Okuk v Pati [2019] PGDC 3; DC3084 (18 March 2019)

DC3084

PAPUA NEW GUINEA.

IN THE DISTRICT COURT OF JUSTICE AT GOROKA.

ComplaintDC No 68 of 2018.

BETWEEN,
Sophia T Okuk.
Complainant/Respondent.

AND
Mathias I Pati.
Defendant/Applicant.

Coram: P KAUMBALLB(PNG).

2019 March 11^th and 18^th.

Counsels:
Complainant/Respondent -In person.
Defendant/Applicant -Mr Peter L Punau of Punau& Co Lawyers.

DECISION

1. INTRODUCTION: The Defendant filed his notice of motionon the 31^st of January 2019seeking the following orders:

(1).The court exercise its ancillary powers pursuant to section 22 of the District Court Act to have the matter struck off for want of lack of pleadings.

(2).The complainant pays the costs of this application

(3).Any other orders this Honourable court deems appropriate.

2. RELEVANT LAW.

District Court Act.

22 General ancillary jurisdiction.

Subject to this Act, a court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it- (a) grant relief, redress or remedy or a combination of remedies, whether absolute or conditional and(b) give effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

LukautimPiknini Act(LPA).

91 INITIATING PROCEEDINGS.

(1) A proceeding under this Part shall be instituted by a complaint.
(2) The complaint shall be prescribed.

92 SUMMONS OR WARRANT ON COMPLAINT.

Where a complaint is made under this part and the complainant produces evidence on oath, either oral or on affidavit in corroboration of the same material particular as to the paternity or maternity of the child, the Magistrate before whom is made may-

(a) Summon the person complained against to appear before the court to answer the complaint; or
(b) If satisfied that the circumstances require it, issue a warrant for his apprehension.

Public policy- Certain classes of acts are said to be against public policy , or against the policy of the law, when the law refuses to enforce or recognise them on the ground that they have a mischievous tendency so as to be injurious to the interests of the state or the community(Osborne’s concise law dictionary).

National Goal No2 EQUALITY & PARTICIPATION.

‘’ We declare our second goal to for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country’’.

‘’WE ACCORDINGLY CALL FOR- ...(4) equalization of services in all parts of the country, and for every citizen to have equal access to legal processes andall services, governmental or otherwise, that are required for the fulfilment of his or her real needs and aspirations; and ... .

3. FACTS(Relevant facts for this decision).
1. The complainantfiled her proceedings in the Family Court on the 4^th of October 2018 claiming maintenance for herself and her four(4) children under the LukautimPikinini Act(herein-after LPA) and she also filed an affidavit in support of her claim and the defendant filed his notice of intention to defend.
2. The case was first mentioned before Her Worship Lorna Sani on the 25^th of October 2018 and was adjourned to the 6^th of November 2018 on the Defendants request via a letter stating that he will be away on work call with a mining company in Morobe Province and he would not be in court on that date.
3. On the 6^th of November 2018 the Defendant raised the issue of the case been filed lateand time barred under the Frauds and Limitation Act so the case was adjourned to the 8^th of November 2018 to allow complainant to file her reasons for filing her claim late.
4. On the 8^th of November 2018 Her Worship Lorna Sani adjourned the case to the 9^th of November 2018 most probably to read the complainant’s affidavit containing the reasons for filing the complaint late.
5. On the 9^th of November 2018 Her Worship Lorna Sani adjourned the case to the 14^th of November 2018 for ruling.
6. On the 14^th of November 2018 Her Worship ruled that the complainant had genuine reasons for filing her case late and directed that the case should proceed to trial.
7. On the 29^th of November 2018 the case came before me and I set it down for trial on the 18^th of December 2018 and directed the Defendant(in his absence) to file his affidavit and serve on the complainant before the trial datebecause the defendant requested adjournment to 18^th or the 19^th of December 2018 when he will be available stating that he will be away at work and he will not attend court on the material time through a letter to the court.
8. On the 18^th of December 2018 both parties were present but the complainant did not take out the orders of the 29^th of November 2018 and serve on the defendant to enable him to comply with the direction to him to file his affidavit before the trial date so the trial date was vacated and the case was reset for trial on the 8^th of January 2019.
9. On the 7^th of January 2019 the Defendant filed a notice of motion to have the case struck out for abuse of process citing that the complainant filed a similar complaint in 2013 and it was struck out for want of prosecution and she is trying resurrect the same matter again after more than 7 years have lapsed.
10. On the 8^th of January 2019 I was not available to hear the case so the case was mentioned in court before another Magistrate and it was adjourned to the 29^th of January 2019 for mention/trial.
11. On the 29^th of January 2019 the parties were not ready to proceed to trial so the casewas adjourned to the 14^th of February 2019.On the said date I also dealt with the complainant’s notice of motion dated 7^th of January 2019 and explained to the defendant that his motion was an abuse of process because the same or similar application was made by him earlier before Her Worship Lorna Sani and her worship had made a decision on it. Furthermore this case arises from a marital relationship and it does not come under the Frauds and Limitation Act. Lastly the duties of parents to provide for their children and the other dependent partner or innocent partnercontinues until a child reaches the age of maturity or complete his/her education or a child dies whichever is applicable and in the innocent partners casewhen he/she remarries or dies whichever is applicable. Hence an aggrieved partner can come to court and claim maintenance for oneself and the children of the parties marriageas long as theyare legally entitled to be maintained by guilty or the liable party.
12. The Defendant engaged Punau& Co Lawyers and filed this notice of motion and the court registry set it for hearing on the 14^th of February 2019 that is the same date of trial as set by the court on the 29^th of January 2019.
13. On the 14^th of February 2018 the court found that the notice of motion was short served so it was adjourned to the 27^th of February 2019 for hearing.
14. On the 27^th of February 2019 the Defendants lawyer advised the court that his client was not present in court and asked for an adjournment and the motion was adjourned to the 11^th of March 2019 for hearing.
15. The defendants lawyer moved the defendants motion on the 11^th of March 2019 and he relied on his affidavit filed on the 31^st of January 2019 and he submitted inter alia that the complaint and summons was defective in that it did not contain a Statement of claim to enable the defendant to file his defence. He alsosubmitted that complainants failure to file Statement of claim is also an abuse of court process and the court has a duty to protect its processes and it should use its powers under section 22 of the District Court Act to strike out these proceedings and the complainant can go back to the drawing board and file a new case with proper pleadings as required by law.
16. The complainant submitted that she has a substantive case on its merits and the court should use its discretion to strike out the defendant’s motion and allow the case to go to trial. The complainant acting for herself did not touch on the issue of whether her complaintshould be struck out for want of a statement of claim butshe indicated that the complaint was done for her by the welfare office sothe court reserved its decision and adjourned to the 18^th of March 2019 because the court was of the view that these proceedings involves third partiesthat is the children of parties and the defendants motion should be given a thorough and careful consideration before arriving at a decision.
    
4. ISSUES.
   • (1) Is the Defendant entitled to orders he is seeking under section 22 of the District Court Act(supra)?
   • (2) Is it appropriate in the circumstances to terminate the case at this juncture especially where interest of third parties(that is the children of the parties marriage) are involved?
     
5. FINDINGSON FACTS AND ISSUES.
   1. The Defendant is coming to this court under section 22 of the District Court Act(Supra) and the said section gives the District Court wide powers to deal with preliminary legal and procedural issues in cases before it and it can also make orders to terminate cases before it. Hence the Defendant has the right to come to this court and ask the court to strike the case out for lack or want of pleadings whichincludes failure to file Statement of claim as required by the rules of court and/or practice directions issued by the court. No case authorities were cited and no copy of the relevant practice directionwas made available to the court by counsel in support of the application. However there is no need of such because section 22 of the Act is very clear and I find that that defendant’s motion is in order.
   2. The Defendant submitted orally before Her Worship L Sanion the 6^th of November 2018 thatthe case was statute barred and Her Worship dealt with the issue as I notedin the brief facts stated above and it is a dead issue.
   3. The Defendant again filed a formal notice of motion on the 7^th of January 2018 raising the same issues referred herein-above and on the 29^th of January 2019 I told the complainant that it was an abuse of process in that the issues were already dealt with by Her Worship Lorna Sani so I refused to entertain the motion and directed the Defendant to file his affidavit’s and I set the case down for trial for the 14^th of February 2019.
   4. The Defendant did not comply with my orders of the 29^th of January 2019 to file his affidavit and he engaged Punao& Co Lawyers to file a notice of motion seeking to strike the case out for lack of pleadingson the 31^st of January 2019 which is the Defendants third attempt to have the case thrown out on preliminary or technical issues.
   5. The Defendant did not move his motion of the 31^st of January 2019 on the 14^thof February 2019 and on the 27^th of February 2019 and on the latter date I ordered the Defendant to file and serve his affidavit before the date of hearing and adjourned the motion to the 11^th of March 2019 for hearing. The defendant filed his affidavit in compliance with my order dated 27^th of February 2019 but did not serve on the complainant until the date of hearing of the motion but the complainant did not object to the use of the same and he moved his motion.
   6. I have read the relevant provision under the LPAwhich is section 91(supra) and I note that itdoes not specifically state that the initiating process the must be in accordance with initiating process provided under the District Court Act. It just states that proceedings under the LPA shall be by complaint and it further adds in sub-section (2) that the complaint shall be prescribed. I just got a copy of the LPA Regulations from Magisterial Service Librarian Mr Leslie Kolis in Port Moresby and I looked through it and there is nothing there so I consulted section 2 of the LPA which is the definition section and there is no definition of complaint there. It seems the legislature intended that the process for parties to come to court under the LPA should be simplified so that a party can come to court through a complaint with a supporting affidavit only. I consulted section 92 of LPA too and it seems to confirm my view by analogy but if that is not the intention of National Parliament then it needs to review the LPA and make itclearer on what should be the initiating process.

Furthermore the initiating process is not prescribed in the regulations made under LPA as indicated by section 91 of the sameand the legislature needs to revisit the regulations and prescribe the initiating process but for now we have live with what we have.

7. The complainant filed her Complaint, Summons Upon Complaint and an Affidavit In Support to commence these proceedings and that is in my view sufficient under section 91 of LPA to enable this courtto give the complainant a hearing and of course hear the defendant too if he disputes her claim.During my time on the bench so far I have noted that the Welfare office here has been drafting similar complaints, and summons upon complaint with supporting affidavits and filing them in court and the courts have been accepting them and we should leave it that way until the LPAis properly amended to clarify this doubt.
8. Other factors the court took into account are firstly this case involves interest of third partiesthat is maintenance of four children of the parties marriage and this court must be careful in exercising its discretion to strike the case out on preliminary or technicalityissues so as not to cause a delay in the court process and/or put the children’s paramount interest to be fed, educated and clothed by their parents in jeopardy. Furthermoreif this court strikes the case out then it will not be good not only for the children but also for the society because the children might be forced to engage in illegal activities like prostitution and stealing to survive and that will cause law and order issues for the society. Hence public policy considerations are also important factors the court should have in mind when one party is trying to terminate cases under the LPA on procedural and/or technical legal issues.
9. Secondly the defendant should have raised the preliminary or technical issuesearlier at the commencement of the case and he left it until the date of trialand that is not good because the court has wasted its time with 11 adjournments so far and those judicial times are valuable times which the court should have used to hear other cases. The defendant has also failed to show that he has a defence on the merits and has legal rights that ought to be given effect to or protected and if this court fails to strike out the case then it will adversely affect those legal rights and his defence. Hence justice, public policy and balance of convenience requires that the defendant’s motion should fail and matter be progressed to trial immediately.
10. Thirdly the Constitution provides that one of the goals of the Independent state of PNG is to provide equal access to its citizens to participate in or benefit from our nations development in our National Goal No 2 titled Equality and Participation but it has failed so far to adequately fund and resource the Public Solicitors Office here to help process complaints and summons for its citizen’s and the courts should have that in mind in deciding on applications to terminate cases for procedural errors and technical issues. Furthermore the cost of living has gone up whereas the standard of living of our people has remained stagnant and many people like the complainant cannot afford expensive legal counsel so in this case certain levelof leniency should be exercised to allow this case to go to substantive trial.
11. Fourthly this is not an ordinary summons involving contracts and torts instituted under the District Court Act. This is a complaint under the LPAinvolving a marriage relationship which is the basis of family units in any societyand the general process provided by the District Court Act, District Court Regulations and the Districts Courts practice directions do not strictly apply to this case. The applicable process is the process provided by section 91 of the LPA and that process should be applied here and I am of the view that complainant has complied with the initiating process provided by the LPA and her case should be allowed to proceed to trial.
12. Lastly the defendant has tried to strike this case out three(3) times and that is in my view an abuse of process in the sense that he should have done it once or twice at the beginning of the case but he chose to do it one by one on piecemeal basis and that is a waste of the courts time and the court has a duty to protect itself and its processes from litigants like the defendant who have no fear and respect of the court and it processes and want play around with the court with unnecessary motions and in the process delay court processesand ultimately delay justice to suit their own personal egos and interests.
13. Due to the foregoing findings, I am of the view that the defendant’s relief sought in his notice of motion dated the 31^st of January 2019 to strike this case for lack of pleading is refused.
    
6. COSTS.

Cost is a discretionary matter. Cost’s to follow the event.

7. ORDER.

My formal orders are:

1. The Defendants notice of motion is dismissed.
2. The complainants Costs of defending the motion to be paid by the Defendant to be taxed if not agreed.

Lawyer:
Complainant : Nil.
Defendant : Punau& Co Lawyers.