National Court of Papua New Guinea

A Ye>A Yer forr for Appl Applicant/Respondent

D Umba for Respondent/Appellant

INTERLOCUTORY JUDGMENT

5 October 1995

AKURAM AJ: This is an applicationhe Rthe Respondent’s Counsel to strike out the appeal for want of prosecution on the grounds of delay in preparation of ApBook.

The Appellant argued that the delay was caused due to the Clerk of Court not pnot providing the transcripts of the District Court depositions, i.e. the evidence taken by the magistrate.

The Notice of Appeal was filed in the Kundiawa District Court but dated at Gorokahe 2nd 2nd of December 1994. Hr, the facing sheet on thon the Notice of Appeal documents states that the Notice of Appeal was filed on 5th December 1994 at National Court. The Recognisance peal is a is also filed in awa but the facing sheet iset is dated 5th December 1994 and stamped with a National Court stamp. Sily to the Entry of Appo Appo the National Court dated 7th December 1994 and the Entry ntry of Appeal dated 9th December 1994. Ttice of Entry of Appeadateadated 9th December 1994. The Notice aring of Appf Appf Appeal is dated 9th December 1994.

This Appeal is against a decisf the District Court dated 15/11/94 whereby the Court orderordered Appellant to pay to the Respondent the sum of K6896.61 plus 8% interest and costs and dismissed the counter-claim against the Appellant.

The Registrar then wrote to the Appellant’s lawyer on 10/1/95 saying:

“I have located the appeal documents re the above from my secretary’s table but my secretary, has failed to note down when it was filed, so could you or your servants give me a statutory declaration stating the date of filing.”

A Statutory Declaration was deposed by one Precilla Jackson, Secretary to Appellant’s lawyer saying that on the 2/12/94 she typed the following documents:

(a) &#16try of Appeal.

(

(b) ټ N ticentf Entry of y of Appeal.

(c) Notice af He oingppe A.

Th the 5, tht. Registrar Goro Goroka wrka wrote tote to Asst. Registrar Mount Hagen transferring the Appeal to Mount Hagen as it is a Simbu matter.

The Appellant or his lawyer than from the 9th December 1994 or 12th December 1994 did not do anything until on the 23/6/95, a period of over six months (6 months & 11 days), when Counsel for both parties appeared in court where the court set down the matter tentatively for hearing on the 25/8/95, a period of 2 months and 2 days. This is a tof 8 months ands and 13 days. Tn the 25/8/95, there is s is still no appeal documents such as the Appeal book ready. So the coirected that:

On the 27/9/95 9/95 Counsel for the appellant wrote to thociate to Justice Injia requesting this and another appeal peal to be dealt with on the 24th, 25th or 26th October 1995. The rebeing that he will bill be attending the National Court Call-Over on the 2/10/95. There are no s of the lett letter sent t Respondent nor his lawyer.

During the call-over on the 2/10/95, Respondent’s 17;s lawyer advised that he’ll applytrike out for want of prosecution on the 5/10/95 (today).

There is ample authority on the question of delays in preparing the appeal papers. In Artgeva v Gaigo (1987) 987) PNGLR 12 at 14-15, the Supreme Court said, when commenting on Land Title’s Commission Appeals but also commented on Local and District Court appeals, that:

“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 apnt has a duty vis-&ais-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 appealin a reasonable time.

The appellant cannot justify the delay in this case on the fa of e of the Land Title’s Commission to prepare the appeal papers. The Commission does, icticactice, prepare the papers necessary for the hearing ofppeal from it to the National Court. It had not prepaprepared the appeal papers in this case. We noat the District Cand Cand Local Court also preparrepare the appeal papers but it is our experience that those courts often need to be prodded and reminded ovideappeal papers ands and in practice the appellant has to do o do this. We think the same practicu should apply to appeals from the Land Titles Commission. It i duty of the appellantllant, we consider, to prod the Commission to prepare the papers needr the appeal. In this case the Commi didn did nothingthing perhaps because the service upon it was a little odd. Mr Narokobi’ent, Rei, Rei Geita, deposed that he served “a Hanuabada man” at the Commission’s office. Commissioner O advihat no t no copy of the appeal notice ever reached the Commission’s file. 160; The trial accepted bted both statemes true. This possible loss, or misfiling, of the appeal notice by the Commission rein reinforces the wisdom of our view that ithe duty of the appellant to prod or remind the Commission tion to prepare the appeal papers. The appt did not do that ihat in this case. His lawyer wrote no letters and made no phone calls to the Commission to prepare the appeal books. Such inactio one year nreaunreasonable. We consider the appe appelappellant’s failure to enter the appeal for hearing is of lesser importaecause, without the appeal books, any such entry would have been premature.

We agreeagree 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.”

The Supreme Court in Tenge Kai Ulo and Ors v Acting Public Prosecutor (1981) PNGLR 148 had to address the question of undue delay and said:

“First on the mechanism of producing appeal papers and as preparation of Appeals, typing of Appeal books, shortage of staff, etc... Secondly the ability of reof resources and transcript of evidence. Thirdly, otal period from from the date the convicted person is arrested to the time of the Application for striking out for want of prosecution. In case of these rs thay wlay was more than 28 days.

In the case of t of the appeal of the acting Public Prosecutor, it is four months since the of notice of the Appeal and in the other two matters the delay is six months from the file filing of the notice of Appeal.”

In that case the Court by majority did not strike out appeal because both parties were at fault and that they were cross-appeals.

In the present case I am of the view that Appellant/Lawyer has not established good reasons. The Respondenthowever esta established a prima facie case and it is up to the Appellant to give reasonable explanation for the delay. I the and also accept thet the Supreme Court views expressed in Arthar Ageva v Gaigo (above)bove) that it is up to the appellant and tty of the counsel to prod (push) the Clerk of Court to prepare the papers needed for the aphe appeal. It has not done so until rery recently. The appeal was sr 2/10/95 0/95 for hearing. He ot served the appeal boal book. His letter of 27 has not been served on the Respondent/Lawyer - requesting adjournment from 2/10/95 to 24, 24, 25 or 26th October.

There has been al ofnths and 13 days days since the last action taken on the Appeal on 12/1/95. The only only otheron take taken after 12/1/95 is Council’s appearance on the 25/6/95. Even since 25/6/95, aod ofod of over 3 months, to 2/10/95, Appellant’s Couhas not prepared and served on Respondent the necessary appy appeal papers to prepare their response to the Appeal.

I am theresatisfied that, there is a is a long and unreasonable delay in prosecution of the appeal. I am that to strike out fout for want of prosecution is a discretionary matter and I exercise that in favour of the Appellant/Respondent to strike out.

I thee Strike out the Appeal for want of prosecution.

Lawp>Lawyer for the Applicant/Respondent: Alphonse Yer Lawyers

Lawyer for the Respondent/Appellant: Umba Lawyers