Gibson v Kelemesi [2018] PGNC 16; N7084 (22 January 2018)

N7084

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1040 OF 2016

CRAIG GIBSON PRINCIPLE KIMBE INTERNATIONAL SCHOOL

AND

KIMBE INTERNATIONAL SCHOOL

V

GASI KELEMESI

AND

JACINTA KELEMESI

Kimbe: Miviri AJ
2018: 19, 22 January

PRACTISE & PROCEEDURE - Notice of motion- application for default Judgment Or 12 r 25 NCR-in proper form-due service-default established-discretionary-facts in favour of exercising-motion granted-Default Judgment granted.

Cases cited:

Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773,
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001
Giru v Muta [2005] PGNC 83
Kunkene v Rangsu [1999] PGNC 80; N1917
Tiaga Bomson v Kerry Hart (2003) N2428
Tima Korohan [2006] PGNC 21; N3045.

Counsel:

F Kua, for Plaintiffs

Defendants in person

RULING

22^nd January, 2018

1. MIVIRI AJ: This is the ruling on the Motion of the Plaintiff by way of Notice of Motion for Default Judgement to be entered against the Defendant with damages to be assessed. He bases so upon Order 12 Rule 25 of the National court rules (“the rules”).
   
2. Order 12 is headed Judgements and Orders and Rule 25 default is in this terms, “A defendant shall be in default for the purpose of this division:
   
   • (a) Where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or
   • (b) Where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or
   • (c) Where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with the rule has expired but he has not so verified his defence.”
     
3. It follows his writ of summons dated the 24^th August 2016, “Writ” filed for school fees owing of K 13,848. 00 which are for the years 2015 and 2016.
   
4. The Writ bears the note under Order 4 Rule 9 that the Defendant will suffer judgment or an order unless the prescribed form of Notice of Intention to defend is filed in the registry within 30 days after service of the Writ. The Writ was served on 21^st September 2016 by Ken Migalu Driver at the Plaintiff School who has filed Affidavit of Service dated the 18^th October, 2016, filed 19^th October, 2016 attaching annexure “A” copies of the acknowledgement of service by the Defendants served on one Harriet Kelemesi the Writ of Summons. Annexure “B” is letter dated 30^th November, 2016 under hand of the Plaintiffs’ Lawyer advising Defendants to file a Notice of Intention to Defend or Defence within 14 days of proceedings for default will be started. Counting from the date of service of the Writ these 14 days expired on the 11^th October, 2016. And for the 30 days in the Writ it expired on Wednesday 2^nd November, 2016 without any Intention to Defend or Defence filed. These are counting only the official working days and not weekends.
   
5. On the 21^st February, 2017 the Plaintiff’s Lawyer, Felix Kua by affidavit deposed that on the 21^st September, 2016 upon conducting a search at the National Court Registry, Kimbe, no Defence was filed by the Defendant. Again on the 6^th February, 2017, his search at the registry saw similar. Further affidavit on the 21^st February, 2017, the Plaintiffs’ Lawyer deposed that on the 21^st September, 2016 Ken Migalu driver at the Kimbe international school served one Harriet Kelemesi the Writ of Summons. Whose Affidavit of Service was attached as annexure “A” confirming service upon this person. On the 30^th November, 2016, letter was served on the Defendant by the Plaintiff’s Lawyer forewarning to file their defence within 14 days to respond to the Writ which is marked as annexure “B.” Fresh follow up on the 6^th February 2017 still uncovered no Intention to Defend or Defence filed. And up to now would be one year four months and still no Intention to Defend or Defence has been filed by the Defendant.
   
6. Today’s hearing the Defendants, Gasi Kelemesi and Jacinta Kelemesi appeared before me. Both acknowledge receipt of the Writ on the 21^st September, 2016 and the documents relating to these proceedings for default on the 15^th December, 2017. The affidavit dated the 23^rd March, 2017, sworn 23^rd October, 2017, filed the 30^th October, 2017 of Jonny Vogae of Kimbe International School P. O. Box 307 Kimbe confirms. Service in accordance with the rules has been affected upon the defendants as both have appeared in court this morning before me. They are aware of what has been levelled against them and have not sought to file an Intention to Defend or Defence up to now one year four months since and to further delay would be injustice to the plaintiffs as it is a school where the learning of children are depended on the moneys that it makes from the fees it charges. Further it would not be fair to the other parents and children within the school who are paying school fees and no substance has been shown by the Defendant/ Respondent to settle the fees now for one year four months which is more than enough time to so settle. No further reason in law has come before me apparent or identifiable to further delay or sway otherwise than what the Plaintiff prays. The court has before it facts and circumstances which show faithful discharge of the requirements of the rules and practise by the Plaintiff which cannot be said of the Defendants who do not before me deny that they were aware of the proceedings initially when the Writ was served and then the proceedings for default and what is owed but are looking for means to settle that money. Certainly that can be settled in the proceedings later on for assessment of damages and how to settle.
   
7. These facts to my mind established that the Default Notice of Motion was in proper form in accordance with the rules of court. That it had been duly served upon the Defendants. And there is default because there is no Intention to Defend nor is there Defence filed within the time under the rules, Order 12 Rule 32. And there is proof of the service of the Writ of Summons upon the Defendant with the note under Order 4 Rule 9 that the Defendant will suffer judgment or an order on the Writ, Order 12 Rule 34. The time that has been inscribed on the Writ has run without the Defendant living up to what the rules require of him. These can be satisfied and Default Judgement can be awarded: Tima v Korohan [2006] PGNC 21; N3045; Giru v Muta [2005] PGNC 83; (12^th August 2005).
   
8. Default Judgement is not of right but discretionary by reading of the Rules, Order 12 Rule 32. And a number of cases demonstrate this: Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773, where fraud and deceit came out and the interests of justice required that the matter go to trial to prove by evidence application for default Judgement was refused basing on Kunkene v Rangsu [1999] PGNC 80; N1917. Default Judgment was refused because the defence though late when filed was meritous and the matter was given the Court’s discretion to go full trial. In Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001 the statement of claim amounted to abuse of process. A motion for Default Judgement was refused: In Tiaga Bomson v Kerry Hart (2003) N2428, defence was filed outside time but had merit and so application for default judgement was refused with costs.
   
9. Here before me is a case of School fees for the defendant’s children who were in school at the Second Plaintiff, Kimbe International School where the First Plaintiff was the principle to the school. And the fees were for 2015 and 2016 academic year for a total sum of K 13, 848.00. I am satisfied on the balance of probabilities that the discretion of the court should be exercised in favour of the Plaintiff/Applicant that he should be granted Default Judgment against the defendants as applied and I accordingly grant.
   
10. Damages are to be assessed on distress and anxiety including interest arising out of the proceedings at 8%, time and date to be confirmed through the registry.
    
11. Defendant will pay costs of the successful Plaintiff.
    

Orders Accordingly.
__________________________________________________________________

Felix Kua: Lawyer for the Plaintiff/Applicant

No representation for the Defendant