N11681
PAPUA NEW GUINEA
NATIONAL COURT OF JUSTICE

CIA NO. 14 OF 2025

BETWEEN:
SOLOMON SAMSON
Appellant

v

ROMAN CATHOLIC ARCHDIOCESE OF RABAUL
Respondent

KOKOPO: CHRISTENSEN J 
17 OCTOBER, 5 NOVEMBER 2025

APPEAL – PRACTICE AND PROCEDURE – Dismissal – want of prosecution – application pursuant to O 4, r 36(1) – appeal seeks to set aside eviction order – failure to serve notice of appeal within time – filing of entry of appeal prior to filing of notice of appeal plaining erroneous – no basis to rectify through dispensation – no real interest and intention to prosecute appeal – caution in extinguishing appellant’s rights – no prosecution with due diligence – finality warranted – appeal dismissed – not fatal to application to not rely on O 18 r 12(4) – no distinction in substance as to applicable principles that inform the discretionary exercise 

Application to dismiss appeal for want of prosecution

Cases cited

Bokin v Life Outreach Ministries [2024] PGNC 421, N11084
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Joe Chan & PNG Arts v Yambunpe [1997] PGSC 33, SC537  
Kapi v PNG Rehabilitation Centre [2025] PGNC 105, N11233
Mapusu Investment Ltd v Geta & Badiri Resources Guards Ltd [2023] PGNC 300, N10426
Murigen No 18 Ltd v Deugro (PNG) Ltd [2019] PGSC 77, SC 1838
Pacific Equities & Investment Ltd v Teup Goledu [2008] PGNC 279, N5397
Pastor Dui v Life Outreach Ministries Inc [2024] PGNC 269, N10937
Pyako v Her Worship Ganai & Raii [2024] PGNC 205, N10871
Rabaul Shipping Ltd v Ruru [2000] PGNC 71, N2022
William Moses v Otto Benal Magiten [2000] PGNC 73, N2023

Counsel

No appearance for the appellant 
J Marubu for the respondent

RULING ON MOTION

1.	CHRISTENSEN J: By way of notice of motion filed 1 September 2025 the applicant, who is the respondent in the substantive proceeding, seeks that the proceedings be dismissed for want of prosecution, or such other or further orders deemed just and appropriate.  Costs of the application are also sought.  

2.	The substantive proceedings are a purported appeal from the District Court.   

3.	The application is brought pursuant to O 4 r 36(1) of the National Court Rules 1983 (the Rules), which provides:

Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.  

4.	In support of the application the applicant filed two affidavits relating to the procedural background of the matter and to the substance of the current application.  

Background

5.	On 4 April 2025, the District Court made an order as follows:

(1)	The defendant [the appellant in the current matter], his agents, families, friends and associates be evicted pursuant to s 6.55(1) and ss (2) of the Summary Ejectment Act 1952. 

(2)	A warrant of possession shall be issued forthwith effective from May 5 2025, conditional on the defendant hereby granted 4 weeks from 4 April 2025, to voluntarily disassemble and remove all his stocks, assets, personal effects, chattels and fixtures from the property and give its full possession back to the complainant. 

(3)	Parties shall bear own costs of this proceeding.  

6.	On 9 April 2025, the appellant’s legal representative filed an entry of appeal, dated 9 April 2025.   The entry of appeal purports to be in accordance with ss 226 and 227 of the District Courts Act which provide:

s 226	Appellant to set down appeal and give notice 

(1) Within 40 days after the institution of an appeal, the appellant shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court.

(2) An entry shall be made by delivering to the Registrar of the National Court a memorandum in the prescribed form, signed by the appellant or by his lawyer and containing the prescribed particulars.

s 227	Failure to enter appeal for hearing 
If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.

7.	On 2 May 2025, the appellant’s legal representative filed a notice of appeal, dated 30 April 2025.  The grounds of the appeal are contended errors in law and/ or in fact and claimed relief of the setting aside and quashing of the orders of the District Court.  Filed with the notice of appeal was a recognizance on appeal, in accordance with s 220(1)(b) and s 222 of the District Courts Act 1963.  

8.	Thereafter, no action to prosecute the appeal has been taken by the appellant. 

9.	From May to July 2025, the applicant’s legal representative made enquiries with the Kokopo Registry to obtain a Warrant of Possession to give effect to the District Court order.  

10.	In August 2025, a Registry officer informed the representative that appeal documents had been lodged.  This came to be confirmed by the Registry on 28 August 2025.  

11.	On 1 September 2025, the applicant filed the notice of motion seeking dismissal, as outlined above.  At this stage, the applicant had still not been served with any appeal documents.  

12.	On 8 September 2025, the applicant issued a letter to the appellant demanding immediate service of the appeal documents.   This was served on the appellant on 11 September 2025 and required service within seven days, and that the matter be set for hearing within 7 days.  This did not eventuate. 

13.	On 25 September 2025, the appellant served the appeal documents on the respondent, however the matter has not been sought to be listed for hearing despite the filed entry of appeal.  

14.	With reference to the court file, there is no material filed by the appellant evidencing notification of the appeal to the applicant.  Section 221 of the District Courts Act provides:

s 221	Notice of Appeal 

(1) A notice of appeal under Section 220 shall be in writing, and shall state the nature of the grounds of appeal.

(2) Within one month after the day on which the decision was pronounced, a copy of the notice of appeal shall be served by or on behalf of the appellant on –

(a) the respondent, or on each of the respondents if more than one; and
(b) the Registrar of the National Court.

15.	On 1 October 2025, an affidavit was filed on behalf of the applicant by the Senor Property/ Land Administrator for the applicant.   The deponent attaches the property title, with this relevant to a ground of the appeal, being, the appellant contends, disputed title with respect to the subject land.  

16.	The deponent further explains that the applicant has plans for further development of the property which has been stalled by the appellant.  It is stated that the appellant has shown “little or no interest” in prosecuting the appeal, and that it was only after a letter was sent by the applicant’s lawyer to the appellant that he reacted.  He did so by filing the appeal, with the deponent explaining that this was served on the applicant’s lawyer some three months later.  

17.	The notice of motion was listed to be heard on 17 October 2025.  An affidavit of service by the legal representative of applicant confirms that on 9 October 2025 the appellant’s legal representative was served with the notice of motion, inclusive of the listed hearing date, and the supporting material.  

18.	On 17 October 2025, neither the appellant nor the appellant’s legal representative appeared.  The applicant moved on the motion, with reference to written and oral submissions.  

Submissions of the applicant

19.	The applicant submits that the principles from Murigen No 18 Ltd v Deugro (PNG) Ltd [2019] PGSC 77, SC1838 as to the five considerations that inform a decision to dismiss a matter for want of prosecution are relevant.  It is submitted that:

(i)	the appellant’s delay was inordinate and unreasonable, with no independent effort made to serve the appeal;

(ii)	the appellant has failed to file any evidence to provide any reasonable explanation for the delay;

(iii)	the delay has caused injustice and prejudice to the applicant, who has had to attend at the Court on three occasions to ascertain the status of any appeal, and has denied the applicants their rights as legitimate titleholders to enjoy and further develop their land; 

(iv)	the legal representative has contributed to the delay (and see Rabaul Shipping v Ruru as to this); and 

(v)	summary disposal of the proceedings is a proper dispensation of justice as any contest as to the title involves a distinct proceeding available to the appellant, rather than a mechanism of appeal.  

20.	It is further submitted that there has been a breach of ss 221, 226, and 227 of the District Courts Act, namely that:

(a)	The service of the notice of appeal occurred over four months after the appeal was filed, and only because of the applicant requesting that this occurs; and 

(b)	The entry of appeal was filed prior to the notice of appeal, this being contrary to law. 

21.	As to the last of these, the applicant relies on what was said by Kandakasi J (as then was) in Rabaul Shipping Ltd v Ruru [2000] PGNC 71, N2022 as to the significance of an entry of appeal.  In that authority, his Honour relied on his previous observations of what was then an unreported decision and is now cited as William Moses v Otto Benal Magiten [2000] PGNC 73, N2023.  It is of more assistance to consider the principles from the foundational authority relied upon by his Honour rather than cite the principles from the later authority as were applied in Rabaul Shipping v Ruru.    

22.	In Moses v Magiten, Kandakasi J (as then was) observed that:

The appellant filed an entry of his appeal to the National Court on same day of the lodgement of the appeal.  That meant that as of [the relevant date] the appeal was ready for hearing.  However, the matter was not in fact ready for hearing at that time or at the time of the hearing of the motion seeking to dismiss the appeal for want of prosecution.  

.... the filing of the entry of appeal to the National court was an abuse of process.  This is because, I consider the requirement to file and serve an entry of appeal to the National Court is to tell the court and all concerned that an appeal is ready for hearing.  That in my view is obvious from the words “for hearing on a date to be fixed by the Registrar of the National Court” used in section 226(1) of the Act. 

... Clearly in my view, there is legislative intent to have all appeals from District Courts heard after the lapse of 40 days from the date of the lodgment of an appeal.  Any delay in that therefore, has to be satisfactorily explained if a dismissal or an enforcement of the decision appeal against is to be avoided.  A failure to provide such an explanation is fatal to an appeal. 

Consideration

23.	There has clearly been a failure to prosecute the appeal by the appellant.  The indicia of this are the failure to serve the notice of appeal within time, with no evidence of service available from the appellant himself, and the failure to file any evidence to attempt to provide a reasonable explanation for the delay.  Since 2 May 2025, some six months ago, the appellant has taken no steps to progress the hearing of the appeal, even in circumstances of encouragement to do so by the applicant. 

24.	Additionally, the filing of the entry of appeal prior to the filing of the notice of appeal is plainly erroneous and contrary to the District Court Act. It is incapable of compliance with s 226 of the District Courts Act given the entry of appeal is to be entered “within 40 days after the institution of an appeal”.  At the time of entry, no appeal had been instituted.  

25.	It is possible that the examples of noncompliance may be capable of rectification through dispensation: s 231 District Courts Act.  However, there are a multitude of errors of compliance here, as well as no basis upon which the court can be satisfied that the appellant has done whatever is reasonably practicable to comply with the provisions of the Act such that dispensation would be granted.    

26.	There is no basis to be satisfied that the appellant has a real interest and intention to prosecute the appeal. 

27.	Nonetheless, the court must be cautious to extinguish the appellant’s rights.  In Moses v Magiten, his Honour applied General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331 in which it was said that:

It is of some strength in the argument that a court should be wary of extinguishing a plaintiff’s right of action, but, having found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict (with due diligence).  The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice to the respondent are peripheral to the real issue.  Has the appellant prosecuted his appeal with due diligence?

28.	His Honour observed that:

Thus, if a case of want of prosecution is made out in an application to dismiss for want of prosecution and a respondent to such an application fails to provide a reasonable explanation, the appeal should be dismissed.  To do so is to achieve the main objective of reaching finalities once a decision has been made, subjected only to any appeal that gets prosecuted with due diligence. 

29.	His Honour further observed that:

Once an appeal has been lodged and served...an appellant is obliged by s 226 to enter the appeal for hearing by the National Court within a period of 40 days from the date of the lodgement of his appeal.  A failure to do so attracts the application of s 227, which renders the appeal 
non-existent.  The combined effects of sections 226 and 227 in my humble view, is that, an appeal should be ready for hearing before the National Court within 40 days from the date of its filing.

30.	His Honour went on to explain that where reasonable explanations impede the readiness for hearing, such as a transcript not being available or serious illness, the onus is on an appellant to show such factors exist if there is an application to dismiss for want of prosecution or noncompliance of section 226 of the Act.  His Honour said, “if an appellant fails to prove by appropriate evidence the existence of such factors, the appeal should be dismissed for want of prosecution”.    

31.	In this matter, the appellant has not only failed to prosecute the appeal, with entirely unreasonable and inordinate delays involved, but the appellant has not attended to respond to the application to dismiss the appeal.  There is no information before the court to reasonably explain the issues of noncompliance.  There has been no prosecution of the appeal with due diligence, and finality is warranted.  I am readily satisfied that the appeal should be dismissed for want of prosecution.  

Want of prosecution: Order 4, r 36(1)

32.	The applicant has sought dismissal of the proceeding pursuant to O 4 r 36(1) of the Rules.  

33.	The Rules specifically contemplate summarily determination of an appeal, with O 18 r 12(4) providing:

(a)	The Court may summarily determine an appeal:
(i)	On application by a party; or 
(ii)	On the Court’s own initiative; or 
(iii)	Upon referral by the Registrar in accordance with the procedure set out in (b) below.  [ ... ] 

34.	Additionally, the circumstance of the error with the entry of appeal that occurred here has been found previously to amount to an abuse of process: Moses v Magiten; and see Kapi v PNG Rehabilitation Centre [2025] PGNC 105, N11233.  In such a circumstance, this has in the past resulted in summary dismissal of an appeal pursuant to O 12 r 40(1)(c) as the proceedings are an abuse of process: Pastor Dui v Life Outreach Ministries Inc [2024] PGNC 269, N10937.  

35.	From my perusal of the authorities, it is apparent that there has been a variety of approaches when a want of prosecution of an appeal is considered, including that where it is not sought pursuant to O 18, the motion is dismissed: see Mapusu Investment Ltd v Geta & Badiri Resources Guards Ltd [2023] PGNC 300, N10426.  

36.	Importantly, the authorities demonstrate that there is no distinction in substance from the variety of bases seeking dismissal as to the principles that inform the discretionary exercise (see also Joe Chan & PNG Arts v Yambunpe [1997] PGSC 33, SC537 and Pacific Equities & Investment Ltd v Teup Goledu [2008] PGNC 279, N5397).  

37.	While preferable to specifically rely on a Part of the Rules which is directed towards the nature of the proceeding, with respect to an appeal proceeding, I do not regard it as fatal to the application not to do so.  This is because O 18, the ‘Appeal Rules’, are limited in detail, being as it is that the District Courts Act primarily provides for the procedure for appeals.  

38.	Order 18 r 12(4) of the Rules provides for procedures available to the Court in a summary determination of an appeal.  Further, O 18 r 12(2)(b) provides that the practice and procedure for Motions shall be those applying to Motions under the Rules.  

39.	The particulars of the basis for a summary determination of an appeal may be found elsewhere in the Rules, for example, O 12 r 40 (as could have applied here, and occurred in Bokin v Life Outreach Ministries [2024] PGNC 421, N11084), or O 4 r 36 (as does apply here), or even elsewhere by reference specifically to the District Courts Act (as appears to have occurred in Pyako v Her Worship Ganai & Raii [2024] PGNC 205, N10871 and in Rabaul Shipping v Ruru).  

40.	I am satisfied that there is a want of prosecution and, pursuant to O 18 r 12(4)(a)(i) and O 4 r 36(1) of the Rules, dismissal of the appeal purportedly instituted by the filing of a notice of appeal on 2 May 2025 is appropriate.  

Orders

41.	For those reasons, the following orders are made:

(1)	The notice of motion filed by the applicant/ respondent on 1 September 2025 is upheld.  

(2)	The appeal filed on 2 May 2025 is dismissed.  

(3)	The appellant is to pay the costs of the respondent of and incidental to the proceedings, to be taxed if not otherwise agreed.

(4)	The time for entry of this order be abridged to the date of settlement by the Registrar which shall take place forthwith.
________________________________________________________________
Lawyers for the appellant: Paisat Lawyers
Lawyers for the respondent: Marubu Lawyers