Whagi Mek Plantation Ltd v lak [1999] PGNC 39; N1898 (21 May 1999)

Unreported National Court Decisions

N1898

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 201 OF 1999
BETWEEN: WHAGI MEK PLANTATION LTD
PLAINTIFF
AND: FR. ROBERT LAK
FIRST DEFENDANT
AND: DU MHAINE, KUMIYE HMAINE, BRUCH MHIANE, KARPOSYE MHAINE, A MHAINE,AINE, BUK MHAINE, KISU DU, MIAN DU, ASIP DU, MAINE DU, OPI KUPA, TAUS KUPA, PUND KUPA, JOHN KUPA, KAING NUMA, KOT TAI, KISPI KUNJO, MAKIL KORO, PR. JACK MARK, MRS DAR DU, COUNCILLOR PKOMNI, OPI KOMINI, PUK KUMI KUMIE, KUNZE NORI, LESLY KOIP, SERGEANT MURRAY SABAKAN OF THE KUMA MIAMKA TARU KUP MORU KANEM CLAN
SECOND DEFENDANTS
AND: NIXON KOI, KLIP KORO, KILIP MABIL GUL, SAMSON KILIP OF THE KUMA MIAMKA TARU KUP MORU KANEM NO. 2 CLAN
THIRD DEFENDANTS
AND: PETER (TIRI) GUR, KONIMPDAM BENZ,, BUNO KUR, APE PINGAP, KAMING PINGAP, KUMI BENZ, DAO KOL, KOL GOI, MRS AURO KUMIE, PIUS KUPIYA, TIMOTHY BOG, KALING NUMA, KUR, ALKE KONIMPDAM OF THE KUMA MIAMKA TARU KUP DAMBEN KANEM CLAN
FOURTH DEFENDANTS
AND: KISIP SINGA, MILIN KISIP, KARAP KUMI, ENN OBI, OPUR KOKUN, PAR KUMIE, MRS WARI ENN, KARAP OBI KUMI, MRS PUSI KARAP, GOLING KUNJIL, KOMO KUNJIL SAMUEL PAR KUMIE OF THE KUMA MIAMKA TARU KUP KOMBOL OLU KANEM CLAN
FIFTH DEFENDANTS
AND: WILLIE MU OF HTE KUMA MIAMKA TARU KUP KOMBOL WUNUMB KANEM CLAN
SIXTH DEFENDANT
AND: MRS BES BAGAI, PORO WAM, WAMP APE, JOHN BAGAI OF THE KUMA MIAMKA GELKMBUK KAMP KANEM CLAN
SEVENTH DEFENDANT
AND: PAWA KANGLE MOKUMNGA OF THE KURUPKA ANGA KUP KAIPEKL KANEM CLAN
EIGHT DEFENDANT
AND: PAUL DAI OF THE KURUPKA ANGA KUP MAIS KANEM CLAN
NINTH DEFENDANT
AND: WAN TUMINTS OF THE KUMA MIAMKA GELKMBUK KIP KANEM CLAN
TENTH DEFENDANT
AND: JOHNNY GILMAN, KEKLIP GILMAN, PETER DU GILMAN, NER PONGO OF THE KUMA KURUPKA TUNDIL KUP KUL KANEM CLAN
ELEVENTH DEFENDANT
AND: JIM KUMUK OF THE KUMA NGENEKA, PINGKA KI KANEM CLAN
TWELFTH DEFENDANT
AND: KINZAK BUM OF THE KUMA NGENEKA, PINGKA WOKLEM KANEM CLAN
THIRTEENTH DEFENDANT
AND: MICHAEL ONDOMONGO
FOURTEEN DEFENDANT
AND: PAUL KERENGA ANSPHIL
FIFTEEN DEFENDANT
AND: WILLIAM MOLLUMB
SIXTEENTH DEFENDANT
AND: KAUNGE BOSIP AIPE
SEVENTEENTH DEFENDANT
AND: MICHAEL MONDO
EIGHTEENTH DEFENDANT
AND: CHRIS KAMAN
NINETEENTH DEFENDANT
AND: SIR THOMAS KAVALI
TWENTIETH DEFENDANT
AND: DAVID MOL
TWENTY-FIRST DEFENDANT
AND: INSPECTOR BILLY KOMBUL
TWENTY-SECOND DEFENDANT
AND: GIL KOLNGA
TWENTY-THIRD DEFENDANT
AND: SEN WAMIL
TWENTY-FOURTH DEFENDANT
AND: EMBIN TOMAR, MAKA OKUNGA, KAPAL BOLO, BAI YEOWIL, JOHN BALDIN, BALDIN KAPI, TAI NEKINTS, DAPIL TAI, JU TOKU, GUR BAMINA
TWENTY-FIFTH DEFENDANT
AND: SUPERINTENDENT WINI HENO, PROVINCIAL POLICE COMMANDER, WESTERN HIGHLANDS PROVINCE
TWENTY-SIXTH DEFENDANT

Goroka

Kirriwom J
14 May 1999
21 May 1999

Counsel

Mr K Peri for the Plaintiff

No appearance for the Defendants

21 May 1999

KIRRIWOM J: By Notice of Motion the plaintiff seeks injunctive orders previously granted by this court to be confirmed and made permanent, certain liquidated amounts sought in the Writ of Summons to be granted in default of the Defendants filing their defence and that judgement be entered generally for the plaintiffs for assessment of damages with respect to those other claims for unliquidated sums pleaded in the Statement of Claim.

The plaintiff company is and was at all material times the owner of the property known as Whagi Mek Supply situated at Wagamil Plantation, State Lease Vol 25 Folio 206 Fourmil of Ramu and Milinch of Minj. On this property the plaintiff stored agricultural supplies which it sold and distributed within its own group and also stored farm equipment for carrying on business of coffee buying.

All the defendants named in this action, totalling up to 94 are alleged to have conspired by themselves and through their agents and servants on 9th of August 1998 and trespassed onto the said property of the Plaintiff by entering the premises without its consent and thereby looted the property and converted to their own use certain goods for sale land or distribution within the group of plantations of the plaintiff.

The Statement of Claim itemises those goods that were allegedly converted or stolen amounting to a total value of K79,710.25. Other itemised losses include tools and equipment amounting to K2,000, damages to fences and costs of repair amounting to K22,327.73 and costs of hiring additional security at K35,772.00.

It was alleged that since 9th August 1998 or thereabouts the Defendants and their agents or servants at various locations assaulted the Plaintiff’s agents by threatening and intentionally assaulting them and causing them to fear an immediate attack and causing injuries.

The Writ in this matter was filed on 5th March 1999 and on the same day on application of the plaintiff the following orders were granted ex parte:

1. An injunctionrrestnginie dthe defendants by themselves, their servants or agents from entering Wagamil Plantation.

2. &#A60; ju inionctestrriningining the defendants by themselves, their servants or agents from threatening, intimidating and assaulting the plaintiff’s agents and servants, damaging the property of the plaintiff or blocking roadways, waterways and/or easements of ingress and egress in relation to the property of the plaintiff.

3. An injunction restrainingdthe defendants by themselves, their servants or agents from threatening, intimidating, assaulting the tiffsor itvantsgentsamili same.

4. ##16;&#160& Cos; Cos; Cost Cost in t in the mthe motion was awarded in favour of the applicant.

Service of the Writ and these orders were effected upon 24 of the defendants at various times between 8th March and 19th March most of whom are either resident in Mt Hagen town or at Minj and Banz. Various affidavits of process servers evidencing services on these persons were filed in these proceedings.

On the 1st of April 1999 a notice of intention to defend was filed by Mr Kaunga Bosip Aipe of Public Solicitor’s Office in Mt Hagen on behalf of himself and the ninety-four other defendants. The Notice of Intention to Defend has Mr C, Manek, Public Solicitor, as the lawyer on record with his address at Public Solicitor’s Office, Hagen Plaza, Suit 4, Hagen Drive, Romba Street, P O Box 575, Mt. Hagen, as acting for the defendants.

On 7th of May 1999 this motion was filed however there is no evidence of service of this motion on the defendants’ legal representative, the Public Solicitor. The motion is supported by the Affidavit of Koeya Peri who deposes to the fact that the defendants since filing the notice of intention to defend have not filed their defence. There is an affidavit of search also deposed to by Mr Peri stating this fact. On 6th May Mr Peri wrote to the Public Solicitor in Hagen advising of its failure to file the defendants’ defence within the stipulated period under the Rules. A copy of that letter was also annexed to Mr Peri’s affidavit.

The plaintiff now seeks default judgement and those reliefs sought in the Notice of Motion. Under O. 8 r. 4 of the Rules the defendants had 14 days from the 1st of April 1999 to file their defences. They had not done so. Even after they were put on notice by letter of 6th May 1999 from the plaintiff’s lawyers - Annex ‘A’ they still had not filed any defences. At the time the plaintiff’s application was presented on 14th May 1999 the Defendants still had filed no defences or sought an extension of time to comply with the requirements of the Rules. This causes the Court some concerns because the Public Solicitor has an office in Goroka who could have easily appeared. If the Public Solicitor needed time to speak to all his clients and to obtain their instruction before filing their defences, there should have been an application made. So the defendants are really in default under the Rules. But I am still not satisfied as to the question of service both as to this Motion and the Writ of Summons.

It is incumbent upon the plaintiff to effect service on all the defendants named in these proceedings before it can seek judgement by interlocutory process. The fact that there is no appearance on behalf of the Public Solicitor in this Motion despite the fact that there is an Office in Goroka causes me concerns whether the Public Solicitor has granted legal aid in this matter. It could well be that the Notice of Intention to Defend filed on the 1st of April 1999 may not be giving an accurate message particularly in view of the fact that Kaunga Bosipe Aipe, albeit a lawyer with the Office of the Public Solicitor - Mt Hagen, is the 17th defendant in this action. I know in a situation like this legal aid must be sought and granted by the Public Solicitor in person, not by delegation, particularly where the officer with the delegated power has a vested interest in the dispute. So the end result could mean that apart from Kaunga Bosip Aipe who gave notice of intention to defend, all the other defendants have not sought services of lawyers or have not been served with originating documents. It behoves the plaintiff the duty to serve every person named in this action in accordance with the Rules.

At the same time however I bear in mind the sensitive nature of this case and the urgency it imposes for a speedy solution to the issue pending for the Court’s disposition. And I am concerned that unless the Court takes a firm stand in the enforcement of the National Court Rules made for the benefit of practitioners and litigants, public can flout the law and the Rules set in place to assist facilitation of due process. In other words these proceedings will not progress further without the Rules being enforced strictly.

Therefore proceeding on the premise that the Kaunga Bosip Aipe, as a lawyer, who filed the notice of intention to defend on 1st April 1999, represents himself and all the defendants named in these proceedings privately, and not as Public Solicitor, I order that the injunctions granted by the Court on 5th March 1999 as per the Statement of Claim are hereby made permanent against all the defendants. I make no order as to paragraph 2 of the Notice of Motion until proper evidence is tendered. And I order that judgement be entered for the Plaintiff for damages to be assessed.

The plaintiff will immediately take steps to proceed to trial on assessment of damages and proof of debts with respect to the injuries and damages claimed in paragraphs 15 (g), (h), (i), (j), (k) and (l) and the liquidated amounts claimed in paragraph 15 (d), (e), (f) and (g).

I order costs in favour of the Plaintiff.

Lawyer for the Plaintiffs: Warner Shand

Lawyer for the Defendants: No appearance