N3527

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 885 of 2007

BETWEEN:

AGU DAWA CLEWAKI
Plaintiff

AND:

GABRIEL HELA
First Defendant

AND:

GARI BAKI – Commissioner for Police
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Salika, J
2008: 15 September
7 October

PRACTICE AND PROCEDURE – Application for leave to file defence out of time – Order 1 Rule 15 National Court Rules

PRACTICE AND PROCEDURE – personal service of Originating process on the defendants – First Defendant not served originating process – Second and Third Defendants sued on vicarious capacity only – Order 6 Rule 1, 2 and 3 of National Court Rules.

Cases Cited:
No case authorities cited.

Counsel:
Ms A Waviha, for the Plaintiff
Ms S Kikala, for the Defendants

7 October, 2008

1. SALIKA J: By Notice of Motion filed on 12 September, 2008 the defendants move the court for orders that leave be granted to the defendants to file their defence out of time pursuant to Order 1 Rule 15 of the National Court Rules.

2. The Defendants rely on the affidavit of Miss Sandon Kikala, a lawyer in the Solicitor General’s Office.

3. She deposes in her affidavit that this file was previously managed by a Mr Ben Kome who has since resigned from that office. Mr Kome had difficulty getting instructions and therefore did not file a defence in time. There is some correspondence attached to the affidavit of Ms Kikala which shows that Mr Kome had written to the Police Legal Division for instructions on the matter. She says that on 8 September 2008 she received instruction that the First Defendant was not a member of the Royal PNG Constabulary. Upon those instructions she drafted a defence.

4. She has therefore come late to seek leave to file a defence out of time.

5. Upon further perusal of the file I noted that an affidavit of service filed by the plaintiff on 3 March 2008 says that on 11 February 2008 at 9.21 am he attended at the Boroko Police Station and personally served a sealed copy of the Writ of Summons and Statement of claim on Inspector Paul Henry who received it on behalf of the First Defendant.

6. There is no further affidavit of service from Inspector Paul Henry if he ever did serve the documents on the First Defendant. So as it is from the affidavit of service there is no evidence from anybody that the writ of summons and the statement of claim were in fact personally served on the First Defendant at all. For all the Court knows, the summons was served personally on Paul Henry. Paul Henry is not the First Defendant.

7. The Second and the Third Defendants are sued vicariously for the alleged wrongdoing or actions of the First Defendant. It is only proper that the First Defendant be served personally the Writ of Summons and the statement of claim. Order 6 Rules 1, 2 and 3 of the National Court Rules set out the rules for service and how service is to be effected. Lawyers owe a duty to the Court, their clients and to themselves to ensure that proper procedures are followed. They must know what is personal service and what is not. Lawyers must check these very basic things and get them right.

8. Rule 2 specifically says that an originating process shall be served personally on each defendant, subject only to any Act or these rules. Here in this case the originating process is the Writ of Summons and the statement of claim. The Originating process was not served on the First Defendant personally. The second and Third Defendant cannot plead to anything without the First Defendant being personally served. Any default by the First Defendant has a bearing on the Second and Third Defendants but in this case the First Defendant was not served. The second and third defendants are in no position to deny or admit the allegations because they are sued on a vicarious basis only. It is not fair on them at this time when the First Defendant has not been served, and when he has not had or been given the opportunity to file a defence on his own behalf.

9. The plaintiff in this matter must understand that he cannot progress his case any further until he has properly served the originating process on the First Defendant personally. This is a serious case of alleged police brutality and ill discipline. The victim has been incapacitated to some extent, and he is a University student. The case could raise Constitutional issues. It is therefore important on the plaintiff’s lawyers to ensure that all processes are in order.

10. In this case they did not ensure that everything was in order. They filed the affidavit of the plaintiff on 3 March 2008. Had they read the affidavit they would have discovered that there was no personal service on the First Defendant and taken steps to correct that. They did not.

11. In the draft defence, the Defendants say that their records show that there is nobody by the name Gabriel Hela employed in the Police Force. If there is no such person employed in the Police Force, the Writ of Summons cannot be served. Who shot the plaintiff? Does the plaintiff know who shot him. He has to plead those facts carefully and precisely.

12. In the circumstances I will allow the Second and the Third Defendants to file their defence out of time as they raise a defence on merit and in the light of non service of the originating process on the First Defendant. In relation to the case against the First Defendant, I order that the plaintiff start all over again and serve the First Defendant personally the writ of summons and the statement of claim.

13. In that regard also I will grant the plaintiff leave to amend his statement of claim if he sees fit to do so.

Liria Lawyers: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendant