N8590
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 102 OF 2017

BETWEEN:
BISHOP VEBURI DABADA
Appellant

AND:
NIUGINI OIL PALM LIMITED
Respondent

Waigani: Miviri J
2020: 24th September, 16th October

PRACTISE & PROCEEDURE – Judicial Review & appeals –Appeal – Order 18 Rule 12 (4) (a) (i) NCR – Notice of motion – Dismissal of Appeal – Non compliance of court directions orders – Basis of – Evidence sufficient – Handwritten notes of Magistrate – not a judgement – Magistrate or trial court duty to provide reasons for decision – no reasons – inference open no good reasons for decision – Balance discharged – cost follow event.

Cases Cited:
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Ihari v Motor Vehicles Insurance Ltd [2006] PGSC 41; SC1317
Haro v State [2019] PGSC 96; SC1841
Amet v Yama [2010] PGSC 46; SC1064
Coconut Products Ltd v Markham Farming Co Ltd [2018] PGSC 60; SC1717
Aihi v The State (No 1) [1981] PNGLR 81 
Kakaraya v Somare [2004] PGSC 11; SC762 
Takori v Yagari [2008] PGSC 3; SC905 
Counsel:

P. Aeava, for Appellant
B. Kumo, for Respondents
					RULING 
16th October, 2020
1.	MIVIRI, J: This is the ruling on the Respondent’s notice of motion of the 9th May 2019 for dismissal of the appeal for non-compliance of Court Directions before Justice Nablu of the 04th March 2019 pursuant to Order 18 rule 12 (4) (a) (i) of the National Court Rules. And these directions were: 

(1)	The appellant is to serve the draft Index to the Appeal Book by close of business 06th March 2019.

(2)	Respondent to return the draft index to the appeal book by close of business 08th March 2019.

(3)	The Appellant to file and serve the certified Appeal book by 29th March 2019.

(4)	Matter returns for allocation of hearing date on Monday 08th April 2019 at 9.30am.

(5)	Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

2.	It was served on the appellant through his counsel on record on the 13th May 2019 with a letter dated the 13th May 2019 and the affidavit of Beryl Kumo Lawyer on record for the respondent on the 13th May 2019. Affidavit to this effect has been filed by the process server one Joshua Magide of Jema Lawyers P. O. Box 332 National Capital District. He attaches annexure A, B, & C true copies of the acknowledgement receipt of the documents by one David Aeava. For the purposes of the rules this is notice in accordance and therefore liberty for the motion to be moved. The appellant has been informed of the intentions of the respondent and should in all fairness prepare to counter. And the intentions of the respondent are that following. 

3.	On the 31st August 2019 the matter came before me with the parties both in attendance and was adjourned to 07th September 2020 at 9.30am. It was directed that the appeal book was to be filed by or before that date by the appellant. In the event that he failed the respondent was granted liberty to move the motion on foot as filed for dismissal. This is the motion filed of the 09th May 2019 that will be addressed here. The motion was to be moved 16th May 2019 but was not moved. It was pending since that day up to now affidavit of one Joshua Magide of Jema Lawyers process server of service. 

4.	This evidence shows that the appellant is reasonably aware of the respondent’s intentions in the matter since 13th May 2019 to today a year and four months since. That he will seek dismissal of the appeal by the notice of motion pursuant to Order 18 Rule 12 (4) (a) (i) of the Rules. For his part the appellant has not filed any material except to come from the bar table that he would take 45 minutes to an hour to make his submissions on the matter. And this is after securing today’s date for hearing.

5.	On the 07th September 2020 appellants counsel appeared respondent did not and the matter was adjourned to the 24th September 2020 at 9.30am for hearing. And on that date both parties were in attendance Counsel for the appellant made an application for adjournment citing that the matter would involve a lengthy submission that would involve history of the appeal and therefore would need at least 45 minutes to an hour to present his appeal. That he applied for an adjournment for a special fixture of the matter. I reasoned that what was pertinent was not necessarily the history but the issue or the contentions between the parties and that would not need the time as he forecasted. The court would not adjourn given that the matter was set down for hearing. There was no material in accordance with PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) to seek an adjournment and the application was refused with direction to respond to the application for dismissal made.

6.	By section 220 (2) of the District Courts Act appellant had a month from the date of the decision to lodge an appeal to the National Court. The rational was that the matter was still fresh so as to properly address appeal raised. Here the notice of appeal is dated the 27th September 2017 and relates to challenge against the decision of the Port Moresby District Court made on the 20th September 2017. At the date of the writing of this Judgement it would be 3 years and a month since that decision. The filing of the appeal was immediate but the time it has endured to where it is here today begs whether the appellant is genuinely concerned to move this matter. It begs whether he is genuinely affected by the decision the subject of the appeal. Underpinning the decision is land yet the appellant by his conduct demonstrates no urgency to have the appeal dealt with and position in law settled.

7.	Given that length of time the Appeal book does not contain the very decision challenged. And the appellant explains that he has produced hand written notes of the Magistrate at first instance. And has done so because of the views of this court presided by late Justice Nablu that this could be done. These are contained at pages Tab 4 and 5 of the appeal book. I have viewed the subject and confirm them unreadable. To be relied as the source of the appeal and from which the learned Magistrates reasoning and decision in law is based leaves a lot to be desired. By itself it would be no basis to challenge the decision at first instance from. Further for them to be of any use to the court they must be properly transcribed to understand what is written. Even then they are not the decision the subject of the appeal. It is begging as to the genuineness of the appellant in the appeal. By his action he has drawn the respondent into court to make him wait out and here the respondent is an incorporated company. 

8.	And it has not been forthcoming according to the appellant’s counsel since the filing of the appeal and reference was made to his letters in the review book dating from September 2017 to June 2018 where despite being addressed of the same to the Clerk of the Port Moresby District Court the decision was not forthcoming. This is not properly by law before the court and cannot be relied on in support. Hence it will not be the subject based for the determination of this application. The court is not concerned with the administration compilation of material necessary to initiate a process that is a matter that rests with counsel and the parties so that it is ready to be heard. That is incumbent upon counsel and the parties. The court will not step into the arena so as to be clouded by the dust of the dispute. What is there in law to ensure that material that ought to be before the court in support of a matter instituted by the parties is entirely in their hands according to law and the rules and the court will not play what is rightly theirs to do. Accordingly, it is upon the appellant to move his appeal. He has not and requests an adjournment without any proper material before the court in accordance with except that he needs at least 45 minutes to an hour to make his submission. 
 
9.	Clearly the history of the matter is not conducive to nor is the balance titled in his favour because he has not placed any material to sway, PNG deep Sea (supra). Rather what is before the court is in favour that an expedited hearing is given, it being a 2017 matter and it is now three years since. Even then he has been accorded natural justice in the hearing of his reasons for his adjournment which are bare without any supporting material, Ihari v Motor Vehicles Insurance Ltd [2006] PGSC 41 ; SC1317 (30 June 2006). 

10.	The notice of appeal in this matter is dated the 27th September 2017. It was filed on the 28th September 2017. The decision of the District Court was made 20th September 2017 and entered on the 22nd September 2017. Primarily the appellant contended that there was a primary dispute over ownership of the subject land Portion 1489, Granville Port Moresby National Capital District. And the District Court decision that amongst others ordered his vacation from it within 14 days did not stand because of that bona fide dispute over its ownership. It was customary land. The entry of appeal is dated the 27th September 2017 filed the 28th September 2017. The recognizance on appeal is dated the 25th September 2017 filed 28th September 2017.

11.	The motion is supported by the affidavit of Lawyer Beryl Kumo also dated the 09th May 2019. She recounts the orders by this court presided by late Justice Nablu that I have set out above. Following the appellant wrote attaching a draft index to the appeal book on the 5th March 2019. Respondent responded by letter dated the 11th March 2019 objecting to certain material and for the appeal to redo and send the revised index for their comments. Between that date and the 25th March 2019 this was not resolved with the parties attending before the taxing officer Baka Bina and settlement was reached as to the index to the appeal book. From which the appellant was to have filed the certified appeal book by the 29th March 20 but didn’t. On the 17th April 2019 the respondent caused a fore warning letter to the appellant warning that they would file and move to have the proceedings disposed for non-compliance of court directions.

12.	Document 32 dated the 4th September 2020 is purportedly the appeal book. What is fundamental to the appeal is the reasons findings and determination in law on the matter before the District Court. At tab 6 and 7 pages 8 to 18 and 19 to 22 are hand written notes from the presiding Magistrate and which have been typed by the appellant’s counsel. This is the assertion of the respondents. Given that it is a challenge to that decision it would and should be by the Magistrate or the court at first not by counsel appealing that decision. Because the appeal is a rehearing and the reasons leading to the judgment are pertinent because they are independent and underlying the cause of action at first instance. The parties will have no part in the writing or re writing of a judgement not there at the first instance for the purposes of instituting an appeal.

13.	It is not there nor has it being provided to the court in the appeal book filed. The inference that can be drawn is that the magistrate has failed in his duty to provide the reasons for the decision and the inference is that there are no good reasons for the decision. Because it is upon it that the appeal is prepared by the appellant and the determination of the court will follow from it. And the Supreme Court canvassed this at length in Haro v State [2019] PGSC 96; SC1841 (30 August 2019) adopting and following earlier decisions of it in Amet v Yama [2010] PGSC 46; SC1064 (9 July 2010) and Coconut Products Ltd v Markham Farming Co Ltd [2018] PGSC 60; SC1717 (10 October 2018). There is not even an oral transcription of the decision or judgment at first instance produced in this case. There is no other material upon which the issues of the proceedings of the first instance can be derived nor worked out even by this court hearing an appeal. Even the hand written notes relied does not afford for the simple elementary reason they are no readable so that neither heads nor tails are made out. It cannot be distilled simply as to the facts issues assessment of the evidence scoped with the law so as to come up with a judgment in law. That is simply not the case and so will entail what follows due because there is really nothing upon which even this court can sufficiently be enabled to conveniently work out the issues from that material and to be able to substantially deliver justice for the parties praying here.

14.	It leaves no room except to dispense justice in accordance with section 155 (4) of the Constitution as it is necessary given the circumstances which come to the top set out above. And is within what was enlightened in Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981) because there is discretionary jurisdiction derived and ought to enhance the dispensation that there is a right to appeal according to law. Simply it is not exercised without regard to law by the evidence. Here is proceeding instituted out of claim to an ownership of land. And against which a notice of motion for dismissal has been outstanding since the 9th of May 2019. It is now 24th of September 2020 at the hearing which is since 27th September 2017 when the notice of appeal was filed in this court. In response to the notice of motion by the respondent the appellant has not produced materially either by affidavit and supporting material in reliance to tilt the balance of maintaining the appeal. Diligent prosecution of an appeal including time taken are relevant consideration in the determination of as here: Kakaraya v Somare [2004] PGSC 11; SC762 (1 October 2004). 

15.	It is clear that is not the case for the appellant here given all set out above. Suffice to say that no party should be summarily derailed from the judgement seat without proper consideration due because the courts will be slow to so grant: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). But is there reasonable cause shown by the appellant and by material in response here to so save? It is clear that is not the case by all set out above. An appellant or a party will not invoke the court to play its role due it to administer a matter before court that would be likened to descending into the dispute in the arena.

16.	Consequentially the motion is granted respondent in the terms of the Notice of Motion of the 9th May 2019.

17.	The orders of the court are therefore: 

(i)	The application of the respondent is upheld and granted.
(ii)	Pursuant to Order 18 rule 12 (4) (a) (i) of the Rules and the inherent powers of the court the entire proceedings are dismissed forthwith for non-compliance of court directional orders of 04th March 2019 and for want of prosecution.
(iii)	Costs will follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
AMPS Logohus Lawyers       	: Lawyer for the Plaintiff/Applicant		
Jema Lawyers           		: Lawyer for the Defendant