N6139

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 204 OF 2006

BETWEEN

TEPE MURAMUL
Plaintiff

AND

NICK ANDAKI, PRESIDENT OF WAPENAMANDA LOCAL-LEVELGOVERNMENT
First Defendant

AND

WAPENAMANDA LOCAL LEVEL-GOVERNMENT
Second Defendant

Mt Hagen: Frank, J
2015: 2nd October

PRACTICE AND PROCEDURE-Application for default Judgment Relevant consideration to exercise of discretion.

Practice and Procedure-Application for summary judgment-Principles applicable to exercise of discretion.

Practice and Procedure- Service of originating process- Service on local level Government-Organic Law on Provincial and Local-Level Government, s6- Local level Government Administration Acts.60 

Case cited:
Bruce Tsang v. Credit Corporation (PNG) Ltd (1993) PNGLR 112
Kumul Builders Pty Ltd-vs. - Post and Telecommunication Corporation (1991) PNGLR 299.

Counsel:

Mr. K. Sino, for the plaintiff
No Appearance by or on behalf of the defendants

RULING ON APPLICATION

2nd October, 2015

1. FRANK J: By a Notice of motion filed on 31st of July 2015, the plaintiff applies for:

(a) Default judgment in the sum of K15,000.00 pursuant to Order 12 Rules 25&27 of the National Court Rules (Rules);

(b) Summary judgment for the same sum of K15,000.00 pursuant to Order 12 Rue 38; and 

(c) Default judgment for the damage to assessed pursuant to Order 12 Rule25

2. In his statement of claim, the plaintiff alleged that on or about, 13th March 2005, he entered into verbal agreement with the first defendant at Mt. Hagen for the hire of the plaintiff's vehicle, a Toyota Land Cruiser Registration No. BAW - 668 at the rate of K500.00 per day ("Agreement") and on 13th Match 2005, the first defendant took the delivery of the vehicle and returned it to the plaintiff on 14th April 2005. He says the vehicle was hired or used for the official business of the second defendant and since then he has rendered an invoice the sum of K15, 000.00 ("Debt"). However, despite demands for payment on several occasions the defendants have neglected to pay the debts. The first defendant is sued in his capacity as the President of the second defendant. The plaintiff claims debts and general damages of K5, 000.00. The bases of the later were not pleaded.

3. The motion was supported by the Affidavit of Search of James Drua sworn on 3rd June 2015 and filed on 31st July 2015, and the plaintiff's in Support sworn on 18th May 2015 and filed on 31st July 2015. In his affidavit, the plaintiff repeat his claim pleaded in his statement of claim and says further that he had attended on several occasions at the office of the defendants where he demanded payment, however, was told to return and see the defendants on another date or was given some other excuse.

4. At the conclusion of moving his client's motions on 21st July 2015, I enquired of Mr. Sino of counsel for the plaintiff, as to the basis upon which the plaintiff says that the services of the writ have been effected on the second defendant. Mr. Sino was unable to assist in that regard. Order 4 Rule 49.19 (3) (b) (ii) provides that counsel moving the motion must tender to the court a copy of the relevant provisions governing the institution and service of court process against such entity. In the circumstances, I adjourned the matter to 7th September 2015, to allow the counsel for the plaintiff to consider, prepare and file extract of submissions addressing the issue of service on the second defendant. On the 7th September 2015, the plaintiff's counsel had not filed such submissions and was unable to address the court in respect of the issue, and for those reason the matter was further adjourned to 15th September 2015, when Mr. Sino failed to appear .I therefore, adjourn the matter again to 23rd September 2015, when again Mr. Sino failed to appear or comply with the direction to file submission addressing the issue of service. In this circumstance, I determined that the plaintiff did not intend to make any further submissions on the issue I had raised and for that reason reserved ruling in respect of the motion for judgment.
 
5. Section 6 of the Organic Law on Provincial and Local Level Governments ("Organic Law) provides amongst other matters, that a Local-level Government ("LLG") may acquire, hold and dispose of property of any kind, and may sue and be sued, and a local-level law may make provision for and in respect of the manner and form in which it may do so.

6. Section 7 of the Organic Law provides, amongst other matters, that a writ required to be served on a LLG may be served on an officer designated by the LLG for that purpose. Section 60 of the Local- Level Government Administration Act ("Act") provides, amongst other matters, that a writ required to be served on a LLG may be served by being given personally to the head of the LLG or to the executive officer or such persons appointed for that purpose. The head of the LLG is, under section 29 (29) (1) (a) of the Organic Law, a member of LLG upon whom, by virtue of section (14)(2)(d) of the Organic Law the title of "President" is given.

7. Under section (25)(4)(d) of the Act, a LLG may delegate any power conferred on it by Organic Law or the Act to a committee established by it, other than the power to enter into contracts. Similarly, under section 35(1) of the Act, a LLG can delegate to a Ward Development Committee any power or function or duty of the LLG except, amongst others, the power to enter into contracts. Sub-section (2) provides that an act of a Ward Development Committee does not bind LLG until it is approved by the LLG, except where the LLG has by solution previously authorised the Ward Development Committee to do the act.

8. The plaintiff's claim is based on the premise that he acted as an agent or representative and on the account of the second defendant.

9. The plaintiff has not shown that a President of LLG has power to enter into agreement on behalf of and to bind the LLG of which he is a member. I would think it unusual that whilst the Act has restricted the power to enter into contracts from such committees or Ward Development Committee. A President of a LLG simply by virtue of his position has the authority to enter into contract on behalf of and bind the LLG which he heads. 

10. There is also no evident indicating:

(a) That the plaintiff was the owner of the vehicle;

(b) The nature of the work the vehicle was hired;

(c) That the first defendant was the President of the second defendant;

(d) That the second defendant had authorised the first defendant to enter into the Agreement on its behalf;

(e) The particulars of the first defendant's attendances at the office of the second defendant to follow up on his invoice for the Dept, such as the dates, name of the employees of the second defendant he spoke to and the nature of their responses on each occasion of his follow up attendance, at lease to indicate that the second defendant was aware of these proceeding when the Writ was served only on the first defendant to effect service on the second defendant, and its attitude to the plaintiff's claim in it.

11. The plaintiff complied with the requirement set out in Order 4 Rule 49.19(4) (a) except for the filling of the affidavit on the defendants. I heard the plaintiff's application on the bases that the plaintiff had deposed to having served the defendant with the Writ, and under Order 6 Rule 14, the motion and the supporting affidavits are deemed to have served on the date they were filed. Order 6 Rule 14 provides:

"14. Service by filing. (9/12)

"Where the service any document on any required or permitted in any proceedings, but personal service is not required, and that person is in default of giving the notice of intention to defend, or has given such a notice but has no address for service in the proceedings, the filing of the document shall, unless the Court or otherwise orders, have effect as service of the document on that person" 

12. In all the circumstances, and having regard to the matters in paragraphs 8, 9, and 10, in exercise of my discretion, I refuse the motion for default judgment.

13. With respect to the plaintiff's motion for default judgment, the law in relation to summary judgment has been settled by Supreme Court in Bruce Tsang v. Credit Corporation (PNG) Ltd (1993) PNGLR 112, at page 117 and 118, said;

"There are two elements involved in this rule:

(a) Evidence of the facts proving the essential elements of the claim;

(b) That the plaintiff or some responsible gives evidence that in his belief, there is no defence.

14. As to the second element, the plaintiff must show in absence of any defence or evidence from the defendant that in his believe the defendant has no defence. If a defence is filed or the evidence is given by the defendant, as in this case, the plaintiff must show that, upon the facts or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict on question of facts and law. Whether a case should go to trial on these issues, will be determined on the facts of each case? However, the authority show that the summary jurisdiction should only be invoked in a clear case: see Chief Collector of Taxes v T. A. Field Pty Ltd (1975) PNGLR 144.'' 

15. These considerations are consistent with the purpose of summary judgment, which is to enable a plaintiff to obtain judgment without trail, if he can prove his claim clearly and if the defendant is unable to set up a bona fide defence, or raise an issue against the claim which ought to be tried in the first place: Kumul Builders Pty Ltd -v- Post and Telecommunication Corporation (1991) PNGLR 299, at page 300. 

16. Whilst the plaintiff has dispose to a "view" that the second defendant does not have any defence, there is an issue as to the liability of the second defendant based on the matter set out in paragraph 8, 9 and 10. I therefore, refuse the motion for summary judgment. 

17. The plaintiff also applied for default judgments for damage to be assessed. This motion would apply only in respect of plaintiffs claim for general damage of K5, 000.00. No facts have been pleaded to form the bases upon which this relief has being claimed. I therefore refuse this application as no cause of action is pleaded upon which this relief is based.

18. In the result, I dismiss the notice of motion filed on 31st January 2015.the plaintiff shall pay its own cost of and incidental to his motion. I also dismiss the similar notice of motion filed on 21st July 2010 for want of prosecution and for the reason that it seeks the same relief sought in the notice of motion filed on 31st July 2015.

19. The Orders are:

19.1 The Notice of Motion filed on 31st 2015 is dismissed.

19.2 The Notice of Motion filed on 21st July 2010 is dismissed

19.3 The plaintiff shall pay its own costs of these Notice of Motion.

_____________________________________________________________
Sino Lawyers: Lawyer for the Plaintiff