DC647

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S CIVIL JURISDICTION]

DCCi 99 of 2006

BETWEEN

JACK ILU
Informant/Respondent

AND

MANAGER - FARMSET LTD
First Defendant/Applicant

AND

FARMSET LIMITED
Second Defendant/Applicant

Lae: C Inkisopo
2006: 21, 28 February

CIVIL- Claim for work done in repairing shoes upon orders by defendants – whether or not Complaint discloses cause of action –

Practice & Procedure – Preliminary application by Defendants to dismiss Complaint for disclosing no reasonable cause of action & as being time barred under Section 16 of the Statures of Frauds & Limitations Act-

Practice and Procedure – cross-application by Complainant to re-instate previous orders and processes duly set aside by Court on proper application – whether or not that process is proper and permissible -

HELD:	The Defendants’ application and Complainant’s cross-application are both dismissed as they are clearly misconceived and amount to abuse of process.

Case Cited

References

Counsel
Jack Ilu in person Complainant
Mr Philip OWA, the Manager Defendant

February 21, 28 February

RULING ON BOTH APPLICATIONS

C INKISOPO: There are two (2) motions before me for determination; one by the Defendants seeking orders dismissing the entire proceedings on the basis that;-

1.	Complaint discloses no reasonable cause of action, and

2.	Proceedings statute barred under Section 16 of the Statute of Frauds & Limitations Act

2. The Complainant filed a Counter-motion in which he seeks the following relieves;-

1:	The reinstatement of his earlier default exparte judgment order of 19/2/04, and

2:	The reinstatement of a warrant of execution issued on .. and enforced in full and ample a manner.

3. For purposes of convenience and expedience, the two motions were heard together on the 10th of November, 2005. After hearing the two (2) motions, I dismissed both motions on the basis that:-

a:	In the case of the Defendants’ Motion, this Court finds that there is discernible in the Complainant’s Complaint a reasonable cause of action. It is clear that the Complainant sues for an alleged non-payment for work done for the Defendants. In my view, the Complaint discloses a reasonable cause of action to sustain this action.

b:	There is no evidence to support the Defendants’ contention that the purported shoe repair contract work was entrusted sometimes back in 1994 or 1995. The next best evidence gauged from the Complaint and Summons show 2003 as being the period in question. Accordingly the Defendants’ argument of the Complaint being time barred must necessarily fail.

4. Whereas in the case of the Complainant’s Counter-motion he was, in what he was trying to do, asking this Court to do what it can not properly do which process amounts to an ‘abuse of the Court’s process’ and on that basis, his application likewise (the Defendants’) must fail.

5. It was for those specific reasons, this Court on the 10th November, 2005 both the respective parties’ motions were dismissed and the substantive matters were ordered to proceed to the hearing of the original Complaint.

6. The Defendants’ written Submission on their “Preliminary Issue” is quite misconceived in that both Mr Owa for the Defendants and Mr Jack Ilu himself the Complainant were in physical personal attendance in Court on the 10th of November, 2005 when these two Motions were dismissed and ordered that the substantive matter of the Complaint proceeds to further hearing. It is my view that the parties themselves are to blame by protracting the speedy conclusion of the matter by dwelling on issues that have long been determined.

7. Accordingly, both motions are dismissed forthwith and I order that the substantive matter is fixed for hearing to 16th April, 2006 at 9:00am.

Jack Ilu in Person Complainant 
Mr Philip OWA, the Manager Defendant