note that the District Court and Local Court also prepare the appeal papers but it is our experience that those courts often need to be prodded and reminded to provide the appeal papers and in practice the appellant has to do this. We think the same practice should apply to appeals from the Land Titles Commission. It is the duty of the appellant, we consider, to prod the Commission to prepare the papers needed for the appeal. In this case the Commission did nothing perhaps because the service upon it was a little odd. Mr Narokobi’s client, Rei Geita, deposed that he served “a Hanuabada man” at the Commission’s office. Commissioner Oliver advised that no copy of the appeal notice ever reached the Commission’s file. The trial Judge accepted both statements as true. This possible loss, or misfiling, of the appeal notice by the Commission reinforces the wisdom of our view that it is the duty of the appellant to prod or remind the Commission to prepare the appeal papers. The appellant did not do that in this case. His lawyer wrote no letters and made no phone calls to the Commission to prepare the appeal books. Such inaction for one year was unreasonable. We consider that the appellant’s failure to enter the appeal for hearing is of lesser importance because, without the appeal books, any such entry would have been premature.

We agree with the learned trial Judge that the appellant made no real and genuine attempt over a period of one year to get the appeal ready for hearing, and has provided no satisfactory explanation for the delay.

We dismiss the appeal with costs against the appellant.

Appeal dismissed

Lawyer for the appellant: Narokobi & Co.

Lawyer for the respondent: I R Shepherd.