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Bassey v Kane [2021] PGNC 414; N9147 (15 September 2021)

N9147

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 343 OF 2016


BETWEEN:
PETER INJIA BASSEY
Plaintiff


AND:
DAVID KANE
First Defendant


AND:
SAM WANGE IN HIS CAPACITY AS THE CHAIRMAN OF THE NATIONAL LAND BOARD OF PNG
Second Defendant


AND:
THE NATIONAL LAND BOARD OF PAPUA NEW GUINEA
Third Defendant


AND:
LUTHER SIPISON IN HIS CAPACITY AS THE SECRETARY FOR DEPARTMENT OF LANDS AND PHYSICAL PLANNING.
Fourth Defendant


AND:
HON. BENNY ALLAN IN HIS CAPACITY AS THE MINISTER FOR LANDS AND PHYSICAL PLANNING
Fifth Defendant


AND:
THE NATIONAL EXECUTIVE COUNCIL
Sixth Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant


Waigani: Miviri J
2021: 14th & 15th September


PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Dismissal for Want of Prosecution – Review Books Served on Applicant First Defendant – Applicant not Returning Plaintiff – due diligence to Prosecute – Plaintiff not at Fault – Materials insufficient – Motion denied – cost follow event on Indemnity basis.


Cases Cited

General Accident Fire & Life v Farm [1990] PNGLR 331

Takori v Yagari [2008] PGSC 3; SC905

Putupen v Sevua [2020] PGSC 34; SC1947

Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870
Counsel


J. Lome, for Plaintiff
F. Kulala, for Defendant


RULING

15th September, 2021

  1. MIVIRI, J: This is the Ruling on the first defendant’s notice of motion seeking dismissal of the proceedings arguing that there is want of prosecution pursuant to Order 4 Rule 36 (1) and Order 16 Rule 13 (13) (2) of the National Court Rules. Alternatively, it is an abuse of process pursuant to Order 12 Rule 40 of the National Court Rules.
  2. He argues that the proceeding last came before late Justice Nablu on the 04th March 2019 who issued orders directing:
  3. The first defendant argues that the plaintiff has failed to comply with these directional orders, and also has failed to prosecute the matter diligently. He has not exercised due diligence to prosecute the matter despite. The proceedings stand wanting for prosecution and should therefore be dismissed.
  4. He relies on his own affidavit sworn of the 24th August 2021 filed the 25th August 2021 and a second one sworn of the 31st October 2018 and filed 2nd November 2018.
  5. Fundamentally both affidavits do not address what became of the Service of the Review Book of the 29th March 2019 when letter by lawyers for the plaintiff under cover disclosing four sets of the Review books were served on Public Solicitor’s Office acting for him. This letter is annexure “A” to the affidavit of Jeff J. Lome sworn of the 08th September 2021 filed the 09th September 2021. He is acting for the plaintiff and has sworn affidavit to that effect which shows quite clearly that the subject review books served at the Office of the Public Solicitor have not been endorsed and returned to the plaintiff. The next phase leading has been stalled not by his fault but of the first defendant.
  6. On the 2nd June 2020 and the 25th November 2020 again, letter was caused to the Office of the Public Solicitor by Jeffersons Lawyers reinstating service of the four copies of the Review books for the perusal and endorsement of the Office of the Public Solicitor for and on behalf of the first Defendant. Fore warning of the intent to apply in court for the release of the books. Which has not ended with the books hence the letter of the Wednesday 25th November 2020 on the same in similar terms. Both are annexures “B” and “C” of the affidavit deposed to by Jeff Lome set out above.
  7. Then there is annexure “D” letter by the office of the Public Solicitor on behalf of the first defendant detailing a file search and notifying that it will move to dismiss the proceedings because there is no due diligence in the prosecution of the matter, as there is no activity on the file in court on record. The letter does not address the return of the Review Books in the hands of office of the Public Solicitor, or receipt of it. Or disclose of records it maintains to show whether there was receipt or not of the same.
  8. Jeffersons lawyers reply to that letter annexure “E” settling that the fault is of the Office of the Public Solicitor not certifying and returning the four sets of review book served of the letters of the same confirming of the 2nd June 2020, and 25th November 2020 and of non-receipt in return of the books so certified and endorsed. Again, urging return of the books so that they can be filed and the case expedited. Failure of which the intent again to move in court to secure.
  9. That is not heeded but a further letter dated the 30th August 2021 annexure “F” is served by the office of the Public Solicitor maintaining that intent to dismiss on the basis of the search of the court registry, and inaction on the file allegedly at the hands of the plaintiff. The letter does not disclose as to what became of the Review books in the possession of the office of the Public Solicitor. There is nothing in that letter. Annexure “G” is yet another letter by the office of the Public Solicitor advising Jefferson Lawyers to attend on the 09th September 2021 for the motion to be moved to dismiss the proceedings for want of prosecution. Again, there is no mention of the four review books that have been served the office of the Public Solicitor.
  10. In my view the evidence relied on by the office of the public Solicitor for the first defendant is in respect of the search mounted at the registry on the subject file. But it does not uncover any explanation for the letter dated the 2nd June 2020 and 25th November 2020 both addressing the service of the four copies of the Review Book, yet to be certified by the office of the Public Solicitor and returned back to Jefferson Lawyers acting for the plaintiff, to have the Office of the Solicitor General certify and endorse for the State, and to file thereafter. That explains why the non-activity on the file witnessed by Office of the Public Solicitor on the file in the court registry. Public Solicitor has placed no explanation to this fact and it begs why?
  11. For the purposes of the application for dismissal, it is upon he who asserts to make out that there is indeed want of prosecution, not only on the records relied on in court. But address as here, a doubt raised that he who asserts alleges is not without fault. Here it is clear that the Plaintiff is not utterly to be blamed for the inactivity on the file in the registry. The fault also lies with the office of the Public Solicitor not expediting by the certification and endorsement of the four copies of the review books served of the 29th March 2019, and also the office of the Solicitor General. There is no evidence from the office of the Public Solicitor explaining detailing how it keeps its records and whether indeed these four copies of the Review book in the subject proceedings were received, and if so, what became of them. That is not the status of the evidence that the office of the public Solicitor has in support further.
  12. It means there is a doubt created which shows that not only is the Plaintiff to be held responsible, for the inactivity on the file in its prosecution. The first defendant through his lawyers the office of the Public Solicitor is responsible for the delay. They cannot argue that they are not without fault and so the application falls in their favour. They are not clean before the court and bear responsibility for the inaction on the file.
  13. The Supreme Court voiced in General Accident Fire & Life v Farm [1990] PNGLR 331 that where there is no due diligence in the prosecution of an appeal and there is no explanation on file it is discretionary upon the court to exercise to dismiss the proceedings for want of prosecution. Because the rules of court require timely execution, and if there is no adherence to the rules it is a basis to exercise that discretion. And here there is correspondence evidenced by affidavit that have been filed by the Plaintiff Which have drawn no response either from counsel or the first defendant. There is failure to explain as to why the served copies of the Review books have not been endorsed despite the duration since service of the 29th March 2019. Two years seven months and no return of the review books is not the fault entirely of the Plaintiff. It is securely now on the office of the Public Solicitor and the first defendant who they represent to make good that fact. Because without that fact in compliance of the orders of this Court the Public Solicitor and the first Defendant are at fault in the non-activity of the file on record. The result is that the plea to dismiss is not made out to the required balance as there is lingering doubt as to what became of the Review Books that were served 29th March 2019. It cannot be safely held discharging the burden that there was want of prosecution on the part of the plaintiff.
  14. Suffice to say that no party should be summarily derailed from the judgement seat without proper consideration due because the courts will be slow to so grant: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). But is there reasonable cause shown by the first defendant and by material in response here to so save? It is clear that the first defendant has not discharged. Yes, “our judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.” There is clearly apparent or identifiable the application that has been made is not discharged to the required balance in favour of grant. The material relied do not foretell dismissal as in Putupen v Sevua [2020] PGSC 34; SC1947 (22 April 2020).
  15. Accordingly, the court dismisses this application for dismissal by the first defendant as being without merit in its entirety forthwith.
  16. Costs are discretionary by the Court. This is an action that was unnecessary and not warranted in law and facts. What has happened here is unnecessarily abused the process to bring the Plaintiff into the defence of this matter. Time money and logistics has been undertaken in the matter when the position in law is explicit and clear. Judicial time has been pulled into court unnecessarily when this matter is already by process of law leading. Prudence would have shown where the Four Copies of the Review books served of the 29th March 2019 were. And for the plaintiff to verify within the records of that office he was represented by, the Office of the Public Solicitor as to what became of the Review books served. Place that material before the court and explain. Without that fact resort was fired to move this application without due care and attention on his part. Negligence has drawn this matter as it is unnecessarily on court time. Justice has not been denied the first defendant. This action is therefore a case where the law was clear, and the applicant has brought to Court that action. He will bear the costs in so doing, but on an indemnity basis: Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870 (29 October 2019).
  17. Accordingly, costs will be on indemnity basis to be paid by the first defendant on the plaintiff evidence produced before this action is moved to the next level of the proceedings. That is confirmation of where lies the Review books to certify and endorse them so that they are released back to the plaintiff for his circulation to the office of the Solicitor General and then to file after that fact by that office for the State defendants.
  18. The formal orders are:

Orders Accordingly.

__________________________________________________________________

Jefferson Lawyers: Lawyer for the Plaintiff

Office of the Public Solicitor: Lawyer for the First Defendant

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