Trinity Grammar School v Tomai [2019] PGNC 104; N7819 (24 April 2019)

N7819

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No.11 of 2018

BETWEEN:
TRINITY GRAMMAR SCHOOL
Plaintiff

AND:
HENRY BALE TOMAI and ANDREA TOMAI
Defendants

Waigani: David, J
2018 : 15 & 24 April

PRACTICE & PROCEDURE – application for dismissal of proceedings – jurisdiction – standing of plaintiff - relevant considerations – application refused.

Cases Cited:
Papua New Guinea Cases

The State v Peter Painke [1976] PNGLR 210
SCR No.2 of 1981 [1982] PNGLR 150
Uma More v UPNG [1985] PNGLR 401
United States of America v WR Carpenters (Properties) Ltd (1992) PNGLR 185
Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd (1995) SC488
Brinks Incorporated v Brinks Pty Ltd [1997] N1567
Hornibrook NGI Pty Ltd v Lihir Management Company Pty Ltd [1998] N1735
Benedict Pisi v Sam Akotai & Electoral Commission [1998] N1763
Anderson Agiru v Electoral Commission and The State (2002) SC687
William Duma v Yehiura Hriehwazi (2004) N2526
Kerry Lerro v Philip Stagg (2006) N3050
Philip Takori v Simon Yagari (2008) SC905
Telikom PNG Limited v ICCC & Digicel (PNG) Limited (2008) SC906
Kingston v Kingston (2017) N7054

Overseas Cases

Walker v Appleton [1838] NSW Sup C 83
John Lavington Bonython v Commonwealth of Australia (1951) AC 201
Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13; (1982) AC 529
House of Spring Gardens Ltd v Waite (1991) 1 QB 241

Counsel:

Ethel Goina, for the Plaintiff
Jessy Biar, for the Defendants

RULING

24^th April, 2018

1. DAVID, J: INTRODUCTION: This is a ruling on a contested application that was moved by the defendants through their notice of motion filed on 12 April 2019 seeking an order to have these proceedings struck out or dismissed in their entirety for being an abuse of the process of the Court under Order 12 Rule 40(1)(c) of the National Court Rules or alternatively for lack of standing under Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution.
   

EVIDENCE

2. The defendants’ application is supported by the affidavits of:
   
   1. Jessy Biar sworn and filed on 18 March 2019; and
   2. Henry Tomai sworn on 13 July 2018 and filed on 8 August 2018.
      
3. The plaintiff relies on the affidavits of:
   
   1. Carolyn Ila sworn on 22 January 2018 and filed on 23 January 2018;
   2. Sabetha Sawati sworn on 19 June 2018 and filed on 20 June 2018; and
   3. Sabetha Sawati sworn on 11 April 2019 and filed on 12 April 2019.
      

BRIEF BACKGROUND FACTS

4. The defendants, Henry Bale Tomai and Andrea Tomai enrolled their son, Masilo Bale Tomai (Masilo) as a boarder at the plaintiff, Trinity Grammar School, Summer Hill Campus in Sydney, Australia agreeing to pay all school fees and associated charges in connection with his studies (school fees). The total accumulated amount of school fees due and owing by the defendants to the plaintiff for Masilo doing years 10, 11 and 12 was $200,272.66. The defendants have settled $61,309.80 and the amount still due and owing to the plaintiff is $138,962.86.

5. On 17 January 2018, the plaintiff filed a writ of summons endorsed with a statement of claim claiming $138,962.86 or alternatively damages for breach of contract plus interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs of and incidental to the proceedings.

6. The writ of summons was served on the defendants on 22 January 2018.

7. On 12 February 2018, the defendants, through Namani & Associates, filed their notice of intention to defend.

8. The defendants have not filed any defence to date nor have they filed an application to file a defence out of time.

LEGAL ISSUES

9. The main legal issues that I have to consider and decide are:

1. Whether the notice of motion is incompetent?
2. If the answer to the first issue is in the negative, does the plaintiff have standing to bring this action in Papua New Guinea?
3. If the answer to the second issue is in the affirmative, are these proceedings an abuse of the process of the Court?
   

ANALYSIS OF LEGAL ISSUES AND FACTS

Is the notice of motion incompetent?

10. Ms Goina for the plaintiff contends that the defendants’ motion is incompetent as there is no foundation for moving the motion without the defendants having filed a defence in accordance with Order 8 Rule 14 of the National Court Rules pleading specifically the issue of jurisdiction which they allege makes the plaintiff’s claim not maintainable. By failing to file their defence and raising the defence, they are prevented from adducing evidence to support their objection.

11. Order 4 Rule 49(8) of the National Court Rules prescribes what the form of a motion should be. It states:

“All motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.”

12. As to the first relief sought in the motion, the defendants rely on Order 12 Rule 40(1)(c) of the National Court Rules seeking an order to have these proceedings struck out or dismissed in their entirety for being an abuse of the process of the Court as the Court lacks jurisdiction. That is consistent with Order 4 Rule 49(8).

13. As to the second relief sought, the defendants rely on Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution. Order 12 Rule 1 is a general provision of the National Court Rules and does not contain a concise reference to the Court’s jurisdiction to grant the order specifically sought. No objection was taken by counsel for the defendants to rely on the rule. It is settled law that Section 155(4) is not the source of primary jurisdictional power and can only be relied on to protect primary rights of parties where there is a vacuum in law that had to be filled or in the absence of other relevant law. In addition, Section 155(4) confers jurisdiction on the Court to issue facilitative orders in the exercise of its inherent power in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under an enabling legislation: SCR No.2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402. As no objection was taken by the plaintiff as to why reliance should not be had on these provisions, reference to them is sufficient so I would allow the defendants to rely on them. Apart from Order 8 Rule 14, Ms Goina did not make reference to any other rule in the National Court Rules that raises the issue of jurisdiction. In any event, this is a matter that can also be considered in the context of abuse of process.

14. I reject the plaintiff’s submissions. The motion is competent.

Does the plaintiff have standing to sue in Papua New Guinea?

15. The defendants contend that the plaintiff has no standing to institute this action in Papua New Guinea as it is not registered and certified under the Investment Promotion Act nor under the Companies Act or any other legislation in the country to conduct business in Papua New Guinea.

16. I was referred to the National Court decision of Brinks Incorporated v Brinks Pty Ltd [1997] N1567. That was a case where the first plaintiff, Brinks Incorporated, a company registered and based in Connecticut, USA which owned a group of companies throughout the world including the second plaintiff, Brinks Air Courier Australia Pty Ltd which was based in Sydney, Australia commenced a passing-off action involving the use of the name “Brink”, “Brinks” or “Brink’s” against the defendants. All companies within the group used the name “Brinks” or “Brink’s” as part of their corporate name or business name. The plaintiffs carried on the business of transporting valuables such as currency and gold in PNG using a resident sub-contractor, PNG Armoured. The plaintiffs did not obtain incorporation, registration or certification as a foreign enterprise under existing laws of PNG. The second defendant, Barry Tan who at one time was employed by PNG Armoured as its Managing Director and did some work for the second plaintiff, with the financial assistance of the third defendant, Herman Lucas incorporated the first defendant, Brinks Pty Ltd and registered two business names known as “Brink’s Armoured” and “Brinks Security Services” and went into various businesses one of which was similar to that provided by the plaintiffs through PNG Armoured. In the passing-off action, the plaintiffs sought a permanent injunction, an equitable remedy, to stop the defendants from carrying on business using the name “Brink”, “Brinks” or “Brink’s”. The National Court dismissed the action as the plaintiffs were conducting business in PNG illegally without obtaining registration as a foreign enterprise under the Companies Act and certification under the Investment Promotion Act and had not gone to court with clean hands while the defendants had not broken any laws because they had registered their company and business names under the Companies Act and Business Names Act and were entitled to carry on business under their registered corporate or business names.

17. Clearly, Brinks can be distinguished from the present case as the plaintiff here does not conduct business in Papua New Guinea. Given that, the defendants’ contention is misconceived.

18. The capacity to sue is dependent on the procedural laws and the right of action on the substantive laws of the country: United States of America v WR Carpenters (Properties) Ltd (1992) PNGLR 185. The plaintiff’s capacity or standing to sue in Sydney, Australia is not in issue. Rather, it is the plaintiff’s capacity or standing to sue in Papua New Guinea that is being questioned.

19. I was not referred to any Papua New Guinea legislation that specifically prohibits a party to a contract based in a foreign country from suing another party to the contract for breach of contract in an action filed in a court of competent jurisdiction where a party is resident or domiciled as in the present case. Given that, I see no reason why the plaintiff cannot sue the defendants in an action for breach of contract in this Court.

20. I reject the defendants’ submissions. I am satisfied that the plaintiff has standing to sue the defendants in Papua New Guinea.

Are these proceedings an abuse of the process of the Court?

21. The legal principles that apply in relation to applications to dismiss proceedings under Order 12 Rule 40(1) of the National Court Rules are well settled and have been the subject of many decisions in both the Supreme Court and the National Court such as Philip Takori v Simon Yagari (2008) SC905; Telikom PNG Limited v ICCC & Digicel (PNG) Limited (2008) SC906; and Kerry Lerro v Philip Stagg (2006) N3050.

22. These principles are:

“1. Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment seat” in a summary way, “without a Court having considered his right to be heard.” A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.

2. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3. The object of these rules are therefore “to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.” In other words “the object of the rule was to get rid of frivolous actions.”
4. A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.
5. A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.
6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase “cause of action”. First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the “form of action”. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
7. The phrase “cause of action” could thus be defined in terms of a legal right or form of action known to law with:

“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.”

8. A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
10. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is “obviously and almost incontestably bad.” In other words, this discretion can be exercised only in cases that “are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks for.

[11]. [T]he pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O.1, r.7 of the Rules in appropriate cases.”

23. The Court’s power to stay or dismiss proceedings under any of the grounds specified in Order 12 Rule 40 (1) is discretionary and also by its inherent jurisdiction, it has power to protect and safeguard any abuse of its processes.

24. Under Order 12 Rule 40, the Court may stay the proceedings or dismiss the proceedings, either generally or in relation to any claim for relief in the proceedings. Evidence may be received by the Court on the hearing of an application for an order under this rule.

25. In Anderson Agiru v Electoral Commission and The State (2002) SC687, the Supreme Court explained abuse of process in the following terms:

“.... the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits.....

In The State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that:

“mere motive, however reprehensible, will not be sufficient” (to constitute abuse of process) “it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable”.

The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding.”

26. The circumstances in which an abuse of process can arise are very varied: Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13; (1982) AC 529 per Lord Diplock at page 536, House of Spring Gardens Ltd v Waite (1991) 1 QB 241 per Stuart-Smith LJ, The State v Peter Painke [1976] PNGLR 210 at 212 and 213 per O’Leary J and Telikom PNG Limited v ICCC and Digicel PNG Limited.

27. The defendants do not dispute the fact that they enrolled their son, Masilo Bale at the plaintiff school and a contract was entered into between the parties for the plaintiff to provide educational services to their son and in return for the defendants to pay the school fees for the duration of his studies. The amount owing by the defendants to the plaintiff particularised in the statement of claim demonstrates an accumulation of school fees due while Masilo was doing years 10, 11 and 12 and the defendants have been making payments by instalments to reduce the debt which has now been reduced to AUD$138,962.86. One of the defendants, Mr Tomai states that it is not the defendants’ intention to avoid paying the debt, but they prefer paying the debt off either by monthly instalments of K10,000.00 or on availability of funds.

28. The defendants rely on Section 2A(1)(a) of the Interpretation Act 1975. That provision states:

“(1) Subject to subsection (2), it shall be presumed, unless the contrary intention appears that a provision is intended to operate –

(a) Throughout the land territory under the sovereignty of the state.”

29. It is contended by the defendants that this provision prohibits the institution of these proceedings by the plaintiff as the application of the National Court Rules under which these proceedings have been filed do not go beyond the boundaries of Papua New Guinea.

30. It is also contended by the defendants that in cases where a debt or cause of action arises in another jurisdiction, the law to be applied is that that was enunciated in Hornibrook NGI Pty Ltd v Lihir Management Company Pty Ltd [1998] N1735. There, the plaintiff who was in the business of supplying and manufacturing of steel for construction and engineering works amongst its other businesses entered into a contract with the second defendant to manufacture and supply to the second defendant certain goods at the request of the defendants for the ultimate use of the first defendant who managed the construction and operations of the Lihir Gold Mine at Lihir Island to be paid by the second defendant. The parties did not nominate the law applicable to or governing the contract. In opposing the plaintiff’s application for summary judgment under Order 12 Rule 38 of the National Court Rules, the second defendant raised the question of jurisdiction and argued that the laws of New South Wales, Australia governed the contract in dispute on the basis that the documents relative to the contract were posted in Australia and therefore the contract was entered into or made in Australia. In rejecting the second defendant’s argument, Sevua, J in adopting and applying the test propounded in John Lavington Bonython v Commonwealth of Australia (1951) AC 201 (per headnotes) held that:

“In a contract involving a party outside the jurisdiction, where the parties fail to nominate the law governing the contract, the law to be applied is the law of the place where the contract has its closest and the most real connection”.

31. Sevua, J said the lex loci contractus was Papua New Guinea as the transaction or contract between the plaintiff and the second defendant had its closest and most real connexion with Papua New Guinea and accordingly the law of Papua New Guinea governed the contract.

32. There were more factors favouring the plaintiff than the second defendant. The factors that favoured the plaintiff were:

1. The plaintiff was a local company carrying on business in Papua New Guinea.
2. The manufacture and supply of steel works were carried out in Papua New Guinea.
3. The quotations preceding the contract were supplied in Papua New Guinea and they were in Papua New Guinea currency.
4. The goods were delivered to the second defendant and/or its agent within Papua New Guinea.
5. The orders pertaining to the contract were delivered by DHL courier to Papua New Guinea (as opposed to being posted).
6. The amendments to the original orders requested or made by the second defendant were valued in Papua New Guinea currency.
7. The plaintiff’s invoices were all in Papua New Guinea currency
   

33. The only factor that favoured the second defendant was that the second defendant was an Australian company that was located in Australia, but conducted business in Papua New Guinea.

34. Mr Biar also referred me to Walker v Appleton [1838] NSW Sup C 83 a case dealing with interpreting jurisdictional conflicts of law issue relating to a contract where it was held:

“The prevailing opinion of jurists as is said by Burge in his Commentaries on Colonial and Foreign Laws vol. iii. p.767, and which is adopted in the decision of the English, Scotch and American courts, is, that the contract, in respect of the circumstances essential to its validity, and of rights and obligations which result from it, is governed by the law either of the place in which it is made, or of that in which it is to be performed. The place in which it is made is presumed to be that in which it is to be performed, unless the contract expresses that it is to be performed in some other place. Hence, the law of the country in which the contract is made, is that by which it is entirely to be governed, unless its performance is to take place elsewhere.”

35. The cases of Hornibrook NGI Pty Ltd v Lihir Management Company Pty Ltd and Walker v Appleton in my view do not support the defendants’ position, but to the contrary support the plaintiff’s position as:

1. The defendants are Papua New Guineans resident or domiciled in Port Moresby, Papua New Guinea.
2. The debt owed to the plaintiff for outstanding school fees (which is not disputed) is paid from funds remitted from Papua New Guinea.
3. The cause of action arises from the defendants’ actions here in Papua New Guinea, i.e., their failure to pay the outstanding school fees and related charges.
4. The defendant’s companies that pay the school fees and related charges are based in Port Moresby, Papua New Guinea.

36. The plaintiff’s case would be supported by the principle of forum non conveniens: Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd (1995) SC488, Kingston v Kingston (2017) N7054.

37. The factors that favour the defendants are that the plaintiff is a school that is located in Sydney, New South Wales, Australia and the lex loci contractus is Sydney in the absence of evidence showing what the parties nominated as the law applicable to or governing the contract.

38. The defendants’ position is also weak as:

1. they have not complied with Order 7 Rule 7(2) of the National Court Rules to challenge these proceedings on the basis that the Court has no jurisdiction to determine the plaintiff’s claim as their notice of motion was filed more than 14 days after filing their notice of intention to defend on 12 February 2018; and
2. they have not complied with Order 8 Rule 14 of the National Court Rules to show illegality which makes the plaintiff’s claim not maintainable.
   

39. I reject the defendant’s submissions. I, in the exercise of my discretion, am satisfied that these proceedings do not amount to an abuse of the process of the Court.

ADDITONAL REMARKS

40. In their submissions, the defendants object to the plaintiff using the affidavit of Gerard Tikaram sworn on 20 June 2018 and filed on 25 June 2018 in these proceedings. They contend that the affidavit is inadmissible for being irregular, incompetent and an abuse of the process of the Court as; first, there is no evidence to show that it was sworn before a person who is authorised to authenticate or witness the affidavit in Sydney, Australia in accordance with Section 16 of Oaths, Affirmations and Statutory Declarations Act, Chapter 317; and second, given the affidavit is irregular, no leave was sought to use the affidavit under Order 11 Rule 25 of the National Court Rules. In addition, it was contended that the affidavit sworn or made before a person without proof of such a person being authorised to authenticate or witness the affidavit in Sydney, Australia is as good as an unsworn affidavit.

41. Reference was had to Benedict Pisi v Sam Akotai & Electoral Commission [1998] N1763 an election petition case. There, directions were issued by the Court a number of weeks prior to the trial for parties to file and serve on each other affidavits and statements to be relied on at the trial within time limits given. During the course of the trial, the petitioner sought to rely on a number of unsworn and unsigned affidavits obtained from witnesses and not served on the respondents which were objected to by the respondents essentially for being filed contrary to the directions issued. The petitioner then made application for leave to rely on those affidavits. In refusing leave, the Court held that the course sought to be taken by the petitioner to rely on such affidavits would constitute an abuse of the process of the Court and lead to injustice to the respondents.

42. The plaintiff has not relied on the affidavit in question to oppose the defendants’ motion. Hence, the submissions are irrelevant.

43. I would make these brief observations however as they could become useful in future. Evidence is allowed to be given by affidavit in legal proceedings in the country: see Evidence Act, Division 2 (Evidence by affidavit, Sections 33-37) and Order 11 Division 3 (Affidavits, Rules 21-28) National Court Rules. Section 16 of the Oaths, Affirmations and Statutory Declarations Act permits the swearing of affidavits overseas for use in legal proceedings in the country. The deponent must swear or make the affidavit before a person authorized to authenticate or witness the affidavit overseas.

44. Section 16 states:

16. Justices of a State, etc., may take affidavits, etc.

Where by a law an affidavit or statutory declaration—

(a) is required or permitted to be sworn or made before; or

(b) a document is required or permitted to be authenticated or witnessed by, a Commissioner for Oaths, then—

(c) the affidavit or statutory declaration may be sworn or made before; or

(d) the document may be authenticated or witnessed by,

a person authorized to authenticate or witness the affidavit or statutory declaration in another country.

45. When an objection is taken preferably by affidavit stating that the affidavit has not been executed in accordance with Section 16 and the irregularity is reasonably demonstrated, the onus then shifts to the party seeking to use the affidavit, preferably the deponent, to prove by credible affidavit evidence on the balance of probabilities that the person before whom the affidavit was sworn or made was duly authorized to authenticate or witness the affidavit in the country where it was sworn or made. Section 16 is silent as to how it can be proved that a person is authorised to authenticate or witness the affidavit, but it is abundantly clear that it must be a person authorized to authenticate or witness the affidavit in that country.

46. Before whom can an affidavit be sworn or made in Sydney, New South Wales, Australia? Section 26 of the Oaths Act 1900, New South Wales, Australia, provides that in that State, an affidavit may be taken or made before a number of persons having authority to administer an oath such as a justice of the peace of that State or a notary public to name a few. A stamp affixed to the affidavit with the name and signature of the person and title embossed with his registration number where there is a system of registration or a certificate providing a description of the person before whom it was taken or made in or below the jurat duly signed would be useful.

47. Where there is any irregularity as to the form of an affidavit, it may be used with the leave of the Court pursuant to Order 11 Rule 25 (Irregularity) of the National Court Rules. That rule states:

“(1) An affidavit may, unless the Court otherwise orders, be filed notwithstanding any irregularity in form

(2) An affidavit may, with the leave of Court be used notwithstanding any irregularity in form.”

48. As to the substance of an affidavit, it must contain facts to the exclusion of any submission on law and or other arguments or opinions: William Duma v Yehiura Hriehwazi (2004) N2526. Order 11 Rule 28 (Scandal, etc) of the National Court Rules provides that where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the Court may order that the matter be struck out or the affidavit be taken off the file.

ORDER

49. The formal orders of the Court are:

1. The defendants’ notice of motion filed on 12 April 2019 is dismissed.
2. All relief sought by the defendants in their notice of motion filed on 12 April 2019 are refused.
3. The defendants shall pay the plaintiff’s costs of the motion on a party-party basis, which shall, if not agreed, be taxed.
   

___________________________________________________________
Fiocco & Nutley: Lawyers for the Plaintiff

Namani & Associates: Lawyers for the Defendants