Anjip v Malba [2007] PGDC 176; DC761 (20 December 2007)

DC761

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 1587 OF 2007

BETWEEN

JULIUS ANJIP
COMPLAINANT

AND

WANGDE MALBA
DEFENDANT

Port Moresby: S GORA

2007: 20 DECEMBER

DECISION ON DEFENDANT’S NOTICE OF MOTION

GORA. S This is an application by the Defendant to set aside the orders of this court dated 20 September 2007 and 3 October 2007 respectively.

2. The orders of 20 September 2007 are restraining orders against the defendant which were granted pursuant to a Notice of Motion dated 26 July 2007. The Motion was heard ex-parte.

3. The orders of the 3 October 2007 are substantive orders also made ex-parte by reason of defendant’s failure to file Notice of Intention to Defend and Defence and also non attendance to court to defend this matter.

4. Essence of defendant’s application to set aside these two (2) orders are firstly that he was never properly served the Complaint and Summons Upon Complaint by the Complainant and secondly that property/land now claimed by the complainant is a property owned by the National Housing Corporation to which he was entitled to be given a title – having paid all necessary fees and rentals.

5. There are two (2) issues, which this court must consider:

1. Whether or not proper service was effected on the Defendant, and
   
2. Whether or not the defendant has fully satisfied all the requirements to set aside an ex-pate order.
   

6. On the first issue, I note from the court file that the complainant filed a Proof of Service on the 24 July 2007. This is a sworn Proof of Service in which he stated under Oath that, he served the Complaint and Summons Upon on Complaint by leaving them at his place of residence at Wanmal Trading Tokarara, National Capital District and that the defendants daughter Jenny Wangde received and accepted the documents on behalf on the defendant.

7. In his affidavit in response to the Notice of Motion dated 29 November 2007, the complainant stated he was not able to serve Summons on the defendant personally due to defendant being always out on the road driving his taxi-cab. He therefore decided to leave the summons at his residence.

8. The law in relation to Service of Complaint and Summons Upon Complaint is stated under s 47 of the District Courts Act.

9. Section 47(1)(a) is the relevant provision for purposes of this case. It reads:

"A summons shall be served at least seventy two (72) hours before the time appointed in the Summons for the hearing 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 cannot be found, by leaving it at his last place of abode with some other persons apparently on inmate and apparently not less then sixteen (16) years of age."

10. From the above, it appears that the service effected by the complainant upon the defendant by leaving the summons at his place of residence with his daughter over the age of sixteen (16) years was consistent with the requirements of the law. He was not able to effect personal service due to the defendant often on the road in his taxi-cab.

11. In my view service was therefore effected properly and the defendant had no doubt read the summons hence fully aware of the court proceedings.

In any case ss3 of S47 of the District Court Act explicitly states that a document purporting to be an affidavit of service is a prime facie evidence of the service of the summons. As stated earlier such affidavit of service was filed on 24 July 2007, thus service being properly effected.

12. I am therefore not convinced by the defendant’s argument that service was not properly effected upon him. His argument must therefore be rejected. On

13. On the second issue of whether or not the defendant has fully satisfied all the requirements to set aside an ex-parte order, I note from the National court, authorities that the following requirements have been continuously re-stated:

1. That there must be a satisfactory explanation given as to why orders were allowed to be ordered ex-parte
   
2. That the applicant/Defendant must have or show that it has a meritorious Defence
   

100. That the application is made within a reasonable time.
     

14. On the first requirement, the applicant/Defendant’s explanation for allowing the ex-parte orders to be made was by reason of not being properly served the Complaint and Summons Upon Complaint. I already rejected this argument and need no further deliberation.

15. In relation to the defence the defendant has failed to show to this court that it has a meritorious defence.

16. Mr. Wartovo appearing for the defendant, attempted to raise defence on the issue of title on the property now occupied by the complainant, Section 353, Allotment 4, Morata.

17. I do not see any problem with the title. Complainant/Respondent has clear title to the property. If Defendant wish to dispute the title then the right forum would be in the National Court.

18. What is before this court is a claim by Complainant seeking orders for compensation for destruction done to property by the defendant. Defendant has not raised any defence to this claim nor has he shown that there is a defence. I therefore find that defendant has failed to establish a meritorious defence.

19. On the third requirement that application must be made within a reasonable time, I find that the defendant has made this application within a reasonable time. The court made ex-parte orders on 3 October 2007 and Defendant filed his application to set aside these orders on the 12 October 2007, hence application made promptly.

20. Although the application has been made within a reasonable time, this is outweighed by the fact that no good explanation has been given as to why ex-parte orders were allowed to be made and further that the Defendant has failed to show that it has a meritorious defence on the complainants claim.

21. For these reasons, I am of the view that the defendant has not satisfied fully all the requirements needed to set aside an ex-parte order.

22. Accordingly, I must dismiss the application with cost.

Orders:

1. Application dismissed with costs.
   
2. Ex-parte orders of this court dated 20 September 2007 and 3 October 2007 respectively remain as ordered.
   

__________________________

Complainant appeared in person
Mr. Wartovo, for the defendant