Avaukava v Tapat [2020] PGNC 182; N8397 (29 June 2020)

N8397

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 288 of 2019

ANTHONY AVAUKAVA
Plaintiff

V
JIMMY TAPAT SITTING AS PRINCIPAL MAGISTRATE IN PORT MORESBY DISTRICT COURT
First Defendant

AND
NATIONAL HOUSING CORPORATION
Second Defendant

AND
RAYMOND ISSAC
Third Defendant

Waigani: Miviri J
2020: 29^th June

PRACTICE & PROCEEDURE – Judicial Review & appeals – notice of motion –dismissal for want of prosecution Order 16 Rule 13 (1) & (2) (b) NCR – affidavit of service – affidavit of third defendant – nonappearance of Plaintiff – balance discharged – motion to dismiss for want of prosecution granted – cost follow the event.

Counsel:

No appearance Plaintiff
W Otto, for Applicant Third Defendant

M Tukulya, for First Defendant

RULING

29^th June, 2020

1. MIVIRI, J: This is the Ruling of the Court on an application by notice of motion filed 24^th June 2020 pursuant to Order 16 Rule 13 (1) & (2) (b) of the National Court Rules for dismissal of the matter.
   
2. It has been served Thursday the 25^th June 2020 and an affidavit to that effect sworn by the third defendant is on file including service on the same date on the Solicitor General’s office as lawyers for the State in the matter. It has two annexures one “A” is Win & Win Attorneys at Law Service form endorsed by Betty Makis executive Assistant on the 7^th Floor Sir Buri Kidu House accepting service for the State in particular the Magistrate Jimmy Tapat. Annexure B is also Win & Win Service Form endorsed by Fubu Tamarua acknowledging Notice of trial.
   
3. Trial date was to have been settled today the 29^th June 2020 and the plaintiff has made no appearance. It is a matter involving the decision of the second defendant ordering eviction of the plaintiff from a property in the occupation of the latter from it. Prima Facie the decision made is challenged that plaintiff was not accorded opportunity to be heard before the orders were made to evict him. Matter it appears arises over execution of an order for eviction of a property allegedly in the possession of the plaintiff that was supposedly the subject of dispute over transfer effected by the second defendant.
   
4. I take due account that the rules of court are there to ensure there is fairness and equity exercised in the dispensation of Justice. It is clear that the rules will not defeat justice as it were because prima facie the plaintiff was not accorded opportunity to have his day in court at the initial before the first defendant. I would not be heeding section 53 Protection from unjust deprivation of property and section 59 Principles of Natural Justice which is heart to Judicial review if I were to grant the motion pursued. All who come before equity must be accorded equity not without. What is sought is to summarily determine here effectively barring the plaintiff from pursuing the matter. He must be accorded the seat of Judgement and the constitution prevails because this is not a case where the history shows inordinate delay on his part to bringing the matter to finality. From the records of the file it would not be inordinate to grant the application. Here his nonappearance can be remedied with costs to the defendants individually and severally. But to dismiss would be parting with equity given the facts and circumstances here which I have set out above and extended out below.
   
5. The plaintiff sought assistance from the Office of the Public Solicitor who did not appear at the district court hearing from which came the orders subject of the review sought. His lawyer currently is an experienced lawyer and is not clear as to the reason for nonappearance. She had a medical reason apparent on file before this court presided by Justice Dingake from which she was granted leave. If that is what is on record, then it does not appear that notice has been affected because she had material before the court to seek adjournment by the same therefore it would be similar here. The matter was before the court on the 9^th June 2020 where it was further adjourned to Friday 19^th June 2020 where it was adjourned to Monday 29^th June 2020 for further direction for trial date. In effect today was to get a trial date confirmed and set in the matter. Hence the second related matter adjournment of the matter for further direction Monday 29^th June 2020 at 9.30am.
   
6. For these reasons, the application for dismissal is premature given and will be refused. The matter is now set for a further direction on Monday the 03^rd August 2020 at 9.30am.
   
7. Further Lawyer for the plaintiff Koisen Lawyers are ordered to appear on Monday the 3^rd August 2020 with their client Anthony Avaukava at the directions hearing forthwith.
   
8. Third defendant will take out the orders for the endorsement of the court. He will undertake to furnish these orders endorsed by this court upon the plaintiff’s lawyer and the plaintiff in person.
   
9. He will file an affidavit to that effect setting out service details
   
10. Accordingly, his application is refused.
    
11. Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Koisen Lawyers: Lawyer for the Plaintiff

Office of the Solicitor General: Lawyer for the First Defendant

Win & Win Attorneys at Law: Lawyer for the Third Defendant/Applicant