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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 238 OF 2021
BETWEEN:
REX YOMBAI
Plaintiff
AND:
MARTHA ANTON
Defendant
Goroka: Mugugia, AJ
2021: 24th, 30th September
PRACTICE AND PROCEDURE – application for default judgment - failure to file defence - National Court Rules, Order 12, Rule 25(b)
relied on – whether default judgment should be entered against the Defendant – considerations – default judgment
entered against the defendant.
Cases Cited:
Bank South Pacific Ltd v Tingke (2012) N4901
Giru v. Muta (2005) N2877
Kitipa v. Auali & Others (1998) N1773
Counsel:
G. Appa, for the Plaintiff
M. Yawip, for the Defendant
RULING
30th September, 2021
1. MUGUGIA, AJ: The matter returned before me on 24 September 2021 for the hearing of these two (2) motions:
1. Plaintiff’s motion filed on 1 September 2021 for default judgment against the Defendant; and
2. Defendant’s motion filed on 21 September 2021 seeking leave to file a defence out of time, and alternatively, for the proceedings to be dismissed pursuant to Section 16(1)(a) of the Frauds and Limitations Act for being statute barred. This motion was set for hearing on 24 September 2021. It was short served on the Plaintiff’s lawyer in the afternoon of the day before the hearing. The Plaintiff’s lawyer took issue with short service of the motion, and both the parties’ lawyers agreed that the Defendant’s motion be adjourned to another date.
2. The Plaintiff’s lawyer proceeded with her client’s application for default judgment. The Defendant’s lawyer opposed the application. I have considered the materials before me, and the parties’ submissions on the Plaintiff’s application for default judgment.
This is my ruling.
BACKGROUND
3. The Plaintiff was employed by the Kundiawa-Gembogl District Office as a security officer since 1997. He resigned in 2002. When
he resigned in 2002, he was paid his final entitlements in the sum of K15,0000.00. The Plaintiff alleges that the Defendant told
him to deposit his K15,000.00 into her Interest Bearing Deposit (IBD) account with the Bank of South Pacific Ltd. The Plaintiff agreed
to have the K15,000.00 deposited into the Defendant’s IBD account to generate interest over time. Among other promises made
to the Plaintiff, the Defendant promised to build a new house for the Plaintiff. In 2014, the Defendant started her own business.
The Plaintiff claims that the Defendant did not update him of his money which was deposited into her IBD account.
4. In his statement of claim endorsed to the writ filed on 9 June 2021, the Plaintiff sets out his claim, and pleads particulars of
the oral agreement, particulars of breach, particulars of unfair dealings, particulars of monetary loss, and particulars of hardship
and emotional distress. He claims the following relief in his Prayer for Relief:
“1. K15,000.00 principal amount with accumulated interest
2. General damages.
3. Special damages.
4. Interest at 8% per annum.
5. Costs.
6. Other orders the Court deems fit and proper.”
MOTION
5. The Plaintiff’s notice of motion for default judgment filed on 1 September 2021 sought the following relief:
“1. Pursuant to Order 12 Rule 25 and Rule 28 of the National Court Rules, that default judgment be entered against the Defendant
for damages to be assessed.
2. Costs to be against the Defendant.
3. Any further orders that the Court sees fit.
6. The Plaintiff’s lawyer sought leave to rely on Order 12 Rule 25(b) of the National Court Rules, and to abandon Rule 28. Leave was granted by the Court.
ISSUE
7. The issue for determination is whether default judgment should be entered against the Defendant.
SOURCE
8. The source stated in the Plaintiff’s motion is Order 12 Rule 25(b) of the National Court Rules. Order 12 Rule 25(b) reads and I quote:
“25. Default.
A defendant shall be in default for the purposes of this Division—
......
(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
PARTIES’ SUBMISSIONS
For the Plaintiff
9. The Plaintiff’s lawyer referred to her client’s affidavit in support of the motion (Affidavit in Support of Cecelia
Yombai filed on 1 September 2021), and made these submissions in support of her client’s application:
For the Defendant
10. The Defendant’s lawyer referred to the case of Giru v. Muta (2005) N2877, which set out the 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.
11. The Defendant’s lawyer conceded that his client was in default. He then made these submissions:
Reference was made to the case of Kante Mininga. v. The State & Dr Scotty Maclfish (1996) N1458.
1. The effect of the default judgment would prejudice the rights of other co-defendants, or
2. The pleadings are so vague or do not disclose a reasonable cause of action; or
3. The default judgment cannot be sustained in law”
Reference was made to the case of Bela Kitipa v. Vincent Auali & 3 Others (1998) N1773.
Reference was made to the case of Gregory Tavatune v. State & Others, N4611.
Reference was made to the case of Karl Paul v. Arua Kipsi N2085.
12. In her response to the Defendant’s lawyer’s submissions on the issue of the claim being statute barred, the Plaintiff’s lawyer submitted that the Defendant has to have a defence on foot before raising the issue of time limitation.
CONSIDERATION
13. This is a case where the Defendant is in default because she was required to file a defence, and the time for her to file her defence had expired but she had not filed her defence. The basis on which the application was made is on account of her default under Order 12 Rule 25(b) of the National Court Rules. The Plaintiff’s lawyer had sought leave to rely on Order 12 Rule 25(b) of the National Court Rules, and to abandon Rule 28. Leave had been granted by the Court.
14. I have considered the case of Bank South Pacific Ltd v Tingke (2012) N4901, wherein, relevant factors were set out by Kandakasi J (as he then was). His Honour stated at paragraph 6 of his decision, and I quote:
“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.”
15. I have also considered Cannings J’s ruling in Giru v. Muta (2005) N1987, where he set out the six (6) preconditions on entry of default judgment. These items on the check-list include ‘Proper form’,
‘Service of notice of motion and affidavits’, ‘Default’, ‘Warning’, ‘Proof of service of
writ’ and ‘Proof of default’. His Honour 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. Entry of default judgment is
a matter for the discretion of the court.
16. I adopt the statements made by these learned judges, and the principles enunciated in the cases.
17. In Kitipa v. Auali & Others (1998) N1773, Injia J (as he then was) held that Order 12 Rule 34 gives the court a discretion in ordering a default judgment. His Honour held
that a default judgment may still not be entered even where a proof of the due service of the writ has been given where the effect
of default judgment would prejudice the rights of the other co-defendants, or that the pleadings are so vague or do not disclose
a reasonable cause of action or that the default judgment cannot be sustained in law.
18. In the present case, the 6 items on the check-list have been satisfied by the Plaintiff. I uphold the Plaintiff’s submissions. I find that:
1. The Plaintiff’s motion was supported by an affidavit of Cecelia Yombai filed on 1 September 2021, deposing to the Defendant’s default. I am of the view that the notice of motion for default judgment is in the proper form. It is supported by affidavit.
2. Both the motion and affidavit in support were served on the Defendant on 6 September 2021. Cecelia Yombai’s Affidavit of Service filed on 7 September 2021 confirms service.
3. The Defendant is in default because no notice of intention to defend and defence were filed.
4. No notice of intention to defend was filed by the Defendant. Despite this, the Plaintiff’s lawyers put the Defendant on notice. The Plaintiff’s affidavit in support of the motion shows that a letter dated 2 August 2021 from the Public Solicitor’s office, and an Affidavit of Search dated 2 August 2021 and filed on 3 August 2021 were served on the Defendant on 4 August 2021. The Affidavit of Service of Sergeant Biku Bubu filed on 10 August 2021 confirms service.
5. The Plaintiff’s Writ of Summons was served on the Defendant on 17 June 2021. The Affidavit of Service of Oket Diru filed on 28 June 2021 confirms service. The Plaintiff has done what is required under Order 12, Rule 34(a) of the National Court Rules.
6. The Defendant did not file a notice of intention to defend or defence within the required time. The date by which the Defendant should have filed and served a defence which is forty four (44) days after the date of service of the writ was Saturday 17 July 2021. A defence should have been filed by Monday 19 July 2021 since 17 July 2021 fell on a weekend. The Affidavit in Support of Cecelia Yombai filed on 1 September 2021 proves the default upon which the Plaintiff relies.
19. I find that the pleadings in the Plaintiff’s statement of claim are clear. They disclose a reasonable cause of action.
20. On 10 September 2021, the Defendant’s lawyer had advised the Court that on the hearing date, that is, 24 September 2021,
he will be opposing the application for default judgment as the claim is statute barred. The Court ordered him to file an affidavit
in response to the Plaintiff’s affidavit in support of the default judgment application within seven days. This, he did not
do so. On the hearing date of the Plaintiff’s application for default judgment, he handed up submissions to the Court, and
labored on the issue of the Plaintiff’s claim being statute barred, and that the claim should be dismissed. I do not accept
his submissions for these reasons:
1. The Plaintiff’s motion for default judgment was for hearing before me on 24 September 2021. The Defendant’s motion filed on 21 September 2021 seeking an order in the alternative for the proceedings to be dismissed pursuant to Section 16(1)(a) of the Frauds and Limitations Act for being statute barred was not formally before me for hearing.
The issue was whether default judgment should be entered against the Defendant, not whether the Plaintiff’s claim is statute barred, and should be dismissed; and
2. Submissions were made from the bar table without any evidentiary material in support. The Defendant had not filed a formal defence in Court. Her lawyer failed to put any evidence before the Court showing that there is any defence to this claim. If the Defendant wished to raise a defence under Section 16(1)((a) of the Frauds and Limitations Act, she should have shown that by placing a proposed defence before the Court, annexing it to a responding affidavit. This was not done by her lawyer.
The Court cannot speculate what defence the Defendant may have, and failure to provide evidence precludes the Defendant from raising a matter of illegality (i.e, failure to comply with the Frauds and Limitations Act), in the absence of an affidavit from the Defendant deposing to the existence of a proposed defence.
21. In response to the Defendant’s submissions on the claim being statute barred, the Plaintiff’s lawyer submitted that the Defendant has to have a defence on foot before raising the issue of time limitation. The question is, “Can the Defendant raise the issue of the claim being statute barred without having filed a defence?” I answer this question in the negative.
22. In a defence or subsequent pleading, Order 8 rule 14 of the National Court Rules requires the party pleading to plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality which he alleges makes any claim, defence or other case of the opposite party not maintainable.
23. The pleadings in the defence drive the evidence that needs to be adduced, and form the foundation for grant of the reliefs sought if a defendant seeks dismissal of a plaintiff’s claim.
CONCLUSION
24. The Defendant has clearly defaulted. I am convinced that I should exercise my discretion and grant default judgment in favour
of the Plaintiff against the Defendant.
FORMAL ORDERS
25. I make the following orders:
1. Pursuant to Order 12 Rule 25(b) of the National Court Rules, default judgment is hereby entered against the Defendant, with damages to be assessed.
2. Costs is awarded against the Defendant.
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.
_______________________________________________________________
G. Appa: Lawyer for the Plaintiff
M. Yawip: Lawyer for the Defendant
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