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Waka v Okpul [1998] PGDC 1; DC24 (12 February 1998)

Unreported District Court Decisions

[1998] PNGDC 2 - JAMES WAKA V JONAH OKPUL

[1998] PNGDC 2

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 1630 OF 1996

JAMES WAKA (Applicant/Defendant)

v

JONAH OKPUL (Respondent/Complainant)

Port Moresby

G Manuhu PM

2 February 1998

5 February 1998

12 February 1998

PRACTICE AND PROCEDURE - Application to set aside orders - non-appearance due to misunderstanding as to adjournment date - failure of Applicant to file statement of defence - unsatisfactory management of proceedings - need for good pleadings - application dismissed with costs.

Cases referred to

Pinson v Lloyds Bank Ltd [1941] 2 KB 83

Representation:

Counsel/Representative:

Applicant/Defendant: D. Lora

Respondent/Complainant: J. Poro

Lawyers/Representative:

Applicant/Defendant: AD Lora Lawyers

Respondent/Complainant: Nii & Mirupasi Lawyers

12 February 1998

G MANUHU PM:

N1>[1]      This is an application under s25 of the District Courts Act (Chapter 40) to set aside an ex parte order of 19 December 1997, wherein the Applicant/Defendant (Applicant) was ordered to pay some K6,500.00 to the Respondent/Complainant (Respondent). The onus is upon the Applicant to satisfy the Court, firstly, that there were good reasons for his non-appearance resulting in the ex parte judgment; secondly, that he has a good defence on the merits and, thirdly, that his application has been made promptly.

N1>[2]      It took the Applicant two weeks from the time he learnt of the subject ex parte order on 15 January 1998, to file this application. I do not wish to be critical about the promptness aspect. Two weeks is not unreasonable.

N1>[3]      However, I have a problem with the reasons for the Applicant's absence on 19 December 1997. He stated in his sworn affidavit of 5 February 1998, that due to the Respondent's lawyer falling ill on 17 December the matter was deferred to 7 January 1998. However, this adjournment date does not show on the court's record. It has always been my practice that where there appears to be a misunderstanding between the parties, their lawyers and the presiding magistrate as to the correctness of dates set for mention or hearing of a particular case, the magistrate's notes would be preferred. Consequently, I find that the matter was adjourned from 17 to 19 December 1997 and not 7 January 1998 as claimed by the Applicant. Consequently, if there has been confusion, such is deemed to be of the Applicant's own making.

N1>[4]      Of particular importance, however, is that there are no materials on file pertaining to the Applicant's defence. Despite having engaged the services of a lawyer no Statement of Defence has ever been filed within the two years the case has been pending. I have also searched the supporting affidavits for the various applications to set aside ex parte judgments and none of them (including the affidavit for this application) sets out the Applicant's defence. I am of the opinion, therefore, that the Applicant does not have a defence at all.

N1>[5]      Let it be pointed out, also, that the manner in which this case had been managed is, with respect, totally unsatisfactory. It is a laughing matter. The case is still incomplete after two years and within the said two years effectively four orders on the substantive issue have been set aside. The schedule below explains how the case has taken a long time to finalise.

18.11.96 - Originating process filed.

4.12.97 - Defendant was represented by a Martha Kala.

24.1.97 - Lora appeared for Defendant.

21.2.97 - No record of proceedings.

24.3.97 - Defendant, no appearance.

4.4.97 - Ex parte Order made in favour of Complainant.

16.5.97 - Warrant of Execution.

27.5.97 - Notice of Motion to set aside by Lora; application granted.

20.6.97 - Parties present.

24.6.97 - No record of proceedings

27.6.97 - Application to set aside (already determined on 27.5.97) dismissed when Defendant not appear.

14.8.97 - Application to set aside orders of 4.4.97 and 27.6.97

19.8.97 - Both orders set aside. Parties present.

2.10.97 - Order of 4.4.97 reinstated. Parties present. Amaiu appeared for Defendant.

6.11.97 - Order of 2.10.97 set aside on application of Defendant by D. Lora.

19.12.97 - Ex parte order made after ex parte hearing.

The order of 19.12.97 is the subject of this proceeding.

N1>[6]      This unsatisfactory state of affairs was put before the Court and argued by the parties on 2 October 1997, and, the Court decided in the presence of counsel for both parties, to reinstate the original order. This means that the Applicant should have appealed to the National Court if he was not satisfied with the decision of 2 October. Instead, another application to set aside the "ex parte order of 2.10.97" was instituted successfully by the Applicant. That is how the parties have not seen an end to the case.

N1>[7]      Notice also that no pleadings were filed in relation to the substantive matter. It is my hope that lack of pleadings here is out of the ordinary. Otherwise, it is worth reminding all of us that good pleadings are necessary in the just, quick and cheap disposal of litigation.

"It must be remembered that the function of a pleading is not simply for the benefit of the parties, but also and perhaps primarily for the assistance of the court by defining with precision the area beyond which, without the leave of the court and consequential amendment of the pleadings, the conflict must not be allowed to extend." (Pinson v Lloyds Bank Ltd [1941] 2 KB 72 at 83).

N1>[8]      With due respect, it is the duty of counsel, as officers of the court, to ensure that pleadings are filed in all of their clients' cases. They should not wait for directions and orders from the court to perform their customary role to the courts.

N1>[9]      In all the circumstances discussed, I am not satisfied that I should use my discretion in favour of the Applicant. This application is dismissed with costs.

N1>[10]    Application dismissed with costs.