Lano v Moave [2019] PGDC 21; DC4070 (9 October 2019)

DC 4070

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC 305 of 2019
BETWEEN

SANDY LANO
Complainant

AND

JOHNSON MOAVE
Defendant

Port Moresby: L Wawun-Kuvi

2019: 3, 9 October
      

CIVIL-FAMILY LAW- Defendant makes application to dimiss on being named wrongfully on complaint-whether defendant was named incorrectly? what is the effect of naming a defendant incorrectly?

CIVIL-District Court Act- Complaint- Amendments-Determination of real questions raised

Cases Cited
Mary Kai Yanopa And Kai Yanopa V Doughty Limited And Anors (2016)N6333
Lina Kewekali V. The Independent State Of Papua New Guinea (2011) SC 1091

References
District Court Act
Lukautim Pikinini Act

Rules
National Court Rules

Counsel

Self Represented, for the Complainant

Self Represented, for the Defendant

9 October 2019

L Wawun Kuvi, Magistrate:

1. It may sound like a plot out of a Hollywood movie. Love was sweet then love was no more. Love now sour after years of disagreements and misunderstandings. Is this a case of love being literally blind? That a woman married to a man for 20 years plus did not know the name of her husband and the father of their five children.
2. After Sandy Lano filed a complaint for child and spousal maintenance. She was shocked when her husband for 20 or more so years filed this application saying that he was not the person named in the Complainant.
3. He says that his real name is Johnson Henry and not Johnson Moave.
4. I am now left to decide whether Sandy named her husband incorrectly and what are the consequences if any?

What does the law say about pleading a defendant’s name correctly?

5. Section 87(5) states that the practice and procedure of the District Court is applied for the Lukautim Pikinini Act 2015.
6. There is nothing specific within the District Court Act (DCA) which refers to pleading the name of the defendant correctly.
7. Section 22 of the DCA empowers the Court to grant similar reliefs that would be granted in the National Court.
8. In the National Court, Order 12 Rule 40 grants the Court power to dismiss a case where the Plaintiff does not disclose a reasonable cause of action against the defendant.
9. Acting Justice Liosi as he was then, in the case of Mary Kai Yanopa and Kai Yanopa v Doughty Limited and Anors (2016) N6333 adopted the principles as they relate to pleading the correct name of the defendant in the Supreme Court case of Lina Kewekali v. The Independent state of Papua New Guinea (2011) SC 1091 where it was stated that :

"39. In the text Australian civil procedure by Bernard C Cairns, 3rd edition the learned author states at p. 236;

“Pleadings raise cause of action and defences only between the correct parties. In naming the wrong defendant the plaintiff fails to plead a cause of action

And at p. 237 of the same text, it reads;

“As a generality, the principle as to naming of parties is that all parties who are necessary and proper for the resolution of the dispute must be before the Court. The jurdicature principle is that all matters of dispute shall be resolved and for to and for that to be achieved, the court must have before it all the disputing parties..............”

Is the Defendant the right Defendant?

10. Yes. No issue is taken that Sandy is the wife of Johnson.

Did the Complainant state the wrong name?

11. Sandy says that the name is correct. She has been married to her husband for over 20 years and does not know him by any other name. They have five children together. She is his first wife.
12. The defendant says that for all legal purposes his name is Johnson Henry. He submits that he has never gone by or used the name Johnson Moave.
13. I am satisfied from the evidence of the Complainant that the defendant is known as Johnson Moave. As stated by her she is his wife and has known him for over 20 years and they have five children together.
14. I am also satisfied on the evidence of the Defendant for all legal purposes he is known as Johnson Henry. That is the name he uses at work.

What then is the appropriate course to take?

15. This is not a case where the wrong defendant has been named or no defendant has been named which will require this Court to dismiss the case for not disclosing a cause of action.
16. This is a case where the Defendant is known by two different surnames.
17. Section 138 of DCA gives powers to this Court to amend in order to determine the “real question of controversy between the parties” [Emphasis mine]. This is reflected in Order 8, Division 4, Rule 50 (2) of the National Court Rules which allows amendments amongst other reasons for the purpose of “determining the real questions raised”.
18. As I have found that the defendant is one and the same person, I allow the amendment to the Complaint to name the defendant as Johnson Moave alias Johnson Henry. This allows this Court to determine the real issue in that ‘whether the defendant left the children without means of support?

Orders:

19. The following are the Courts Orders:
    1. The Application to dismiss the complaint by the Defendant is dismissed;
    2. The Complaint is amended to read John Moave alias Johnson Henry;
    3. Pursuant to section 260 of the District Court Act, the defendant shall pay the costs of the Application to the Complaint in the sum of K200 by 12 October 2019 in default 15 days imprisonment;
    4. The substantive matter is adjourned to 12 October 2019 for hearing.

Lawyer for the Complainant Self Represented

Lawyer for the Defendant Self Represented