Sahuwo v Kirio [2017] PGDC 49; DC3094 (22 November 2017)

DC3094

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCi 264 Of 2017

BETWEEN

BOB SAHUWO

Complainant/Respondent

AND

AMOS KIRIO

Defendant/Applicant

Goroka:Philip Kaumba, LLB(PNG)

2017: November 22

CIVIL:

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Complainant,In person.

Lawyer for the Defendant,In person.

22^nd November, 2017

REASONS FOR DECISION

P KAUMBA, Magistrate: The defendant/applicant filed a notice of motion on the 21^st of August 2017 seeking inter alia to set asidethe ex parte order of the District Court dated 22^nd of March 2017 pursuant to section 25 of the District Court Act.

2. The motion was first mentioned before His Honour Raphael Appa and His Worship disqualified himself from hearing and transferred it my court. In the meantime His Worship that the warrant of arrest issued to execute the aforesaid order be set aside.

3. It came before me on the 29^th of August 2017 but the complainant/respondent was not in court and after finding out the defendant/applicanthas yet to serve his notice of motion on the complainant, I directed that the NOM be served on the complainant/respondent and adjourned the motion to the 7^th of September 2017. On September 2017 all parties appeared in court and the defendant/respondent served his NOM in court which was short notice so I set the motion for hearing on the 20^th of September 2017.

4. On the 20^th of September 2017 I noted that some documents that were supposed to be on file was not there so I adjourned the motion again to the 9^th of October 2017. On the 9^th the Defendant/applicant was not ready to move his motion so the motion was adjourned to the 19^th of October 2019 and the defendant/applicant was directed to his statement of defence within 7 days of the order.

5. The Defendant/Application filed a notice of motion to transfer his motion referred to above to another Magistrate to hear it on the 10^th of October 2017. It was brought before His Worship R Appa and His Worship heard it and transferred it to my court. It was mentioned before me on the 19^th of October 2017 and I adjourned it the 27^th of October for hearing to allow complainant/respondent to do an affidavit in response to the defendant/applicants NOM and affidavit.

6. On the 27^th of October 2017 I heard the defendant/applicants NOM and delivered my decision on the 6^th of November 2017. I also set the defendant/applicants NOM dated 21^st of August 2017 for hearing on the 22^nd of November 2017.

7. On the 22^nd of November 2017 the complainant/respondent was in court but the Defendant/Applicant was not in court and he left a note with our registry clerks saying that he is attending an uncle’s funeral and he won’t be in court. The complainant/respondent objects to the adjournment saying this is not the first time he is seeking adjournment. He sought adjournment before His Worship Raphael Appa and he is not being genuine so he suggested that I made a decision.

ISSUE

8. Would it be appropriate in the circumstances to adjourn the defendant/applicants NOM to another time most probably next week for hearing as suggested by the Defendant/Applicant?

RELEVANT LAW

9. The District Court has inherent jurisdiction to manage cases and interlocutory applications before it in such a way to effectively dispense justice in a timely manner. It can also determine cases whenever it sees fit to do so pursuant to section 22 of the District Court Act and under its equity jurisdiction(see section 21 of the District Court Act) .

10. FACTS AND FINDINGS:

1. The Defendant/applicant came to the court house around midday and left a note with the clerk saying that he will be attending a funeral of his uncle and he suggested that the hearing of his motionbe adjourned to sometime next week.
2. The defendant/applicants request for adjournment was not supported by medical evidence and it wasbrought to court at the eleventh hour.
3. The defendant/applicant has a habit of adjourning his application for no good reasons previously.
4. The Defendant/applicant was around the court house around midday and why didn’t he appear in court to adjourn the case instead of leaving a note with the registry clerks at the eleventh hour.
5. In my decision of the 6^th of November 2017 in relation to his motion to transfer this motion to another court I find that the defendant/applicant has not disclosed a defence on the merits in his affidavit in support of his notice of motion to set aside order of the 21^st of March 2017 but to date the defendant/applicant has not brought in new evidence to show that he has a defence on the merits to the complainant/respondents claim.
6. On the 9^th of October 2017 I directed the defendant/applicant inter alia to file his statement of defence but to date he has yet to do so.
7. I find thatthe defendant/applicant has defence on the merits and his objective to delay the process of delivering justice has become obvious and he cannot be allowed to continue.
8. Due to the foregoing findings the Defendant/Applicants notice of motion cannot be allowed to stand.

11. ANSWER TO ISSUE.

1. No good reason to adjourn because the defendant/applicant has not disclosed a valid defence on merit in his affidavit in support of his motion.

12. COSTS.

Cost is a discretionary matter for a judge. Costs should follow the event.

13. ORDER.

The formal orders of the court are:

1. The Defendant/Applicants notice of motion is dismissed with costs.
   

Counsels :

Lawyer for the Complainant, In person.

Lawyer for the Defendant, In person.