DC865

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CIR 160 of 2009

BETWEEN

AGNELLA SAROYA
Complainant

AND

CATHY NAWAK
Defendant

Aitape: M Samala
2009: 16 March

Practice and Procedure – District Courts Act section 25, Application to set aside ex parte order, Application made after two months on expiry of unsatisfied order, Application refused and dismissed, No defence on merits, No reasons offered why ex parte orders should not be made, Application very unreasonable not made within time.

Cases Cited:

1. Juan Jeffrey vs Siapu Yapo [1999] PNGLR 89
2. Green & Company Pty Ltd vs Green [1976] PNGLR 73

Counsel:

Applicant - Nil appearance
Cathy Nawak – In person

REASON FOR DECISION

16 March 2009

M Samala: This is an application under section 25 of the District Courts Act filed by Applicant seeking to have ex parte orders of the District Court on defamatory judgment against her made two months ago 21 January 2009 pursuant to section 43 of the said Act be set aside. Applicant a villager and respondent is the District Court Clerk currently living in de facto relationship with former husband of applicant in customary marriage that occurred some 18 to 19 years ago. Applicant/Defendant is from Sissano Village while Respondent/Complainant is from Wasara District in East Sepik Province.

2. FACTS:

The original complaint was over defamation claim in the sum for K3, 000.00. The applicant was summoned allegedly by respondent for maliciously spreading untrue and false stories demeaning her character and profession as Clerk of Court to Wipom and Sissano Villagers some time before and on 8 November 2008 during Village Court sitting there that respondent used to gossip about her and further abused her position as Clerk of District Court Aitape preventing her from receiving her deserted wife and child maintenance money here at Aitape Court. The Village Court hearing on 8 November 2008 was between applicant and her sister in-law namely Margaret Saroya over a fight they had where applicant fought Margaret in support of Margaret’s husband Paul, applicant’s brother committing adultery and the all statements made against the Court clerk was out of jealousy against Respondent living with her former husband. 

3. The matter of complaint on defamation came for first mention on 02 December 2008 where all parties appeared, applicant denied liability stating she never said such and there the matter was adjourned for trial on 21 January 2009 on parties consent as Christmas and early January 2009 be busy period and they wanted middle of January to be suitable time convenient for all to return for trial.

4. On 21 January 2009 complainant is present with her two (2) independent witnesses namely Margaret Saroya immediate sister in-law of applicant and Baltazar Kasmir a Village Court official of Sissano Village while applicant never appeared. The matter proceeded exparte considering cost of witnesses coming from Sissano Village some one and half hours boat ride out of Aitape and on application by complainant. The complainant and her two (2) independent witnesses gave sworn corroborative statements. Having heard and weighed all their evidences, I find defendant/applicant has a real case of malice and deceit against her, proof that she became so jealous of Complainant and said bad things against her for reasons she still is claiming right of marriage over her former husband satisfying proof of defamation complained of. 

5. Evidently, she was said by witnesses to be telling people there the Complainant as Clerk of Court is not doing her work properly but is cheating, continuously living in adulterous life by stealing her husband and preventing her from receiving her maintenance, when in fact, she has no maintenance file in Aitape for complainant as Clerk of Court to abuse her position preventing her from receiving Deserted Wife and child Maintenance monies in what she been publicly telling the people of Sissano and the Village Court about. The Court ordered that she pays a sum of K1, 000.00 in compensation within two (2) months in default warrant of Execution to be issued and that payment to be completed by 17 March 2009.

6. CONSIDERATION ON THE APPLICATION:

The applicant again is not present today to move court and prosecute the application filed on last Thursday for hearing today 16 March 2009 Monday as her application was prepared in Vanimo and she took it here for filing only last Thursday. In her sworn Affidavit dated 5 March 2009 sealed and signed at Vanimo District Court she raised seven (7) grounds as basis of her defence to set aside the exparte orders of 21 January 2009. The defences are that:

1. The Court Order DC NO: 160/2008 dated 21 January 2009 by Aitape District Court….
Is all biased and there is nepotism by presiding Magistrate (Malcolm Samala).

2. The Court Order…. Was done without my physical presence at the Court house in Aitape.

3. There is evidence of nepotism as Cathy Nawak is false name……she is Catherine Kamokaba….works with presiding Magistrate……., this is an injustice to me.

4. There is conspiracy between the Magistrate and the Clerk of Court.

5. I have been victimized and suppressed by Cathy Nawak…when rightfully I am Agnella Ainep a legal wife of John Ainep an Executive Officer to Aitape West LLG….Court Clerk…..continuously committing adultery with and living illegally with….

6. I therefore, ask honorable Court to set aside ex parte order.

7. I pray to the Honorable Court that the presiding Magistrate withdrew from hearing this case.

7. I also note from the application a Memo by Vanimo District Court Clerk dated 10 March 2009 that applicant approached the Court there and SPM has advised Court here to accept the application but to disqualify and allow another independent Magistrate to sit on the matter.

8. Firstly, on issue on advice to disqualify myself, I need to say that I have no interest in this case to amount to conflict of interest to disqualify myself when this is a straight forward judicial matter any Court could deal with entering default judgment or ex parte orders after defendant party given fair opportunity to appear for trial and defend oneself but had failed to appear as what this Court did on 21 January 2009 and had proceeded ex parte. As such, I object to the advice and exercise my judicial independence to decide independently on the application whether to grant or refuse the application on basis of it merits according to law in setting aside ex parte judgments then to simply disqualify and not enforcing the unsatisfied judgment of this Court regardless of what applicant say as justice delayed is justice undone.

9. For the benefit of applicant and others, Court is guided by proper principles in setting aside all District Court orders on judgments entered in default or ex parte and these three principles are:

1. Affidavit of the applicant must state facts showing the defence on merits, 

2. There must be a reasonable explanation why judgment must not be allowed to go by default/ex parte and 

3. The application must be made promptly and within a reasonable time.

10. Although these principles may not be applicable to the current case in hand as applicant had failed herself again to appear and prosecute her application, the general principle are well settled in the case of Green & Company Pty Ltd s Green [1976] PNGLR 73 and the same doing justice in the case of Juan Jeffrey vs Siapu Yapo [1999] PNGLR 89 to guide Courts when accepting applications to set aside District Court Orders. 

11. Defendant knows what she is doing as she goes fishing for luck at Vanimo Court and unreasonably at last minute attempts to have the unsatisfied orders set aside. The Applicant’s application met none of the three (3) conditions set. It has no defence on merits, as it was not made promptly within time after knowing of the orders and very unreasonable to come at the expiry of the order expecting court to just grant the orders intended. I find no legal basis on the whole of the application and had to refuse and dismiss it then to allow it to be set aside and keep justice in suspense.

12. However, it’s difficult to comprehend applicant’s Affidavit in support of her application when it aimed at attacking and destroying judicial trust, respect and the competency of Aitape Court labeling it as being biased, there was nepotism, complainant works with presiding magistrate and so court conspired in making the orders and the presiding magistrate be disqualified. Unfortunately, what applicant forgot is, being professionally trained judicial officer, I am legally obligated to deliver speedy justice by making prompt and readily decisions on all matters that come before me at own merits according to law and procedure then to cause unnecessary lengthy delays and bill up expenses on parties.

13. In grounds two (2) of Applicant’s affidavit stating she wasn’t physically allowed to be in court before the orders were made, there was no suggestion or reasonable explanation given as to why she can not make it to Court for trial on 21 January 2009. The Court was told she was well aware of trial that day, not sick as seen both by Margaret Saroya ( sister in-law) and Baltazar Kasmir when they got on a boat that morning to come to Aitape for trial. She said nothing whether to come or not or if sick that day resulted in her suffering default judgment. The unsatisfied orders is to expire tomorrow only, 17 March 2009.

14. In applicant’s Affidavit statement NO.5 she alleges being the legal wife Mr. John Ainep and complainant/respondent continuously living with her husband in adulterous relationship. I am very aware of the de facto relationship applicant is alleging but the original matter before court was not related to adultery proceedings. The confirmation by witnesses being that the customary marriage between applicant and complainant’s de facto husband occurred some eighteen to nineteen (18-19) years ago and both had gone separate ways with husband having first de facto marriage with two grown up children and now his second with complainant. The same with applicant having two separate de facto relationships resulted in bearing three children from two different men, that both are living separate lives obviously confirms presumption of divorce by custom against what applicant is saying. Apparently, this Statement supports jealousy and all bad things she said and has against the Respondent resulted in complaint on defamation and orders she intends to set aside,

15. Finally, from record search in this court applicant has no Deserted Wife and Child Maintenance proceedings and file in Aitape but has that in Vanimo Court against former husband for a child and herself and has communicated lies she been abused by the Complainant being a Court Clerk here and prevented from receiving maintenance money from the court house when in fact she is very jealous of Complainant and maintaining her claim still as legal wife of Mr. John Ainep is what she said to be still doing.

16. With those reasons stated above, I find there is no legal basis in defence to set aside the District Court Orders made ex parte on 21 January 2009 against applicant for defamation when applicant had failed herself to be in court allowing court to enter judgment. And again she had failed herself to be present to move the court today in prosecuting the application filed in which I find on the whole of the application before me, there is no legal basis in defence to set aside the orders as applied for by the Applicant and so, the application had to be refused on all basis and be dismissed and ordered that the District Court Orders of 21 January 2009 stands and is enforceable at law.

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