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Keimali v Wakila [2005] PGDC 17; DC138 (10 March 2005)

DC138

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 3304 OF 2004

BETWEEN

BEN KEIMALI

Complainant

AND

ANTON WAKILA
Defendant

Port Moresby: M Gauli
2005: 10 March

Counsel

The Complainant, In Person
The Defendant, Mr. Kume

Cause of Action

Notice of Motion by the defendant seeking orders to set aside the Ex parte Order obtained by the complainant, pursuant to S.25 of the District Courts Act.

Courts Ruling on the Notice of Motion

The defendant applied to this Court to set aside the Ex parte Order of the Court dated 28th December 2004.

The law applicable to set aside the Ex parte Orders is s.25 of the District Courts Act and principles laid down in the case of Green v Green [1976] PNGLR 73. The principles laid down by this case law are that:

1. There must be an affidavit stating facts showing a defence on merit.
   
2. There must be a reasonable explanation why judgment was allowed to go by default.
   
3. The application must be made promptly and within a reasonable time.
   

I will discuss these principles in reverse order as I related them to this application.

Firstly was this application made promptly and within a reasonable time? The ex parte orders were made on the 28th December 2004. The application to set aside that order was filed in Court on the 17th January 2005 that is within less than a month. I answer the question. Yes the application was made promptly and within a reasonable time.

Secondly, did the applicant give a reasonable explanation why the judgment was allowed to go by default? The applicant in his affidavit said that he was never served with the summons until he was served with Court Order on 8th January 2005. The respondent said he was served the Summons on 12th August 2004 but he never showed up in Court resulting in the Ex parte Order being obtained.

The Summons was returnable on 23rd August 2004. None of the parties appeared in Court that day. The Court however adjourned the case to 14th September 2004. Summons was served on the defendant on 12th August 2004. The case was not brought before the Court on the 14th September 2004 until 28th September 2004. The complainant and the defence counsel Mr. Kume appeared in Court. Since then there had been no appearance by the defendant or his counsel until 28th December 2004 when the complainant obtained the Ex parte Order.

The defendant being represented by a lawyer on the 28th September 2004 is a proof indicating that the defendant was being served with the summons on the 12th August 2004. The defendant never stated in his affidavit that he never engaged Mr. Kume as his lawyer. I am satisfied the defendant has engaged a lawyer of his choice who appeared on his behalf on 28th September. No reasons given why the lawyer was not appearing for him from there after.

The defendant has lied in his sworn affidavit in saying that he was never served with the summons. Both the defendant and his legal representative have completely ignored the case been proceeded before the Court.

I am not satisfied by the reasons given by the defendant. I find that the defendant's explanation is quite unreasonable.

Thirdly whether the defendant has a defence on merit. The defendant in his affidavit in support of the motion seems to claim in paragraph (14) that he has a good defence on merit. He said no notice was given to him that the matter would proceed ex parte. I noted on the files that on 6th December 2004 I adjourned the case to 15th December for ex parte hearing and the clerk of court to issue a Notice of Hearing. No such notice was issued. I accept the defendant's contention in that respect.

The defendant in paragraph (14) c of his affidavit state that the complainant's residential gate was locked and the complainant was armed with a pistol who fire several shots at the people who were outside his residence. This clearly indicates that the defendant was present at the complainant's premises at the time the incident occurred.

The complainant in his affidavit stated that there was a crowd outside his gate including the defendant. They were shouting abusive words and throwing missiles at the complainant and his property. And as a result of the missiles been thrown, the complainant suffered damages to his property especially his vehicle; solar panel and he suffered injuries to his person. The people who threw the missiles have not been stated. Also the damaged windscreen valued K2, 315.83 was only purchased for K600.00 further cost of K165.00 to refit the windscreen the total in all is K765.00. In considering all these, I find that the defendant has a defence on merit.

This Court therefore grants the defendant's application and I set aside the ex parte order dated 28th December 2004.

Ordered accordingly.

In Person: Complainant
Mr Kume: Defendant