Arthur Ageva of Roku Village on behalf of Gaibudobu, Kurui and Tanomotu clans of Roku Village v Bobby Gaigo (deceased) of Laurina clan, Naime Daure (deceased) and all the iduhus of Tatana Village and Madaha Resena of Tatana Village [1987] PNGLR 12

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Bredmeyer J, Cory J
• Judgment Date: 26 February 1987
• Court: Supreme Court
• Citation: [1987] PNGLR 12
• Year: 1987
• Judgement Number: SC327

Full Title: Arthur Ageva of Roku Village on behalf of Gaibudobu, Kurui and Tanomotu clans of Roku Village v Bobby Gaigo (deceased) of Laurina clan, Naime Daure (deceased) and all the iduhus of Tatana Village and Madaha Resena of Tatana Village [1987] PNGLR 12

Supreme Court: Kapi DCJ, Bredmeyer J, Cory J

Judgment Delivered: 26 February 1987

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ARTHUR AGEVA

V

BOBBY GAIGO

AND MADAHA RESENA

Waigani

Amet J

22 July 1986

1 August 1986

APPEAL — Appeal from Land Titles Commission — No statutory provisions regulating procedure — Conduct of appeal in accordance with justice and commonsense — Appellant to take steps reasonably practicable for expedition — Directions should be sought where necessary — Land Titles Commission Act 1962, s 38.

APPEAL — Practice — Striking out for want of prosecution — Undue delay in prosecuting appeal — Appeal from Land Titles Commission — No statutory provision regulating delay — Powers of Supreme Court applicable — Relevant conditions — Appeal dismissed.

REAL PROPERTY — Land Titles — Appeals from Land Titles Commission — Practice and procedure on — Dismissal for want of prosecution.

The Land Titles Commission Act 1962, s 38, provides for an appeal from a decision of the Land Titles Commission by "a person aggrieved by a decision of the Commission" to the National Court within ninety (90) days. Other than provision for the powers of the National Court on the appeal there are no rules or regulations relating to the practice and procedure to be followed on such appeals.

On an application by a respondent to an appeal from the Land Titles Commission for dismissal of an appeal for want of prosecution,

Held

(1) In the absence of any statutory provision regulating the practice and procedure on appeals from the Land Titles Commission, the court should entertain the appeal as justice and commonsense demand.

Copland v Bourke [1963] P&NGLR 45, followed.

(2) Justice and commonsense requires the appellant to take such steps as are reasonably practicable in the circumstances, and, on questions of reasonable time, the times prescribed in existing provisions relating to other appeals to the National Court may be taken into consideration.

Copland v Bourke [1963] P&NGLR 45, followed.

(3) Where any reasonable doubt arises as to the procedures to be followed, the party wishing to appeal should apply to a Judge for directions.

Copland v Bourke [1963] P&NGLR 45, followed.

(4) On an application to dismiss such an appeal for want of prosecution, the principles applied by the Supreme Court in respect of appeals to it from the National Court are to be applied.

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148 and Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55, considered.

(5) In the circumstances the applicant to dismiss had established a prima facie case of delay but the respondent had not established a satisfactory explanation for the delay of twelve months in setting the appeal down for hearing, which was undue and unreasonable in all the circumstances and the appeal ought to be dismissed.

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148, and Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55, applied.

Cases Cited

Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55.

Copland v Bourke [1963] P&NGLR 45.

Tenge Kai Ulo v Acting Public Prosecutor; Joe Kovea Malai v Acting Public Prosecutor; Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume [1981] PNGLR 148.

Application

This was an application by the respondent to an appeal from the Land Titles Commission to dismiss the appeal for want of prosecution.

Editor's Note

On appeal to the Supreme Court, the decision herein was upheld.

Counsel

B Narakobi, for the respondent appellant.

I Shepherd, for the applicant respondent.

Cur adv vult

1 August 1986

AMET J: This is an application by the respondents that the appeal be dismissed for want of prosecution.

This land dispute otherwise commonly known as "Fisherman's Island Land Case" has a long and protracted history going back to over twenty (20) years ago. It is not relevant nor necessary for me to restate it for the purposes of this application. Sufficient for the purposes of this application is the more recent chronology of events extracted from the decision of Chief Land Titles Commissioner, Mr Theodore Miriung. The Land Titles Commission opened the rehearing of the dispute over ownership of the island on 29 March 1982 before the then Chief Commissioner, Mr Luke Lucas and was thereafter adjourned. It resumed before the new Chief Commissioner, Mr Miriung on 26 March 1984 and concluded on 1 November 1984. The Chief Commissioner handed down a written decision on 18 April 1985. The appellant filed a notice of appeal, dated 16 July 1985, with the National Court Registry on 18 July 1985.

Mr Ian Shepherd was instructed by the respondents in or about July 1985. On 5 August 1985 he filed a notice of appearance on behalf of the first respondent and deposed to serving the appellants' lawyer with a sealed copy thereof. On 19 August 1985, Mr Shepherd filed a notice of appearance on behalf of the second defendant and again deposed to serving the appellants' lawyer with a sealed copy of same. Mr Shepherd, in his affidavit filed in support of the application, further deposed that he spoke to the appellants' lawyer, Mr Narakobi concerning this matter, once, in or about August 1985 and that he had received no correspondence from either Mr Narakobi, or the appellant in person in relation to the appeal. On 3 June 1986, Mr Shepherd enquired by letter of the Registrar of the National Court if the transcript of the Land Titles Commission hearing had yet been forwarded to the National Court Registry. On 10 June 1986 the Acting Registrar replied that no transcript of the hearing had yet been supplied to the Natonal Court Registry. On 20 June 1986, Mr Shepherd, by letter advised the Chief Commissioner of the dates that the notice of appeal and the notices of appearances were filed and the advice from the National Court Registrar that no transcript had yet been received by the Registry and enquired as to the progress in the preparation of the transcript. On 24 June 1986, Commissioner Oliver advised Mr Shepherd by letter that an examination of the Commission's file on the matter indicated no copy of the notice of appeal was lodged with the Commission's Office, nor any notice of appearance, and consequently no transcript of the proceedings was prepared for the National Court.

The respondents contended that the appellant had:

(a) failed to notify the Land Titles Commission of the appeal;

(b) failed to enter the appeal for hearing within twenty eight (28) days of 16 July 1985; and

(c) failed to prepare the appeal book as soon as practical after 16 July 1985.

And consequently, the respondents submitted, the appeal should be dismissed for want of prosecution for the following reasons:

(a) The length of the delay in setting the appeal down for trial is now twelve (12) months;

(b) The reasons for the delay are the appellant's failure to notify the Land Titles Commission of the appeal and his lack of endeavour generally;

(c) There have been no negotiations for agreement between the parties and, in...