Penana v Jove [2022] PGDC 89; DC9028 (1 February 2022)

DC9028

PAPUA NEW GUINEA.

CIVIL JURISDICTION.
GR 5 CV NO: 07/2021.

IN THE MATTER BETWEEN:

MICAH PENANA
Respondent/Complainant.

AND:

1. RICHARD JOVE.
2. ANDREW KAURA.

Applicant/Defendants

Popondetta: Michael W. Apie’e

2022: January 21^ST, February 01^st.

CIVIL PROCEEDINGS.
-Application to set aside Ex-Parte Orders.
-Applicant Richard Jovu makes application on behalf of himself and Andrew Kaura.
-Asks for Ex-Parte Orders of 24/03/22 to be set side and full trial to be held in the matter.
-Gives explanation for Defendants Non-attendance and also indicated possible defenses to be raised in response to the substantive claim.

Held:

1. Application is upheld.
2. The Ex-Parte Orders of 24/03/22 are hereby set aside and the matter reinstated for full and proper Inter-parte hearing.
3. Trail now set for ...
   

Cases Cited:
Barker v The State [1976] PGNC 11; [1976] PNGLR 340

References:
District Court Act.

Representation:
Complainant /Respondent for himself.
Richard Jovu for the Defendant/Applicants.
RULING ON NOTICE OF MOTION.
Background.

1. The Complainant filed suit before the District Court in DC 07 of 2021 ON THE 18/05/21 by way of a Summons upon a Complaint that the Defendants had by way of Spoken Words Uttered in the Public Setting of a Village Court Mediation Labelled the Complainant as a Sorcery Practitioner and or ‘Poison man’.
   
2. The Complainants reputation and good name was tarnished and he was humiliated and embarrassed by the Defendants utterances.
   
3. The Complainant being thus aggrieved file his action on the above date and served the suit on the Defendants.
   
4. The matter is first mentioned before me on the 18/05/21 and the defendant Richard Jovu alone attended whilst the Complainant did not attend.
   
5. The matter is thereafter adjourned for mention from time to time with the parties appearing at various time because of lack of Grade 5 Circuits into the Oro Province.
   
6. Since my Elevation to Grade Five Magistrates Position I have listed and started hearing into G5 matters and so such matters were beginning to be listed from the third quarter of 2021 onwards.
   
7. This matter was mentioned again at various times until the 02/09/21 and since the Defendants were not attending this matter was set for possible Ex-Parte hearing on the 16/09/21.
   
8. However, on the 16/09/21. The Defendant Richard Jove Attended Court whilst the Complainant failed to attend so the matter is further adjourned to the 29/09/21.
   
9. Thereafter, the matter was adjourned from time to time until the 17/03/22 without the Defendants attending when the matter is now set for possible Ex-Parte hearing on 24/03/22.
   
10. On the 24^th of March 2022, the Defendants are still not in attendance and so the matter was allowed to proceed Ex-Parte, and the Orders of 24/03/22 are granted and issued.
    

APPLICATION TO SET ASIDE EX-PARTE ORDER(S) OF 24/03/22.

Defendant/Applicants Submission:

11. The First Defendant /Applicant Richard Jovu filed this current Application and its supporting affidavit on the 12/04/22 supposedly after becoming aware of the Ex-Parte Orders issued against him.
    
12. In his Supporting Affidavit he explains why the Defendants were not attending court due to lack of information and also because of the Distance from Popondetta to their villages and the high cost of Travel.
    
13. He also raised the defense that the Allegation of Sorcery was labelled at the Complainant by persons other than himself namely youths and he is only brought in because of his Role as the Village Court Official who tried to mediate in the matter.
    
14. He also stated that he was given a copy of the Court order on the on 09/04/22 and he filed his application to set aside on the 12/04/22, as soon as he possibly could afford.
    

Response by Complainant /Respondent:

15. In response to the application the Complainant/respondent insisted that the Defendants were summoned because the Defamatory Uterance complained of came from them and no one else
    

Observations:

16. In the old 1976 case of Barker v. The State, at that early point of time in Papua New Guineas Status as an Independent nation Saldanha J, as he then was laid down the Three conditions to be satisfied in setting aside Ex-Parte Orders and they are as follows;
    
    1. There must be an affidavit filed stating facts showing evidence on merits.
    2. There must be a reasonable explanation why judgment was allowed to go by default, and,
    3. The Application must be made promptly within a reasonable time.
       
17. Reasonable Explanation for not attending:
    1. The Defendant deposed that due to the Distance from Kokoda to Popondetta and the Lack of information coming through and also due to Grade Five case not being attended to due to circuit arrangements, they somehow lost tract.
    2. Also due to the high cost of travel via PMV from Kokoda to Popondetta and back, they also had difficulty travelling some times to attend this case.
    3. He claims he was not informed of adjournments by the Complainant, even though that is his own responsibility.
18. Reasonable time.
    4. His Application is filed on the 12/04/22 is less than a month the orders of 24/03/22 after the Orders are served on him on the 09/04/22.
    5. His application therefore is made promptly and within reasonable time.
       
19. Defense on Merits.
    6. The Defense the Defendant relies on is expounded above in paragraph 13 and so I would adjudicate that he had a defense on merits going into the case until the Ex-Parte Orders of 27/07/21.
    7. I also note that the Complainant insists that the Defamatory utterances came from the Defendants and no other.
    8. In such a conflict, on a full hearing with the calling of Witnesses with resolve the issue
       
20. That being the case, I adjudge that this is a suitable case in which I should exercise my discretion under Section 25 of the District Court Act and have this the Ex-Parte Orders of 24/03/22 dealt with as follows;
    
    1. The Applicants Notice of Motion of 12/04/22 is upheld.
       
    2. The Ex-Parte Order(s) of 24/03/22 is hereby Set Aside for now.
       
    3. The Substantive matter of GR 5 CV NO: 07/2021 between the Parties is reinstated for Inter-Parte hearing to commence on Thursday the 26/05/22.
       
    4. No orders on costs.
       

Complainant /Respondent for himself.
Defendant/Applicant for himself.