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Vaki v Baki [2014] PGNC 35; N5507 (21 February 2014)

N5507

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 608 OF 2010

BETWEEN

GEOFRREY R. E. VAKI, MBE, QPM, DPS
Plaintiff

AND

GARY BAKI, as COMMISSIONER OF POLICE
First Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2014: 20th & 21st February

CONTEMPT OF COURT – Application for contempt of court – Service of motion, statement of charge and affidavit for contempt of court – Personal service – Service on secretary to the Commissioner of Police – Purpose of personal service discussed – Whether service on secretary constitutes service within the meaning of National Court Rules, O. 14, r 45.

Facts

Mr Toami Kulunga the Commissioner of Police took issue with service of a motion, statement of charge and affidavit for contempt of court against him. He claims that he was not served these documents. The plaintiff claims that he served the documents on his secretary Mrs Skola at Police Headquarters, Konedobu on 16th October 2012 at 3:15 pm. Mrs Skola said that "she was authorised by the Police Commissioner to accept service of such Court documents."

Held:

1. In a case of service of the motion, statement of charge and affidavits for contempt of court, O14, r. 45 of the National Court Rules states that they must be personally served.

2. Where the alleged contempt is against the Commissioner of Police, the documents must be served on him in person. Mrs Skola may be authorised by the Commissioner to accept the documents in his absence but r, 45 does not state that in the absence of the alleged contemnor, the documents may be served on someone else. If that is so, it would have stated so.

3. The undisputed fact is that the documents were served on Mrs Skola and no leave was granted to serve in that manner. Thus, service on Mrs Skola did not constitute service within the meaning of O14, r. 45 of the National Court Rules. It follows the application is struck out for want of service with costs.

Cases cited:

Andrew Kwimberi of Paulus Dowa Lawyers -v- The State (1998) SC545
Raina No. 1 Limited -v- Naomi Elisha & The State (2013) N5234

Counsel:

Mr S Bonner, for Plaintiff
Mr L Okil, for First Defendant
Ms A Vate, for Second & Third Defendants

RULING

21st February, 2014

1. MAKAIL, J: This is a ruling on the question of service of a motion, statement of charge and affidavit for contempt of court, on Mr Toami Kulunga the Commissioner of Police as successor of the first defendant Mr Gari Baki. The motion cites Mr Kulunga for failing to comply with a court order of 01st October 2012 by Justice Kirriwom which among others, upheld the plaintiff's application for judicial review, quashed the decision of the National Executive Council to revoke the plaintiff's appointment as Deputy Commissioner (Operations) and ordered his reinstatement.

2. The plaintiff claims that he served the documents on Mr Kulunga's secretary at Police Headquarters, Konedobu on 16th October 2012 at 3:15 pm. The person who served the documents is one Gima Karo the legal clerk of Sam Bonner Lawyers. In his affidavit of service of 17th October 2012, Mr Karo says that he served the documents on Mrs Skola who is the secretary to Mr Kulunga and she told him that "she was authorised by the Police Commissioner to accept service of such Court documents."

3. In his affidavit of 19th February 2014, Mr Kulunga denies the plaintiff's claim and further states that he did not authorise Mrs Skola or any member of his staff to accept service on his behalf of "documents that are required to be served personally" on him.

4. Mr Bonner for the plaintiff submits that service of the documents on Mrs Skola constitutes service and Mr Okil for Mr Kulunga strongly submits otherwise while Ms Vate for the other defendants takes no particular position on the issue although she suggests that if the Court finds against the plaintiff, leave should be given to him to serve by alternative means. Mr Bonner submits that given that Mrs Skola is the secretary to the Commissioner and was authorised by him to accept service and she accepted them, it constituted service.

5. Mr Okil submits that on a strict construction of O14, r. 45 of the National Court Rules, service of the documents must be effected by personal delivery. O6, r. 3 prescribes the manner in which personal service is effected and, that is, the person serving the document must leave the copy of the document with the person to be served and if the latter refuses, the former may put it down in the latter's presence and explain to him the nature of the document. Given this, he submits that service on Mrs Skola falls short of complying with O14, r. 45 requirements and therefore, amounts to no service. He adds that it is immaterial whether Mrs Skola was authorised to receive the documents.

6. In the alternative, Mr Bonner cites Andrew Kwimberi of Paulus Dowa Lawyers -v- The State (1998) SC545 and submits that in that case, the Court held that while O14 of the National Court Rules provides a comprehensive procedure for contempt of court, non compliance with it does not render the proceedings void. Thus, he submits that this Court has an inherent discretion to dispense with the requirement of personal service and find that service on the secretary to Mr Kulunga is sufficient. He makes this submission because Mr Kulunga did not deny that Mrs Skola received the documents and it can reasonably be inferred that the documents were subsequently given to him and that is why he makes representation through counsel to oppose the application for contempt of court.

7. The issue is whether service on the secretary to the alleged contemnor the Commissioner of Police constitutes service within the meaning of O14, r. 45 of the National Court Rules. Rule 45 states:

"45. Service. (55/9)

The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor." (Emphasis added).

8. I begin by saying this; contempt of court is a serious matter. In Raina No. 1 Limited -v- Naomi Elisha & The State (2013) N5234, I said that contempt of court is a serious matter because it "............... carries criminal sanctions. A person's liberty is at stake. He or she could end up in jail or fined. If it is a company, it may have its property sequestrated or fined: National Court Rules, O 14, r 49."

9. I further stated that "Thus, it is no light matter and the party bringing it must be serious. It must ensure that the procedures and powers of the Court are correctly invoked and prove the charge beyond reasonable doubt." I made these observations in the context of an application for contempt of court where service of the court order that was allegedly breached was in issue. Nonetheless, I think the sentiments equally apply here.

10. So, it is not a simple matter as one would believe. This is where I am of the opinion that the procedure set out in O14, rr. 37 - 50 must be strictly complied with. Failure to comply may result in the dismissal of the application for contempt. But of course, the Court has discretion to dispense with any of the requirements and may do so, on application: O1, r. 7.

11. In the case of service of the motion, statement of charge and affidavits, O14, r. 45 cannot be as plain as it can be. They must be personally served. That is what r. 45 says and I cannot see how it can be construed otherwise.

12. Where the alleged contempt is against the Commissioner, the documents must be served on him in person. Mrs Skola may be authorised by the Commissioner to accept the documents in his absence but r, 45 does not state that in the absence of the alleged contemnor, the documents may be served on someone else. If that is so, no doubt it would have stated so.

13. The purpose of serving the documents on the alleged contemnor in person are firstly to give notice to the alleged contemnor of the application for contempt and date of hearing (as stated in the motion), secondly to inform him of the nature of the charge(s) (as stated in the statement of charge), thirdly, the evidence in support of the charge(s) (as contained in the affidavit(s)) and finally, give him the opportunity to respond to the charge(s). And I accept Mr Okil's submission that personal service is effected in the manner prescribed by O6, r. 3.

14. Given these reasons, I find Mr Bonner's submission that because Mr Kulunga is represented by counsel infers that he was served, thus, aware of the application for contempt, speculative and presumptuous. If the plaintiff was having difficulty serving the documents on him (which is not the case here), as I observed, the Court has discretion to relax the Rules if he did ask and he could have been given leave to serve by alternative means, possibly on the secretary. He did not do that. This recourse is still open to him.

15. As the undisputed fact is that the documents were served on Mrs Skola and no leave was granted to serve in that manner, I have to find that service on Mrs Skola does not constitute service within the meaning of O14, r. 45 of the National Court Rules. It follows the application must be struck out for want of service with costs.

Ruling and orders accordingly.
_____________________________________________________________

Sam Bonner Lawyers: Lawyers for the Plaintiff
Parua Lawyers: Lawyers for the First Defendant
Acting Solicitor-General: Lawyers for the Second & Third Defendants