N4500
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 157 OF 2009

BETWEEN:

HEADMASTER MUAINA HIGH SCHOOL
Appellant

AND:

PIUNDE LIMITED
Respondent

Kundiawa: Kangwia, AJ.
2011: 2oth & 27th July

 PRACTICE AND PROCEDURE – Appeal from consent order of District Court – Discrepancies in documents overlooked for consent orders and ex-parte orders – Substantial miscarriage of justice caused – Grave injustice caused if allowed to stand - Appeal granted – Ex-parte orders quashed – Part of consent order affirmed. 

Cases cited: 
Papua New Guinea cases
 
Torato v Abal [1987] PNGLR 403

Overseas cases

Marsden v Marsden [1972] ALL ER 1162 (AC)

Counsel: 
 
Mr.Ware Mukale, Principal Muaina High School in person
James Kimin, for the respondent

27th July, 2011

1. KANGWIA, AJ: This is an appeal against the decision of the District Court at Kundiawa made by consent on 24th August 2009 where the Appellant was ordered to pay a total of K11, 001: 00 to the Respondent. The Appellant is the Headmaster of Muaina High School in Simbu Province. The Respondent is a Company operating in Simbu and provided various goods and services to the public including the Appellant. The proceedings arose out of two claims for goods supplied which the Respondent made against the Appellant. Despite there being judgement by default on foot the Court allowed a subsequent application for consent orders the subject of this appeal.
The Appellant satisfied the requirements of the appeal so the hearing proceeded as scheduled despite the absence of the Appellant.
 
2. The District Court Orders the subject of this appeal are in the following terms verbatim;

The Court Orders that:

1. It is ordered by consent that the application to set aside the ex-parte orders of 19th November 2008 is withdrawn.

2. The Defendant School (Muaina) is ordered to pay the Complainant Company- Piunde Limited as follows:-
 
a.) K4, 455.80 for case D/C 713/08
b.) K6, 546.00 for case D/C 712/08 
 Total: K11, 001.80
 
Dated this 24th day of August 2009 at Kundiawa.

3. The grounds of appeal relied on by the Appellant are also shown verbatim as follows;

1. That the Court erred in finding for the Respondent when there was insufficient evidence of such transactions on credit purchase when in that there was no evidence of a VAT transacted receipt substantiating the nominated District Court Orders. 
 
2. That the Court erred in misinterpreting our submission to accept liability when in that we only accepted District Court Order D/C No.713/08 amount of K7, 456.80 to which we already paid down payment of K3, 000.00 as per our submission and not D/C 712/08 another amount of K6, 546.00 which is obtained in a we believe shady manner. 

3. That even so the actual awarded amount was erred in the circumstance and the award for D/C 712/08 cannot be properly substantiated.

4. The Appellant relied on the documents contained in the certified appeal book filed on 15th September 2009 and a document titled Notice of Motion submission filed on the 9th of June 2011.

5. The Respondent filed a submission on 6th June 2011 which it relies on to respond to the Appeal. Oral submission on behalf of the Respondent was made by one James Kimin on 20th July 2011 in which he strenuously asked for the dismissal of the appeal for failing to appear and prosecute the appeal. He further implored the court to consider that the Appellant had no good basis to lodge the appeal after consenting to the orders that the District Court made.

6. In Torato v Abal [1987] PNGLR 403 Bredmeyer J in an application to set aside a consent order stated:

"A judgement by consent can be set aside in limited circumstances. Where a final judgement has been passed and entered the Court cannot set it aside unless fresh action is brought for that purpose although it was entered by mistake."

7. In the same case his honour cited the case of Marsden v Marsden [1972] 2 ALL ER 1162 (CA) where it was stated that;

 "Where a party applies to have a consent order set aside on the ground that it was made without his consent and the application is being perfected, the court has a discretion to set aside the order where grave injustice would be done by allowing it to stand."

8. Although the present case is not an application to set aside a consent order the criteria referred to is applicable to an appeal against a consent order such as the present case. The onus would be on the Appellant to show that the order was made by mistake or without his consent. The court would then form its own opinion whether grave injustice would occur by allowing it to stand in the exercise of its discretion.

 9. From a perusal of the Appeal book, the submissions and the documents on file, the events and circumstances leading to this appeal seem convoluted. It is made no easier with the level and clarity of communication employed by the parties in the documents filed which clearly indicated a lack of legal advice and input.

10. In the back drop of this scenario I will try to discern what I perceive are the facts and circumstances that eventually led to this appeal.

11. Respondent commenced two proceedings for liquidated claims against the Appellant through default summons on 21st October 2008.

12. The claims were registered as complaint number 712 of 2008 for K6, 446.00 and complaint number 713 of 2008 for K6, 955.80.

13. Returnable dates and times for both claims were 6 November 2008 at 9:30 am.

14. On the returnable date the Respondent was represented by one Paul Kawage. No appearance was made for the Appellant. Both matters were adjourned to 19th November 2008 for mention.
 
15. On 19th November 2008, both matters proceeded ex-parte with no appearance for the Appellants. Respondent was represented by Paul Kawage. Notations showed that defective proof of service was filed for both claims. Default Judgement was entered for the sums claimed in both complaints despite the defects in the proof of service
 
16. The Appellants filed an application to set aside the two default judgements.

17. The Respondent filed its application to dismiss the Appellant's application to set aside the orders obtained by default. 

18. While the two applications were pending a decision, Mr. James Kimin appeared for the Respondent on 24th August 2009 and advised the Court that the Appellant consented to settle both claims by referring to an affidavit of Mr. Ware Mukale who was the Headmaster of the Appellant school.

19. Based on the representation by James Kimin on the purported affidavit of the Headmaster of the Appellant School, the Court made consent orders on 24th August 2009 the subject of this appeal. It also ordered that the application to set aside the default judgements of 19 November 2008 be withdrawn. No orders were made on the Respondent's cross-application. 

20. While the above is an overview of what is perceived to have transpired, documents in the appeal book revealed some alarming discrepancies. I list them briefly.

21. Document numbers 73 and 84 are default summonses with no notice of intention to defend attached as is required under S. 157 (1) of the District Courts Act. 

22. Document number 75 and 81 were the same unsworn affidavit of Everlyn Kama which the Court relied on to enter default judgement for case number 712/2008.

23. Document numbers 79 is a proof of service affidavit of S/C Kagl which did not show who the summonses for both cases were served on. Personal service not recorded as effected. 

24. Document number 80 is the unsworn affidavit of Everlyn Kama which did not indicate who the summons for case number 713/2008 was served on. 

25. Documents 91, 92, 93, 94 and 95 are correspondence by various people representing the complainant about monies allegedly owed by the Appellant School. It is ironic that the amounts described are not the same. There seems to be three different sums alleged as owing by four different people in favour of the Respondent.

26. Document number 55 of the Appeal Book is the affidavit of Mr. Ware Mukale the Headmaster of the Defendant School dated 6th August 2009. This is the affidavit relied on by the Court to make orders for K11, 001.80 against the Appellant the subject of this appeal.

27. The contents of the affidavit show the following;

a.) That the Defendant School was aware of a Court Order for K6, 955.80 plus K500.00 as costs totalling K7455.80 against it.

b.) That prior to the order several efforts were made to defraud the Defendant School through sworn affidavits and letters directly and indirectly by the Complainant Company executives and associates.
 
c.) The default summonses used in Court were never served on the Defendant School and no appearance was made by the School when the first ex-parte orders were made against it.
 
d.) Despite the above failures the school was willing to pay in compliance with the court order.

e.) The school paid K3, 000. 00 on the 9th April, 2009 as instalment on the Court order for K7, 455.50. The remaining K4, 455 .00 would be paid when funds were available. 
 
28. It is obvious from the particulars of the Headmaster's affidavit that he consented to settle the outstanding amount of K4, 455.80 from the K7, 455. 50 ordered by the court under complaint number 713/2008. The affidavit did not give consent to any other amount to total K11, 001.80. The amount ordered by the Court under complaint 712 /08 for K6546.00 did not form part of the consent given in the affidavit of the Headmaster.

29. There is a clear error on the face of the record by the Court .The Court was misled it seems, by James Kimin to obtain consent orders out of amounts not consented to by the Headmaster of the Defendant High School.
 
30. I am satisfied that the Appellant's second ground of appeal is adequately proven; that the Court misinterpreted the Headmaster's acceptance of liability only on D/C 713 /08 for the outstanding amount of K4, 455.80. The Headmaster's affidavit did not show that he also consented to the claim in case number D/C 712/08 for K6, 546.00 to be included as part of the consent order.

31. Ground two of the appeal having been made out, it then follows that the District Court Order of 24th August 2009 must be disturbed on this ground alone. Grave injustice would be caused to the Appellant if the consent order was allowed to stand as it is.
 
32. That being so it is not necessary for me to venture into the other grounds of appeal. Secondly, I find the balance of the grounds of appeal as vague and wanting of clarity, deserving no attendance to them.

33. The discrepancies in the documents revealed that service requirements were abused and inadequately complied with. The District Court ignorantly relied on unsworn affidavits to enter judgement by default. This amounted to an entry of judgement irregularly. The consent order did not constitute total Consent of the appellant. The Court overlooked the actual consent of the applicant. The discrepancies found on the documents in the appeal book collectively rendered the decision on appeal and the two previous ex-parte orders made on 19th November 2008 void and of no effect. 
 
34. It appears that by making those orders despite the discrepancies in the documentation before the District Court, a substantial miscarriage of justice has been allowed to occur. 

35. Having found that there has been a substantial miscarriage of Justice what should this Court do?
 
36. The Appellant had failed to plead the remedy it was seeking from the Appeal. Despite that the power of the National Court on an Appeal from the District Court vested in S.230 of the District Courts Act can be applied. That provision is in the following terms;
 
S. 230 Power of National Court on Appeal

1.)	On the hearing of an appeal, the National Court shall enquire in to the matter, and may-

 a) adjourn the hearing from time to time; and 

 b) mitigate or increase a penalty or fine; and 

 c) affirm, quash or vary the conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and 

 d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

 e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

 f) make such further or other order as to costs or otherwise as the case requires. 
 
37. It is my considered view that the inquiry into the matter shows a certain degree of deceit on the part of the Respondent. It resorted to the use of unverified and unsworn documents to mislead the District Court to obtain orders. Its actions display a complete denial of the Defendant's rights to be heard and defend itself. The procedures and requirements under the District Courts Act have been selfishly abused by the Respondent. It is through the actions and or the inactions of the Respondent that has caused the Appellant to incur undue prejudice, inconvenience, time and expenses to bring about this appeal to the National Court. 

38. The District Court permitted itself to be taken for a ride to protect the Respondent's interest only with little or no independent and careful assessment of the materials before it. All the three orders by the District Court were made without careful consideration. The effects of the three orders are that they are in effect current and concurrent to each other. I cannot see how the latest consent order (the subject of this appeal) has the effect of nullifying the currency and existence of the original default judgements of 19 November 2008.

39. Given the circumstance I can only conclude that the two default judgements of the District Court made on 19th November 2009 were entered irregularly and must be quashed. The consent order made on 24 August 2009 as far as it relates to the Complaint number 713/08 for K4, 455.00 is affirmed as consented to by the Headmaster of the Defendant School. The balance of that order must be quashed as irregularly entered.

40. The formal orders then are;

1.	The consent order made on 24 August 2009 is quashed as irregularly entered.
2.	The Appellant shall pay the outstanding amount of K4, 455. 00 from complaint number 713/2008 within one month.
3.	The two default judgements of the Court dated 19 November 2009 are quashed as irregularly entered.
4.	Appellant's surety of K250: 00 is refunded.
5.	The Respondent shall pay the Appellant's cost of this appeal to be taxed if not agreed. 
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