Vivisio (Viviso] Seravo v Jack Bahafo (2001) N2078

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 March 2001
• Citation: (2001) N2078
• Court: National Court
• Year: 2001
• Judgement Number: N2078

Full Title: Vivisio Seravo v Jack Bahafo (2001) N2078

National Court: Kandakasi J

Judgment Delivered: 21 March 2001

N2078

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 581 of 2000

Between:

VIVISIO SERAVO

(Plaintiff)

And:

JACK BAHAFO

(Defendant)

GOROKA: KANDAKASI, J

2001: 16th & 21st

APPEALS — Application for extension of time to lodge — No reasonable explanation for delay — No reasonable case for appeal and lack of prejudice shown — Application dismissed — District Courts Act (Chp. 40) s. 231.

NATIONAL COURT — PRACTICE & PROCEDURE — Application to for extension of time to lodge appeal to — Delay in prosecuting application — Lack of satisfactory explanation for delay and demonstration of no prejudice to defendant — Principles governing want of prosecution under O.10 r.5 of the National Court Rules apply to O.4. r. 36 applications — Case of want of prosecution made out — Application dismissed — National Court Rules (Chp. 38) O. 4. r. 36.

Cases cited:

Ronald Nicholas v. Commonweatlh Niugini Timbers Pty Ltd (1986) PNGLR 133

Umbu Waik and Anor v. Motor Vehicles Insurance (PNG) Trust and the State (Unreported National Court judgement delivered on 15th August 1997) N 1630

Motor Vehicle Insurance (PNG) Trust v. Viel Kampa (Unreported Supreme Court decision delivered 29th October 1998) SC 587

The Application of Sir Kepa Pupu (Unreported National Court Judgment delivered 19 June 1992) N1077.

Counsel:

Mr D. Umba for the Plaintiff

Defendant in person

21st March 2001

KANDAKASI, J.: The plaintiff is applying for an extension of time pursuant to s. 231 of the District Courts Act (Chp. 40) (hereinafter " DCA") to lodge an appeal against a decision of the Goroka District Court outside the time period prescribed by the DCA. The decision was made on the 11th of April 2000. Also before me is an application for dismissal of the proceedings for want of prosecution by the defendant. I heard both the application to dismiss the proceedings for want of prosecution and the substantive application for extension of time on the 16th March 2001. I then reserved a ruling to today.

The Relevant Facts

On the 18th December 1998 the defendant took out a Complaint and Summons against the plaintiff claiming a sum of K10, 000.00. That was allegedly for conversion of the defendant's vehicle, a toyota corolla registered. No. ADF 147 for which he was arrested and placed in the police cells and release upon his promising to pay the defendant a sum of K10, 000.00.

The summons was returnable initially on the 17th February 1999 and was subsequently adjourned to the 21st April 1999. According to a Proof of Service deposed to by a police officer on the 2nd March 1999, the plaintiff was served with the defendant's Complaint and Summons on the 2nd March 1999 at Waigani, National Capital District. That was before the return of the Complaint and Summons. Notwithstanding that, the plaintiff claims that he was not served with the Complaint and Summons.

It is not clear what happened on the 14th April 1999. It is however clear that, on the 23rd June 1999, judgment against the plaintiff was entered. When the plaintiff became aware of the orders he instructed Patterson Lawyers to apply for a set aside of the orders of the District Court made on the 23rd June 1999. It seems an application seeking a set aside of those orders was filed and was eventually dismissed by the District Court on the 11th April 2000. The plaintiff claims he became aware of that in May 2000, when the Police in Goroka informed him of a warranted of execution on the judgment when he was on one of his electorate duties. Upon learning of that, he says he instructed Maladinas Lawyers to apply for an extension of time to lodge an appeal against the decision dismissing his application to set aside. Mr. Arnold Amet Jnr, an employee of Maladinas Lawyers has deposed to an affidavit on the 28th November 2000, saying amongst others that, the plaintiff instructed the firm of Maladinas on or about June 2000. Thereafter, the plaintiff did not go back to them with his further instructions. Their own attempts to receive full instructions from him were unsuccessful. At times they met briefly with the plaintiff but no specific and or detailed instructions were given. At paragraph 23 and 24 of his affidavit, Mr Arnold Amet Jnr deposes that:

23. The delay in bringing this proceedings has been our inability to secure complete instructions from the plaintiff, which instruction would otherwise have allowed for us to complete at a much earlier stage, the documentation necessary for the purposes of making the necessary application to the court, on the basis of the plaintiff's instructions.

24. The plaintiff's busy parliamentary schedule has hindered us from making what he had otherwise anticipated would have been an earlier expedited application.

These proceedings were eventually filed on the 27th September 2000, which was 2 months after Maladinas Lawyers were instructed and 3 months after the plaintiff became aware of the orders. A notice of motion was filed by the plaintiff seeking the substantive relief. The motion was set down for hearing on the 20th of October 2000. Mr. A. Furigi of counsel for the plaintiff, appeared and the court directed that a further affidavit be filed in respect of the plaintiffs delay and the matter was stood over generally.

The matter was mentioned on the 8th December 2000 and stood over to the 15th December for hearing in Kundiawa at the request of the plaintiff's lawyers. Despite having made a request for the listing of the matter for hearing in Kundiawa, the plaintiff's lawyers failed to appear and proceed with the hearing. The matter was therefore, generally stood over and eventually came before me on the 16th March 2001. That was upon a notice of motion filed by the defendant which was made returnable on the 16th March 2001. In that motion, the defendant seeks orders dismissing the proceedings for want of prosecution. Hence, the hearing of the substantive matter as well as that motion on the 16th March...