Mata v Tanu [2007] PGDC 162; DC838 (19 October 2007)

DC838

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction

DC. N0. 5124 OF 2004

LUCAS MATA
Complainant

V

LEGA TANU
1st Defendant

CITY MANAGER – NATIONAL CAPITAL DISTRICT COMMISSION
2nd Defendant

MEMBERS OF POLICE MOBILE SQUAD
3rd Defendants

COMMISSIONER OF POLICE
4th Defendant

THE STATE OF PNG
5th Defendant

Port Moresby: M. M. Pupaka

2007: 12th October

The Complainant in person
Ms. Solon for the 1st & 2nd Defendants
No appearance by the 3rd, 4th, & 5th Defendants

19th October 2007

PUPAKA, PM: There is an application by motion upon notice before this Court for ruling. However before I proceed to deal with it I must set out the history of this case in order to put things in proper perspective, for a clearer appreciation of the application.

Before the current application was filed this case was a completed matter. The records show that a final judgment, in favor of the complainant, was entered on 1st November 2005, awarding the complainant a sum of K7151.00. In fact a partial payment was made against the judgment by this current applicant, whose status in this proceeding as a defendant is incidentally is unclear. Nevertheless the following is how things seem to have happened:

History

I note at the outset that the court file reveals very little. The file before this Court could be a supplementary file. It is unclear as to whether this is a supplementary file and if so as to where the original file may be. This Court is therefore stuck with the little that is available for the moment.

It seems that on 6th December 2004 the complainant instituted this proceeding in this court. He identified the defendants in the same way I have set out in the headings of this judgment. He sued for K10, 000.00 in damages plus costs and interests together with orders for recovery of some nine cartons of beer which he alleged were removed unlawfully by the defendants from his licensed premises.

It however does seem that on 1st November 2005, which is 11 months after institution of proceedings, judgment was entered for the complainant. Other than this there is nothing on file to show how many times the matter was mentioned or whether the proceedings were regularly served on all defendants. There are no endorsements of any kind from the presiding magistrate on the file.

There should have been proof of service showing proper and personal service on each of the individual defendants but there are no records of it. There should have been proper service on the State, in accordance with the Claims by and against the State Act. There is no record of whether the State was served at all and whether or not there was due notice given to it under that law.

If the National Capital District Commission (NCDC) was a party to this case it too should have been properly served, through its authorized officers. There are no records on file to show if proper service was effected upon the NCDC. The Claims by and against the State Act also applies to the NCDC as well so the complainant was obligated to give notice to the NCDC under that Act. It is unclear whether evidence of compliance was before the presiding magistrate for him to grant judgment on 1st November 2005.

Also, considering what is now asserted by the 1st and 2nd defendants, I must accept that the order was made ex parte. Otherwise there is nothing on the court file to indicate just how a judgment of K7, 151.00 was assessed, especially what evidence of damages or losses were taken into account when the complainant merely pleaded that the loss of 9 cartons of beer was worth only K540.00 to him.

Moreover, judgment was not entered principally or expressly against any of these 5 defendants, nor was any of them excluded from liability. The brief order only merely reads: "Judgment in the sum of K7, 151.00 plus costs." It really is a pity that the learned magistrate starved his order of any clarity and detail because the ambiguity in his order has created confusion as to who really is liable between different people and two separate, self accounting entities.

Later, on or around 23rd August 2006 the National Capital Commission (NCDC) paid out K3366.48 against the court order. That sum was half of the judgment debt.

The current Application

By a notice of motion dated 31st August 2007, the NCDC (applicant) sought to vacate or set aside certain "ex parte orders obtained by the complainant on 16th April 2007". I am unable make out what sort of orders these ex parte orders dated 16th April 2007 were. There are neither records of those proceedings nor copies of the orders available to this Court.

In any event that application dated 31st August 2007 was not progressed and it stayed pending until the applicant filed an amended notice of motion dated 12th October 2007. This amended notice of motion seeks orders for the "1st and 2nd defendants be removed as party to the proceedings pursuant to section 22 of the District Courts Act which applies Order 5 Rule 9 of the National Court Rules."

There are two laws or rules cited and relied upon for this application. The first is Section 22 of the District Courts Act and it reads:

"22. General ancillary jurisdiction

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner".

The other is Order 5 Rule 9 of the National Court Rules which reads:

"9. Removal of parties (8/9)

Where a party—

(a) has been improperly or unnecessarily joined; or

(b) has ceased to be a proper or necessary party,

the Court, on application by any party or of its own motion, may, on terms, order that he cease to be a party and make orders for the further conduct of the proceedings."

Presuming for the moment that the NCDC as an entity is a party to this proceeding, I cannot say I understand why the current approach has been adopted. It is clear the NCDC seeks to be excused from further liability. If that is so one would expect, particularly where there is an ex parte order, for an affected party to mount a set aside application, on the bases of the requirements in the case of Green & Co Pty Ltd v Green [1976] PNGLR 73. If that well traversed path were followed the applicant would only meet three requirements, namely; come to court within reasonable time, provide a plausible explanation as to why default judgment was allowed to be entered, and disclose by affidavit evidence a defence on the merits. This applicant has not done that. It has filed supporting affidavits and having perused them I note that the applicant merely says it was never served with the originating process. Therefore, even if this was a Green –v- Green (supra) type application, the applicant conspicuously fails to say why it never attempted to set aside the order for nearly two years. Most importantly it has disclosed no discernable defence on the merits. If it denies liability, I cannot understand why this applicant honored the ex parte order by paying out half of the judgment debt over a year ago.

Therefore the ex parte order dated 1st November 2005 will stand. I am quite mindful of the possibility that this may not have been a regularly entered judgment. I did say the court file is empty of vital records, whether because none was filed or kept or whether because the original file is not available, I cannot say. Despite the lack or clarity of records, on the bases of whatever is available, I do not intend to conclude that the judgment dated 1st of November 2005 was an irregularly entered one. In any event I am at least satisfied that neither the integrity of the process and order nor the regularity of them is seriously in issue here. I note that the applicant is mainly concerned that it paid half the judgment debt and it obviously does not intend to pay the balance, which is not the same as challenging regularity of judgment.

Is the NCDC a party to this case?

This is an issue I deliberately pose here for reasons that would become apparent shortly. However I must state for the record that the applicant is not challenging the fact it is an otherwise properly named party to this case. Therefore the fact that it otherwise considers itself obligated and bound by the judgment as a matter of course will remain that way.

However I stated in the fore part of this judgment that the complainant identified the defendants in the way they are named or set out in the headings of this judgment. I noted that at the outset for a reason, which is to raise query as to whether the NCDC is a properly named or identified party herein.

The complainant identified the 2nd defendant as the "City Manager – National Capital District Commission." The complainant then pleaded the 2nd defendant’s negligence this way. "10. The Second Defendant is the chief executive officer of the National Capital Commission an organ of the Government She was created by an Act of Parliament and as such does have the right to sue in her name and style. At all material times she was the master or otherwise the employer of the first defendant" (sic).

Both by the way the 2nd defendant is identified and by the supporting pleadings there is no clear indication that the 2nd defendant was or is in fact the entity known as the National Capital District Commission or NCDC for short. Whereas there is every indication that a person called "Lega Tanu", designated as team leader of the NCDC and the "City Manager" were being sued personally. That is, the persons were sued and not the entity. NCDC; composed of its various members and headed by the Governor or Lord Mayor as the case maybe, is the governing entity. The City Manager is the person that only manages City Hall, and is answerable to the governing entity.

It goes without saying that the NCDC must be named properly and served properly for it to defend the proceedings and also for it to be bound by any court order. The NCDC, as an entity, seems not to have been identified or named separately. Further, for the NCDC to be held vicariously liable for the torts of the 1st and 2nd defendants, the fact of it must be stated. Nowhere in the Statement of Claim is it pleaded that the NCDC is accused as being vicariously liable.

I do understand from the pleadings that the incumbent City Manager may have been a lady, for that person is referred to as a "she" in the Statement of Claim. Again this "she" cannot be the NCDC entity for the reference is obviously descriptive of the City Manager.

I must say, for the current purposes, that there is no evidence on file to show who in the NCDC was served, if at all. There is no evidence or records to show whether the NCDC was served notice in accordance with Section 5 of the Claims by and against the State Act. Therefore it seems to me that in all probability only the persons named or identified were sued, and not the entity at City Hall.

I am therefore unable to conclude that the National Capital District Commission as an entity was a clear party to this case. However, in saying that, I do repeat the fact that NCDC otherwise considered itself obligated and bound by the judgment as a matter of course. It partly honored the judgment order. Consequently, particularly in light of the fact that NCDC has raised no issue on this aspect, it will remain obligated. For that reason I do not intend to conclude that the National Capital District Commission is not bound by the ex parte order of 1st November 2005. Since there was no issue raised in relation to an apparent ambiguity on who really is the 2nd defendant; whether it is the person or the entity; that ambiguity will remain unresolved for the time being.

However that is not to say that the individuals, Lega Tanu and the City Manager at the relevant time, are not bound by the order, either jointly with the other defendants or severally. Whilst on that, if the NCDC felt obligated to pay half the judgment order on behalf of the 1st and 2nd defendants, that is the NCDC’s prerogative. Moreover if it feels obligated to be further liable from henceforth, again I would think that it would be its prerogative.

In saying that I must be equally quick to say that the State, on the other hand, is clearly and properly named. Certain unnamed persons are referred to as the 3rd defendants. The Commissioner of Police is identified as the 4th defendant. The State is rounded up as the 5th defendant and it is clearly pointed out has being vicariously liable for the torts of the unidentified policemen and their Commissioner.

Under the circumstances the State seems to be fully bound by the judgment order, and would remain so until the order is voided, perhaps on the bases of the lack of evidence or records in relation to compliance with statutory requirements or for whatever reason.

Is the 1st & 2nd Defendants excused from further liability?

I already said that they were bound by the judgment order, severally and jointly with the other defendants. I say severally and jointly with the other defendants because the order was entered against no one in particular but all defendants in general.

Notwithstanding the ambiguity factor I alluded to above, though not separately named, the NCDC did pay half of the judgment debt. Therefore it could be said that the payment was for the benefit of the 1st and 2nd defendants who were its employees. It must therefore also mean that the payment was really effected by the 1st and 2nd defendants. Accepting that to be case, under the circumstances could it be said that they are liable to pay the outstanding balance? Or put another way, can the balance of the judgment debt be enforced against the 1st and 2nd defendant, despite the partial payment?

The law governing enforcement of District Court orders against multiple defendants is Section 22 of the District Courts Regulation 1965 (as amended). Section 22 reads:

"22. Enforcement of order made against two or more defendants.

(1) Subject to Subsections (2) and (3), where on the hearing of a complaint referred to in Section 21 an order is made against two or more defendants jointly, the order may be enforced by distress or otherwise against any one of the defendants affected by the order in the same manner as if the order had been made against him separately.

(2) Notwithstanding Subsection (1), after the order is satisfied by performance or payment by, or distress on the goods of, any of the defendants, no further steps shall be taken to enforce it against the other defendant or defendants.

(3) This section does not affect any right to contribution or other relief that may exist as between the defendants themselves."

This provision really speaks for itself and nothing further needs to be said in respect of it. I only wish to add that subsection (3) foresees the possibility of multiple defendants agreeing to be equally liable or otherwise be liable in whatever proportion as between themselves.

There is no doubt that the 1st and 2nd defendants are still liable and the complainant can enforce the judgment against them individually or jointly to the tune of the balance of the judgment debt, notwithstanding the fact that the 3rd, 4th, and 5th defendants are equally liable. There really is nothing stopping the 1st and 2nd defendants from insisting or otherwise obtaining compulsion for the other defendants to pay their portion of the judgment debt. How liability is apportioned is a matter between all the defendants.

Conclusion

I must state for the record that the complainant can enforce the order against any of the defendants. He may not execute against the State but he can against individual persons. Moreover, he sued the State so I cannot understand why he has not serve the order upon it.

Neither the complainant nor the defendants have sought to have liability apportioned. As I said the State and NCDC are separate, self accounting entities. Liability ought to have been apportioned by the Court of first instance. That Court had the benefit of the facts, both on liability and quantum. That Court was well placed to gauge and assess the varying degrees of blameworthiness and negligence of all the different persons involved. It may yet be possible for that same Court to apportion liability. However one thing is certain: This instant Court cannot apportion liability, for the same reasons that the last Court ought to have done so.

Nevertheless the complainant has the benefit of the law, which is Section 22 of the District Courts Regulation 1965 (as amended). There are many defendants who are equally liable. He should collect from whom he can.

______________________________________________________

The Complainant in person
Ms. Solon for the 1st and 2nd Defendants