Gunure v Aulakua [2008] PGDC 53; DC738 (2 April 2008)

DC738

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN IT’S GRADE FIVE CIVIL JURISDICTION]

GFCi 515 - 517 of 2007

BETWEEN:

WARU PELO GUNURE trading as
WARU PELO CONSULTANTS
Complainant

AND:

PATRICK AULAKUA as DIRECTOR ADMINISTRATOR
SINASINA YONGUMUGL DISTRICT
First Defendant

AND:

JOE BAL as PROVINCIAL ADMINISTRATOR
SIMBU PROVINCIAL ADMINISTRATION
Second Defendant

AND:

SIMBU PROVINCIALGOVERNMENT
Third Defendant

Kundiawa: M. Gauli, PM
2008: April 02nd

CIVIL - Claims unpaid consultancy fees – Amendment to complaint and summons to delete First named Defendant and insert the name of the current District Administrator – Withdrawal of proceedings.

Cases Cited:
1. Robert Tozer -v- Independent State of Papua New Guinea [1978] PNGLR 150.

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendants - No Appearance

02 April 2008

COURT RULING

M. Gauli; PM: The Complainant sued and claims against the defendants for the unpaid consultancy fees. On 28th July 2001 the Complainant was engaged by the First Defendant Patrick Aulakua while being the District Administrator for Sinasina Yongomugl District to provide consultancy services for various projects in the District including roads, staff houses, classroom and dormitory buildings. After compilation of the project documents, he submitted his consultancy bill for K22,825.00. He was only paid K7,000.00. He forgoes the excess and now claims for just K10,000.00.

The proceedings came before me for trial. The complainant then informed Court that the First Defendant Patrick Aulakua will not be appearing as the defendant but as a witness for the complainant. The reason being that he is no longer the District Administrator of the Sinasina Yongomugl District. He wanted the current District Administrator to be inserted or included as the First Defendant. The s.138 of the District Courts Act does give this Court the general powers to allow amendments of the summons on the hearing of a complaint as the Court thinks just. The s.138 of the District Courts Act state and I quote:

“On the hearing of a complaint, the Court may allow such amendments of the summons as it thinks just, and on such terms as if thinks just, and all such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties”

In this proceedings the first defendant is summoned by his natural name as well as by his title. To amend the summons by deleting the first defendant by name and to insert by name the current District Administrator would be improper and unjust. The reason is quite straight forward. When the summons is issued it is directed to the person named in the complainant and it requires that person to appear before the Court at a time and place specified in the summons to answer the complaint, as clearly stated in s.42(2) of the District Courts Act. To delete the name of the defendant particularly named is the summons and to insert the name of another person as the defendant after the summons had been served in my view is improper and unacceptable practice. If the complainant wants to remove the first defendant as a party in the proceedings in other to use him as his witness then the most appropriate thing to do is to have the proceedings withdrawn and the complainant to commence with fresh complaint and summons to satisfy and comply with the s.42(2) of the District Courts Act.

To allow the amendment sought by the complainant would be a denial of justice to the new District Administrator of its fair representation in Court of justice for the reasons that the new District Administrator had not being served with summons as a party in the proceedings.

In my view for the former District Administrator, who is the first defendant, to be withdrawn from this proceedings to be used as a witness by the complainant would obviously have a prospect conflict though he will be only used as a witness. In the case of Robert Tozer -v- Independent State of Papua New Guinea [1978] PNG LR 150 the plaintiff applied to include the third defendant, against whom he had already filed notice of discontinuance as a plaintiff in that action. Joining parties is a discretionary one under 0.3.r.11 of the National Court Rules. However Justice Pritchard in considering that there would be possible conflict of interest, refused to exercise that discretion. I find that this case is relevant to the present case.

In respect to joining the current District Administrator of Sinasina Yongumugl District as the first defendant in place of defendant Patrick Aulakua, he need to be first summonsed as a party rather than by simply applying to delete one and insert the other. Suppose that in this proceedings the first defendant was just sued by the title of the office as a District Administrator of District without naming the person who occupies that office, I see no problem to that. In the circumstances I refuse to allow the amendment sought by the complaint. And I order that this proceedings be withdrawn and allow fresh complaint and summons to be filed to include the current District Administrator as a party in the proceedings.

For the Complainant - In Person
For the Defendant - No Appearance