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Tolubang v Ialolo [2023] PGNC 223; N10396 (5 July 2023)

N10396

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 149 OF 2007

BETWEEN:
ESEKIA TOLUBANG & SINTA IADION
Plaintiffs

AND:
HILDA IALOLO
First Defendant

AND:
JEFFERY WALUKIA
Second Defendant

Kokopo: Dingake J
2023: 05^th July

PRACTICE AND PROCEDURE – application for dismissal of proceedings for failing to comply with court orders issued earlier – earlier court order directed plaintiff to file and serve Statement of Claim by the time limit ordered – failure by plaintiff to file and serve statement of claim as per court order - Court Orders are not recommendations but are mandatory and they must be complied with unless there are valid reasons for not doing so - administration of justice would be frustrated by litigants who don’t obey Court Orders or simply consider Court Orders negotiable - Court Order was issued and Plaintiff failed to comply with it and no valid reasons were offered for such non-compliance – proceedings dismissed as prayed - Order 12 Rule 1 and Order 12 Rule 40 (1) (c) of the National Court Rules (NCR).

Counsel:

Mrs. Natasha Rainol, for the Plaintiffs
Mr. Epita Paisat, for the Defendants

05^th July, 2023

1. DINGAKE J: This is my ruling with respect to the Application brought by the Second Defendant in which he prayed that the Plaintiff’s proceedings be dismissed in their entirety for failing to comply with the Court Order of the 24^th of March 2023, more particularly paragraph 3 of the said Court Order.
   
2. Paragraph 3 of the said Court Order directed Plaintiffs to file and serve a Statement of Claim by 11^th of April, 2023, which they did not do.
   
3. The Application is brought in terms of Order 12 Rule 1 and Order 12 Rule 40 (1) (c) of the National Court Rules (NCR).
   
4. The Application is supported by the Affidavit of the Second Defendant, Jeffery Walukia.
   
5. The Application is opposed by one of the Plaintiffs Sinta IaDion who also filed an Affidavit in Support of her opposition.
   
6. I do not consider that the fate of this Application turns on Order 12 Rule 40 (1) (c) as the essential prerequisites to dismiss a proceedings for abuse of process were not sufficiently canvassed in the Affidavit in support of the application.
   
7. The only issue that this Court has to consider is whether the Plaintiff’s proceedings should be dismissed pursuant to Order 12 Rule 1 of the National Court Rules or Section 155 (4) of the Constitution as pleaded.
   
8. Order 12 Rule 1 is the general provision that permits the Court at any stage of any proceedings on an application of any party, to direct the entry of any judgment or make such Orders as the nature of the case requires.
   
9. In this case the Applicant makes out a case that the Plaintiffs did not comply with the Court Order of the 24^th of March, 2023.
   
10. As indicated, there is no dispute that the Plaintiff did not comply with the Court Order. This much her counsel Natasha Rainol conceded in Court at the hearing of this motion.
    
11. In her Affidavit in opposition to the Applicant’s Application sworn on the 1^st of June 2023 (Document No. 34) the Plaintiff does not say she never received the Order of 24^th March, 2023, but says at paragraphs 3.1,3.2 of her Affidavit;
    

3.1 That I was at home that month of April 2023 and waited for my Lawyer to call me for instructions on what to do for my case which I regret now but seek Court’s mercy to extend time for me to comply.

3.2 That I was unsure of the timelines given and I am truly wrong now that I realized my case would be dismissed because of my inaction to which I owe it to myself to have actively follow up.

12. It is my finding that based on the Plaintiff’s own Affidavit no valid reason for non-compliance with the Court Order has been disclosed. The Plaintiff’s affidavit shows that she knew of the Court Order.
    
13. The record suggests that this is an old matter dating back to 2007 and it does not appear to me that the matter has been prosecuted with diligence.
    
14. I must hasten to mention that Court Orders are not recommendations. They are mandatory and they must be complied with unless there are valid reasons for not doing so, otherwise the administration of justice would be frustrated by litigants who don’t obey Court Orders or simply consider Court Orders negotiable.
    
15. In my mind Order 12 Rule 1 of the National Court Rules (NCR), permits the Court if so inclined, to make such Order as the nature of the case requires, which in my view includes dismissal in circumstances where a Court Order was not complied with and no valid reason is offered for such non-compliance.
    
16. In this case, I am satisfied a Court Order was issued and the Plaintiff failed to comply with it and no valid reasons were offered for such non-compliance, which justifies the matter being dismissed as prayed.
    
17. In the result:
    
    • (a) The Plaintiff (Sinta Iadion) proceedings are dismissed in their entirety pursuant to Order 12 Rule 1 of the National Court Rules.
      
    • (b) Costs of the Proceedings are to be paid by the Plaintiff (Sinta Iadion) such costs to be taxed if not agreed.

________________________________________________________________
Natphil & Associate Lawyers: Lawyers for the Plaintiffs
Paisat Lawyers: Lawyers for Defendants