Paita v Petrus [2016] PGDC 13; DC2097 (14 July 2016)

CIVIL JURISDICTION DC2097

PAPUA NEW GUINEA

IN THE DISTRICT COURT HOLDEN KIMBE

BETWEEN:

1. MAPU PAITA

2. PAITA

Complainants

And

MICHAEL PETRUS
Defendant
2016:April ,26^{th April} ,10^{th May 7th 23rd ,30th ,June.,14th july,}

PATRICIA TIVESE: KIMBE

APPLICATION FOR ORAL EXAMINATION OF THE DEFENDANT- Division 4, S 181 District Court
District Court Act.

Complainants in Person.

Defendant in person.

No cases cited.

1. The Defendant was summoned for failing to pay for the complainant’s truck (Toyota Dyna ) which he took into his possession and promised to pay for it.
   
2. He was summoned to pay K10, 000.00 which he allegedly promised to pay to the complainants. The matter was adjourned to 8^th March 2016.On this date the defendant fail to appear to answer to the summons. A notice of hearing was served on him for ex-parte hearing on the 15^th March 2016.
   
3. On the 15^th of March2016, the matter was heard ex-parte and the defendant was found liable and was ordered to pay to the complainants the sum of K7, 000.00 with cost of K153.00.The total of K7, 0153.00 was to be paid within two weeks from the 15/05/16.
   
4. The defendant had a option to apply to set aside the ex-parte Order made against him under S 25 of the District Court Act, .if he was aggrieved by the Order of the Court. However, he did not take this option.
   
5. The complainants waited for the him to settle the Court Order but he failed . As a result, they return to the Court and registered a complaint to orally examine the defendant under Division 4, section181 (1) ( a ) ( c) (d) of the District Court Act.
   
6. The complainants can choose to enforce the Court Order in three ways .First; he may apply for a warrant of execution to be issued against the defendant under s 173 of the District Court Act. A warrant of execution is a court order ordering the Police to execute the defendant’s properties to the value of the amount adjudged .The money will then be paid to the complainant to settle the debt.
   
7. The second process which the complainant may also choose to use is to summons the defendant for oral examination under Division 4, section181 (1) ( a ) ( c) (d) of the District Court Act.
   
8. The third process is to apply for attachment of the debt under s 182 of the District Court Act. A Court or Magistrate on the ex-parte application of a person who have obtained a order for recovery of a debt and on proof by affidavit that, a order has been made and is still unsatisfied and that, the debtor is in the country .The Court may proceed and may order that, all debts owing be attach to answer the order.
   
9. The court may then order the garnishee named in the order to answer why he should not pay .If the garnishee does not dispute the debt the Court will order payment of debt to the person who had obtained the order.
   
10. This ex-parte Court Order was served on the defendant. He failed to comply with the Court Order and the complainants enforced the Order under Division 4, Section 181 ( 1) (a ) (c ) (d ) of the District Court Act, for the court to summons and asked the defendant ,why he has not satisfy the Order and to examine him as to his ability to pay the amount adjudged against him.
    
11. In answer to the summons the defendant appeared before the court and was asked why he did not comply with the court order dated 15^th March 2016. His answer was that, he had been admitted to the hospital.
    
12. I considered the reason raised by the defendant that, he had been hospitalized and for this reason, I made an Order dated 14th July 2016 for the defendant to pay K7, 153 in installments. The first installment to be paid on the 30^th of September 2016 and the second and final payment to be paid on the 30^th of December 2016.How much he should pay on his first installment or second installment was not specified. The Order was such that, it gives the defendant sufficient time to find sufficient funds to settle the Order of the Court. In default of payment, the defendant shall serve a term of two months in light labor for failing to comply with the Court Order.