Jimmy Mostata Maladina v The State

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 14 February 2018
• Citation: (2018) N7366
• Court: National Court
• Year: 2018
• Judgement Number: N7366

Full : WS 635 of 2017; Jimmy Mostata Maladina v The State (2018) N7366

National Court: Polume-Kiele J

Judgment Delivered: 14 February 2018

N7366

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 635 OF 2017

BETWEEN:

JIMMY MOSTATA MALADINA

AND

THE STATE

Waigani: Polume-Kiele J

2017: 5 & 7 December

2018: 14 February

PRACTICE AND PROCEDURE–Application for Default Judgment (liquated sum of K2, 650,000.00) to be entered against the Defendant – Order 12 Rule 25 (b) and Order 12 Rule 27 (1) & (2) – National Court Rules - Relevant considerations.

PRACTICE AND PROCEDURE–Application for Default Judgment (summary judgment for sum of K2, 650,000.00) to be entered against the Defendant – Order 12 Rule 38 – National Court Rules – Relevant considerations.

Brief Background Facts

On the 6th of July 2017, the Plaintiff filed these proceedings claiming a sum of K2, 650,000.00 plus interest and costs of the proceedings. Service on the State were effected on the Solicitor General on the 11th of July 2017 at about 11.00 a.m. On the 20th of July 2017, The Solicitor General filed a Notice of Intention to Defend on behalf of the Defendant (State). The State failed to file a Defence to the claim. Thus the application for default judgment. These proceedings stem from the criminal proceedings CR (FC) 402 of 2004; The State and Jimmy Mostata Maladina (2015) N6049 in which on the 21 May 2015, the Plaintiff was convicted on the following charges namely:

“First Count:

Jimmy Mostata Maladina of Mena’ala, Esa’ala, Milne Bay Province stands charged that he, between the 1st day of November 1998 and the 10th day of October 2000, at Port Moresby, National Capital District in Papua New Guinea, did conspire with Herman Joseph Leahy, Henry Fabila, Shuichi Taniguchi, Kazu Kobayashi and other persons to defraud the National Provident Fund Board of Trustees of the sum of K2,650,000.00 by fraudulently increasing the construction costs of the National Provident Fund Tower situated at Douglas Street, Port Moresby, National Capital District.

Second Count:

Between 26 February 1999 and 30 July 1999, at Port Moresby, National Capital District, he dishonestly applied to his own use and to the use of others the sum of K2, 650,000.00, the property of the National Provident Fund Board of Trustees.”

The charge of dishonestly applying property to his own use or to the use of others was brought under s.383A (i) (a) of the Criminal Code. It reads:-

“383A. Misappropriation of property

(1) A person who dishonestly applies to his own use or to the use of another person—

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.”

The penalty provision for misappropriation of property is under subsection 2. It reads:-

“(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years.

(a)...................

(b)...................

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.”

Held

1. Order 12 Rule 32 of the National Court Rules (general) gives the Court wide discretion to enter default judgment: Kante Mininga v The State & 2 Ors (1996) N 1458.

2. Equally, the law is well-settled that entry of default judgment is not a matter of right even where the preconditions set out in Giru v Muta [2005] PNGLR 387 and BSP v Tingke (2012) N4901 are satisfied, the decision whether or not to order default judgment remains a discretionary matter for the court: Agnes Kunton & Ors v John Junias & Ors (2006) SC929; Lambu v Torato (2008) SC953; Lina Kewakali v The State (2011) SC1091.

3. The plaintiff’s claim is based on the premise of a ‘mistake’. A claim for damages in term of ‘mistake” usually involves a contractual agreement; ‘mistake’ is more confined to matters involving law of contract. (Putput Logging Pty Ltd v Phillip Ambalis [1992] PNGLR 159) that is; pleading the validity of agreements, or contract and his entitlement to sue in a civil claim.

4. Where the statement of claim is inadequately pleaded and the inadequacies are significant, it can lead to a conclusion that the pleadings do not disclose a reasonable cause of action: Motor Vehicles Insurance Ltd v Nominees Niugini Ltd (2015) SC1435.

5. The law on summary judgment is well settled in this jurisdiction, Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112. Two elements must be met before there could be an order for judgment under Order 12 Rule 38 and these are: “(a) there must be evidence of the facts proving the essential elements of the claim; and (b) that the Plaintiff or some responsible person gives evidence in his belief that there is no defence to the claim.” The plaintiff has failed to satisfy these elements.

6. Consequently, the application for default judgment under Order 12 Rule 25 (b) and 27 (1) and (2) of the National Court Rules or alternatively summary judgment under Order 12 Rule 38 of the National Court Rule is refused.

Cases Cited:

CR (FC) 402 of 2004; The State and Jimmy Mostata Maladina (2015) N6049

Kante Mininga v The State & 2 Ors (1996) N1458

Giru v Muta [2005] PNGLR 387

BSP v Tingke (2012) N4901

Kunkene v Rangsu & the State (1999) N1917)

Laki v Alaluku (2000) N2001

Jimmy Mostata Maladina v The State (2016) SC1495

Robert Darragh v Robert Kayumu (2015) N6068

Bella Kitipa v Vincent Auali (1998) N1773

Agnes Kunton & Ors v John Junias & Ors (2006) SC929

Lambu v Torato (2008) SC953

Lina Kewakali v The State (2011) SC1091

Motor Vehicles Insurance Ltd v Nominees Niugini Ltd (2015) SC1435)

Putput Logging Pty Ltd v Phillip Ambalis [1992] PNGLR 159

National Provident Fund Board of Trustees v Maladina (2003) N2468

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Counsel:

Mr Ian Molloy, with Ms L David, for the Plaintiff

Mr V Gonduon, for the State

RULING

14th February, 2018

1. POLUME-KIELE J: On the 7th of December 2017, the Plaintiff by a Notice of Motion filed on the 16th of November 2017, seeks order pursuant to Order 12 Rule 25 (b) and Order 12 Rule 27 (1) and (2) of the National Court Rules that default judgment be entered in the liquidated sum of K2, 650,000.00 against the Defendant; and alternatively, summary judgment be entered against the Defendant in the liquidated sum of K2, 650,000.00 pursuant to Order 12 Rule 38 of the National Court Rules plus costs and interest.

2. The plaintiff claims the sum of K2, 650,000.00; monies paid in full as restitution to the State (in Criminal Proceedings CR (FC) 402 of 2004; The State and Jimmy Mostata Maladina (2015) N6049). The plaintiff was convicted of dishonestly obtaining the said sum before the National Court. A sentence of 8 years was wholly suspended and was placed on a 2 year good behaviour bond. On appeal the Supreme Court on the 26th of July 2017, quashed the conviction and sentence and ordered a refund of the Bail money. There is no ruling as to the restitution of the sum of K2, 650, 000.00 to the Plaintiff.

Plaintiff’s Submission

3. Mr Molloy for the Plaintiff submitted that the application is made by way of a Notice of Motion filed on the 16th of November 2017 seeking entry of default judgment in the liquidated sum K2, 650,000.00 pursuant to Order 12 Rule 25 (b) and Rule 27 (1) and (2) of the National Court Rules and alternatively summary judgment be entered against the Defendants in the liquidated sum K2, 650,000.00 pursuant to Order 12 Rule 38 of the National Court Rules; plus costs and such other orders the Court deems necessary.

4. The application is support by a number of affidavits: firstly the affidavit of Mr Vincent Akwila sworn on the 12th of July 2017 and filed on the 13th of July 2017 deposing to service of the writ of summons which was filed on the 5th of July 2017 on the 11th of July 2017 on Ms Linda Wonuhali, Senior Executive Assistant, of the Department of Attorney General as per the affidavit of service of Vincent Akwila sworn on the 12th of July 2017.

5. An affidavit of Search conducted by Ms Lydia David sworn on the 14th of November 2017 and filed on the 16th of November 2017; in which she deposed to conducting a search of the Court File on the 25th of October 2017 and discovering that since the filing and service of the Writ on the Solicitor General on the 11th of July 2017 and filing of a Notice of Intention to Defend on the 20th of July 2017, the Defendant had failed to file a Defence to the Claim.

6. Further, an affidavit of the plaintiff sworn on the 23rd of November 2017 and filed on the 24th of November 2017.

The Defendant’s submission

7. In response to the application for default judgment, Mr Gonduon for the State submitted that the entry of default judgment is not a...