Martin Asu v Maryrose Maur

• Jurisdiction: Papua New Guinea
• Judge: Oli, AJ
• Judgment Date: 20 May 2015
• Citation: (2015) N5976
• Court: National Court
• Year: 2015
• Judgement Number: N5976

Full : WS 736 of 2014; Martin Asu (First Plaintiff/Respondent) and Kotbual Business Group Inc (Second Plaintiff/Respondent) v Maryrose Maur together with all of your family members, servants and agents (First Defendant/Applicants) and Molam Limited together with all of servants, agents and associates (Second Defendant/Applicants) (2015) N5976

National Court: Oli, AJ

Judgment Delivered: 20 May 2015

N5976

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 736 0F 2014

BETWEEN:

MARTIN ASU

First Plaintiff/Respondent

AND:

KOTBUAL BUSINESS GROUP INC.

Second Plaintiff/Respondent

AND:

MARYROSE MAUR together with all of your family members,

servants and agents

First Defendant/Applicants

AND:

MOLAM LIMITED together with all of servants,

agents and associates

Second Defendant/Applicants

Kokopo: Oli, AJ

2014: 18th December

2015: 20th May

CIVIL JURISDICTION - Practice & Procedure –Application to set aside Default Judgment for lack of service of the due process on the defendant/applicant – First Defendant/Applicant denied being served with the due process – considered and rule service of due process was done on the first defendant/applicant – but considered service done on first defendant/applicant does not amount to service done on the second defendant/applicant under s. 431 of Company Act – No proof of service – considered lack of service on second defendant –rendered default judgment entered against second defendant null and void – application granted default judgment set aside – Considered ancillary order on eviction by reason of lack of service on second defendant/applicant is also set aside.

Cases Cited:

Green v Green (1976) PNGLR 73

The Government of PNG & Davies v Barker (1977) PNGLR 386

Mapmaker’s v BHP [1987] PNGLR 78

Provincial Government of North Solomon’s v Pacific Architecture Pty Ltd (1992) PNGLR 145

Barlow Industries v Pacific Foam [1993] PNGLR 345.

Leo Hannet v ANZ Banking Group (PNG) Limited (1996) SC505.

Kitipa v Auali & Ors (1998) N 17173

Paraka & Ors v Kawa & The State (2000) N 1987

Kaluni v Warole (2001) N 2114.

Giru v Muta (2005) N 2877

The State & Ors v Josiah & Ors (2005) SC 792

Counsel:

Mr. Paul Yange, for the Plaintiff

Mr. Wesley Donald, for the Defendant

RULING

20th May, 2015

1. OLI, AJ.: The Defendant/Applicant filed a motion under Order 12 Rule 1 of the National Court Rules to set aside the Default Judgment entered on behalf of the Plaintiff/Respondents on 12thday of December 2014 at 9:30am and move this Honourable Court for Orders:

1. Pursuant to Order 4 Rule 42 of the National Court Rules the requirement of service of this Notice of Motion and the Affidavits in Support in the first instance is dispensed with.

2. Pursuant to Order 12 Rules 1 and 35 of the National Court Rules and Section 155(4) of the Constitution, the Orders granted by the Court on 12 November 2014 are set aside and the entire proceedings dismissed for abuse of process and for duplicity.

3. Pursuant to Order 12 Rule 1 and Order 14 Rules 9 (a) and 10 (1) of the National Court Rules and Section 155(4) of the Constitution an order be granted staying the enforcement of the Orders made on 12thNovember 2014 until the Defendant/Applicants application in terms of the Orders sought in paragraph 2 above is heard and fully determined.

4. Costs of the application.

5. Such further orders deemed fit by the Court.

6. Time for entry of the order be abridged to the time of settlement by the Registrar which shall take effect forthwith.

2. However, the Statement Of Claim by Plaintiff/Respondent is stated hereunder:

STATEMENT OF CLAIM

1. The first plaintiff/respondent is the chairman or chief of the Lamatlik clan, a traditional landowning clan which owns a part of the Mining Lease (ML) land area over which the present Lihir Gold projects is currently located

2. The second plaintiff/respondent is a duly registered business group owned by the members of the Lamatlik clan regulated by the customs of that clan.

3. The first defendant/applicant is an adult female from Lihir Island who is a director and shareholder of the second defendant (a registered entity).

4. Prior to and during the course of the Mining operations, the developer identified Lamatlik clan as one (1) of the traditional landowning clans affected by the core activities of the mining projects. Accordingly, it allocated Portion 846 of the Lease for Mining Purposes 34 or LMP 34 (herein “the land”) to the Lamatlik clan and its members for its commercial purposes.

5. During the period between the year 1998 and 2000, the Lamatlik clan through its chairman the first plaintiff/respondent and its business group (the second plaintiff/applicant) erected a commercial retail outlet (herein “the property” on the land.

6. The said property was leased to the Defendant/Applicants under a 12 months rental agreement in the year 2001, terms of which were recorded in writing. At the expiry of the 12 months period, the relationships between the parties (as lessor and lessee) continued on a month-to-month basis as the parties were and are no strangers.

7. The defendant/applicants were consistent with the payment of rentals between the periods 2001 up to 2004. Under the terms of a revised agreement signed in 2005 (which expired two (2) years later) up to the date of filing of this Writ of Summons, the payments of rentals by the Defendant/Applicants have been unsteady, arising from which the Plaintiff/Respondents have made losses. In most cases, the defendant/respondents say that they have made payments directly into the Second Plaintiff/Respondents banking account and to other accounts, though such were never true in a situation where they have never supplied copies of deposits slips (despite requests). A cross-claim for these claims has been made under WS No.613 of 2014 initiated by the Defendant/Applicants.

8. Emanating from the above and arising from the Plaintiff/Respondents view to renovate and expand the business practices on the property that they have given notice to the Defendant/Respondents dated 20 March 2014 to vacate the property in a month’s time. Such of the notice was rejected and the Defendant/Respondents have continued to occupy the property along with filing of court proceedings in the Lihir District Court and in the National Court here at Kokopo with a view to buy time and cause delay causing resultant financial losses to the Plaintiff/Applicants up to the date of this Writ was filed.

THE PLAINTIFF/RESPONDENT THEREFORE CLAIMS:-

9. For the above reasons the Plaintiff/Applicants claim the orders sought below.

(1) That Default judgment is entered in favour of the Plaintiff/Respondents with damages to be assessed on the unpaid rentals.

(2) The Defendant/Applicants and their servants, family members, friends, relatives, associates and their agents be evicted from the land and property pursuant to Section 6 (1) (2) (b) of the Summary Ejectment Act within 30 days from date of the orders.

(3) A permanent injunction restraining the defendant/applicants from any interference with the land and property.

(4) Costs of an incidental to this proceeding.

FACTS

3. The brief facts surrounding this proceeding is that the Plaintiff/Respondent filed this action under Writ of Summons to recover outstanding rentals from 2005 after the revised Rental Agreement, the payments on the month by month basis has been very unsteady. However, the Plaintiff/Respondent also wish to have the property returned to have a quite enjoyment of their property currently being occupied by the Defendant/Applicants. The Plaintiff/Respondent filed a motion on the 12th day of September 2014 at 9:30am to move this Honourable Court for Orders:

1. Pursuant to Order 12, Rule 25(a)&(b), 26, 28 & 30 of the National Court Rules;

(i) That Default judgment is entered in favour of the Plaintiff/Respondents with damages to be assessed on the unpaid rentals as sought in paragraph 9(1) of the Statement of Claim.

(ii) That the Defendant/Applicants and their servants, family members, friends, relatives, associates and their agents are hereby ordered to be evicted from the land known as Portion 846 of the Lease for MiningPurposes34 or LMP 34 and the improvements erected thereon pursuant to Section 6 (1) (2) (b) of the Summary Ejectment Act within 30 days from date of the orders as sought in paragraph 9(2) of the Statement of Claim. The Lihir Police Station Commander and his men are to ensure compliance of these orders.

(iii) That a permanent injunction restraining the Defendant/Applicants from any interference with the land and property in terms of paragraph 9(3) of the Statement of Claim.

ISSUE

4. The issue that emanate from this motion is:

1. Whether or not the Plaintiff/Respondent has served the due process, the Writ of Summons on the Defendant/Applicants in this case.

2. Whether or not the default judgment entered was a...