Yassah v Ambrose [2022] PGNC 287; N9696 (24 June 2022)

N9696

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 986 OF 2020

BETWEEN:
TOGU YASSAH
Plaintiff

AND:
PROBATIONARY CONSTABLE WILLIE AMBROSE JUNIOR, CHIEF INSPECTOR TONY SEVESE & ELIZABETH AMBROSE
First Defendants

AND:
DAVID MANNING, MBE, QPM, DPS, Commissioner of Police
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Goroka: Mugugia, AJ
2022: 23^rd & 24^th June

PRACTICE AND PROCEDURE – Plaintiff’s application for default judgment against the Defendants for failure to file a defence - National Court Rules, Order 12, Rule 25(a), Rule 25(b), Rule 31 and Rule 32(1) - Whether default judgment should be entered against the Defendants – Considerations – Exercise of discretion - Default judgment entered against the Second and Third Defendants.

Cases Cited:

Bank South Pacific Ltd. v. Tingke (2012) N4901
Giru v. Muta (2005) N2877

Counsel:

K. Lafanama, for the Plaintiff
No appearance for the Defendants

RULING

24^th June, 2022

1. MUGUGIA, AJ: The Plaintiff claims to be a victim of an alleged unlawful assault occasioned by Constable Willie Ambrose Junior on 27 February 2016 in Goroka. The Plaintiff sustained serious facial injuries to his face. He instituted his Court proceeding on 14 December 2020, naming Constable Willie Ambrose as one of the Defendants. The matter has been on foot since 2020. The Defendants defaulted in filing their defence within the required time. The Plaintiff is now before me with his application for default judgment after the Defendants’ application to file defence out of time was refused by this Court on 13 April 2022.

2. Counsel for the Plaintiff, Ms Karen Lafanama moved on her client’s motion filed on 6 April 2022, seeking judgment to be entered in favour of her client with damages to be assessed pursuant to Order 12, Rule 25(a), Rule 25(b), Rule 31 and Rule 32(1) of the National Court Rules. Despite being given adequate notice of the hearing date, no lawyer from the Office of the Solicitor General appeared in Court for the Defendants. I heard the Plaintiff’s default judgment application ex-parte on 23 June 2022, and reserved my ruling to the next day, which I now deliver.

3. The issue for determination is whether default judgment should be entered against the Defendants.

4. In making her client’s application, Ms Lafanama relied on the following affidavits:

i) Affidavit in Support of Togu Yassah filed on 6 April 2022;

ii) Affidavit of Search of Karen Lafanama filed on 6 April 2022;

iii) Affidavit of Service of Karen Lafanama filed on 7 April 2022;

iv) Affidavit of Service of Steven Mokai filed on 8 March 2021; and

v) Affidavit of Recent Search of Karen Lafanama filed on 30 May 2022.

5. At the hearing, Ms Lafanama took the Court through her written extract of submissions which were filed on 17 June 2022. The relevant cases relied on were Tzen Pacific Limited v. Puana (2011) N4528, Giru v. Muta (2005) N2877, and Bank South Pacific Ltd. v Tingke (2012) N4901.

6. The Plaintiff’s submission is that given the separate heads of damages (both liquidated and unliquidated which are mixed claims), the jurisdictional basis relied on in the motion is correct. Reference was made to the case of Tzen Pacific Limited v. Puana (2011) N4528, where Order 12, Rules 31 and 32 of the National Court Rules were relied on. Ms Lafanama’s submissions covered the two legs of formalities for default judgment to be entered which were set out in Bank South Pacific Ltd. v Tingke (2012) N4901.

7. She also highlighted the six (6) pre-conditions to satisfy in order for default judgment to be entered. These pre-conditions were set out by Cannings J in Giru v. Muta (2005) N2877.

8. In applying the 6 pre-conditions to the present case, Ms Lafanama submitted as follows:

• The Plaintiff’s motion is in its correct form.
• The Affidavit of Service filed on 7 April 2022 confirms service of the application and relevant supporting affidavits on the Legal Secretary of the Office of the Solicitor General.
• The State is in default of filing a defence. The documents were served on the Second and Third Defendants on 2 March 2021. The Office of the Solicitor General filed a notice of intention to defend on behalf of all the Defendants on 22 March 2021, but failed to file a defence by 6 July 2021.
• The Plaintiff did not forewarn the Defendants at the time running of the State’s failure in filing its defence, and that default would arise by 6 July 2021. The Plaintiff did not forewarn the Defendants of the default judgment application.
• The writ of summons was served on the Second and Third Defendants on 2 March 2021. The Affidavit of Service filed on 8 March 2021 confirms service.
• The Plaintiff has filed three (3) affidavits confirming the Defendants’ default. These affidavits are the Affidavit of Search of Karen Lafanama filed on 6 April 2022, the Affidavit in Support of Togu Yassah filed on 6 April 2022, and the Affidavit of Recent Search of Karen Lafanama filed on 30 May 2022.
  

9. This appears to be a straight forward application for default judgment because there is obviously a clear default by the Second and Third Defendants. I will first set out the law. I will then apply the law to the facts in this particular case, and then present my findings.

10. In Bank South Pacific Ltd. v. Tingke (2012) N4901, Kandakasi J (as he then was) stated, and I quote:

“6. Whether default judgment should be entered is dependent on the following factors of whether or not:

(a) the writ of summons with a statement of claim endorsed thereto has been duly served on the defendant; and

(b) the time period for filing of the defendant's defence has expired; and

(c) the defendant has not filed and served his or her defence; and

(d) a search of the court file has been carried out at the expiry of the deadline for the filing of the defence which has revealed no defence being filed; and

(e) the plaintiff has forewarned the defendant of the plaintiff's intention to apply for default judgment where a notice of intention to defend has been filed; and

(f) the defendant has not filed and served his or her defence.”

11. The case of Giru v. Muta (2005) N2877 sets out six pre-conditions that should be considered in an application for default judgment. These pre-conditions are:

1. Proper form
2. Service of notice of motion and affidavits
3. Default
4. Warning
5. Proof of service of writ
6. Proof of default

12. In this case, Cannings J held that if all items on the checklist are satisfied, the matter is ripe for entry of default judgment. However, a plaintiff is not entitled to default judgment as of right. The court still has a discretion to exercise (Order 12, Rule 32 of the National Court Rules). Entry of default judgment is a matter for the discretion of the Court.
13. I adopt the statements made by the learned judges in the two cases referred to above, and the principles enunciated in the cases, and apply them in this particular case.

14. In the present case, I find that:

(1) Proper form

The Plaintiff’s motion for default judgment is in the proper form. The Second and Third Defendants are in default of Order 12, Rule 25(b) for failing to file their defence. Order 12, Rule 31 applies since the Plaintiff's claim for relief against the Second and Third Defendants who are in default includes “Mixed claims”. Order 12, Rule 32 gives the Court wide discretion to enter default judgment.
The Plaintiff’s motion for default judgment is supported by the Affidavit in Support of Togu Yassah filed on 6 April 2022, which sets out the evidence in support of the order for default judgment sought in the motion.

(2) Service of notice of motion and affidavits

Both the motion and affidavit in support were served on 6 March 2022. The Affidavit of Service of Karen Lafanama filed on 7 April 2022 confirms service of the Plaintiff’s Notice of Motion, the Affidavit in Support of Togu Yassah, and the Affidavit of Search of Karen Lafanama all filed on 6 April 2022 on the Office of the Solicitor General’s Legal Secretary one Agnes Thomas.

(3) Default

Search of the court file have been carried out by the Plaintiff on three occasions. The Affidavit of Search of Karen Lafanama filed on 6 April 2022 confirms the Court File Search done by Ms Lafanama on 27 February 2022, and 4 April 2022. Her Affidavit of Recent Search filed on 30 May 2022 confirms her search done on 30 May 2022. The Court file search revealed that the Second and Third Defendants did not file their defence. They are clearly in default because of non compliance with Order 12, Rule 25(b) of the National Court Rules.

(4) Warning
The plaintiff must forewarn the defendant of his/her intention to apply for default judgment where a notice of intention to defend has been filed. In the present case, Ms Lafanama submitted that the Plaintiff did not forewarn the Defendants at the time running of the State’s failure in filing its defence, and that default would arise by 6 July 2021. The Plaintiff did not forewarn the Defendants of the default judgment application.
I am of the view that despite the fact that the Plaintiff did not provide a forewarning letter, he should not be precluded from obtaining relief to which he is entitled to under the National Court Rules because the Second and Third Defendants are clearly in default. The Defendants attempted to cure that default with their application to file defence out of time but the application was refused by this Court on 13 April 2022. They were unsuccessful in their attempt to cure that default.

5) Proof of service of writ

The Affidavit of Service of Steven Mokai filed on 8 March 2021 confirms service of the writ of summons on the Second and Third Defendants only.

Order 12, Rule 34 of the National Court Rules relates to the need for proper evidence to prove service. Order 12, Rule 34(a) states:

“Judgement shall not be entered against a Defendant under this Division unless an affidavit is filed by or on behalf of the plaintiff providing due service of the writ of summons or notice of the writ on the defendant.”

This rule is in mandatory terms. Personal service of a writ must be strictly proved if default judgment is to follow.

In the present case, the Office of the Solicitor General filed notice of intention to defend on behalf of all the named Defendants on 22 March 2021. No affidavit of service has been filed by or on behalf of the Plaintiff providing due service of the writ of summons filed on 14 December 2020 on any of the First Defendants. The only affidavit of service filed in Court, that is, the Affidavit of Service of Steven Mokai filed on 8 March 2021 confirms service of the writ of summons on the Second and Third Defendants. As it is, there is no proof of service of the writ of summons on any of the First Defendants. The Plaintiff has not done what is required under Order 12, Rule 34(a) of the National Court Rules which are in mandatory terms. As such, default judgment cannot be entered against the First Defendants.

6) Proof of default

The time period for filing of the Second and Third Defendants’ defence had expired, and the Office of the Solicitor General did not file their clients’ defence within the required time. The affidavits relied on by Ms Lafanama, specifically, the Affidavit of Search of Karen Lafanama filed on 6 April 2022, the Affidavit in Support of Togu Yassah filed on 6 April 2022, and the Affidavit of Recent Search of Karen Lafanama filed on 30 May 2022 show proof of default.

15. This is a case where the Second and Third Defendants are in default because they were required to file a defence, and the time for them to file had expired but they had not filed their defence. The basis on which the application was made is on account of the Second and Third Defendants’ default under Order 12, Rule 25(b) of the National Court Rules. The Second and Third Defendants have clearly defaulted.

16. I am convinced that the Plaintiff has made out a case for default judgment to be entered against the Second and Third Defendants for failure to file their defence. Entry of default judgment is a matter for the discretion of the Court. I exercise my discretion in this case and enter default judgment against the Second and Third Defendants.

FORMAL ORDERS:

17. I make the following orders:

1. Default judgment is entered against the Second and Third Defendants, with damages to be assessed.

2. The Third Defendant (the State) shall pay the Plaintiff’s costs.

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
K. Lafanama: Lawyer for the Plaintiff