Ela Enterprises Ltd v Rooke's Marine Repairs Ltd [2018] PGDC 34; DC4015 (20 June 2018)

DC4015
PAPUA NEW GUINEA

CIVIL JURISDICTION

MADANG DISTRICT COURT

ELA ENTERPRISES LIMITED

V

ROOKE’S MARINE REPAIRS LIMITED

GR5CV NO 07 OF 2018

JUDGMENT

Josephine Kilage

20June 2018

FACTS
The Complainant, Ela Enterprises Limited (Ela Enterprises) filed a default summons against the Defendant Rooke’s Marine Repairs Limited (Rooke’s Marine) on 30^th May 2018.Ela made a claim against Rooke’s Marine for the nonpayment of goods and services rendered to the cost of K9,445.76. Ela Enterprises claims that the amount of K9445.76 remains outstanding since 30^th December 2015. Ela Enterprises also claims for 8% interest and costs.

On 31^st of May 2018 Ms Violet Sengum the accounts receivable officer with Ela Enterprises went to the Rooke’s Marine office and served on LennieGarem , the Receptionist to defendant a sealed copy of the Summons to a person upon complaint and an affidavit of Jalu Patel filed on 30^th May 2018.

Rookes Marine counsel MrWadau then filed an application to the court on 14^th of June 2018 to have the default summons and complaint filed dismissed for incompetence and defectiveness. Counsel to Ela Enterprises Mr Lai stated that the provison was written at a time when there were not many lawyers and this is not the case now and therefore Section 157 should not be considered mandatory. The court today will decide on whether the wording of Section 157 is mandatory and whether or not non compliance of this provision will have an adverse effect on the complainant’s case.

ISSUE

Whether the noncompliance of Section 157 of the District Court Act warrants the dismissal of the default civil summons on foot.
FINDINGS

1. Section 157 is a mandatory provision and its processes must be complied with.
2. Onus to attach two Notices of Intention to defend lies solely with the Complainant and not the Defendant.
3. The complainant’s own affidavit of service which is deemed as prima facie evidence of the service of the summons states that the notices were not served.
4. By not serving the two notices of intention to defend the Complainant has removed the opportunity for the Defendant to raise a defence and also has removed the opportunity for the service of documents process to be completed and for the complainant to be entitled to judgment under the default summons process with the full advantage of Section 158 of the District Courts Act.
   
5. The application was filed and served on the Complainant by the 5^th of June 2018.On the 18^th of June 2018 the defendant’s moved their application to dismiss the proceedings. The complainant had the submission. They had 13 days to respond to the application by rectifying the defects by serving the two notice of intention to defend and by filing a supplementary affidavit of service. The complainant did not comply with section 157 of the District Courts Act and those provisions were mandatory requirements.
   
6. While the court does have the discretion to amend defects in the naming of forms when it comes to the defects of process it is up to the parties to correct their conduct to ensure that process and procedures are followed. It is up to parties to take actions to correct defects which have been highlighted to the court and make necessarily applications to bring to the courts attention their short falls and how they have taken the necessary actions to cure defects before submitting to the court that the court has the discretion to cure defects in proceedings.
   
7. In this proceeding the complainant has failed to comply with the mandatory requirements of service of default summons upon civil debt stipulated in Section 157 of the District Courts Act. The Complainant has not submitted any other alternative orders to the Court to consider in the determination of the defendants application to dismiss the proceedings.
   
8. I have considered Section 157 of the District Courts Act and find it a mandatory provision that must be complied with for a default judgment to be granted. The complainant has failed to comply with Section 157 of the District Courts Act and therefore the default summons before the court is fatally defective and cannot continue in its current form. I however note that the Complainant complaint does have merit and therefore I will have that matter withdrawn. The case is in its preliminary stages and I will not consider the submission on cost from the defendants counsel. I will award cost at the sum of K2000.00 to the defendant.
   

COURT ORDER
I therefore makethe following orders:

1. Application for the case to be dismissed is refused as the complainant has a legal cause of action.
2. Case is withdrawn.
3. Complainant to pay legal costs to the sum of K2000.00 to the defendant.
   

Given by my hand on 20^th Day of June 2018 in Madang

Jkilage

Josephine Kilage-Presiding Magistrate