Sakane v Michael C Thoke Lawyers [2005] PGDC 54; DC273 (23 March 2005)

DC273

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 166 OF 2005

BETWEEN

Paul Sakane
Complainant

v

Michael C. Thoke Lawyers
Defendant

Port Moresby: Gauli, Magistrate
2005: March 15th, 23rd.

DECISION OF THE COURT

Nature of the Application

In this action the complainant seeks the orders for the defendant to pay him the remaining balance of the post judgement paid by the State to the defendant for and on behalf of the complainant’s deceased father. And the complainant further seeks orders that the defendant to pay the other part of the payment when they become due ad payable.

Facts

On 27th October 2000, in a case between: Sakane Pupukai -v- Philip Kumo and The State of PNG, [Complaint No. 479 of 1996], the Wabag District Court entered a judgement against the State of PNG to pay Sakane Pupukai the sum of K10,098.00. The defendant Michael C. Thoke the Principal Lawyer for the Michael C. Thoke Lawyers was acting for the late Sakane Pupukai. The late Sakane Pupukai died before the state could paid the judgement order.

The post judgement interest accumulated to K13,064.00. Out of this amount the State paid K6,532.00 to the legal representative Michael C. Thoke.

The complainant Paul Sakane, in the present proceedings, is the son of the late Sakane Pupukai. When the complainant enquired about the judgement order of the Complaint No. 479 of 1996. The defendant Michael C. Thoke only paid him K1,500.00. The complainant, in this proceedings sued the defendant Michael C. Thoke to pay him the remaining balance of K5,032.00 from the first part payment and the remaining part payment to be paid when they fall due.

Ex parte Proceedings:

The law relating for the Court to proceed ex-parte is given to it by Section 143 of the District Courts Act, where there is non- appearance by the defendant. That provision states and I quote:-

"143. Where defendant does not appear.

Where, in the case of a complaint, the defendant does not appear at the place and at the time specified in the summons, or at the place and time to which the hearing was adjourned or postponed, as the case may be, if -

(a) It appears to the Court on oath that-

(i) the summons was duly served at least 72 hours before the appointed time in the summons for appearing; or

(ii) an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise was duly complied with; and

(b) no sufficient grounds are shown for an adjournment,

the Court may proceed ex parte to hear and determine the complaint or may adjourn that hearing to a future day".

Section 143 of the Act gives the District Court the powers to hear and determine the complaint in the absence of the defendant. However, before the Court proceed ex parte hearing, the Court must be satisfied that the summons was duly served or the defendant at lest 72 hours before the returnable date or before the extended returnable date. In our present case, the returnable date of the summons was Wednesday 2nd February 2005.

The Proof of Service sworn on the 25th January 2005 shows that the defendant was served with the summons on the Friday 21st day of January 2005. This shown that the summons was duly served on the defendant in order. However a Statutory Declaration attached to that Proof of Service, sworn by Paul Sakane states that the summons was served on the defendant’s wife Julie M.C. Thoke on 21st January 2005 but she later returned it on 23rd January. She was in Tokarara when she was given the summons. The defendant is a law firm whose address is Allotment 5 Section 23 Wabag Town, P.O. Box 184 Wabag Enga Province.

The Section 47(1) of the District Courts Act provides for the manner in which the service of the summons must be effected. This provision states and I quote:

"47 Service

(1) A summons shall be served at least 72 hours before the time appointed in the summons for the hearing-

(a) In the case of a natural person – on the person to whom it is directed by delivering a copy of the summons to him personally, or if he can not be found, by leaving it at his last known place of abode with some other person apparently an inmate and apparently not less that 16 years of age; and

(b) In the case of a company incorporated under the Companies Act - on the company in accordance with the provisions of that Act; or

(c) In the case of any other corporation-

(i) by delivering a copy of the summons to the secretary or public officer or other chief officer of the corporation in the country; or

(ii) by sending it by post to the secretary, public officer, or other chief officer at the last known address of the corporation in the country or in any other manner provided by law".

Mr. Michael C. Thoke’s wife namely Julie Thoke is not the secretary or the public officer or the chief officer of the Defendant Law Firm. The service of summons on Mrs. Julie Thoke could not be taken to be a service on the defendant law firm.

Also there is no evidence to prove that the Defendant Law Firm’s last place of operation was at Tokarara in the National Capital District. Under this circumstance I find that the Defendant was not served with the copy of the summon for the reasons that the complainant failed to comply with the service under s.47(1) of District Courts Act.

Secondly the original proceedings, namely the case between Sakene Pupukai -v- Philip Kumo & State of PNG complaint N0. 479/96 was filed and determined by the Grade Five Court in Wabag. It is from the judgement order of that Court that the payments are been violated. Unlike the National Court, the District Court has a territorial jurisdiction. Section 21 (5) of the District Court Act states-

"Subject to this section, a Court has jurisdiction when-

(a) the defendant or one of two or more defendants as the case may be, is usually resident, or carries on business; or

(b) the cause of action wholly or partly arose; or

(c) -------------;

in the area for which the Court is constituted".

By this provisions it is clear that the Defendant Law Firm had its business established and operates in Wabag and the cause of action also arose in Wabag. The Port Moresby District Court therefore lacks jurisdiction.

For the reasons stated above this case be transferred to Wabag District Court for listing. The complainant must properly effect the service of the summons on the Defendant Law Firm.

Ordered accordingly.

In Person: Complainant
In Person: Defendant