N7466

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 343 OF 2009

BETWEEN:
YAWE RIYONG
Plaintiff

AND:
TERRY SHELLEY
First Defendant

AND:
NOWEK LIMITED
Second Defendant

Goroka: Yagi J
2018: 20th July & 14th September

PRACTICE & PROCEDURE – application to dismiss proceeding – grounds for dismissal - non-compliance with court direction – want of prosecution – abuse of process - death of a witness – whether good grounds for dismissing the proceeding.

Cases cited:

Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845
Harry Tovon v Carl Malpo (2016) N6240
Yori Yei v Hon. James Marape & 2 Others (2015) N6339

Counsel:

B. Koningi, for the Plaintiff/Respondent 
E. Daroa, for the First & Second Defendants/Applicants

RULING

14th September, 2018

1.	YAGI, J:	This is an application by the defendants to dismiss the proceedings under Order 4 Rule 36 of the National Court Rules. The ground that the defendants rely upon in the application as stated in the notice of motion filed on 28 May 2018 is “abuse of process”.

2.	Order 4 Rule 36 states -

36.	Want of prosecution. (5/12)
(1)	Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.

(2)	Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.

3.	The defendants rely on the following affidavits -

1.	Affidavit sworn by Ben Shelley filed on 28 May 2018
2.	Affidavit sworn by Lynn Asaha Shelley filed on 28 May 2018

4.	The application is opposed by the plaintiff and he filed an affidavit in response sworn on 11 July 2018. He also relies on an affidavit filed by his lawyer (Mr. Brian Koningi) on 2 May 2018.

5.	Counsel for the defendants, Ms. Daroa, at the outset, made an oral application seeking leave to amend the jurisdictional basis of the application. Counsel sought to amend the notice of motion by deleting Order 4 Rule 36 and inserting in its place Order 10 Rule 5.  The plaintiff opposed the application and after some exchanges between the Court and counsel in the light of a recent ruling by Kandakasi J in Harry Tovon v Carl Malpo (2016) N6240, Ms. Daroa abandoned the application for amendment. The ruling by his Honour in Tovon’s case is essentially that the practice of amending notice of motion is procedurally wrong and irregular as there is no power provided by the National Court Rules for a notice of motion once filed to be subsequently amended (see paragraph 8 of the judgment). 

6.	The facts deposed to and relied upon by the defendants are contained in the affidavits of Ben Shelley and Lynn Asaha Shelley. Some of the facts are repetitious, however, the relevant facts deposed to can be summarized as follows and hence where necessary repetition will be avoided –

Affidavit of Ben Shelley 

•	Mr. Terry Shelley was initially named as the first defendant in the proceeding. Mr. Terry Shelley recently passed away. Consequently, Mr. Ben Shelley was substituted as the first defendant in the proceeding.

•	The dispute in the proceeding concerns verbal conversations between the plaintiff and the late Mr. Terry Shelley. Mr. Ben Shelley is not privy to those conversations.

•	Mr. Ben Shelley is not aware of any written agreements emanating from the conversations, and therefore, he cannot give evidence at trial as a witness on behalf of the second defendant. 

•	The second defendant (Nowek Ltd) will be gravely prejudiced if the dispute goes to trial.

•	On 16 March 2018 the Court issued directions for the plaintiff to file affidavits that he intends to rely upon at trial. The deadline for the filing was 6 April 2018.

•	The plaintiff deposed one affidavit on 16 March 2018. That affidavit was served on the defendant’s lawyer on or around 24 April 2018.

•	Mr. Ben Shelley is unable to file an affidavit in reply to the plaintiff’s affidavit, apart from merely relying on the affidavits previously filed and listed in the directional order made on 16 March 2018.

•	The plaintiff failed to comply with court directions made on 16 March 2018 by (i) failing to file and serve his notice to rely on affidavits by 2 May 2018; (ii) failing to file and serve his notices to cross-examine by 2 May 2018; and, (iii) failing to forward to the defendants by 30 May 2018 the Statement of Agreed and Disputed Facts.

Affidavit of Lynn Asaha Shelley

•	Mrs. Lynn Asaha Shelley is now a widow being the wife of the late Mr. Terry Shelley. She is the owner, director and shareholder of the second defendant.

•	The late Mr. Terry Shelley passed away on or around 27 December 2017. 

•	Mrs. Lynn Asaha Shelley was ill-advised by previous lawyers in relating to having Mr. Ben Shelley substituted as the first defendant in place of the late Mr. Terry Shelley. Recent legal advice indicates that Mr. Ben Shelley cannot be a witness in the case because he is not privy to the alleged verbal conversations between the plaintiff and the late Mr. Terry Shelley.

•	The second defendant will be prejudiced because of the demise of the late Mr. Terry Shelley who cannot be produced as a witness.

•	The defendants are prejudiced by the inordinate and intentional delays by the plaintiff.

7.	The responding affidavits relied upon by the plaintiff deposed to the following relevant matters -

Affidavit of Brian Koningi

•	A direction was issued by the Court on 16 March 2018, amongst others, for the plaintiff to file and serve his affidavit which he intends to rely upon at trial within 21 days.

•	The plaintiff did not comply with court direction because it was a mammoth task in putting together considerable documents in chronological order which was compounded by the long history of the case.

•	The plaintiff’s affidavit was eventually compiled and filed 10 days late.

•	Attempts were made to communicate with the then lawyer on record for the defendants as regards the delay in complying with the court directions failed.

•	Due to failed communication attempts application was filed by the plaintiff on 2 May 2018 seeking extension of time to file the affidavit.

Affidavit of Yawe Riyong

•	The difficulty expressed in the two supporting affidavits of the defendants (death of the late Mr. Terry Shelly) had been taken into account within the terms of the order made on 16 March 2018.

•	The demise of the late Mr. Terry Shelley does not render the claim an abuse of process.

•	The Court has a duty to determine the merits of the claim irrespective of the demise of the late Mr. Terry Shelley.

8.	Counsel for the defendants submits the failure by the plaintiff to strictly comply with the directional orders made by the Court on 16 March 2018 is a justifiable ground to dismiss the proceedings. Moreover, it is submitted the reasons offered for the delay in filing the affidavit is not a good excuse and therefore tantamount to inordinate and inexcusable delay. Counsel cited and relied upon two cases Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845 and Yori Yei v Hon. James Marape & 2 Others (2015) N6339.

9.	The plaintiff’s counsel submits the reason for the belated compliance with the court direction has been satisfactorily explained and moreover the application for extension of time was promptly filed. It is therefore submitted the basis for the defendant’s application, that is, want of prosecution, is without merit as there is no strong basis for such application.

Reasons for decision

10.	It is patently obvious that where a party seeks to dismiss a proceeding on ground of “abuse of process” the correct jurisdictional basis is Order 12 Rule 40. In this case the defendants rely on Order 4 Rule 36 which deals with the issue of want of prosecution and is therefore inappropriate. In that regard the application must fail for that reason alone.

11.	The two cases cited by counsel for the defendants discusses principles of law applicable in situations where application is made to dismiss a proceeding on the basis of want of prosecution. In the Ahmadiyya case (supra), the plaintiff sued the bank for alleged negligence in transacting a forged cheque on the plaintiff’s bank account. The pleadings closed and the plaintiff failed to set the proceeding down for trial for about 21 months. The Court dismissed the proceeding after having found not only that there had been a lengthy delay in prosecuting the claim but also that the plaintiff failed to provide reasonable explanation for the delay and moreover the defendant had been prejudiced by the delay. In the Yori case (supra), leave was granted to the plaintiff under Order 16 of the National Court Rules to judicially review a decision made by the first defendant. The Court dismissed the proceeding 2 years later on application after having found that there were repeated failures by the parties to comply with court directions including the failure by the plaintiff to take appropriate steps to expedite the trial of the proceeding. The plaintiff also failed to provide reasonable explanation for the delays and the delay had caused prejudice to the defendants. Furthermore the Court found the plaintiff’s conduct dilatory and contumelious. As I said these cases deal primarily with the issue of want of prosecution.

12.	In this case the defendants claim that the fact of the demise of a principal witness constitute “abuse of process”. No authority has been cited for that proposition. With respect, I do not find this contention tenable in law. Where a witness dies before trial then it means his evidence is not available for the purposes of trial. In such circumstance, generally speaking, it amounts to no evidence as far as that particular witness is concerned. However, there is statutory exception, where it is permissible under the Evidence Act, the evidence of the deceased before his death may be admissible during the trial under s. 20 of the Evidence Act in respect to statement of a relevant fact by a person who is dead may be admissible in the circumstances provided in s. 20 of the Evidence Act.

13.	Section 20 states:

“20.	Dying declarations.

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—
(a)	at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—
(i)	he entertained at that time any hope of recovery; or
(ii)	he thought that legal proceedings might eventuate; and
(b)	at the time when the person made the statement he would have been a competent witness in the legal proceedings; and
(c)	the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.”

13.	In general therefore where a person has died before he could give evidence in court as a witness in the trial, his evidence simply does not exist in the eyes of the law and naturally, the party seeking to rely on the deceased witness will suffer to that extent, even if he or she is a crucial witness in the trial on behalf of that party.

14.	The defendants also claim that the plaintiff failed to comply with the court direction issued on 16 March 2018. It is true that the plaintiff has not filed and served his affidavit within the timeframe set by the court. The time frame was agreed to by the parties themselves as the direction was issued with the consent of the parties and the plaintiff himself in particular agreed to the time line. The plaintiff does not deny this fact. However, an explanation is provided by Mr. Koningi in his affidavit. In effect, he says that due to considerable documents involved it took longer than expected to compile the documents into chronological order. He made attempts to discuss the difficulty encountered with the defendant’s former lawyer but he also encountered problems because the lawyer was no longer acting for the defendants. Consequently, he filed an application 10 days later seeking extension of time.

15.	The affidavit filed by the plaintiff is in the court file and I have been able to have a quick glance at it in the light of the explanation given. The affidavit is quite thick or bulky and there are considerable documents annexed to the affidavit. It has 50 pages and contains 289 paragraphs. I am satisfied the explanation given is reasonable. I also find that part of the difficulty is associated with the change of lawyers by the defendants that made it difficult for lawyers to engage or communicate on professional matters.

16.	In my view the delay in complying with the court order of 16 March 2018 was not intentional or contumelious. The delay in filing was for only 10 days; 4 of which were non working days (weekend) and therefore effectively 6 days late in terms of filing the affidavit. In any event, as I have alluded to earlier, the failure has been satisfactorily explained.

17.	In the two cases cited and relied upon by the defendants the delays were of substantial periods and further the conduct in terms of the failure to comply with the court orders or directions were intentional and serious and in one case the failure appeared to be chronic. The facts of this case are clearly not the same as those two cases. 

18.	In all the circumstances, this Court is not satisfied that there is strong grounds or merits in granting the relief sought by the defendants. The application is dismissed with costs.

19.	The formal orders are as follows:

	1.	The defendants’ application is dismissed.

2.	The defendants’ shall pay the plaintiff’s costs of and incidental to the application, if not agreed, to be taxed.

3.	The matter is listed for directions hearing on Monday, 24 September 2018 at 09.00 am.

Ruling and Orders accordingly.
__________________________________________________________________
Koningi Lawyers : Lawyers for the Plaintiff
Endaroa Legal Services : Lawyers for the First & Second Defendants