Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Yassah v Ambrose [2022] PGNC 152; N9576 (13 April 2022)

N9576

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 986 OF 2020

BETWEEN:
TOGU YASSAH
Plaintiff

AND:
PROBATIONARY CONSTABLE WILLIE AMBROSE JUNIOR, CHIEF INSPECTOR TONY SEVESE & ELIZABETH AMBROSE
First Defendants

AND:
DAVID MANNING, MBE, QPM, DPS, Commissioner of Police
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Goroka: Mugugia, AJ
2022: 12^th & 13^th April

PRACTICE AND PROCEDURE – whether leave should be granted to the Defendants to file their defence out of time – considerations to take into account when deciding whether to grant leave to file defence out of time - Defendants failed to satisfy the requirements – exercise of discretion - motion refused.

Cases Cited:

Pena v. J’s Motors Ltd. (2006) SC961.
Nivani Ltd. v. Independent State of Papua New Guinea (2020) SC1945.

Counsel:

K. Lafanama, for the Plaintiff
R. Uware, for the Defendants
.

RULING

13^th April, 2022
1. MUGUGIA, AJ: The Plaintiff’s claim is that he sustained personal injuries as a result of the unlawful assault or police brutality by the First Defendants on 27 February 2016. The Office of the Public Solicitor filed his writ of summons on 14 December 2020, claiming general damages, damages for emotional stress and frustration, damages for loss of enjoyment of life, exemplary damages, punitive damages, special damages, interest and such other and further orders the Court deems fit.

2. The writ of summons was served on the Second and Third Defendants on 2 March 2021. The Office of the Solicitor General filed a notice of intention to defend on behalf of all the named defendants on 22 March 2021. The defendants defaulted in filing their defence within the required time. The Office of the Solicitor General filed the Defendants’ application for leave to file defence out of time on 29 March 2022. I heard the Defendants’ motion on 12 April 2022. This motion was opposed by the Plaintiff’s lawyer. This is my ruling on the Defendants’ motion.

3. The issue for determination is whether leave should be granted to the Defendants to file their defence out of time.

THE LAW

4. The considerations the Court should take into account when deciding whether to grant leave to file a defence out of time are:

• what is the extent of the delay?
• what are the reasons for the delay?
• does the defendant appear to have a good defence?
• where do the interests of justice lie?
  

DEFENDANTS’ SUBMISSIONS

5. The Defendants’ lawyer Mr Russell Uware from the Office of the Solicitor General presented oral submissions at the hearing. He moved on his clients’ motion filed on 29 March 2022. The jurisdictional basis relied on at the hearing were Order 7 Rule 6(2) of the National Court Rules, and Section 9 of the Claims By and Against the State Act 1996. The supporting affidavits were the Affidavit in Support of Ambrose Willie, and the Affidavit in Support of Russell Uware, both filed on 29 March 2022. The Defendants’ motion and supporting affidavits were served on the Plaintiff’s lawyers on 4 April 2022.

6. The cases relied on by the Defendants were Niugini Civil & Petroleum Ltd v. West New Britain Development Corporation Ltd. [2006] PGNC 14, and Tipaiza v Yali (2005) N2971.

7. These were Mr Uware’s submissions in support of his clients’ application:

• Niugini Civil & Petroleum Ltd v. West New Britain Development Corporation Ltd. (supra), and Tipaiza v Yali (supra) set out four principles which should be taken into consideration. These four principles are:
1.The extent of the delay.
2. Explanation of the delay.
3. There has to be a defence on the merits.
4. The question of where the interest of justice lies.
• On the extent of the delay, Mr Uware conceded that his clients were out of time. His submissions were that time has to be computed from the time when the writ of summons was served. He was not able to confirm when the writ of summons was served. He submitted that they do not have any affidavit, and they do not have proof of when the writ of summons was served. He invited the Court to consider the two supporting affidavits. Mr Uware submitted that the delay is only ten months and is not inordinate.

• On the explanation of the delay, Mr Uware conceded that there was a lapse of time. Infact, a lapse of ten months. He referred to his own affidavit and submitted that they did receive affidavits from the First Defendants sometime in June 2021. That alerted them of the writ of summons. They did not take steps after the writ was served but took steps in June 2021. Mr Uware submitted that he has adequately explained the delay, that is, the tortfeasor was on duties, and the explanation is reasonable.
• The Defendants’ evidence as deposed to by Mr Uware in his affidavit is that attempts to verify the affidavits for purpose of preparing a defence could not be done with due dispatch because one of the tortfeasors Constable Willie Ambrose could not be located. His actions were alleged to have caused the Plaintiff’s injuries out of which this claim was filed, and preparation of the defence was dependent on him verifying and clarifying his defence of provocation. A search to locate Constable Willie Ambrose with his superiors at the Goroka Police Station revealed that the officer was out on duty travel to the LNG Projects. Attempts to contact Constable Ambrose by telephone had been difficult at the relevant times when they were attempting to file a defence. They are now able to verify instructions on the defence as Constable Ambrose has resumed duties at the Goroka Police Station, and was contactable.
• The Defendants’ evidence as deposed to by Ambrose Willie is that the Office of the Solicitor General was in search of him to verify his defence of provocation at the relevant time. Their difficulty was due to the fact that he was at the LNG sites in the Southern Highlands Province providing security services and was not contactable. He left for duties at the LNG sites after providing affidavits. Now that he has resumed work at the Goroka Police Station, the Solicitor General’s lawyers were able to contact him, and with his verification on the defence of provocation, a draft defence has been prepared.
• On whether there is a defence on the merits, Mr Uware submitted that provocation is the defence raised. Annexure “A” in his affidavit is the draft defence prepared after confirming instructions from Constable Willie Ambrose. The Defendants’ defence is a valid defence.
• On the question of where the interest of justice lies, Mr Uware submitted that the Plaintiff is claiming an unspecified amount. If the Plaintiff goes to trial, and an award is made in favour of the Plaintiff, it would be K100.00 or K20,000.00 because it is unspecified. It is a claim against the State. If the State is not given the opportunity to defend all manner of claims including this claim, it stands to be prejudiced. But if the State is given the opportunity to defend, atleast it is defended. It might be that the Plaintiff will still have his claim, but the State has that opportunity to defend. If the scale is tipped, it will be the State that will suffer damages. General damages is subject to be assessed which will be assessed properly at trial.

PLAINTIFF’S SUBMISSIONS
8. In opposing the Defendants’ motion, the Plaintiff’s lawyer relied on her client’s affidavit in response filed on 7 April 2022.
9. The Plaintiff’s submissions were as follows:
• The State had 90 days to file its defence. The ten months delay by the Defendants is an inordinate delay.
• The Defendants have failed to provide a reasonable excuse as to the delay in filing their defence. There are no specific dates and time particularized by the First Defendant to show when he was engaged to work at the LNG site, causing an inconvenience for the Office of the Solicitor General in verifying and filing the defence within time. The Defendants have not provided a reasonable explanation.
• There is no evidence to show the steps taken by the Office of the Solicitor General in its search of Constable Willie Ambrose at the Goroka Police Station. If there were attempts made in reaching out to contact him, there is no evidence of his failure to respond to their communication. The affidavit deposed to by Mr Uware does not show the steps taken by the Office of the Solicitor General to communicate with the First Defendant.
• The Defendants’ draft defence is not a meritorious defence. There is no detailed evidence to support the merits of the defence. There is no evidence of the defence of provocation. The Defendants should have given evidence on provocation. The draft defence should have been annexed to the affidavit of the First Defendant.
• On the interest of justice, the delay by the Defendants in filing their defence is extensive. Her client has expended costs in the matter. The interest of justice favours her client.

• Leave should not be granted to the Defendants to file their defence out of time. Her client’s application for default judgement should be heard.

CONSIDERATION

10. The Defendants’ motion filed on 29 March 2022 sought leave pursuant to Order 1, Rule 15(1) and Order 7, Rule 6(2) of the National Court Rules (Rules), and Section 9 of the Claims By and Against the State Act 1996 (Act). The jurisdictional basis relied on at the hearing was Order 7, Rule 6(2) of the Rules, and Section 9 of the Act. This is an application made by the State. Time is fixed by Section 9 of the Act. Reliance on Order 7, Rule 6 of the Rules is inappropriate. Section 9 of the Act is the correct jurisdictional basis.

Extent of the delay

11. The time within which the State shall be required to file a defence in a claim commenced by writ in the National Court where the statement of claim is endorsed on the writ - before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend. (S. 9(a)(i) of the Claims By and Against the State Act 1996). The State had 90 days to file a defence. The Plaintiff’s writ of summons filed on 14 December 2020 was served on the Second and Third Defendants on 2 March 2021. The Office of the Solicitor General filed the Defendants’ application for leave to file defence out of time on 29 March 2022 after a substantial delay. I find that the application was not made promptly, and the delay is inordinate.

Explanation for the delay

12. I have considered the materials before me and the submissions by the parties’ lawyers. I am not convinced by the explanation put forward by the Defendants. There is merit in the Plaintiff’s submissions. I find that the explanation provided by the Defendants is not reasonable.
13. The Plaintiff’s affidavit of service of Steven Mokai shows that the writ of summons was served on the Second and Third Defendants on 2 March 2021. The Defendants’ reason for the delay is that the main tortfeasor Constable Willie Ambrose was on duties. There is no evidence showing what steps were taken by the Office of the Solicitor General between 2 March 2021 when the writ was served and June 2021 when it received affidavits from the First Defendants.
14. Even if it did not have instructions from its clients at hand, the Office of the Solicitor General should have taken active steps to file a defence based on law within the 90 days time frame. It would still have an opportunity to amend the defence if instructions from its clients are provided. I can infer from the documents before me that little attention was given to this matter by the Office of the Solicitor General.
Defence on the merits
15. Do the Defendants in the present case appear to have a good defence? I answer this question in the negative.
16. Constable Willie Ambrose is the person with knowledge of the facts. I noted at the outset that the Defendants’ draft defence was annexed to Mr Uware’s affidavit instead of Constable Willie Ambrose’s affidavit. I posed the question of who should swear the affidavit to Mr Uware, and he said that the applicant should swear the affidavit. He submitted that the tortfeasor had verified the defence, and this is good enough. The fact that he verified his defence suffices. Mr Uware submitted that the case of Viritia v. Mabep (2011) N4236 says that a draft defence should be annexed but it does not say who should annex the draft defence, and the connecting bit is the verification.
17. The Supreme Court in Pena v. J’s Motors Ltd. (2006) SC961 held that the affidavits relied upon should be sworn by persons with knowledge of the facts. The affidavit of a lawyer acting for the applicant is generally inadequate. These are the words of the Supreme Court in Pena v. J’s Motors Ltd.:

“To show a defence on the merits a proposed draft defence is not sufficient. The applicant must “condescend upon particulars”, that is, not just plead but set out statements of material fact by affidavit evidence which supports the pleading and is sufficient to satisfy the Court that the applicant has a prima facie defence and that it is reasonable that the applicant should be allowed to raise that defence. And that affidavit evidence must be sworn by persons with knowledge of the facts and not the lawyer for the applicant. An affidavit sworn by a lawyer that there is a good defence is generally not sufficient.”

18. A party seeking leave to file a defence out of time is required to provide evidence of defence on merits. I am reminded by the case of Nivani Ltd. v. Independent State of Papua New Guinea (2020) SC1945 that one of the primary considerations to be taken into account when determining an application for leave to file a defence out of time is whether the defendant has a defence on the merits. This consideration is only properly satisfied if the defendant, in addition to providing a draft defence, provides detailed evidence in support of the defence.
19. I ask myself this question: “Have the Defendants provided detailed evidence to support the proposed defence, to demonstrate that it is a good defence?” I answer this question in the negative.
20. I have closely considered the Defendants’ supporting affidavits. Annexed to Russell Uware’s affidavit in support, and marked as “A” is the Defendants’ draft defence. Affidavit evidence must be sworn by persons with knowledge of the facts and not the lawyer for the applicants. The Defendants’ affidavit evidence do not set out statements of material fact which support the pleading. The Defendants raised the defence of provocation but there is no evidence of statements of material fact supporting this defence. I am not satisfied that the Defendants have a prima facie defence. I find that the Defendants’ evidence do not show a defence on merit.

Interest of justice

21. The Plaintiff has a reasonable cause of action. There was an inordinate delay on the part of the Defendants. The Defendants’ have not provided a reasonable explanation for the delay. The Defendants do not have a defence on merit. The Plaintiff has expended money since the institution of the proceedings. He is an ordinary citizen of this country who has come to this Court to seek redress and justice. The interest of justice favours the Plaintiff.

CONCLUSION

22. Based on my findings, and the reasons given, and in the exercise of my discretion, I will refuse the Defendants’ application.

ORDER

1. The Defendants’ Notice of Motion filed on 29 March 2022 is refused.

2. The Third Defendant shall pay the Plaintiff’s costs. Costs are to be taxed if not agreed.

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants