N11406
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 34 OF 2025 [IECMS]

BETWEEN:
DANIEL EDMOND KAIMA
Appellant

AND:
JENNIFER KOKA-AUA
Respondent

WAIGANI:   DINGAKE J
02 JUNE 2025

MATRIMONIAL CAUSES – appeal against decision of District Court in making substantive maintenance orders – four grounds of appeal raised – appellants notice of motion dismissed by District Court - whether that error occasioned a substantial miscarriage of justice warranting the setting aside of the dismissal – dismissal of appellant’s notice of motion due to want of prosecution - no cogent evidence that the dismissal was unlawful, unjust, or procedurally flawed - appeal dismissed

Counsel
Daniel Edmond Kaima, the plaintiff, in person
Mr. Larson Tangua, for the respondent

1.	DINGAKE J:  INTRODUCTION:  This is an appeal by the Appellant, Daniel Edmund Kaima, against the decision of the District Court made on 20th August 2024 in FC 118 of 2022, Jennifer Koka-Aua v Daniel Edmund Kaima, which struck out his Notice of Motion dated 31 October 2023 for want of prosecution.

2.	The Appellant and the Respondent are husband and wife, although they appear to be estranged. 

3.	The Respondent had instituted proceedings in the District Court seeking maintenance for herself and their two children. On 4 September 2023, the District Court issued substantive maintenance orders against the Appellant, made in his absence (ex parte).

4.	The Court orders were as follows:

1)	The Defendant is liable to provide child support pursuant to s.108 and spouse maintenance pursuant to s.109 of the Lukautim Pikinini Act 2015 as follows-

i.	HARRISON KAIMA, m/c, DOB – 29/11/2007 – K500.00 p/f;

ii.	DANIEL JUNOR KAIMA, m/c DOB – 09/09/2009 – K500.00 p/f; and

iii.	Complainant’s use & upkeep – K1,000.00 p/f.

2)	The Defendant shall assist with rental of K500.00 p/f.

3)	The total of K2,500.00 shall be attached to the Defendant’s salary section to be deducted into the Complainant’s account. Details are – Name: Jennifer Koka-Aua; Account No.: 0000 1387; BSP – Waigani Drive.

4)	Maintenance is backdated to the date of registration of the case which is 28/04/2022. From 28/04/2022 to 28/08/2023 is a total of 34 fortnights. Defendant shall pay 50% of the maintenance backdate. (34x K2,500.00 = K85,000.00 = K42,500.00 The Defendant shall pay instalments until settled in full.

5)	The child Harrison shall return to the Complainant as soon as maintenance commences.

6)	The Defendant shall meet all school fees and medicals for the family whenever due.

7)	Custody is awarded to the Complainant, and the Defendant shall have reasonable access.

8)	Maintenance shall continue until varied, suspended or terminated by a court of competent jurisdiction; or the children turn 18 years old and no longer in school or die; and the Complainant remarries or dies. Whichever is first to occur.

5.	Aggrieved, the Appellant filed a Notice of Motion dated 31 October 2023 seeking to set aside those orders. That motion was struck out by the District Court on 20 August 2024 for want of prosecution under Sections 21, 22, and 25 of the District Courts Act.

Grounds of Appeal

6.	The Appellant’s Notice of Appeal raises four grounds:

(1)	The trial court erred in law and fact and failed to exercise its inherent powers under Sections 87, 88, and 89 of the Lukautim Pikinini Act 2015.

(2)	The trial court erred in failing to observe principles of natural justice as provided by Section 59 of the Constitution.

(3)	The court failed to exercise its inherent powers under Sections 22B(2)-(3), 22C, and 25 of the District Courts Act.

(4)	The Appellant asserts that Her Worship Rosie Johnson, having previously acted as a mediator in the matter, should not have continued to constitute the court that issued the maintenance orders.

Issue for Determination

7.	The sole issue before this Court is whether the District Court erred in law or fact in dismissing the Appellant’s motion dated 31 October 2023 for want of prosecution, and if so, whether that error occasioned a substantial miscarriage of justice warranting the setting aside of the dismissal.

Analysis

8.	The Appellant contends that his motion was wrongly dismissed and that he was denied natural justice as the original maintenance orders were made ex parte. He argues that he had a defence on the merits and should have been given a fair opportunity to be heard.

9.	However, this Court observes that the dismissal of the Appellant’s motion on 20 August 2024 was not based on the merits of the motion but was procedural — for want of prosecution. The Court record does not indicate that the Appellant, or his legal representatives, were present in court on that day, nor has the Appellant provided any credible evidence or affidavit explaining the reason for their absence or delay, if indeed he or his lawyers came late or did not attend Court on that day.

10.	Further, the Appellant has not demonstrated that the trial magistrate exercised discretion arbitrarily or capriciously. There is also no evidence that any application for adjournment or reinstatement of the motion was filed after its dismissal. In the absence of such materials, this Court cannot interfere with the discretionary power of the lower court unless it was exercised on a wrong principle or resulted in injustice. The record is silent in that regard.

11.	On the argument regarding the alleged prior mediation by Her Worship Rosie Johnson, it is not disputed that the same Magistrate issued the substantive orders on 4 September 2023. However, there is no rule that precludes a judicial officer from presiding over a matter after attempting mediation unless actual bias or perceived partiality is established. No evidence of bias or impropriety has been shown.

Conclusion

12.	It is unfortunate that the Appellant did not have an opportunity to argue his motion on the merits, particularly given the ex parte nature of the original orders. However, the Appellant bears the responsibility to prosecute his application diligently. He has failed to explain or justify his absence or delay in prosecuting the motion, or to explain, satisfactorily, based on evidence, why his Notice of Motion of the 31st of October, 2023 was dismissed for want of prosecution.

13.	The striking out of his motion for want of prosecution was, on the face of the record, a lawful exercise of discretion by the District Court.

14.	In the absence of any cogent evidence that the dismissal was unlawful, unjust, or procedurally flawed, the appeal must fail.

Orders

15.	The appeal is dismissed.

16.	There shall be no Order as to costs.
_______________________________________________________________
Lawyers for the respondent:    	Tangua Lawyers