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Lakae v Ali [2005] PGDC 48; DC236 (2 August 2005)

DC236

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 778 OF 2003

BETWEEN

Mariano Lakae
Trading As
Mariano Lakae & Associates Valuers
Complainant

V

Robert Ali
President of Police Association
First Defendant

Police Association of Papua New Guinea
Second Defendant

Police Association Super Fund Limited
Third Defendant

Port Moresby: Bidar, Pm
2005: 2nd August.

2nd August 2005.

BIDAR, PM: On the 30th June 2005, complainant through his lawyers filed Notice of Motion which seeks the following Orders:

"1. the ex parte order of this Court dated 7th June 2005 in which the complainants matter was dismissed be set aside.

2. The matter be set for hearing.

3. Defendants meet the costs of this motion.

4. Defendants meet the costs of this motion."

On the 20th March 2003, complainant filed summons upon complaint against the defendants claiming fees for valuation services rendered at the defendant’s request.

On the 13th December 2000, the then Police Association president, Mr. Aloysius Eviaisa verbally instructed the complainant to accompany him to Freeway Motors to meet the owner, Mr. Sam Tasion, which he did. This was to inspect the premises and to assess the market value of the property for purchase by Police Association. He did not raise any invoice then, as the parties ie, Police Association and Freeway Motors were still negotiation for purchase by Police Association.

In July 2002, complainant whilst checking through his records found that there was an outstanding work for which no payment was received. He then wrote to Mr. Eviaisa but learnt that, their office was locked for non payment of rent. About December 2002, complaint learnt that Police Association had an office at Ori lavi House, so he started making enquiries there.

Complainant’s invoice is dated 13th December 2000, the same date he accompanied Mr. Eviaisa to Freeway motors. It is interesting to note, that the complainant had not invoiced the defendants until after 2 years, although the invoice is dated the same day the alleged work was done.

Since the proceedings were filed in March 2003, it had been on foot ever since. On several instances, parties were allowed to attempt out of court settlement. It seemed that there was no success.

On 23rd March 2005 this matter came before me but both parties made no appearances, and the matter was adjourned to 12th April 2005 at 9:30am for mention.

Again on 12th April 2005 both parties made no appearances as well and the case was not listed until 7th June 2005, when Mr. Robert Ali the current President of Police Association appeared for himself and on behalf of other defendants. Complainant or his lawyer did not appear.

Mr. Ali then moved this Court for dismissal of the proceedings for want of prosecution. Court heard Mr. Ali’s verbal application and ruled in favour of the application and dismissed the proceedings with costs.

In support of the Orders sought, the complaint relies on the affidavit of his lawyer, Mr. Nanei sworn on 14th June and filed on 15th June 2005.

The principles in setting aside ex parte Orders or default judgments are well settled in our jurisdiction.

Basically, the principles are that, where an ex parte Order is irregularly entered as a matter of law, it should be set aside. If a judgement or ex parte Order is regularly entered, an application should be made promptly, a reasonable explanation as to why judgement or ex parte Order was allowed to be made and that there is evidence showing defence on merits.

The facts deposed to in the affidavit of Mr. Joseph Nanei, show clearly that, the application was made promptly and reasons advanced as to why ex parte Order was allowed to be made on 7th June 2005 are reasonable. I find that complainant has an arguable case which ought to be tried. In all the circumstances I grant the motion by complainant filed on 15th June 2005.

I order that the ex parte Order made on 7th June 2005 is set aside and the matter of complaint reinstated. I order costs of these proceedings to be costs in the cause.

Rules accordingly

J Nanei: Complainant
A Waviha: Defendant