Ben Keimali v Kotu Akema and Norman Ba’abi and Air Niugini Limited (2010) SC1061

• Jurisdiction: Papua New Guinea
• Judge: Sakora, David & Makail, JJ
• Judgment Date: 08 July 2010
• Court: National Court
• Citation: (2010) SC1061
• Docket Number: SCA NO 35 OF 2007 & SCA NO 49 OF 2007
• Year: 2010
• Judgement Number: SC1061

Full Title: SCA NO 35 OF 2007 & SCA NO 49 OF 2007; Ben Keimali v Kotu Akema and Norman Ba’abi and Air Niugini Limited (2010) SC1061

National Court: Sakora, David & Makail, JJ

Judgment Delivered: 8 July 2010

SC1061

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 35 OF 2007 & SCA NO 49 OF 2007

BETWEEN

BEN KEIMALI

Appellant

AND

KOTU AKEMA

First Respondent

AND

NORMAN BA’ABI

Second Respondent

AND

AIR NIUGINI LIMITED

Third Respondent

Waigani: Sakora, David & Makail, JJ

2009: 2nd September &

2010: 8th July

SUPREME COURT - PRACTICE & PROCEDURE - Application to dismiss for want of prosecution - Discretionary power - Inordinate delay - Failure to prosecute application for leave to appeal and appeal with due diligence - Failure to file and serve draft index to appeal book - Failure to obtain transcript of National Court proceeding - Reasons for default unsatisfactory - Application for leave to appeal and appeal dismissed - Supreme Court Rules, 1984 - Order 7, rules 40, 41, 42, 43, 44, & 53(a).

Cases cited:

Papua New Guinea Cases

Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691

General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331

Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762

The Public Prosecutor -v- Allan Ebu Marai [1996] PNGLR 81

Richard Naringa -v- Rural Development Bank (2006) SC908

Gabriel Yer & The State -v- Peter Yama (2009) SC990

Nambawan Trophy Limited -v- Dynasty Holdings Limited (2005) SC811

Counsel:

Appellant in person

Mr C Raurela, for Respondents

8th July, 2010

RULING

1. BY THE COURT: Before us are two applications by the respondents to dismiss first, the appellant’s application for leave to appeal filed on 8th May 2007 and secondly, the appellant’s appeal filed on 1st June 2007 for want of prosecution pursuant to Order 7, rule 53(a) of the Supreme Court Rules. The applications were filed on 26th June 2008 and 5th December 2008 respectively.

2. From our perusal of the two affidavits of the appellant sworn and filed on 27th August 2009, affidavit of Rakatani Raka sworn on 3rd November 2008 and filed on 15th December 2008 and affidavit of Benjamin Nahupa sworn on 23rd June 2008 and filed on 30th June 2008, the following facts are not in dispute: The appellant commenced proceeding against the respondents in the National Court reference WS No 50 of 2005 on 20th January 2005 seeking, inter-alia, orders for reinstatement to his former substantive position of Deputy Air Port Manager of the third respondent and damages following his demotion by the respondents. He was demoted because he was found guilty of committing disciplinary offences.

3. The respondents defended the action in the National Court. The matter went for directions hearing and the National Court issued a number of directions for parties to comply with, including filing and service of a Statement of Agreed and Disputed Facts. The respondents failed to comply with the directions and the appellant applied for default judgment. On 13th April 2007, the National Court heard and refused the application for default judgment and further directed the respondents to comply with the directions. Aggrieved by that decision, on 08th May 2007, the appellant filed an application for leave in SCA No 35 of 2007 to appeal that decision. It was fixed for hearing before the late Chief Justice Sir Mari Kapi on 24th May 2007. On 24th May 2007, parties appeared and had it adjourned by consent to 7th June 2007 to allow the appellant time to file an affidavit to support the application. It has not been prosecuted to date.

4. The appellant denied at the hearing before the late Chief Justice on 24th May 2007, his Honour directed him to pursue the appeal in SCA No 49 of 2007 and withdraw the application for leave in SCA No 35 of 2007. This was because the proceeding was dismissed and the challenge to the refusal of the grant of default judgment would serve no purpose if it was pursued. He claimed that application for leave to appeal in SCA No 35 of 2007 was generally adjourned to await the outcome of the appeal in SCA No 49 of 2007. That was the reason he did not prosecute the application for leave to appeal to date.

5. Meanwhile, on 14th May 2007, the respondents applied to dismiss the proceeding for failure to disclose a reasonable cause of action. They moved the application in the absence of the appellant. It was upheld and the proceeding was dismissed. Again, aggrieved by that decision, on 01st June 2007, the appellant filed an appeal to the Supreme Court in SCA No 49 of 2007.

6. He did not prosecute his appeal in SCA No 49 of 2007 because despite his numerous attendances and requests to the National Court Transcript Division for the transcript to be furnished to him, none was provided until 25th August 2009. Further, he did not forward a draft index to the appeal book to the respondents until a day before the hearing of the application for dismissal. By that time, the respondents had obtained a hearing date for these applications and he had no choice but to appear at the hearing and oppose them.

7. The law in relation to application for want of prosecution is settled in this jurisdiction. Under Order 7, rule 53 of the Supreme Court Rules, the Supreme Court is given the ultimate discretion to dismiss an appeal for want of prosecution. Order 7, rule 53 states:

“Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may -

(a) order that the appeal be dismissed for want of prosecution; or

(b) ……………….; or

(c) ……………….”

8. The exercise of discretion is exercised judicially, based on proper principles of law. Under Order 7, rule 53(a), the Court may dismiss an appeal if it is established that an appellant “has not done any act required to be done by or under these rules”, or “otherwise has not prosecuted his appeal with due diligence”. In a case where a respondent seeks to dismiss an appeal for want of prosecution, the onus is on the respondent to make out a case for the Court to exercise of discretion in its favour. Once the respondent makes out a case for want of prosecution, the onus shifts to the appellant to provide a reasonable explanation as to why the appeal should not be dismissed.

9. In Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691, the Supreme Court after referring to the case of General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331, expressed this principle in this way:

“The case cited and many others say that, once a case of delay or want of prosecution is established, the onus then shifts to a respondent to an application to dismiss (the appellant) to satisfactorily explain the delay. If there is a failure in that obligation or there is no reasonable explanation provided, an application to dismiss may be granted.”

10. This principle was re-affirmed by the Supreme Court in Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762. In the present case, counsel for the respondents correctly pointed out that the two issues for our determination are:

1. whether the appellant has taken steps as required under the Supreme Court Rules to prosecute his application for leave to appeal and also the appeal; and

2. whether the appellant has prosecuted his application for leave to appeal and also the appeal with due diligence.

Application for leave to appeal

11. We deal first with the application for leave to appeal. It is important to note that it was filed on 8th May 2007 and the first return date was 24th May 2007. On 24th May 2007, it was adjourned by consent to 7th June 2007 and after that, no further action was taken to have it heard until the filing of the application for dismissal on 26th June 2008. From 8th May 2007 to 26th June 2008 is a period of about 1 year and 1 month. This is the period of delay. Following the filing of the application for dismissal on 26th June 2008 and the hearing of the application for dismissal on 2nd September 2009, a further period of 1 year and 3 months has lapsed. In total, there is a period of 2 years and 4 months of delay.

12. In our view, this is an inordinate delay. The onus then shifts to the appellant to provide an explanation for the delay. As noted above, the appellant argued that the reason for not taking any further action was because it was generally adjourned to await the outcome of the appeal in SCA No 49 of 2007. We disagree with this submission because in an appeal, the onus is on an appellant to prosecute an application for leave to appeal with due diligence and also, must comply with the requirements of the Supreme Court Rules. The need to comply with the Supreme Court Rules was emphasised by the Supreme Court in The Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81. Therefore, we accept the respondents’ submission that, the duty to comply with the Supreme Court Rules includes the duty to obtain a date for the hearing of the application for leave to appeal and to inform the respondent of the hearing date.

13. In the present case, the application for leave to appeal was fixed for hearing on 24th May 2007 before the late Chief Justice. On that date, parties appeared and had it adjourned by consent to 7th June 2007 to...