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Arakua v Yanape [2021] PGNC 142; N8872 (11 June 2021)

N8872

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 117 OF 2019

BETWEEN:
TIMOTHY WEMIN ARAKUA
Plaintiff

AND:
LILLIAN YANAPE
Defendant

Waigani: Miviri J
2021: 11^th June

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – District Court – Dismissal of application for want of Prosecution – 2019 appeal no depositions – Inordinate delay – Due Diligence – Appeal dismissed – Orders at first instance confirmed – cost in the cause.

Cases Cited:

Duque v Paru [1997] PNGLR 378

International Finance Company v K K Kingston Limited [2019] SC1872

Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397

Tupou v Tolopa [2020] PGNC 133; N8351

Aihi v The State (No 2 [1982] PNGLR 44
Counsel:

J. F. Unua, for Appellant

Respondent in person

RULING

11^th June, 2021

1. MIVIRI, J: This is the ruling on the appeal filed 19^th November 2019 by the appellant challenging the decision at first instance by the Port Moresby District Court that handed down a decision on 17^th May 2019 where it made the following orders:
   
   • (1) For the substantive cause of action, Defendant Timothy W Arakua is ordered to pay the sum of K 10, 000.00 compensation to the Complainant plus costs in the sum of K24.00.
   • (2) The total amount K 10,024.00 to be paid fortnightly payment of K500.00 and the total amount to be fully paid by 31^st March 2020.
   • (3) Defendant’s notice of motion is dismissed for being an abuse of process.
     
2. This is an appeal that originates from a decision of the Port Moresby District Court that made the orders set out above against the appellant. No doubt it was his duty to bring forth the depositions in that proceeding to this Court, and to ensure that the appeal was heard within reasonable time. Particularly because of the fact that prima facie a court of competent jurisdiction had made a decision that was binding between the parties. For the Respondent she was entitled to the fruits of that decision here K10, 024.00 ordered by that Court remained outstanding to be paid to her because of this appeal lodged by the appellant. She had had to be content ever since 17^th May 2019 when that court made the decision in her favour up to now 11^th June 2021.
   
3. It was his contention that he had been wronged in law in the decision that was taken by the magistrate. It was upon him to ensure since 19^th November 2019 up to today 11^th June 2021 he ought, and should have compiled the appeal book and had it ready for the hearing. As it is the court file does not contain any other documents necessary for the hearing of the appeal now for almost 1 year 6 months. The court file evidenced neither appeal deposition nor an appeal book. It was empty and only had the notice of appeal dated the 19^th November 2020 a year ago running into the 6^th Month of the year 2021.
   
4. The respondent was in person and filed a motion to dismiss the proceedings for want of prosecution. It was argued that there was no basis upon which the court could entertain the application, nor any basis for what was sought, dismissal of the appeal. Because the grounds in law were not pleaded upon which jurisdiction to dismiss was based. But the facts were clearly evident that this was an appeal filed and nothing eventuated on the appeal to bring it to a hearing. The responsibility was of the appellant not the respondent. Accepting this evidence and the affidavit material of the respondent of the 24^th May 2021 it was in the following terms, “The defendant/respondent will at 09.30am on 11^th June 2021 at the National Court Waigani, move the Court for Orders, (1) That the Appeal of the Complainant/appellant be dismissed for want of prosecution. (2)costs against the Complainant/ Appellant. And it was signed by Lillian Yanape respondent.”
   
5. I viewed the Notice of Motion and determine that it was in proper form and did not violate in that manner. Jurisdiction basis in law was not set out but it was clear this was a plea for want of prosecution. And the appellant through his lawyer responded as evident that it was proper notice to bring and did not smear what was sought. Read with the affidavit of the respondent filed of the 24^th May 2021 it was clear that the District Court Orders were in her favour against whom the appeal was lodged. She deposed that she was despite service of the notice of appeal, no other documents pertaining and relevant, having been served since. It means the orders in the District Court in her favour have not been honoured, with the fact that living in Port Moresby is hard. She was enticed and brought down from Mt Hagen where she was doing a diploma Course in Tourism and hospitality when the appellant flew her down here and abandoned her. He had a wife. She has been made to fend for herself and is further denied with the prolonging of the appeal lodged by the appellant.
   
6. It is clear a due process of law has entailed and the respondent is entitled to the fruits of that due process of law. But at the same time the appellant is also entitled to have his day in court on the allegation he raises. It is his duty to ensure that is done expeditiously and without inordinate delay. That there is no procrastination of the matter unnecessarily and without just reason. It is therefore his duty to explain why the delay of a year and half with no appeal depositions, nor a book to bring the matter to see Justice both for himself and the respondent: Duque v Paru [1997] PNGLR 378. If the blame is on the District Court for not ensuring provision of the Deposition at first instance there is no evidence to this effect on the record of the proceedings. What is from the bar table remains fruitless and without any basis to advance the course of the appellant. Particularly against the respondent who is a layperson with no formal education in law except a bold sense of justice in her cause.
   
7. Because in the event of the hearing of the appeal it is upon the appellant to show that there are apparent and identifiable errors on the face of the Judgement or decision at first instance to vitiate it succeeding the appeal: International Finance Company v K K Kingston Limited [2019] SC1872 (13 November 2019) and Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397 (30 October 2014). Because the allegation here is that the magistrate had erred in law when he failed to dismiss the Complaint and summons pursuant to section 21 (4) (e) of the District Courts Act. And that he had acted in excess of his jurisdiction under section 21 (4) (e) District Court Act. To ensure that this is the course he is duty bound when he questions by his appeal the decision of a court of competent jurisdiction, it is upon him to so show.
   
8. He is represented by a lawyer of the office of the Public Solicitor who has brought no light to his clients cause for over a year and a half, 19^th November 2019 to today 11^th June 2021 with no sight of an appeal book, or depositions from the lower court on file on record. The file in court did not evidence any depositions except for the notice of appeal and the notice of motion and the affidavit filed by the respondent to move the application for dismissal for want of prosecution. This is a court of equity and equity holds the hand of the law not against, justice is paramount at the end not without. Therefore, to insist on strict compliance of the rules of court against a litigant given the facts here will defeat equity and justice. Rules are not a means to an end but should always serve justice: Tupou v Tolopa [2020] PGNC 133; N8351 (4 June 2020). No doubt this is primarily a case of want of prosecution and would fall within the rules of court in Order 18 rule 12 (4) (a) (i) (ii) of the NCR where an appeal is summarily determined on the application of a party and on the Courts own initiative.
   
9. Here having viewed the file and the facts relevant although not set out in the notice of motion by the respondent a lay person, it would be denying her justice to corner her by the rules of Court. Her facts and her pleading no doubt leave nothing other than a case on dismissal for want of prosecution. The question is do the facts relied support. In the examination of the file and her affidavit indeed that is the only rational viable conclusion open to the court. There is nothing apparent or identifiable to the contrary. And by casting the net under section 155 (3) (4) of the Constitution and with Aihi v The State (No 2) [1982] PNGLR 44 (26 February 1982) it would not be an error to see out and grant the orders that she seeks for the dismissal of the appeal as applied.
   
10. Accordingly, the orders of the Court are:
    
    • (i) The appeal is dismissed for want of prosecution.
    • (ii) The orders at first instance are confirmed.
    • (iii) The cost of the proceedings follows the event.

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Applicant

The Respondent in Person