Kapai v Coleman [2009] PGDC 90; DC985 (12 June 2009)

DC985

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

DCC NO 122 of 2008

BETWEEN:

ROBERT KAPAI
Complainant

AND:

RICHARD COLEMAN
1ST Defendant

AND:

RICHARD COLEMAN
2ND Defendant

Madang: E Wilmot

2009: 12 June 2009

CIVIL – Case Details

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Counsel
Complainant appears in Person

17 August 2009 E Wilmot DCM: This is an application to set aside a default order entered on 24 February 2009. The motion was filed on 20 may 2009.

The ordered entered on 24 February 2009against the defendants were as follows:

Defendants’ are ordered to pay the complainant K7981.50.

Defendants are to settle this order by close of business on 25 may 2009

cost be in the cause.

The order was made in light of crops damaged while property known as section 79 allotments 4 Madang was cleared. Crops were cleared in order to build a warehouse.

At the time of the exparte’ order no defence or a notice of intention to defend was filed by the Defendants.

The applicant has filed the application on 20 May 2009 supported by the affidavit of Mr Meten of Narakobi Lawyers, raising the grounds for the application. The motion sought the court for the following orders:

Leave be granted to the defendant to proceed exparte

An interim order to stay the enforcement of court order of 24 February 2009 til further orders

The exparte parte of 24 February 2009 be set aside pursuant to section 25 of the district courts act

The defendants serve all related documents to the application on the complainants within 7 days

interim orders be made returnable on 28 may 2009 at 930 am

such other order as the court deems fit

On the 22 of May 2009 the notice of motion was heard ex parte.

On 22 May 2009 Mr. Meten for the applicant defendants appeared to moved his motion. The 22 of May seeking to set as side the exparte order. The complainant and defendant appeared. The notice of motion was only served on the respondent complainant that day on court premises. Further the complainant respondents had also filed an application which was set for hearing this morning.

Due to short service matter was adjourned to 4 June for the application to set aside the complainants application would be entertained at the same time because it sets out reasons why the exparte order should be up held.

Mr Meten set out the grounds for the application as follows I will summery;

The claim raised by the complainant is for a land that was purchased by maritime college known as section 79 allotments 4 Madang referred to as gov store. The property was formally owned by the IPBC but was bought by DWU in 2006. The college bought the people who made gardens on the ground.

Complainant is not clear as it does not set out who damaged what and by whom. Further the defendants are employees of the college DWU. The owners of maritime college and it is registered to the college the gardens were made illegally on state land.

On those ground the complainants seeks to set aside the order of 22 February 2009.

Interim order were sought and obtained By Mr. Meten to stay the orders of the 24 of February that all documents relating to the application be served on the defendant. And the application is returnable on the 27 of May 2009. On this appearance the following orders were grants.

Leave was granted to the defendant to proceed exparte

An interim order was granted to stay the enforcement of court order of 24 February 2009 til further orders

the Applicants defendants serve all related documents to the application on the complainants within 7 days

interim orders be made returnable on 28 may 2009 at 930 am

On the 29 of Mat 2009 the matter was returnable. The complainant respondent appeared. There was no appearance by the applicant defenandants. Matter was further adjourned to 4 June 2009.

On the 4 June for the application to set aside to be heard the parties consented to trial or hearing the application by way of affidavit. And from the submission filed a ruling will be made on whether the orders were to be set aside or not.

The court gave two directions:

1. That all submissions were to be filed by 12 June 2009; and

2. the matter would be ruled on by way of submissions and affidavit on the 18 of June 2009.

3. The application was further adjourned to the 18 June.

Between the 12 June 2009 to the date of this decision the defendant nor their lawyers did not file a submission as directed by the court.

I note that I have received the submission only from the respondents on the application made by the applicants.

Further to this parties were to file submission for the courts ease of reference to make its order. Counsel for the defendant has since that time failed to file written submissions.

Pending the submission this court has waited for counsel to submit these submission. a lot of court time has been waisted and it has caused injustice to the complainant respondents.

Law

It is a well stated procedure of law with the guideline set by the national court. When hearing an application to set aside there prerequisites that need to be adhered to. the law on setting aside of exparte orders is well established in the district court set out in.

The Law

The law relating to setting aside the ex parte orders is the s.25 of the District Courts Act which states and I quote:

"25 Ex parte order may be set aside.

A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just, and the Court, on the service on the other party of such reasonable notice as the Court directs.

In applying this statutory law to set aside the ex parte order the Court must be guided by the principles laid down in the case law of Green -V- Green [1976] PNGLR, 73. The principles in that case authority are:

1. That there must be an affidavit stating the facts showing a defense on merit.

2. There must be a reasonable explanation why judgment was allowed to go by default.

3. The application must be made promptly and within a reasonable time.

When these principles and the provision in the statutory law are adequately satisfied then the ex parte order can be set aside.

Evidence:

The court deposition reflects that the defendants have failed to satisfy any of the grounds in order to set aside an ex parte order. I note also that Mr. Meten has had carriage of this matter since the matter came for court. i note his worships notes form the bench that Mr. Meten made appearance on the 4 of June 2008 and denies that there is a claim against his clients the defendant. I note a defendant was to be file a defence which has been pending since then.

Further the requitement of an affidavit to show the defendant has a defence on merit have not been satisfied.

I note that the application was made about three months after the initial order were granted ex parte. In fact it was made days before the order of 24 February 2009 were to come into effect. The explanation that the defendants were out of the country although may be true i find no evidence to support this. All I have is what the lawyer has indicated to the court when making and application to stay the order of 24 February on 20 may 2009. i do not believe that on this ground alone that it satisfies the requirements. The defendants are not living in a remote area of PNG so that it takes them a while to make this application. The defendant are living and working in Madang. Their lawyers is working here in Madang also. They fail to satisfy the second and third requirements for setting aside of exparte orders.

Courts findings.

Apart from the initial submission from the bar table by Mr Meten on the 22 may 2009, there is no other evidence the defendants bring to support their application. There is not evidence that the land in which the gardens were removed from is state land and that it is owned by the maritime college. I only have word by counsel on this matter. If such is true then the orders are made against the wrong party. This court is left with nothing but to reaffirm the order of 24 February 2009.

Application to set aside be dismissed.

Reaffirm the orders of 24 February. 2009 and be settled by 3rd September 2009.

Cost of the entire application be met by the applicant defendants.

Lawyer for the Complainant in parson
Narakobi Lawyers, for the Defendant