DC513

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 253 OF 2006

BETWEEN

BAU DEGE
Applicant

AND

GAINDI METIA
Respondent/ Judgement debtor

Goroka: F MANUE
2007: May 03

CIVIL - District Court Act – Section 181 - Judgement Debtor – Oral examination of debtor – whether debtor has the means and ability to comply with lawful order – priorities must be given to lawful orders.

Cases Cited
Nil 

References
1. Section 181 of the District Court Act

Counsel
Applicant: In Person
Defendant: In Person

03 May 2007

REASONS FOR DECISION

F Manue: The Applicant has come to Court in order that the judgement debtor is orally examined relating to non compliance of an order of the District Court made on 16 October 2006.

2. A judgement was made that date that the judgement debtor pays a total of K560.00 inclusive of costs to the applicant within two (2) months from that date.

3. On the 07 of February 2007 the applicant obtained a Warrant of Execution against the judgement debtor which warrant was returnable on the 07 of March 2007.

4. The Execution Warrant was returned without being executed, as the judgement debtor had nothing of value for the warrant to be executed upon.

5. Following that process and subsequent failure of that process the defendant now comes to Court to utilize another lawful process to recover the debt.

6. Section 181 of the District Court Act, it states:

181	Oral Examination of debtor

(1)  Where an order of a Court has been made for the recovery or payment of money with or without costs, or for costs alone including costs ordered to be paid by an informant, the party entitled to enforce it may, on summons, apply to a Court or Magistrate for an order that –
(a) the debtor; or
(b) in the case of a corporation – an officer of the corporation, be orally examined as to – 
(c) whether any and what debts are owing to the debtor; and
(d) whether the debtor has any and what other property or means of satisfying the order.

(2) A summons, under Subsection (1), may be issued by a Magistrate or Clerk.

(3) The debtor or officer shall be examined on oath, and any person may be summoned to give evidence or produce documents and may be examined on oath as in any case of summary jurisdiction.

7. Upon examination on oath the judgement debtor – it has been established that he is a regular police man attached at Goroka police station and is earning a fortnightly salary of a net of K190.27. From that salary he and his family live on K100.00 fortnightly. He has not explained what he does with the K90.00.

8. Although he is currently a student at University of Goroka, he has not shown to the satisfaction of the Court that he is repaying a school fee loan which he obtained from the Bank of South Pacific, Goroka branch.

9. He has paid K200.00 into the Court for the applicant to receive, but is still in debt of K386.00.

10. In his evidence, he had very recently been refunded K500.00 of an overpaid school fee which he paid to the East Goroka Primary School. From that money, only K200.00 was paid into Goroka court for the applicant, although he had previously given an undertaking that he would meet his debtor when he is refunded the overpaid school fee.

11. In exercising powers under Section 181 of the District Court Act, the court must be satisfied on three aspects.

12. First, the court is required to enquire or examine on how much judgement debt is still outstanding, and if some payments have been made, how much has been made.

13. Initially, the judgement debt was K566.00. The debtor made a K200.00 payment on official Receipt No. C5489 dated 30 of April 2007. What is now owing is KK386.00.

14. I am satisfied that the debtor still owes money to the applicant in that amount of K386.00.

15. The second element in which the court must be satisfied is that the defendant has the means of complying with the lawful orders.

16. It has come to light in examination that the debtor has a regular means of income because he is in employ and receives fortnightly income of K190.00.

17. This element has also satisfied the court that the debtor has unnecessarily not complied with a lawful order.

18. Does the debtor have the ability to comply with the lawful order.

19. The debtor in examination said he had obtained two school fee loans. The first one was taken out from the Police Savings and Loans Society which was before the order was issued in October 2006 while the second school fee loan was obtained sometimes this year.

20. The first loan was for his two children’s school fee attending West Goroka Primary School. That loan had additional to the actual fee and was paid directly to the school, while the balance of K500.00 was to have been refunded to him. The K500.00 refund had been made to him and only K200.00 was paid into Court partly to satisfy the judgement. The remainder was used by himself. The second school fee loan was obtained from BSP Goroka, for his own school fee as he is attending studies at University of Goroka (UOG).

21. School receipts and documents were produced but the loan agreement copy was not produced, in order for the court to ascertain the loan servicing rate.

22. He said from the K190.27 fortnightly salary he receives, he services the loan at K106.00. He is left assumably with less than K90.00 to live on with his family. This seems to contradict his earlier statement saying that he and family spend K100.00 on their food and needs fortnightly.

23. Due to this uncertainty, which has not been verified, I am not prepared to accept that he is servicing the BSP Bank loan at K106.00 fortnightly. 

24. I am therefore of the view that his earnings is within his financial ability to comply with the order at least by paying some money at regular intervals.

25. In addition to that, the debtor was refunded school fees of K500.00 which should have been used to satisfy the court judgement.

26. I am satisfied on those basis that the debtor had the financial ability from the date of the judgement, lately to the time he was refunded the K500.00 school fee to satisfy the judgement.

28. I have taken into consideration his situation that he is doing studies and the likelihood of problems he may face while studying.

29. However, it must be pointed out that a court order is a lawful order and where there are lawful orders priority must be given such lawful orders.

30. Even when the debtor may consider that his school is a priority, that must be put second. Defiance of non compliance with lawful orders have adverse consequences, and therefore first priorities be given to them. 

31. I am satisfied on the balance of probability that the debtor has failed, neglected or refused to comply with lawful orders and therefore be convicted and sentenced.

Applicant: In Person
Defendant: In Person