Robin v Gior [2017] PGDC 8; DC3052 (5 October 2017)

DC3052

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

Comp No 140of 2017

BETWEEN

GILBERT ROBIN trading as WANTOK FINANCE

Complainant

AND

WILLIE GIOR

Defendant

Goroka: P Kaumba
2017: September 26

October 5

CIVIL:

Cases Cited:

Nil

References:

Nil

Counsels:

Lawyer for the Complainant,In person.

Lawyer for the Defendant,In person

05^th October, 2017

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P KAUMBA, Magistrate:This is default summons filed by the complainant on the 1^st of September 2017 claiming K5,300.00interest and costs against the Defendantpursuant to Section 156 of the District Court Act.

LAW.

156 ISSUE OF DEFAULT SUMMONS.

2. Notwithstanding anything in this Act, other than section 21, on complaint made in respect of a debt or other liquidated demand in money payable by the defendant the Magistrate or Clerk before whom the complaint is made shall,instead of issuing a summons to the Defendant in the ordinary form,if so required by the person making the complaint and subject to this Division, issue a summons to the defendant under this division.

3. 157 SERVICE OF DEFAULT SUMMONS.

(1) A default Summons shall be in the prescribed form and there shall be attached to the summons two notices of intention to defend in the prescribed form and it shall be served not less than six(6) days before the date of return by delivering a true copy-

• (a) to the defendant personally; or
• (b) in the case of a company incorporated under the Companies Act- to the company in accordance with the provisions of the Companies Act; Or
• (c) in the case of the corporation-
  • (i) to the secretary; public officer or other chief officer of that corporation in the country; or
  • (ii) by sending it by post to the Secretary, public officer or other chief officer at the last known address of the corporation in the country; or
  • (iii) or in any other manner provided by law,

with true copies of the two notices of intention to defend in the prescribed form attached to it.

(2) A person who serves a default summons shall-

• (a) Make an affidavit endorsed on the original summons, stating that a true copy of the summons with two copies of the notices of intention to defend attached was personally served on the defendant and specifying the time at which it was served; and
• (b) Immediately transit the original summons to the clerk for production at the time and place and before the court specified in the summons.

(3). A document purporting to be an affidavit of service under Subsection (2) is prima facie
evidence of the service of summons.

(4) If the Defendant or his legal representative does not give notice of intention to defend a complaint to which this Division applies by serving notice at least 48 hours before the date appointed for the return of the default summons on the clerk at the place where the court sits, and-

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(a) Personally or by post on the complainant at his address specified in the summons; or
(b) On his legal representative at his address if specified in the summons,the complainant need not attend personally or otherwise or prove his claim, and an order in his favour may be made by the court in his absence.

4. 158. WHERE NO NOTICE OF GIVEN,DEFENCE NOT ALLOWED EXCEPT BY PERMISSION OF COURT.
(1) If a defendant on whom a default summons is served under Section 157 does not give notice

to defend within the time specified in that section, he shall not be allowed on the hearing of the complaint to make a defence to the claim except by permission of the Court and then only on such terms as to costs and otherwise as the Court determines.

(2) If permission to defend is given under subsection(1), the hearing of the complaint-
(a) may be adjourned to some other day to be fixed by the Court-
(i)if the complainant or his legal representative desires; or
(ii) if the court thinks fit; and
(b) shall be adjourned if the complainant or legal representative is not present and the clerk
shall give notice of the adjournment without delay to the complainant by post or
otherwise.

HEARING.
5. The Defendant has failed to appear in court to defend this summons on the 12^th of September 2017.There was problem with parties to sue so the complainant was directed to amend his complaint and file in court within 14 days and case was adjourned to the 26^th of September 2017. On the 26^th of September 2017 the complainant advised that he has yet to serve the amended complaint on the Defendant and the court ordered for substituted service was issued and case was adjourned to the 5^th of October 2017.On the 5^th of October 2017 the Defendant appeared in court and admitted that he owes K5,300.00 to the complainant.And therefore the court enters default judgement in favour of the complainant in the sum of K5,300plus interest and costs pursuant to section 157(4) of the District Court Act. Interest from date of Filing of Court summons to date of Judgement 29 days- 8 % of K5,300.00 x29 days divided by 365=K33.70. Total judgement K5,333.70.

ORDER

6. The courts formal orders are:

1. Default Judgement is entered in favour of the Complainant in the sum of K5,333.70.
2. The Defendant shall pay K5,333.70 within 30 days from the date of the order.
3. The defendant to pay complainants costs to be taxed if not agreed.
   

Counsels:
Lawyer for the Complainant, In Person
Lawyer for the Defendant, In Person