Kapi v Gigmai [2022] PGNC 588; N10144 (21 December 2022)

N10144

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 277 OF 2013

BETWEEN:
GRACE APPA KAPI
Plaintiff

AND:
BILLY GIGMAI
First Defendant

AND:
KUMUL CONSTRUCTION LIMITED
Second Defendant

AND:
O’GIGMAI & ASSOCIATES
Third Defendant

Goroka: Mugugia, AJ
2022: 20^th, 21^st December

JUDGMENTS AND ORDERS - Writ of levy issued – Execution of - Stay of execution sought in Motion – National Court Rules, Order 13, Rule 21 relied on – Inordinate delay in bringing application – Belated application - No appropriate case for stay demonstrated - Motion refused.

Counsel:

Grace Appa Kapi in person
Samson Wambe, for the Defendants

RULING

21^st December, 2022

1. MUGUGIA, AJ: The Defendants apply by Notice of Motion filed on 2^nd December 2022, seeking the following orders:

“1. Pursuant to Order 1, Rule 7 of the National Court Rules, the requirement of service of this application be dispensed with as a matter of urgency.

2. Pursuant to Order 13, Rule 21 of the National Court Rules, and Section 155(4) of the Constitution, the levy on the property issued on 9^th December 2021 be stayed in the interim pending the third Order below.

3. ANZ Bank and BSP Bank to produce bank statements for the First Defendant’s personal account and two company accounts within fourteen (14) days. The details of the accounts are as follow:

a) BILLY ONGUGLO GIGMAI

Account No. 12733897

ANZ Bank

b) KUMUL CONSTRUCTION LIMITED

Account No. 1001419912

BSP Bank

c) O’GIGMAI & ASSOCIATES LIMITED

Account No. 13708713

ANZ Bank

4. Costs of the application be in the cause.

5. Any other Orders this court deems appropriate.”

2. The application was opposed by the Plaintiff who appeared in person at the hearing on 20^th December 2022.

3. In the Defendants’ supporting affidavit, that is, the Affidavit in Support of Billy Gigmai filed on 2^nd December 2022, Mr Gigmai deposes that the Plaintiff filed garnishee proceedings against his personal account and his two companies to enforce the Court Order of 9^th December 2021. He had written a letter to the Plaintiff proposing his offer to settle the whole judgment by way of purchasing a brand new Toyota Landcruiser. Annexure “A” is a copy of the letter.

4. Mr Gigmai gave evidence that he was of the respectful view that the Plaintiff as a friend and person he knew, would accept the offer. However, the Plaintiff refused the offer and instructed her lawyers to file enforcement proceedings.

5. The Defendants’ evidence show that the Plaintiff had admitted in her letter dated 8^th June 2018 that she received a total of K90,000.00 from the garnishee. ANZ Bank was garnisheed around K60,000.00 and the BSP Bank was garnisheed around K30,000.00, a total of K90,000.00.

6. In paragraph 12 of the supporting affidavit, Mr Gigmai deposes to the fact that he has written a letter to ANZ Bank and BSP Bank to produce bank statements for the amount garnisheed so he could verify and ascertain the exact amount owing and the remaining balance to settle. However, to date, the banks have refused to produce such records to him. He deposes that in September of this year, his lawyers did a letter and he delivered that letter to the bank but to date he nor his lawyers have received any response to this letter.

7. Mr Gigmai confirms in his affidavit that he was not aware of the existence of the Court Order of 9^th December 2021 until on or around 19^th September 2022, when the said Order was served by the Sheriff’s office indicating that the Order will be effected some time in December 2022.

8. Order 13, Rule 21 of the National Court Rules state that "the Court may on terms, stay execution of a payment or order". In an application such as this, the Court’s power is discretionary, and an applicant for stay has to show or demonstrate a reason or an appropriate case by evidence to warrant the exercise of discretion in his favour.

9. The issue that arises is whether the Defendants have demonstrated a reason or an appropriate case for stay to be granted.

10. The Court Order was made on 9^th December 2021. Mr Gigmai confirmed in his affidavit that he became aware of this Court Order on or around 19^th September 2022.

11. The Court records show that Mr Charles Mende (lawyer) had appeared in Court on 9^th December 2021 on behalf of the Defendants to receive the ruling. He was well aware of the orders made by the Court on that date. The Defendants’ supporting affidavit did not show what happened or what steps were taken by the Defendants after the Court Order was made.

12. The Defendants’ application for stay was filed close to one year later on 2^nd December 2022, and the actual application for stay was made after one year on 20^th December 2022. There was an inordinate delay by the Defendants in making their application. Mr Wambe of Counsel for the Defendants who made the application on behalf of his clients was asked by the Court to explain the reason for the delay. The Court was not ably assisted with submissions from Counsel. The Defendants failed to provide a credible explanation for the delay. This is a belated application. This does not favour the Defendants.

13. Have the Defendants demonstrated a reason or an appropriate case for stay to be granted? I answer this question in the negative.

14. Annexure “C” in the Defendants’ supporting affidavit, is the Defendants’ lawyers’ letter dated 29^th September 2022 to BSP Bank and Westpac Bank requesting for production of their clients’ bank statements. I noted that Westpac Bank is not stated in the Defendants’ Notice of Motion filed on 2^nd December 2022. There is no evidence to confirm that the responsible banks did actually receive the letters from the Defendants’ lawyers. There is also no evidence before the Court to show why the statements have been withheld by the responsible banks. I am left to guess why the banks refused to produce the bank statements.
15. Having considered the affidavit in support of the application for stay, I find that no appropriate case for stay was demonstrated by the Defendants’ evidence to warrant the exercise of discretion in their favour. For this reason, and because the Defendants’ application is a belated one, I will not make the orders sought by them. I shall refuse their Notice of Motion.

FORMAL ORDERS

16. The formal orders of the Court are:
1. The Defendants’ Notice of Motion is refused.

2. The Defendants shall pay the costs of the Plaintiff, which are to be taxed if not agreed.

3. Time is abridged to the date of entry of these orders.

The Court orders accordingly.
________________________________________________________________
Samson Wambe: Lawyer for the Defendants