Tura v Sare [2018] PGNC 300; N7370 (25 June 2018)

N7370

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 907 of 2014

BETWEEN:
FRANCIS TURA
Plaintiff

AND

CADET OFFICER – CHARLIE SARE
First Defendant

AND:
JEFFREY VAKI – COMMISSIONER FOR POLICE
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Polume-Kiele J
2017: 25 May
2018: 25 June

PRACTICE & PROCEDURE: Application for default judgment - Order 12, Rules 25, 26 & 27 and Order 12 Rules 28 and 32 - National Court Rules - entry of default judgment - discretionary matter for the court – relevant considerations.

PRACTICE & PROCEDURE: Service of Writ – Proof of – Effect of - Order 12, Rule 34 – National Court Rules – No Judgment

PRACTICE & PROCEDURE: Pleadings - Pleading of cause of action - Negligence – Failure to plead elements constituting cause of action - Pleading of material facts on vicarious liability - Nexus or connection between employer and servant - Lack of - Effect of - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1(1) & (4) - No reasonable cause of action exist against the State.

PRACTICE & PRODUCRE: Application for summary judgement – Order 8, Rule 38

SUMMARY JUDGMENT: Application for summary judgment – absence of affidavit setting out facts and belief that defence filed cannot be sustained —pleading accident a valid or proper defence — Order 12 Rule 38 & Order 9 Rule 30 of the National Court Rules- Relevant considerations

Cases cited
Papua New Guinea Cases

Kante Mininga v The State (1996) N1458
Giru v Muta [2005] PNGLR 387
Agnes Kunton and others v John Junias and others (2006) SC929
Lambu v Torato (2008) SC953
Lina Kewakali v The State (2011) SC1091
Bella Kitipa v Vincent Auali (1998) N1773
Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
The Independent State of Papua New Guinea v. David Wari Kofewei and Ors [1987] PNGLR 5
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Abel Tomba v. The Independent State of Papua New Guinea (1997) SC 518
Jack Pinda v Sam Inguba (2012) SC1181
Paul Gigmai -v- Motor Vehicles Insurance Limited (2004) SC750

Overseas’ cases

Sear v. Lawson [1880] UKLawRpCh 285; (1881) 16 Ch. D. 121
Read v. Brown [1888] UKLawRpKQB 186; (1988) 22 Q.B.D 128

Counsel:

Mr Ilaisa, for the Plaintiff
Mr Maniambu, for the Defendants

RULING

25 June, 2018

1. POLUME-KIELE J: The plaintiff seeks amongst other orders, an order that the defendants’ defence filed on the 26^th of November 2014, be struck out and default judgment, or alternatively, summary judgment be entered against the defendants.
   

Background facts

2. The plaintiff alleged that on the 2^nd April, 2012 at 8:00 pm whilst in the company of the First Defendant and in pursuit of a wanted criminal suspect at Gordons; the First Defendant negligently mishandled his fire arm and shot him (plaintiff) in the left or the arm resulting in him sustaining personal injuries to his body for which he was hospitalised. He subsequently had his left arm amputated.
   

Plaintiff’s evidence

3. The plaintiff relied on the following documents in support of his application:
   
   • (i) Notice of Motion filed on 6/2/2017 ( Document # 24)
     
     • (ii) Affidavit of Francis Tura filed on the 6/2/2017 (Document # 25)
       
     • (iii) Affidavit of Service of Nao Airi filed on 16/2/2017 (Document # 27)
       
4. The plaintiff says that the defendants defence filed on or about the 26^th of November 2014 is defective. In that it had been filed out of time and without leave of Court. Consequently, it should be struck out. Essentially, the plaintiff says further that the writ of summons and statement of claim on the Solicitor General’s office on the 11^th of August 2014. Service is confirmed by an affidavit of service of Bessie Wames filed on the 10^th of December 2014 (Doc # 12).
   

Defendants’ evidence

5. The defendants did not adduce or introduce evidence to dispute the motion except to say that there is a defence filed in respect of the allegations. Whilst there is some acknowledgement that the Solicitor General’s office filed its defence on the 26 November, 2014 and may well be out of time, they submit that the case of Time, the case of Giru v Muta [2005] PNGLR 389 established that 6 requirements be satisfied and even if all these requirements are met, the entry of default judgment remains a discretionary exercise by the Court.
   
6. On that basis, they submit that the application for entry of default judgment or alternatively summary judgment be refused. As in an application for summary judgment, s 12 (3) of the Claims By and Against the State Act bars any application for summary judgment against the State, unless it is a debt against the State or there is acknowledgement of a debt due and owing to the plaintiff.
   

Issues

7. The issues before the Court are:
   
   • (i) Whether a case is made for default judgment, and if so, should the Court exercise discretion to enter judgment accordingly?
     
   • (ii) Whether a case is made out for Summary judgment, and if so, whether the Court should exercise discretion to enter judgment accordingly?
     

The law

8. The law on applications for default judgment are clearly set out under the National Court Rules and pronouncements by both the Supreme and National Courts.
   
   • Order 12 rule 32 of the National Court Rules gives the court wide discretions to enter default judgment even when proof of due service process on a defendant and proof of default is established by the plaintiff (see Kante Mininga v The State (1996) N1458).
     
   • In Giru v Muta [2005] PNGLR 387, a checklist be satisfied. However, even if the check list is established, the application for default judgment is not a matter of right;
     
   • The court still has wide discretion to decide or determine whether or not default judgment can be granted (Agnes Kunton and others v John Junias and others (2006) SC929, Lambu v Torato (2008) SC953, and Lina Kewakali v The State (2011) SC1091.
     
   • Furthermore, the Court also takes into account other situations relevant to the case in exercise of discretion; more particularly where the effect of a default judgment would prejudice the rights of other co- defendants or in a case where the pleadings are vague and do not disclose a reasonable cause of action and where the default judgment cannot be sustained in law (Bella Kitipa v Vincent Auali (1998) N1773).

9. In this present case the plaintiff claims an alternative relief for summary judgment. As such the case of Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 becomes relevant because this case established that two elements be met for an order for judgment under Order 12 Rule 38 to be granted. These are:
   

“(a) there must be evidence of the facts proving the essential elements of the claim; and

(b) that the Plaintiff or some responsible person gives evidence in his belief that there is no defence to the claim.”

10. Furthermore, Section 12 (3) of the Claims By and Against the State Act 1996 is also relevant to an application for summary judgment against the State. S 12 (3) states:
    

“(3) Where in a claim against the State the State is in default within the meaning of the National Court Rules, then notwithstanding that a plaintiff’s claim for relief is for a liquidated demand, judgement shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgement shall be entered for damages to be assessed and, where appropriate, for costs”

Consideration of the Issues

11. I note here that the Plaintiff claims that this is an appropriate case for entry of default judgment as all the requirement under Giru v Mura (supra) have been met. This is because from the point of filing of its Defence up to the date of trial, a period of 2 years and 3 months, had lapsed and the defendants have never made any attempt to file an application seeking leave to file its’ Defence out of time. The plaintiff says that there is no explanation from the State as to why this is so and as such submits that this is a case where the Court should exercise discretion in favour of the plaintiff’s application for entry of default Judgment.
    
12. In considering the arguments raised by the plaintiff, it seems that the plaintiff had chosen not to address the fact that there is a defence filed by the defendant (even if filed out of time as alleged) and if no arguments are raised in relation to its defect, it remains a valid defence filed on behalf of the defendants in the event that this court exercise discretion to allow this defence to remain presently as it stands irrespective of it being filed out of time.
    
13. Leaving that aside, I now discuss the plaintiff’s alternative relief of summary judgment. Firstly, I must say here that irrespective of the argument that the defendants do not have any legal defence to the plaintiff’s claim, to grant any relief for summary judgment; the application for summary judgment in itself offends s 12 (3) of the Claims By and Against the State Act 1996. Furthermore, in Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112. It established that two elements be met in an application for summary judgments:
    
    • (i) Firstly, evidence of the facts proving the essential elements of the claim; and
      
    • (ii) Secondly, the plaintiff or some responsible person gives evidence that in his belief there is no defence.
      
14. Given the principles established in Tsang v Credit Corporation (PNG) Ltd (supra) the Supreme Court, the plaintiff in an applications for summary judgments need to prove a number of things:
    
    • (i) In absence of any defence or evidence from the defendant the plaintiff must show that, in his belief the defendant has no defence; or
      
    • (ii) If a defence is filed or evidence is given by the defendant, the plaintiff must show that, in his belief, the plaintiff must show that, upon the facts and / or the law, the defendant has no defence;
      
    • (iii) The plaintiff will not be entitled to summary judgment if there is a serious conflict on questions of fact or law; and
      
    • (iv) Whether a case should go to trial on these issues will be determined on the facts of each case. However, the authorities show that the summary jurisdiction should only be invoked in a clear case.
      
15. In applying these requirements to this present case, I find that the plaintiff has not satisfied the elements established for entry of summary judgment. Furthermore, as this is a claim for negligence against the State, s 12 (3) of the Claims By and Against the State Act bars entry of summary judgment against the State. Hence, the alternative relief for summary judgment is refused.
    
16. I now deal with the application for default judgment. In an application for default judgment, the court has a very wide discretion to enter default judgment. In Kante Mininga v. The State (1996) N1458; Injia J (as he was then) stated:
    

“Order 12 Rule 32 of the NCR gives the court a wide discretion to enter default judgment. Even when proof of due service of process on a defendant and proof of the default is established by the plaintiff/applicant the court still has a discretion to refuse to enter default judgment...”

17. In Bella Kitipa v. Vincent Uali (1998) N1773, the Court categorized the situations where application for default judgment can be refused. These were:
    

“1. The effect of the default judgment would prejudice the rights of other co-defendants; or

2. The pleadings are so vague or do not disclose a reasonable cause of action; or

3. The default judgment cannot be sustained in law.”

18. In determining whether the circumstances outlined above applied to this case, I am satisfied that all the situations established in Bella Kitipa v. Vincent Uali (supra) are relevant. To determine these matters, I have conducted a cursory glance of the pleadings in the statement of claim and find that the plaintiffs’ pleadings are so vague and or do not disclose a reasonable cause of action as against the defendants. The pleadings are so vague and do not sufficiently disclose the necessary facts so as to bring the actions and or omissions of the defendants within the principles of vicarious liability of the nominal defendant, the State. Here, although the Plaintiffs have pleaded the names of the principal tortfeasor in the body of the Statement of Claim; the pleadings do not establish the nexus nor connection so to bring into play the principles of vicarious liability between the principal tortfeasor and the nominal defendant, (the “State”) who is the third defendant or an entitlement to sue under a Statute; which is the Wrongs (Miscellaneous Provisions) Act Ch 297.
    
19. Here the plaintiff says that the first defendant had shot him during an attempted capture of a wanted criminal somewhere in the Gordons area of the National Capital District. However, the plaintiff failed to plead that the action occurred during or in pursuance of the performance of their employment or whilst acting within the scope of their functions or duties as servants, agents or employees of the third defendant under s 1 (1), and 1 (4) of the Wrongs (Miscellaneous) Provisions Act Ch.297. He only identified the first defendant as an employee of the second and third defendants.
    
20. In that light, I refer to s.1 (2) of the Wrongs Act which provides by necessary inference that a servant or agent of the State who has been alleged to have committed the wrong, must be named as a party or a co-defendant. If a plaintiff does not name the alleged principal tortfeasor there is no nexus or connection consequently there will not be a cause of action against the nominal defendant (the State). Whilst, the plaintiff has named the principal tortfeasor, there is no nexus or connection to the State in order for the plaintiff to rely on the principle of vicarious liability.
    
21. More specifically, for the State to be held liable for the tort of a policeman as in this case, the Court has to be satisfied of three things and these are:
    
    • (a) Firstly, the policeman (as in this case)) as a servant or agent of the State, committed the tort during the course of performing his functions and acting within the scope of his employment (s.1 (1) (a) Wrongs Act);
      
    • (b) Secondly, the policeman (as in this case)) as an officer of the State, committed the tort while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law (s.1 (4) Wrongs Act; The Independent State of Papua New Guinea v. David Wari Kofewei and Ors [1987] PNGLR 5); David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Abel Tomba v. The Independent State of Papua New Guinea (1997) SC 518. These cases did not say that vicarious liability automatically follows against the State as soon as the wrong doer is found as an employee of the State. That is only one-half of the consideration. They must have been found to have been acting within the scope of their employment.
      
    • (c) Furthermore, if a plaintiff's cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute (Sear v. Lawson [1880] UKLawRpCh 285; (1881) 16 Ch. D. 121; Read v. Brown [1888] UKLawRpKQB 186; (1988) 22 Q.B.D 128) which also includes the specific pleading of the statute and the provision of that statute. In this present case, the Statute here is the Wrongs (Miscellaneous) Provisions Act Chapter 297, ss 1(1) (a) and s1 (4). The plaintiff in this case failed to plead the nexus or connection between the principal tortfeasor (first defendant) and the nominal defendant, the State.
      
22. In Jack Pinda v Sam Inguba (2012) SC1181, the Supreme Court held that the lack of pleading is a point of law and must be founded on a proper pleading of a cause of action in law .....” Paul Gigmai -v- Motor Vehicles Insurance Limited (2004) SC750. In this case, the cause of action was based on the tort of negligence. To succeed in having the third defendant held liable for the negligent actions or omissions of the policemen the National Court has to be satisfied that:
    

(a) the policemen as servant or agents of the second respondent committed the tort of negligence during the course and within the scope of their employment: section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297; and

(b) the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

(c) In Paul Gigmai -v- Motor Vehicles Insurance Limited (supra) the Court found that the pleadings in the amended statement of claim were lacking because while the appellant pleaded that the respondents were vicariously liable for the acts or omissions of their servants or agents and/or employees pursuant to section 1(1) of the Wrongs (Miscellaneous Provisions) Act, Ch 297, he did not plead that they committed the alleged negligent acts or omissions during the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law.

(d) In applying the above principles to this present case, I find that the pleadings in the statement of claim does not allege that the policeman (first defendant) was acting in the course and within the scope of his employment or while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law under the principles of vicarious liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297 when the plaintiff was alleged to have been injured. This is a fundamental omission because its omission means that there is no nexus or connection between the policeman and the second and third defendants and ultimately the third defendant (State) to hold it vicariously liable in damages.

(e) In other words, it is not sufficient to only plead in the statement of claim that the first defendant is a policeman but also plead that when he accidently discharged a firearm, he was acting in the course and within the scope of his employment or while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law under the principles of vicariously liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

(f) Finally, the law is well-settled that entry of default judgment is not a matter of right even where the preconditions are satisfied, as the decision whether or not to order default judgment remains a discretionary matter for the court (see Agnes Kunton v John Junias (2006) SC929; David Lambu v Paul Torato (2008) SC953; Lina Kewakali v State (2011) SC 1091.

(g) Clearly there is no nexus (connection) pleaded as to whether or not, a claim exist in law as alleged against the defendants. Further, the application offends s 12 (3) of the Claims By and Against the State Act 1996 and the elements established in Bruce Tsang v Credit Corporation (PNG) Ltd (supra).

(h) Given these findings, I conclude that the application for entry of default judgment and alternatively summary judgment are misconceived and refused. Costs follow the event. Costs to be taxed if not agreed.

Orders of the Court

(i) Application for default judgment and alternatively summary judgment are refused.

(ii) Costs follow the event. Cost to be taxed if not agreed.

Orders accordingly
Public Solicitor: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants