Akipe v Parkop [2021] PGNC 279; N9114 (20 August 2021)

N9114

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS(HR) NO 9 OF 2021

DICKSON AKIPE FOR HIMSELF AND ON BEHALF OF OTHER PLAINTIFFS
Plaintiffs

V

HONOURABLE POWES PARKOP, GOVERNOR FOR NATIONAL CAPITAL DISTRICT
First Defendant

JOHN MAKOP, PROJECT MANAGER OF THE FIFTH & SIXTH DEFENDANTS’ OFFICES
Second Defendant

ERINUKA SIMON, CHAIRMAN – NINE (9) MILE QUARRY ASSOCIATION INCORPORATION
Third Defendant

ELLISON MAPUA
Fourth Defendant

OFFICE OF THE GOVERNOR, NATIONAL CAPITAL DISTRICT
Fifth Defendant

NATIONAL CAPITAL DISTRICT COMMISSION
Sixth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Narokobi J
2021: 20^th August

NOTICE OF MOTION – seeking leave to file defence out of time –whether leave should be granted - relevant considerations –considerations met - leave granted.

The first, fifth and sixth defendant sought leave to file defence out of time. One of the reasons for not filing its defence in time it argues, was that the writ of summons was not properly served on them as it was not served on the National Capital District Commission manager as required by s 53 of the National Capital District Commission Act 2001. Meanwhile, the seventh defendant sought to be removed as a party as it was not properly included as a party.

Held:

1. Having had regard to the provisions of the National Capital District Commission Act 2001, s 4(2)(d)(ii) which states that the Commission may sue and be sued in its corporate name, the State cannot be vicariously liable for the actions of the Commission as pleaded by the plaintiffs in the statement of claim as they are both separate legal entities and the State is accordingly removed as a party to the proceedings pursuant to Order 5 r 9(a) of the National Court Rules.
   
2. The requirements an applicant ought to satisfy for grant of leave to file defence out of time are:
   

1) The applicant must provide a reasonable or valid explanation for failing to file his or her defence within time;

2) If there had been a delay in making the application, the applicant must provide a reasonable or valid explanation for the said delay;

3) The applicant must demonstrate with evidence that there is a defence on merit;

4) Who will suffer prejudice if the extension is granted or otherwise?

5) Which party does the interest of justice favour? (Nambawan Super Ltd v. Paul Paraka (2020) N8375, adopted)

3. Once a defendant has filed a Notice of Intention to Defend and has not applied to set it aside under Order 8 r 60 of the National Court Rules, it is admission of proper service (Kuk v. State (2005) N2764, adopted).
   
4. Accepting the authority of Kuk, would mean that the first, fifth and sixth defendants are deemed to accept service of the writ of summons when they filed their Notice of Intention to Defend and did not raise any objection on proper service under s 53 of the National Capital District Commission Act 2001. Having not filed their defence, they are in default. The first and second consideration favours the plaintiffs.
   
5. Consideration three (3), four (4) and five (5) however, favours the first, fifth and sixth defendants.
   
6. Assessing all the considerations together, since there is a defence on the merit, greater prejudice will be suffered by the first, fifth and sixth defendants if they are not allowed to file their defence, and the interest of justice leans towards allowing everyone a fair hearing, leave is granted to the first, fifth and sixth defendants to file their defence out of time.

Cases Cited:
Kuk v. State (2005) N2764
Nambawan Super Ltd v. Paul Paraka (2020) N8375

Statute:

Constitution
National Capital District Commission Act 2001

Counsel:

F Baundo, for the Plaintiffs
L Raula, for the First, Fifth and Sixth Defendants
A Kajoka, for the Seventh Defendant
No appearance by the Second, Third and Fourth Defendants

RULING

20^th August, 2021

1. NAROKOBI J: The plaintiffs are claiming breach of human rights as they are settlers in an area that is being worked on to open road access in the nine (9) mile area of the National Capital District.
   
2. The first, fifth and sixth defendants have not filed their defence. They have now filed a Notice of Motion on 4 August 2021 seeking extension of time to file their defence out of time pursuant to Order 1 r 15(1) of the National Court Rules.
   
3. In support of the application, the first, fifth and sixth defendants rely on the affidavits of Lari Raula filed on 4 August 2021 and the affidavit of Kenneth Atasoa, also filed on 4 August 2021.
   
4. The plaintiff opposes the application and relies on Baundo Francis’ affidavit, filed on 13 August 2021.
   
5. The seventh defendant neither supports nor opposes the application but makes an application pursuant to Order 5 Rule 9(a) of the National Court Rules to be removed as a party on the basis that it has been improperly joined. I deal with that application first.
   
6. In the plaintiff’s statement of claim filed on 16 April 2021 at paragraph 8, they plead:
   

“The Seventh Defendant is the Independent State of Papua New Guinea, it can be sued for the acts and or omissions of the first, fifth and sixth defendants being its agents, servants or associates pursuant to section 247(2) of the Constitution, s 2 of the Claims By and Against the State Act 1996 and s 1 of the Wrongs (Miscellaneous Provisions) Act, chapter 297 as well as under the Principles of vicarious liability.”

7. Having had regard to the provisions of the National Capital District Commission Act 2001, section 4(2)(d)(ii) which states that the Commission may sue and be sued in its corporate name. The State, under s 247(2) of the Constitution is also an independent legal entity that can sue and be sued in its own name and style. Considering this, I am of the view that the State cannot legally be vicariously liable for the actions of the National Capital District Commission as pleaded by the plaintiffs in the statement of claim.
   
8. The Plaintiff has not seriously contested the seventh defendant’s application.
   
9. Since the Commission and the Independent State of Papua New Guinea are separate legal entities, I order pursuant to Order 5, r 9(a) of the National Court Rules that the seventh defendant has been improperly joined as a party, and I order its removal.
   
10. Returning to the application of the first, fifth and sixth defendants to file defence out of time, I have had recourse to the authorities submitted by Ms Raula, that is the case of Nambawan Super Ltd v. Paul Paraka (2020) N8375 which sets out the requirements to file defence out of time, and I accept the principles set out in that case. They are:
    
    1. The applicant must provide a reasonable or valid explanation for failing to file his or her defence within time;
    2. If there had been a delay in making the application, the applicant must provide a reasonable or valid explanation for the said delay;
    3. The applicant must demonstrate with evidence that there is a defence on merit;
    4. Who will suffer prejudice if the extension is granted or otherwise?
    5. Which party does the interest of justice favour?
       
11. I have also had regard to the case authority handed up by the plaintiff, the case of Kuk v. State (2005) N2764 which stands for the proposition that once the defendants file a Notice of Intention to Defend, and has not applied to set it aside, it is admission of proper service. I accept that as good law on practice and procedure on matters before the National Court.
    
12. Accepting the authority of Kuk, means that the first, fifth and sixth Defendants are deemed to accept service of the writ of summons when they filed the Notice of Intention to Defend. They therefore are in default. They cannot now deny service of the writ of summons.
    
13. The question is whether they have met the grounds for filing of Defence out of time.
    
14. For the first two requirements, I find for the plaintiff, in that for the first, fifth and sixth defendants to validate their submission that service was not effected on the “Manager” as required by s 53 of the National Capital District Commission Act 2001, they should have sought leave from the Court to withdraw the Notice of Intention to Defend pursuant to Order 8 r 60 of the National Court Rules. They have not done that. By filing the Notice of Intention of Defend, they are deemed to have accepted service of the writ of summons.
    
15. In terms of the other requirements, I have considered that Kenneth Atasoa is an employee of the Commission, and the project being carried out falls under his responsibilities, and further, that he is ostensibly authorized to depose to the affidavit on behalf of the first, fifth and sixth defendants as he has personal knowledge of the events and is therefore the proper person to depose to whether the first, fifth and sixth defendants have a meritorious defence.
    
16. He says in his affidavit that the project is of great public interest as it will open public road access. National Capital District Commission has the title to the property under road construction, the subject of the proceedings. Alternative arrangements are being made to settle the plaintiffs elsewhere. A member of people affected have accepted the offer of the Commission. Kenneth Atasoa attaches a draft defence in that regard to his affidavit.
    
17. In my view there is a defence on the merits for the reasons alluded to by Kenneth Atasoa.
    
18. In terms of prejudice, considering the efforts the first, fifth and sixth defendants are putting in to ensure that the plaintiffs are provided alternative arrangements, I am of the view that any prejudice the plaintiff suffers can be compensated by adequate damages if they succeed in the proceedings. The plaintiffs also concede that they do not have title to the area they are occupying, but were allowed to settle by some administrative arrangements, and it would therefore be appropriate to have the first, fifth and sixth defendants’ position at the substantive hearing on the legal status of those arrangements.
    
19. On the other hand, the first, fifth and sixth defendants have spent a substantial amount of money on the road project, and any further delays may result in additional costs, which are public funds. They stand to suffer the greater prejudice if the project is stalled.
    
20. As to the interests of justice, I note that a number of legal questions arises, including the question of compliance with the Public Finance (Management) Act 1995, and those questions will have a consequential effect on the first, fifth and sixth defendants and therefore the interest of justice favors allowing filing of defence out of time by the first, fifth and sixth defendants so as to be heard on these issues.
    
21. Assessing all the considerations together, in my view since then there is a defence on the merit, prejudice will be suffered by the first, fifth, sixth defendants if they are not allowed to file Defence, and the interest of justice leans towards allowing everyone a fair hearing, I grant leave.
    
22. The orders I make are firstly that the seventh defendant is removed as a party to the present proceedings pursuant to Order 5 r 9(1) of the National Court Rules.
    
23. Secondly, I also grant orders in terms of paragraphs 1, 2 and 3 of the Notice of Motion filed by the first, fifth and sixth defendants on 4 August 2021.
    

Orders accordingly.

Francis Baundo: Lawyers for the Plaintiffs
NCDC In-house Lawyers: Lawyers for the First, Fifth & Sixth Defendants
Solicitor General: Lawyers for Seventh Defendant