Kondo v Tele [2009] PGDC 15; DC860 (25 March 2009)

DC860

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 47 of 2008

BETWEEN

PATRICK KONDO
Defendant/ Applicant

AND

JOHN BLACKY TELE
Complainant/ Respondent

Goroka: F MANUE
2009: March 25

CIVIL-

Cases Cited:

Green and Company –v- Green [1976] PNGLR 76
Baker –v- Government of PNG [1976] PNGLR 340
Government of PNG and Davis Walker –v- Baker [1977] PNGLR 86
George Page Pty Ltd –v- Malipu Bus Balakau [1982] PNGLR 140

References:

Section 25 District Court Act

Counsel:

Complainant/ Applicant: Mr. Umba of Umba Lawyers
Defendant/ Respondent: In Person

25 March, 2009

REASONS FOR DECISION

F Manue a/ Gr. Five Magistrate: The Defendant/Applicant moved the court by motion that pursuant to Section 25 of the District Court Act, the Ex-parte Order made on the 6th March, 2008 is set- aside and that the court makes other orders as the court deems meet.

2. The motion was heard by consent on the said date.

3. The applicant in addressing the court relied on his own affidavit as well as his counsel’s affidavit which were both filed on the 19th November 2008.

4. The motion was to have been heard initially on the 02nd December 2008, but due to non-appearance of both parties, it was left generally, until counsel for the applicant wrote requesting to be heard on the said date 25th March 2009 at 1:30 pm.

5. I will re-state the relevant parts of the affidavits of the applicant and his counsel’s -
By Patrick Kondo - who states inter allia:-

i. I am aware that an Ex-parte Order was made against me on the 6th March, 2008 ordering me to pay the complainant the sum of K6, 000.00 plus 8% interest and costs

ii. I entered into a verbal agreement with the complainant to purchase his second hand truck for the sum of K25, 000.00.

iii. Over a period of time I paid him various amounts in installment payment totaling the sum of K2,000.00. Thus I owe the complainant only K4, 000.00 and not K6, 000.00.

iv. In view of that I verily believe that I have a defence on the merits and request this honourable court to set- aside the Ex-parte Order.

By Mr. Umba – who states inter allia:-

i. The complainant in this proceeding filed an action against the defendant claiming the sum of K6,000.00 being the outstanding balance of an agreed sum of K25, 000.00 being for the sale of his truck to the defendant.

ii. I, on behalf of the defendant filed a Notice of Intention to Defend and Defence. However, as a counsel for the defendant, I did not appear on the 28th February 2008, as at that time I was away in Lae attending to some business. The matter was then adjourned to the 6th March 2008 for hearing.

iii. With respect, I was not served with any notice by the Clerk of Court or the complainant informing me that the matter will be heard on the 6th March, 2008. In view of that, I did not make any appearance and the matter proceeded ex-parte.

iv. On the basis of matters stated above, I verily believe that I have a good reason for not turning up in court on the 6th March, 2008.

These are the grounds on which the applicant relies on for the application to be effected.

6. Brief History of the Substantial Matter.

From the deposition of the notice of motion, I gather that the Ex-part Order was obtained by the complainant on the 6th of March, 2008.

7. The Notice of Motion was filed on the 25th of November 2008.

8. The motion was eventually heard on the 25th of March 2009, more than a year after the Ex-parte Order was obtained and issued.

9. During oral submissions by both parties, it was also disclosed that the Defendant/ Applicant had opted to file an appeal in the National Court rather than involving Section 25 of the District Court Act and exhausting all exercises available in the District Court Act. It was also disclosed that due to the Defendant/ Applicant’s failure, to compile an appeal Book and to set a hearing date, Leave for the Notice of appeal to be discontinued was granted by the National Court, on application by the Defendant/ Applicant.

10. The applicant’s argument was that, he realised that the process available in the District Court had not yet been exhausted before lodging the appeal.

11. Submissions of the Parties.
The applicant through counsel submitted that, his client had filed a notice of intention to defend and defence, which was filed in the substantive Notice of Intention to Defend was filed on 10th February 2008 and the Defence was filed on 26th February 2008.

12. He submitted that, the applicant has a defence based on merits and therefore the motion should be granted.

13. He relied on the cases of;

(a) Green and Company –vs- Green [1976] PNGLR 76.

(b) Baker –vs- Government of Papua New Guinea [1976] PNGLR 340

(c) Government of Papua New Guinea and Davis –vs- Baker [1977] PNGLR 386

(d) George Page Pty Ltd –vs- Malipu Balakau [1982] PNGLR 140

14. He submitted that there is a serious dispute on the amount. He submitted, it would serve a purpose if the court exercises its discretion to set- aside the judgment.

15. He further submitted that the principles of law annunciate in the case authorities as cited have been meet by his client in the application.

16. The Complainant/ Respondent on the other hand submitted that after the Ex-parte Order on the 6thMarch 2008, the Applicant filed an appeal on the 13th March 2008.

17. He submitted that he has been waiting for the appeal book to be complied and served on him.

18. It was not complied and when 40 days lapsed, the applicant decided to discontinue to appeal.

19. A notice to discontinue the appeal was lodged and was granted by the National Court on the 5th of December 2008.He submitted that the applicant was not serious in his appeal and this was reflected by the fact that the appeal book was not compiled within the given time frame.

20. He submitted, that the District Court order should be confirmed.

21. I have considered the facts and circumstances surrounding this motion. I have also considered the principles of Law in exercising the court’s discretionary powers provided by section 25 of the District Court Act. Section 25 of the District Court Act, allows for a litigant to apply setting aside an Ex-parte Order. An Ex-parte Order is an order obtained in the absence of a party, particularly a defendant. It is not an automatic right of a Defendant/ Applicant but discretion confirmed upon the court, which discretion it must exercise upon the Defendant/ Applicant satisfying the court of the principles of law.

22. These principles of law have been annunciated in the cases as cited by the counsel.

23. In summary the applicant must satisfy that:-

(a) The Application is filed promptly or as soon as he learnt of the Ex-parte Order.

(b) The Applicant must give reasonable explanation of why he did not attend court and

(c) The Applicant must show that he has a good defence on merit in the substantive matter.

24. I will now apply the facts of the case to the set principles of law.

25. The affidavit of Mr. Umba indicates that, he had some excuse for not up turning in court on the 6th of March 2008, when the Ex-parte Order was issued. Although he does not further elaborate, I would accept his excuse.

26. As to criteria (a), and (c) above, the facts show that the ex-parte order was obtained on 6th March 2008.

27. On the 13th of March 2008, the Applicant instituted an appeal. While the appeal was pending an outcome, he further instituted a motion on the 25th of November 2008 to set -aside the Ex-parte Order.

28. The motion was filed more than eight (8) months after the date of the order. Is eight months period since an order was made known within the phrase “prompt” or as soon as having knowledge of an order?”

29. I am certain that the order was made known as soon as it was issued or obtained. This is because seven (7) days after the order, an appeal was lodged.

30. Whilst the applicant acted promptly in instituting an appeal, he did not give the same attention to invoking Section 25 of the District Court Act. In my view, the applicant has not only failed to comply with one of the criterias in satisfying the court before a court can set-aside an Ex-parte Order, but that, this is a typical example where this amounts to an abuse of Process of Law.

31. The paramount consideration given in dismissing the motion was based on this factor.

32. In my view, where an Ex-parte Order was been made, the next process of law must be meet and any other processes available in the District Court must be exhausted prior to taking the matter to the higher courts. Failure do so and jumping steps is an abuse of process of law

33. In the current matter, the matter was concurrently pending an outcome when a notice to discontinuance and an order by the National Court was later granted. This in my view, is a clear abuse of Process of Law.

34. Even if due consideration was given provided, the proper process was followed, I would have been reluctant to set-aside the order. Counsel, as a senior practioner in my view, is well acquainted with the proper process, and should not have jumped the next legal process to the National Court.

35. This is because the motion was filed, some times eight (8) months after the order. I presume, the order was in the process of execution when the applicant applied to set aside the orders.

36. For these reasons, I refused to grant the orders as sort and dismissed the motion.

___________________

Counsel:

Defendant/Applicant: Mr. Dennis Umba from Umba Lawyers.
Complainant/Respondent: In Person.