1070
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL ( GRADE FIVE ) JURISDICTION]
DCCi 02 of 2011

BETWEEN

JOHN SUPA
Complainant

AND

GABRIEL MONDO
Defendant

Goroka : G Madu

2011: January 1 February 8, 24

CIVIL- Notice of Motion – Withdraw of summonses- moral and ethical grounds – authors right to return summons drafted – complainant can formally withdraw a case – solicitor/client privilege be maintained – applicant compromised position- Orders sought not granted – Motion and substantive hearing dismissed – Cost awarded.

Cases Cited

References
Counsel
 John Supa, for the Applicant/Defendant
 Dennis Umba, for the Respondent/Complainant
 24th February 2011

REASONS FOR DECISION

G Madu PM .The Applicant/Complainant John Supa filed a notice of motion seeking orders to withdraw the two (2) proceeding before the Goroka Grade 5 Court viz. Complaint No. 55 of 2010 between Gabriel Mondo and Mathew Tom and Complaint No.86 of 2010 between Gabriel Mondo and Winch Lee Oibotee on the grounds of unauthorised usage of the summonses drafted by the applicant /complainant. 

2. The brief facts are the applicant/complainant is a Para- Legal facilitator based in Goroka and rendering such service since 1998.

3. The respondent / defendant approach the applicant in May 2010 to draft two summonses against Mathew Tom and Winch Lee Oibotee, which are now two separate matters before the Grade 5 Court. The applicant also had them served on the two persons. 

4. The applicant/ Complainant learnt later from both Mathew Tom and Winch Lee Oibotee and other people that the respondent/ defendant was their brother and son –in – law respectively and that the Court Summons was done out of frustration and anger following ending of his five years marriage. The applicant further learnt that the marriage breakdown was attributed due to respondent’s negative approach and attitude towards his then wife.

5. The applicant being father of teenage girls, realized that by assisting or aiding a cause of someone who was avenging or taking retaliatory actions against his former –in- laws by seeking some form of reliefs from the court was improper and an abuse of process and moreover the applicant viewed his assistance and involvement as being unethical and morally wrong.

6. The applicant/complainant filed the notice of motion and summons together on 23rd November 2010 and was heard on 8th February 2011. The affidavit in support of the motion was also filed. The substantive proceeding of this matter is pending the outcome of the motion. During the hearing of the motion the both parties advanced their respective arguments and made submission during the hearing.

7. The applicant deposed in his affidavit that him being the father of the teenage daughters realized that by assisting or aiding a cause of someone who was avenging or taking retaliatory actions against his former in-laws by seeking some form of reliefs in Court was improper and an abuse of process and moreover, he viewed his assistance and involvement as being unethical and morally wrong.

8. The applicant said he felt guilty and uneasy so he rang the respondent up and told him to withdraw the summonses that he drafted and would refund the money paid as his fees as well as costs. However the respondent persistently refused saying that he had paid for the service and insisted to purse the matters.

9. The applicant physically had confrontation with the respondent sometimes in July or August 2010 and demanded withdrawing the summonses filed in Court accompanied by Mr. Oibotee. Even when the respondent was threatened physically and told off that he cannot use what the applicant had drafted for his personal gains but ask for assistance elsewhere but realised that the respondent would not give into the demands from the applicant. 

10. The applicant makes this application to inform the Court that the two civil summonses drafted were never consented or authorised for the respondent to purse against his former – in- laws and therefore its use is illegal and the court should grant the orders sought.

11. Applicants witness Winch Lee Oibotee in his affidavit stated that in late May or early June 2010, himself and his step son Mathew Maima were served by John Supa’s agent with summons. The summonses were made against the Mathew Maima and Winch Lee Oibotee by the respondent.

12. A few days later having learned that the respondent was Winch Lee Oibotee’s son – in – law and that he had personal grudges against himself and his son Mathew Maima and had taken actions against both because he was frustrated over the dissolution of marriage to Mr Oibotees daughter approached him outside Istana Limited Store and asked if this was all true.

13. Mr. Oibotee explained to the applicant that the respondent was his former son –in - law and that he had personal grudges against Mathew Maima and himself for losing his wife and that the court action he took was taking revenge.

14. The applicant was challenged by the Mr Oibotee to put himself into his (Mr. Oibotee’s) situation and the applicant assured that he would ask the respondent to withdraw the two summonses. 

15. Mr. Oibotee testified that he accompanied the applicant to his house and demanded him to withdraw the two summonses. He also witnessed physical confrontation by the applicant and even threatened the respondent to shot him because he did not want the respondent to use the summonses he drafted. He further told him that the use of the two summonses were not authorised or consented by him.

16. In his defence the respondent said that because the applicant offered his Para- Legal services, he engaged him and paid him the sum of K170.00 for preparing the summons and complaint for Winch Lee Oibotee, Jane Winch Maima and Mathew Tom.

17. The respondent claims that the summons and the complaints has become his property because he gave instruction to the respondent and paid him for his service. The respondent stated that after he filed the summons and the complaints, they become the Court’s property and the complainant has no right in law to demand the respondent to withdraw the summons and the complainant from the court process.

18. In the matters pleaded in paragraph 3, the respondent states that the applicant has placed himself in a conflict of interest situation and has compromised himself when accepting instruction from Winch Lee Oibotee and filed summons against him. The respondent claims that the applicant’s cause of action is highly suspicious and has no legal basis. The respondent submits that because of the foregoing reasons the applicant is not entitled to the relief sought.

19. The counsel for the respondent’s submitted that this is a strange application and what is a legal basis for it. This is an abuse of Court process as there is no legal basis for such application. Gabriel Mondo gave instruction to John Supa to draft summons against both Winch Lee Oibotee and Mathew Tom and paid K170.00 for the service and these documents are Gabriel Mondo,s documents. I n other words the contract was entered between Gabriel Mondo and John Supa. John Supa was given instruction to draft summons in which he did and Gabriel Mondo paid consideration for the service rendered by paying K170.00 and therefore contract was signed and sealed and for the applicant to ask the respondent to return the documents would be a breach of the contract. The counsel submits that the application be dismissed.

20. The applicant submitted that the application filed is not a strange one but is based on moral and ethical grounds. He stated that he agrees that he received K170.00 for the service he rendered on the face value. He had the documents served on Winch Lee Oibotee and Mathew Tom but later realised that Gabriel Mondo was taking action against the two of them as a revenge for divorcing of his wife who is Winch Lee Oibotee’s daughter. The applicant stated after coming to know this fact he requested the respondent to withdraw the summonses.

21. The applicant stated he made numerous attempts to get the respondent to withdraw the proceedings but his responses were all negative. Even at one stage there was a physical confrontation at the respondent house where demand was made to withdraw the summonses but he responded negatively.

22. The applicant submitted that because he is the author of both summons he had every right to have both withdrawn and the respondent is at liberty to find a lawyer of his choice or even Mr Umba to draft the summons again.

23. Having advanced the arguments by both the applicant and the respondent, I am of the view that the person who has the right to withdraw any proceedings in court is the complainant or upon instruction by his counsel. In this case between Gabriel Mondo and Winch Lee Oibotee and Mathew Tom it is up to Gabriel Mondo to decide to withdraw the case and not John Supa.

24. Further after the case had gone formally through registration process, it has become a confidential court document and the lawyer or for this matter the Para- Legal facilitator has no right to request to withdraw because he was the author. The reasons being that he has acted on instructions were payment had been made for the service and the contract has been sealed. I have not been given any case authorities on this matter and it is a must that common sense should prevail that it is not proper for the author to come back to ask the client to return the document when he is seen to have compromised his position in this case with Winch Lee Oibotee. It is also unethical to do such a thing as the Solicitor/Client privilege must be maintained.

25. I conclude that the application and the orders sought by the applicant are not granted and dismiss the Notice of Motion. I further order that the substantive proceeding also filed together with the Notice of Motion is dismissed. Applicant pay cost to the respondent of this proceedings.

Orders Accordingly.

_________________________
Lawyer for the Applicant/Defendant: John Supa 
Lawyer for the Respondent/Complainant: Umba Lawyers