Sereva v Sereva [2005] PGDC 32; DC198 (15 July 2005)

DC198

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 5068 OF 2004

BETWEEN

Edmund Sereva
Complainant

V

Margaret Sereva
Defendant

Port Moresby: Bidar, Pm
2005: 15th July.

District Court - Practice and Procedure - Jurisdiction - Struck Out Proceedings - Manner of Reinstatement - District Court Act s.25.

RULING

15th July, 2005.

BIDAR PM: Complainant filed Summons upon Complaint against the defendant on 20th October 2004. Complainant among other things claimed permanent restraining orders against the defendant. Whilst this matter was on foot, complainant filed Notice of Motion on 29th November 2004 seeking various orders including restraining defendant from entering the complainant’s residence at Badihagwa High School or any office, public place where ever the complainant may be.

On that motion this Court made an Ex parte Order on 30th November 2004 basically granting the Orders complainant sought. These Orders were made returnable on 14th December 2004.

On 29th December 2004 when the matter returned to Court, complainant and his counsel did not appear in Court. Counsel for defendant, Mr. Nanei appeared. Mr. Nanei submitted that parties are husband and wife and applied for proceedings to be struck out.

Court granted the application and ordered proceedings struck out with costs to the defendant.

These proceedings remained struck out, until on 17th May 2005 Warner Shand lawyers wrote to the Presiding Magistrate at Port Moresby District Court requesting proceedings to be re-instated. The letter enclosed the following documents:

- Ex Parte Order obtained on 29th November 2004.
- Notice of Motion returnable on 14th December 2004.
- Affidavit of Edmund Sereva.
- Amended Complaint and Amended Summons returnable on 14th December 2004.

The letter concluded with these words, "please re-instate these proceedings so that the Motion is returnable on 20th May 2005".

There is no record as to what transpired on 20th May 2005, but on 26th May the matter came before me and by consent was adjourned to 2nd June 2005. On 2nd June 2005, Mr. Mulina appeared for complainant and Mr. Nanei for defendant. Mr. Nanei submitted that complainant and defendant are legally married couple and complainant has seen fit to evict defendant from their matrimonial home.

Mr. Nanei submitted further that the same had been previously struck out by this Court and that no documents had been served on him to have the proceedings reinstated. He submitted that these proceedings should be dismissed.

Mr. Mulina opposed the application or submission by Mr. Nanei. He submitted that no orders were made granted previously. Counsel is aware of Ex parte order made on 29th November 2004 and not aware of any other orders. He submitted that application was in fact made to reinstate the proceedings herein.

On the face of the record I am satisfied that the proceedings were struck out on 29th December 2004. As I alluded to, on record, complainant or his counsel made no appearance. After the proceedings were stuck out with costs, nothing happened until Warner Shand Lawyers wrote to the Presiding Magistrate on 17th May 2005 to have the proceedings re-instated. If the Court is to accept that letter as an application to re-instate, will that be a proper procedure to adopt. In my view I think not. The proceedings were struck out Ex parte, and s.25 of the District Court Act provides for setting aside and re-instatement of the proceedings. In my view also, it is not proper for the lawyers to write directly to the Presiding Magistrate as in this case. There are proper procedures to resort to.

When this letter was received by Court, there is no record to show that the Court acted on that letter to re-instate the proceedings. In my view, the proceedings remained struck out from 29th December 2004 to date. Really, there is nothing before the Court to deal with. Costs awarded to the defendant.

Rules according.

R Mahua: Complainant
J Nanei: Defendant