Pokia v Yallon [2021] PGSC 41; SC2115 (29 March 2021)

SC2115

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 105 OF 2013

BETWEEN:
MURISO POKIA
Appellant

AND:
MENDWAN YALLON
First Respondent

AND:
DOROTHY NANAI
Second Respondent

AND:
Senior Constable
JOB EREMUGO
Third Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J,
2021: 9^th, 29^th March

SUPREME COURT – practice and procedure - Application for orders for confirmation of service of documents

Cases Cited:

Wamu Abari v. Willie Gumaim (2020) SC1925

Counsel

Mr. M. Pokia, the Appellant in person

29^th March, 2021

1. HARTSHORN J: This is a decision on an application for orders that amongst others, the service of certain sealed court documents relating to a contempt of court application, was for all intents and purposes, effected on the third respondent on certain dates.

2. I allowed the application to be moved in the absence of representation of the third respondent as I was satisfied that the Solicitor General who represents the third respondent, had been notified of the hearing date and time of the application.

3. First, the appellant relies upon Order 2 Rule 1(g) Supreme Court Rules. This provision provides for the National Court Rules with regard to ‘Contempt of Court’ under Order 14 National Court Rules to apply as if those National Court Rules were, with necessary modifications, Rules of the Supreme Court. Order 14 requires, amongst others, pursuant to Rule 45 that, “The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.”

4. Secondly, the appellant relies upon Order 2 Rule 1(h) Supreme Court Rules which is as follows:

“(h) Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed."

5. As was stated in Wamu Abari v. Willie Gumaim (2020) SC1925 (Salika CJ, Hartshorn J, Dingake J) at [10], for Order 2 Rule 1(h) Supreme Court Rules to be enlivened, there must be a matter where there is a relevant provision in the National Court Rules and no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed. All three prerequisites must be satisfied.

6. The National Court Rule upon which the appellant seeks to rely is Order 6 Rule 13 which provides for and is titled, “Informal Service: Confirmation.”. As there was no opposition to this application there was no submission that the three prerequisites had not been met. Without deciding whether the three prerequisites have been met in this instance, I will proceed on the assumption that they have.

7. Order 6 Rule 13 is as follows:

“13. Informal service: Confirmation. (9/11)

Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by these Rules, but steps for the purpose of bringing, or having a tendency to bring, the document to the notice of that person have been taken, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.”

8. For Order 6 Rule 13 to be enlivened, amongst others, service of a document on a person is required and that it is impracticable for any reason to serve the document or to serve the document in the manner required by or under the National Court Rules.

9. The evidence of Constable Anton James filed 4^th February 2021, is in essence, that after numerous failed attempts at personal service of the third respondent, on Friday, 22^nd January 2021, Constable James met the third respondent at the Boroko Police Station and told him of the purpose of his visit. A conversation ensued and the third respondent refused to accept service of the documents. Constable James did not serve the documents.

10. Order 6 Rule 3 National Court Rules provides for how personal service of a document is to be affected. Order 6 Rule 3(1) is as follows:

“3. Personal service: How effected. (9/3)

(1) Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.”

11. So in respect of the documents that were to be personally served when the third respondent refused to accept service on 22^nd January 2021 and in the absence of any evidence to the contrary, Constable James could have put the documents down in the presence of the third respondent and told him of their nature.

12. It was not therefore impracticable for any reasons on 22^nd January 2021 to personally serve the third respondent with the documents in the manner required by or under the National Court Rules and it has not been shown that it will be impracticable for any reason in the future.

13. Order 6 Rule 13 National Court Rules has not therefore been enlivened and so the appellant is not entitled to the relief which he seeks by relying upon that provision. The appellant did not make submissions under Order 11 Rule 9 Supreme Court Rules, the alternate provision upon which he relied and so the relief sought under paragraph 1 (a) of the application is refused.

14. The relief sought in paragraphs 2 to 6 of the application is consequential upon the orders in paragraph 1 of the application being granted. This relief is also refused. Given the above, it is not necessary to consider the other submissions of counsel.

Orders

15. It is ordered that:

a) All of the relief sought in the application filed 4^th February 2021 is refused;

b) No order as to costs.
__________________________________________________________________
Appellant: In person
Office of the Solicitor General: Lawyers for the Third and Fourth Respondents