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Kogi v Henry [2021] PGDC 86; DC6043 (15 June 2021)

DC6043


PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

CIVIL JURISDICTION


Between:


MATHEW KOGI

Complainant


And:


PATI HENRY

Defendant


Tari: Komia M

15th June 2021


CIVIL JURISDICTION (PACTICE AND PROCEDURE) –complaint filed by complainant – complainant not in court to prosecute the matter – matter mentioned and adjourned six times over – complainant lacks interest in prosecuting claim – courts power under s.22 of the District Court Act to strike out the information contained in the summons and complainant – consequential effect of an information being struck out results in dismissal of a case.


Held:


  1. A decision of the court to strike out information contained in the summons and the complainant in a civil claim pursuant to s.22 of the District Courts Act invoking Order 10 Rule 15 of the National Court Rules consequentially renders the dismissal of the proceeding as the proceeding cannot stand without information.
  2. A dismissal of a proceeding in a civil claim does not bar the complainant from instituting another proceeding on the same information, as the merits of the case has not been determined by the court of competent jurisdiction, and the complainant is at liberty to file a fresh proceeding unless the claim is barred by the time limitations under the Frauds and Limitations Act.

Papua New Guinea cases cited


Nil


Legislations


District Courts Act

Frauds and Limitations Act


Rules of the Court


National Court Rules 1983


Abbreviations


DCA – District Courts Act

NCR – National Court Rules 1983


Counsels:


Complainant: no appearance

Defendant: no appearance


INTRODUCTION


  1. This is a complaint for a claim for compensation of a defamatory statement made by the defendant to the complainant. Neither the complainant and the defendant have appeared before the court on numerous adjourned dates and it has taken an year and the parties have not attended court in any single date.

BRIEF FACTS


  1. The complainant filed this proceeding on 17th March 2020 against the defendant for certain defamatory statements made to him by the defendant.
  2. The matter was first mentioned before Magistrate Kupo on 01st March 2021 at 9:30 am in the morning. The complainant failed to appear at that time. It was adjourned to 22 March 2021.
  3. On 22 March 2021, both parties did not appear for the second time, and His Worship Mr. Kupo adjourned the matter for the second time to 08 April 2021. On 08 April 2021 the matter was mentioned and parties did not attend, and the court then adjourned to 28 April 2021.
  4. On 28 April 2021, I presided over the matter and parties still did not attend. I then adjourned to 03 May 2021, and then further adjourned to 04 June 2021, and then to today 15 June 2021.
  5. The complainant has not been vigilant in prosecuting his matter diligently.

ISSUES


  1. Whether the information contained in the summons and complaint should be struck out for want of prosecution, and the proceeding be consequently dismissed.

DISMISSAL OF PROCEEDING


  1. The District Courts Act is silent on the courts power to dismiss proceedings in instances where both the defendant and the complainant have failed to turn up in court, and neither prosecuted the claim, nor defended the claim.
  2. Whilst s. 143 of the Act gives power to the court to make an order against the defendant for failure to attend court at the given time and place, and s.144 gives power to the court to dismiss a claim made against the defendant when the defendant is present in court at the given time and place, and the complainant does not appear, it is aimed at providing procedural remedies to either the complainant or the defendant, when one of the parties default in ensuring attendance and prosecuting the matter.
  3. As stated above, s.143 sets the procedural remedy to penalize a defendant who at the time of the hearing had been served the document and then fails to appear in court to defend the claim. S.144 also sets the procedural remedy to penalize a complainant after he has failed to appear and prosecute his claim, despite the defendant’s attendance in obedience of the summons. The two provisions respectively state as follows.

143. Where defendant does not appear.

Where, in the case of a complaint, the defendant does not appear at the place and at the time specified in the summons, or at the place and time to which the hearing was adjourned or postponed, as the case may be, if—

(a) it appears to the Court on oath that—

(i) the summons was duly served at least 72 hours before the time appointed in the summons for appearing; or

(ii) an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise was duly complied with; and

(b) no sufficient grounds are shown for an adjournment,

the Court may proceed ex parte to hear and determine the complaint or may adjourn the hearing to a future day.


144. Where complainant does not appear.

Where, at the time and place specified in a summons, the defendant attends in obedience to the summons served on him for that purpose, but the complainant does not appear by himself or by his legal representative, the Court shall—

(a) dismiss the complaint and hear and determine the defendant's set-off, if he has given notice of set-off; or

(b) if it thinks proper, adjourn the hearing or further hearing of the complaint and set-off to some other day on such terms as it thinks fit.


  1. Nevertheless, the Act does not provide any procedural remedies for instance; where a complainant has registered a summons and a date has been given for the hearing of the summons, and both parties have failed to attend on all the adjourned dates.
  2. In this case, the matter was registered in March 2020, and then there have been several adjournments over the last one year with both parties failing to attend, or at least for the complainant to attend and explain why he had not prosecuted the matter diligently.
  3. In such instances where there is no remedy provided under the District Courts Act, for the court to dismiss a proceeding where both parties have failed to attend the case. Whilst the onus is on both parties to ensure to attend and prosecute and defend the case, the onus is heavily put on the complainant to ensure his matter is diligently and expeditiously disposed of. Nevertheless, as stated above, whilst there is no specific provision within the Act for a magistrate to invoke jurisdictional powers to dispose such matters on its own volition, the only avenue available to this court is to then invoke s.22 of the Act to adopt the procedures of the National Court and apply it in such circumstance. It states:

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 such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same 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.


  1. The provision allows district court magistrates to invoke that jurisdiction as in a similar case by the National Court and in as full and ample manner. It is therefore proper for this court, for purposes of clarity to adopt the practice and procedure as per the National Court Rules 1983. Order 10 Rule 15 of the National Court Rules states;

“15. SUMMARY DISPOSAL.


(1) The Court may summarily determine a matter:

(b) by 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:
  1. The rules I am inclined to rely on is Order 10 Rules 15 (1) (a), (b) and (c). in this case the complainant filed the proceeding in March 2020, and since the filing of the proceeding, the courts deposition show that there has been no activity on the file. This means that the complainant had not actively followed up on his case to ensure the matter was prosecuted in an expeditious manner. Furthermore, the complainant also has not been diligent in prosecuting this matter.
  2. Whilst there has been no active steps taken by the plaintiff which is a ground for dismissal under Order 10 Rule 15 (1)(a), the complainant has also failed to appear on various dates that this court adjourned this matter to (Order 10 Rule 15 (1) (b)), there was also a specific direction issued on 28 April 2021 for the complainant to ensure his attendance on the next return date of 03 April 2021 at 9:30 am, there was no appearance by the complainant. The orders of 28 April 2021 were then further extended from 03 April 2021 at 9:30 am, to 03 May 2021 at 9:30 am, and again further extended to 04 June 2021, there were no appearances made by the complainant, neither did the complainant make any attempt within that time to file affidavit explaining the reasons for the delay in prosecuting the matter.
  3. This to my mind qualifies this court to make an order on its own initiative or volition pursuant to Order 10 Rule 15 (1) (b) of the NCR to dismiss this proceeding for want of prosecution given the reason that the complainants actions in prosecuting this case settles well within the grounds stipulated in Order 15 Rule (2) (a), (b) and (c), of the NCR thereby warranting a dismissal of this proceeding.
  4. I would finally add by saying that, whilst there are other rules relating to courts power to grant order for dismissal of proceedings such as in Order 9 Rule 15 of NCR for lack of compliance with direction to produce certain documents, Order 10 Rule 5 of NCR upon an application by a party for dismissal of the case for want of prosecution, and Order 12 Rule 40 of NCR, for being frivolous and vexatious, those rules to my mind cannot be applied in such circumstance as in this case. They will and can only be applied in their own nature in the District Courts as and when matters pertaining to such nature come before the courts.
  5. One other important issue I find common with the nature of the orders is that the Magistrates of the District Courts make orders in terms that strike out the information that are contained in criminal (summary) matters and committal, and also summons and complaint. It has been a dogmatic argument that once a proceeding is dismissed, the complainant does not have any avenue of coming back to court to institute a fresh proceeding for the same issue and complaint.
  6. To my mind, that analogy is not correct. When an information or summons is struck out, it does not negate the utility of the claim, but the claim can be refilled and argued if the merit of the case has never been argued. In such a situation as this, and in any other similar circumstance, I am fortified in my opinion that once information is struck out, it consequentially affects the proceeding, and the ultimate effect would be for the proceeding to be dismissed because of the ultimate reason that a proceeding is not a proceeding without an information and so it must be dismissed.
  7. It is therefore important that the wordings for the reasons why the information has been struck out must be clearly and profoundly stated by the Magistrate making the orders, so as to not avoid any ambiguity in the nature of the orders.
  8. I am therefore satisfied in my opinion that this Court in exercising its ancillary jurisdiction, hereby adopts and applies Order 10 Rule 15 of the NCR, to dismiss this proceeding for the reasons alluded to above. Therefore;

THE COURT HEREBY ORDERS:


  1. Pursuant to section 22 of the District Courts Act, and Order 10 Rule 15 (1) (b), of the National Court Rules, the information contained in the summons filed on 17th February 2020 is dismissed for want of prosecution.
  2. There is no need for Orders as to Cost.
  3. Time is abridged.

BY THE COURT
His Worship Mr. Edward A. Komia


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