Yuwa Isi Loan v Sakap [2010] PGDC 52; DC2018 (15 April 2010)

DC2018

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

CASE No DCC 24 OF 2010

BETWEEN

YUWA ISI LOAN
Complainant

AND

PETER SAKAP
Defendant

Madang: J Kaumi
2010: 15th APRIL

SUMMARY CIVIL PRACTICE & PROCEDURE-Default Summons upon Complaint for civil debt pursuant to Division 3 of Part VIII Section 156 of the District Courts Act.
SUMMARY CIVIL PRACTICE & PROCEDURE-Complainant has cause of action-Whether issuance of default summons appropriate originating process.

A money lending company sued a man for money he borrowed from it.

HELD:
(1) Default summons under section 156 of the District Courts Act for "a debt or other liquidated demand" as opposed to the ordinary civil summons must be:-

(i) a debt is for a precise sum of money owing under a contract e.g. a loan of K100.00;

(ii) a liquidated demand is similar to a debt, means a specific sum of money due and payable under a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic;

(iii) if the ascertainment of a sum of money, even though it is specific or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a debt or liquidated sum but constitutes damages. Foord v Avarip [1982] PGNC 6; N353 (M) (22 April 1982)

Cases Cited:

Foord v Avarip [1982] PGNC 6; N353(M) (22 April 1982)
National Airlines Commission trading as Air Niugini v Lau [1997]; N1538 (20 March 1997) Lenalia.J

Counsel:
Complainant in person
Defendant in person

15th April 2010

INTRODUCTION

1. Kaumi, M The matter before me this morning is a default summons by the complainant claiming K702.60 being monies it claims the defendant borrowed from it pursuant to written agreement plus interest and costs.

RELEVANT BACKGROUND

2. This matter, DCC No 24 of 2010 was filed on 31st March 2010. This Default Summons was filed along with a Complaint, Two Notices of Intention to Defend, Statement of Claim, and Supporting Affidavit with annexure which is the signed contract between the parties for the defendant to borrow money from the complainant and proof of service.

RELEVANT ISSUE

3. The relevant issue in this matter is whether or not default judgment should be entered against the defendant.

RELEVANT LAW

4. In the case of Foord v Avarip ^[1] Bredmeyer.J set out the pre requisites for the commencement of proceedings by way of default summons under section 156 of the District Courts Act for "a debt or other liquidated demand" as opposed to the ordinary civil summons as follows:-

(i) a debt is for a precise sum of money owing under a contract e.g. a loan of K100.00;

(ii) a liquidated demand is similar to a debt, means a specific sum of money due and payable under a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic;

(iii) if the ascertainment of a sum of money, even though it is specific or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a debt or liquidated sum but constitutes damages.

5.In National Airlines Commission trading as Air Niugini v Lau ^[2] Lenalia.J succinctly described the types of summons that may be issued by a District Court in the following terms, "In the civil track, there are two distinct modes of summonses that may be issued by the District Court, see SS. 41 (2), 42 (2) and 133, 155. The first type is a Summons Upon Complaint. This type is appropriate in those circumstances where an unliquidated demand is being sued and is directed to the person named in the complaint against whom the complaint is made and with specific demand requiring that person to appear at a time and place appointed in the summons. The second type is a default summons see SS. 155, 156 & 157. The latter type is issued in respect of a debt or a liquidated demand. In this sense a liquidated demand must contain concise particulars of the complainant's claim with dates, items and prices of value must be endorsed or annexed to the Summons. Proceeding in relation to default summons is governed by Division 3 of Part VIII of the District Courts Act".

THE PRESENT CASE

6. In the instant case upon perusal of the complainant's claim and documents in support I make the following findings:-

(i) the amount claimed is a debt for a precise sum of money owing under contract and as such is a liquidated demand and further that it contains concise particulars pertaining to dates and items which have been annexured to the default summons;

(ii) service has been effected in accordance with the service requirements of section 157 (1) of the District Courts Act;

(iii) a defence has not been filed in compliance with section 157 (4) of the District Courts Act;

(iv) the required time for service has lapsed.

DETERMINATION

7. In view of the above I enter judgment against the defendant in the following manner:-

(i) Principle - K702.60

(ii) Interest - K 56.20

(iii) Costs - K100.00

TOTAL K858.80 forthwith

Complainant in appearance
Defendant no appearance

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^[1] [1982] N352 (M) (22/04/82) Bredmeyer.J

^[2] [1997]; N1538 (20 March 1997)