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Aweto v Tobias [2020] PGNC 284; N8480 (28 July 2020)

N8480

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (APP) NO. 179 OF 2018

BETWEEN:
JOHN AWETO suing as the Chairman of Dispute Settlement Authority of SAI BUSINESS GROUP INC.
Respondent/First Plaintiff

AND:
SAI BUSINESS GROUP INC.
Respondent/Second Plaintiff

AND
ESTHER TOBIAS sued for herself and on behalf of ENOS TAPO
Applicant/Respondent

Lae: Dowa AJ
2020: 21^st July & 28^th July

PRACTICE AND PROCEDURE -application seeking to dismiss proceedings for want of prosecution and non-compliance of court order by plaintiff- whether the proceedings can be summarily dismissed for failing to comply with directions of Court and for Want of Prosecution - principles governing dismissal for want of prosecution – discussion of - whether Plaintiffs default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim – whether there is no reasonable explanation given by the Plaintiff for the delay – whether the delay has cause injustice or prejudice to the Defendant - no activity on the file for more than two years - Plaintiffs have not filed any material providing an explanation for the delay – plaintiff have failed to comply with directions of court – delay in prosecuting matter has caused prejudice to defendants – proceedings dismissed for want of prosecution and non-compliance of court orders

Cases Cited:

Yama Security Services Ltd v BSP Ltd (2017) N7651
Seravo v Bahafo (2001) N2078
State v Wartovo (2015) SC1411
Kave v Yakaso (2014) N5693

Counsel:

M Karu, for the Plaintiff
P Yayabu, for the Defendant

DECISION

28^th July, 2020

1. DOWA AJ: This is a decision on an oral application by the Respondent to dismiss the proceedings for want of prosecution and for non-compliance of Court Orders by the Plaintiff.

2. The First Plaintiff is the Chairman of Dispute Settlement Authority of Sai Business Group Inc, the Second Plaintiff. The Second Plaintiff is a business group operating various business in the Morobe Province. The Respondent, Esther Tobias is a member or shareholder of the Sai Business Group.

3. In June 2015, the Defendant and other shareholders of Sai Business Group lodged a complaint against the chairman of Sai business Group, Mr Menos Ivanga Ackrish and his Deputy Mr Simon Ken allegedly for misappropriating funds of Sai Business Group. It appears the criminal charges are still pending before the crimes court.

4. In March 2018, the Plaintiff filed these proceedings seeking amongst other orders the following:
   
   1. A declaration that the Respondent is not a shareholder of the Second Plaintiff.
   2. The Respondent be restrained from speaking out or taking action on the business affairs of the Second Plaintiff.
   100. A declaration that all criminal charges laid against the Chairman and his Deputy be withdrawn.
        

Want of Prosecution

5. Since the filing of the proceedings, there has been no further action being taken by the Plaintiffs to prosecute the matter with due diligence.

6. On 14^th July 2020, the matter was listed at the call-over and mentioned. Mr Toggo of Daniels & Associates Lawyers appeared on behalf of the Plaintiff. Mr Toggo expressed doubts about the matter proceeding to trial anytime soon. The Court then referred the matter for summary determination to be fixed for hearing on 21^st July 2020. The court directed the Plaintiff to file an affidavit explaining why the proceedings should not be dismissed summarily for lack of action. The affidavit was to be filed before the return date.

7. When the matter returned to court on 21^st July 2020, the Court noted, the Plaintiff did not file an affidavit as directed by the Court. Mr Karu from the firm of Daniels & Co, asked for an adjournment on behalf of Mr Toggo. Mr Karu informed the Court that Mr Toggo who has had carriage of the Plaintiffs matter was out of the Province attending to some other matters. Ms Yayabu who appeared for the Respondent objected to the adjournment. Ms Yayabu asked the Court to summarily dismiss the matter for failing to comply with the orders of 14^th July 2020.

8. I refused the request for adjournment and proceeded to hear submissions by Ms Yayabu. This was due to the fact that the directions given on 14^th July 2020 were simple and clear. Mr Toggo was present when the directions were given and it is expected that he took note of the orders. There was no proper application with supporting affidavits for the adjournment, or extension of time for compliance.

In the case of: Yama Security Services Ltd v BSP Ltd (2017) N7651, his Honour Kariko J said, where a party seeks adjournment, such application must be made properly and promptly,supported by an affidavit setting out the reasons for such adjournment. In this case, there was no proper application, and no good reasons were given for the adjournment.

Issue

9. The issue before the court is whether the proceedings can be summarily dismissed for failing to comply with directions of Court, and for Want of Prosecution.

Law

10. The relevant rules are Order 4 Rule 36, Order 10 Rule 5, Rule 9A(15)(1) and (2) of the National Court Rules which I quote:

1. Order 4 Rule 36
   

“Want of prosecution. (5/12)

1. Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.
2. Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.
2. Order 10 Rule 5,

“Want of prosecution. (33/6)

Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.”

3. Order 10 Rule 9A(15)(1) and (2)

“15. Summary Disposal

(1) The Court may summarily determine a matter:

(a) on application by aparty; or
(b) on its own initiative; or
(c) upon referral by the Registrar under (3) below.

(2) The Court may summarily dispose of a matter in the following situations:

(a) for want of prosecution since filing the proceedings or since the last activity on the file; or

(b) for a failure to appear at any of the listing or directions hearing by a party or his lawyers; or

(c) for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.

(d) under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

(e) on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.”

11. The principles governing dismissal for want of prosecution are well settled in this jurisdiction in many decided cases, led by Seravo v Bahafo (2001) N2078, and they are:

1. The Plaintiffs default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim.
2. There is no reasonable explanation given by the Plaintiff for the delay.
3. That the delay has cause injustice or prejudice to the Defendant.
   

Default is intentional or is allowing for an inordinate and inexcusable Delay in the Prosecution of the Claim.

12. In the present case, the Originating Summons was filed on 28^th March 2018. The last document filed by the Plaintiff was on 13^th April 2018. Since then the file was left dormant in the Registry. The Court in its own initiative placed the matter on the call-over on 14^th July 2020.

13. In my view, the Plaintiffs failure to prosecute the matter amounted to an inexcusable delay. The Court specifically directed the Plaintiff to file an affidavit explaining why the matter should not be dismissed for want of prosecution. The Plaintiffs lawyer knew or ought to have known the seriousness of the Orders of 14^th July 2020. Yet the Plaintiffs have not filed an affidavit. This conduct affirms or at least shows lack of intention to prosecute their claim with due diligence. There has been no activity on the file for more than two years.

No Reasonable Explanation ForDelay

14. The Plaintiffs have not filed any material providing an explanation for the delay. The Plaintiffs were given an opportunity to file an affidavit. They chose not to comply with the directions of court given on 14^th July 2020. The Plaintiffs have not even filed any application seeking extension of time for compliance of orders given on 14^th July 2020.

Delay Has Caused Prejudice To The Respondent

15. The delay in prosecuting this claim has caused prejudice to the Respondent. The Respondent continues to engage the services of a lawyer in defending her. I note from the court file, she has filed two further documents in preparation of her defence. If the delay continues, she would suffer prejudice in terms of legal cost, and the anxiety associated with the necessity of defending the proceedings.

16. I note the main objective of the substantive proceedings are geared towards restraining the Respondent from prosecuting or furthering criminal charges being laid against the Chairman and the Deputy Chairman of the Second Plaintiff. In my view, the substantive proceedings may not be sustained against the Respondent in so far as the main intention is to curtail the current criminal proceedings initiated by the Respondent and other shareholders.

17. In SCA 124/2013, State vs Wartovo (2015) SC1411, the Supreme Court held it would be inappropriate, even an abuse of the process, to invoke the courts civil jurisdiction or resort to any other means to challenge criminal charges without first making use of the process and procedures before each of the authorities at each stage of the criminal justice process. Per Sakora J and Kandakasi J and I quote:

“It would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court’s civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it.

It would be a clear abuse of the process of any court for an accused to resort to any other means, even s.155(4) of the Constitution, to challenge charges against him or her without first making use of the process and procedures before each of the authorities at each stage of the criminal justice process.”

Non-Compliance of Orders Is A Serious Matter

18. As discussed earlier, one of the reasons for the application for dismissal is for non-compliance of the orders of Court. It is clear to me, the conduct of the Plaintiff and their lawyers show little respect for directions of Court. A non-compliance of directions of Court, often delays due dispensation of justice by the Courts, and is a serious matter. See Kave v Yakaso (2014) N5693. At paragraph 46 of the judgment, Murray J said this:

“This consideration involves the issue of "where the interest of justice lie". It is not disputed that the Plaintiffs may have a claim (underline mine) against the Defendants. What is being challenged is that, this claim is yet to materialise. The alleged cause of action arose in 2008. The proceeding filed in February of 2009. By the time, the application by the defendants was made; the claim had not yet materialized. In my view, ample opportunities were given to the plaintiffs to do that through the orders of the Court but they let that slip, by their lack of action, resulting in non compliance of Court orders. Non-Compliance of an order, in my view is a very serious matter and if there is no good explanation for the failure to comply, then, in my view, the interest of justice cannot favour the party who has not complied.”

19. For the forgoing reasons, and in the interest of justice, the proceedings be dismissed for want of prosecution and for non-compliance of directions of court given 14^th July 2020.

ORDERS

1. The Plaintiffs’ entire proceedings is dismissed.
2. The Plaintiffs shall pay the Respondents cost, to be taxed, if not agreed.
3. Time be abridged.

________________________________________________________________
Daniels & Associates: Lawyers for the Plaintiff
Yayabu Lawyers: Lawyers for the Defendant