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Gibson v Kembu [2018] PGNC 17; N7085 (22 January 2018)

N7085

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1038 OF 2016

CRAIG GIBSON PRINCIPLE KIMBE INTERNATIONAL SCHOOL

AND

KIMBE INTERNATIONAL SCHOOL

V

PASTOR JOHN KEMBU

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

No appearance for Defendant

RULING

22^nd January, 2018

1. MIVIRI AJ: The Plaintiff moves 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”). The motion also seeks assessment of damages on distress and anxiety pursuant to Order 12 Rule 38 (2) of the Rules. He also seeks interest at 8% from the date of the commencement of the proceedings pursuant to the judicial proceedings (Interest on debts and damages) Act chapter 52. The latter will be the subject of another proceedings should default be awarded here.
   
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. The Plaintiff has filed this Writ of Summons, (“the Writ”) since the 24^th August 2016 for school fees due for the enrolment of the children of the defendant at his school since 2015 and 2016 in the sum of K 13, 848 which has not been paid as fees outstanding.
   
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 26^th September, 2016 by Richard Korerua, a teacher at the Plaintiff School. Therefore, by Monday 7^th November, 2016, the 30 days expired and there was no Notice of Intention to Defend nor was there defence filed. This is official working days not weekends.
   
5. On the 6^th February, 2017, the Plaintiff’s lawyer Felix Kua, by affidavit deposed that on the 29^th November, 2016, upon conducting a search at the National Court Registry Kimbe, no defence had been 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 26^th September 2016 Richard Korerua a teacher at the Kimbe international school served the Defendant the Writ of Summons. Whose affidavit of service was attached as annexure “A” confirming service upon the Defendant. On the 30^th November 2016 again in the search at the registry similar result as previous indicated that there was neither intention to defend nor a defence been filed. A 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 had been filed by the Defendant.
   
6. Including today’s hearing the defendant has still not appeared in court. He has been appropriately served in person evidenced above. It is 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.
   
7. Richard Korerua swore an affidavit dated 18^th April 2017 filed the 19^th April, 2017. Affidavit of Service attaching the proof of service of the Notice of Motion with the Supporting Affidavit served upon the Defendant on the 21^st March 2017 at Section 10 where the Defendant was resident who acknowledged by his signature the proof of service.
   
8. There is further Affidavit of Service by Jonny Vogae upon the Admin Officer Samson Lucas of the Defendant of the intended hearing on Default Judgement on the 12^th October, 2017, which did not lead to any Intention to Defend or Defence filed.
   
9. 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 Defendant. And there is default because there is no Intent 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.
   
10. These satisfy and default judgment can be awarded, Tima Korohan [2006] PGNC 21; N3045; Giru v Muta [2005] PGNC 83; (12^th August 2005).
    
11. Default Judgement is not of right but discretionary by read 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 application for Default Judgement was refused basing on Kunkene v Rangsu [1999] PGNC 80; N1917 (18^th September 1999). Default Judgment was refused because the defence though late when filed was meritous and the matter was under the Court’s discretion allowed 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 and the motion for default judgement was refused. In Tiaga Bomson v Kerry Hart (2003) N2428, defence was filed outside of time but had merit and so application for default judgement was refused with costs.
    
12. This 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 Judgement against the Defendant as applied and I accordingly grant.
    
13. Damages is 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.
    
14. The cost will follow the event where defendant will pay the costs.
    

Orders Accordingly.
__________________________________________________________________

Felix Kua: Lawyer for the Plaintiff Applicant

No representation for the Defendant