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Kapi v Gigmai [2021] PGNC 582; N9440 (9 December 2021)

N9440

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 277 OF 2013

BETWEEN:
GRACE APPA KAPI
Plaintiff

AND:
BILLY GIGMAI
First Defendant

AND:
KUMUL CONSTRUCTION LIMITED
Second Defendant

AND:
O’GIGMAI & ASSOCIATES
Third Defendant

Goroka: Mugugia, AJ
2021: 9^th December

JUDGMENT – Recovery – Enforcement of judgment sum - application by the Plaintiff for levy on the property of the Defendants - National Court Rules, Order 13, Rule 2 – whether orders should be granted in favour of the Plaintiff - considerations – orders granted in favour of the Plaintiff.

Cases Cited:

Bank of South Pacific Ltd v South Pacific Timber Exports Ltd (2004) N2712
In re: Koitaki Plantations Ltd (2017) N6670

Counsel:

G. Appa in person
C. Mende, for the Defendants

RULING

9^th December, 2021

1. MUGUGIA, AJ: I heard the Plaintiff’s notice of motion filed on 21 August 2018, seeking the following orders:

“1. Pursuant to Order 13 Rule 2 of the National Court Rules, that in respect of the judgment sum of K457,300.00 entered on 14^th day of February 2014, levy on the property of the Defendants to be taken in execution for the balance of the amount payable in the sum of K368,300.00 plus interest at any yearly rate of 8%.

2. Costs.

3. Any or such further Order that the Court deems fit.”

2. The Plaintiff Ms Appa appeared in person and prosecuted her application. She relied on her Affidavit in Support filed on 21 August 2018. Both the motion and the affidavit in support were duly served on the Defendants. The Affidavit of Service of Robert Somp sworn on 9 January 2019 and filed on 12 February 2019 confirms service.

3. At the outset, I noted that the Plaintiff’s motion filed on 21 August 2018 returned to Court for hearing after three years, and I asked Ms Appa why there was a delay in making her application. Her reason was that the matter was filed in the Mount Hagen National Court, and the motion did not come before a judge in Mount Hagen. The matter was at the registry, and she had the matter transferred to the Goroka National Court. The cause of the delay was on the part of the registry at the Mount Hagen National Court.

4. I was satisfied with Ms Appa’s explanation. The Court file endorsement on the Court file shows that by order of the Mount Hagen National Court made on 13 August 2021, the matter was transferred to the National Court in Goroka. Considering the nature of the application, being one to enforce a long outstanding judgment sum, and in the interest of justice, I heard Ms Appa’s application.

5. The proceedings were instituted in 2013. The action by the Plaintiff was to recoup monies for the use and hire of his family vehicle. I note from the affidavit in support of the Plaintiff that on 14 February 2014, the National Court entered judgment against the Defendants, and ordered them to pay a sum of K457,300.00, plus interest and cost. Annexure ”A” in the affidavit in support of Grace Appa is the Court Order of 14 February 2014.

6. Ms Appa deposed in paragraph 6 of her affidavit that on 11 August 2014, a Garnishee Order Absolute was obtained against both the Bank of South Pacific Ltd. (BSP) and the Australia and New Zealand Bank (ANZ) with respect to the Defendants’ accounts.

7. Further, in paragraph 7, the evidence shows that a total sum of K60,000.00 was paid by ANZ from the Defendants’ accounts, and a further K30,000.00 was paid by BSP, and soon after the payment of K90,000.00 was made by the banks, the Defendants did not operate on those accounts. Therefore, no further monies were paid after the first execution to satisfy the full amount owed.

8. The evidence shows that after the said amounts were paid from the Defendants’ accounts, the outstanding balance of the judgment stands at around K367,800.00. Ms Appa gives further evidence that because she was frustrated for the long delay, she instructed her lawyers to file enforcement proceedings with respect to the outstanding balance of the judgment sum.

9. The application before me was filed as a result of non action by the Defendants, and non payment of the outstanding sum.

ISSUE

10. The issue before me is whether I should grant the orders sought in the Plaintiff’s notice of motion filed on 21 August 2018.

PARTIES’ SUBMISSIONS

11. I heard submissions from both Counsels, firstly by Ms Appa in person. Ms Appa’s submissions in summary were that the notice of motion was filed to enforce the judgment sum entered against the Defendants. No action was taken by the Defendants. The accounts were garnisheed. Nothing was done by the Defendants, and the Plaintiff had to file this proceedings to enforce the judgment sum.

12. On the other hand, the Defendants’ submissions presented by Mr Mende were that the procedure, the jurisdictional basis and the process used by the Plaintiff was not in order. The jurisdictional basis was wrong. The process was not the correct one, and the Plaintiff should have gone by way of filing a Form 58 instead of filing the National Court proceedings. Mr Mende’s submissions were that the rule does not give the Court jurisdiction but the different procedures. The form used is Form 58. What the Plaintiff should have done was file a Writ of Levy under Form 58 and file an affidavit. These should have been filed in the National Court where the Registrar will issue it to the Sheriff. And what the Plaintiff has done is wrong. The motion does not specifically say which of the Defendants is liable under the garnishee order, and the process under Form 58 will bring out clearly which of the Defendants should be paying for the judgment sum. In conclusion, Mr Mende submitted that the process embarked on by the Plaintiff in this National Court proceeding is wrong.

CONSIDERATION

13. I have considered the materials and the parties’ submissions.

14. Order 13 Rule 2 of the National Court Rules lists different means by which a judgement for the payment of money (not for payment of money into Court) may be enforced. The Rule relevantly reads:

(1) A judgment for the payment of money (not for the payment of money into Court) may be enforced by one or more of the following means –

(a) levy of property; or

(b) attachment of debts; or

(c) charging order; or

(d) appointment of a receiver; or

(e) ... (re committal and sequestration)

(2) . . . (re payment of money into court)

(3) Sub-rules (1) and (2) of this Rule do not affect any other means of enforcement of a judgment for the payment of money.

15. In the case of Bank of South Pacific Ltd v South Pacific Timber Exports Ltd (2004) N2712, Sakora J decided that Order 13 Rule 2(3) confined enforcement of judgement to the means provided under the National Court Rules, while Hartshorn J in the recent case of In re: Koitaki Plantations Ltd (2017) N6670, determined that enforcement of judgement is not restricted to the courses provided under the National Court Rules but may be pursued by any means provided by law. While there are differing views, the important point to note from both these cases is that there are various processes open to this Court to enforce judgement debts.

16. I note the submissions by Mr Mende arguing that the rule relied on by Ms Appa in making her application is the wrong rule. However, I am of the view that there are various processes open to this Court to enforce judgments, and Order 13 Rule 2 of the National Court Rules can be used to enforce judgment sums in the National Court. I am of the view that the approach taken by Ms Appa in filing the motion pursuant to Order 13 Rule 2 of the National Court Rules to enforce the judgment sum is in order.

CONCLUSION

17. I will grant the application by the Plaintiff for the following reasons:

(i) The motion itself is in order.

(ii) There is no affidavit evidence from the Defendants rebutting what has been stated in the Plaintiff’s affidavit in support of the motion. The Defendants have not provided any reasons for not settling the outstanding judgment sum.

(iii) The Defendants have sat on their rights for almost seven years, and the Plaintiff is entitled to the fruits of the judgment.

FORMAL ORDERS

18. The formal orders of the Court are:

1. The orders sought in the Plaintiff’s notice of motion filed on 21 August 2018 are granted by the Court.

2. Costs is awarded against the Defendants.

The Court orders accordingly.
________________________________________________________________
C. Mende: Lawyer for the Defendant