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Moiga v Hembehi [2022] PGNC 401; N9868 (6 September 2022)

N9868

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1492 OF 2005


BETWEEN
MATHEW MOIGA on his own behalf and as representative of 68 Clan Agent/Signatories to 1967 Vanimo Block 6 Timber Rights Purchase Agreement
Plaintiff


AND
BOAS HEMBEHI
First Defendant


AND
GABRIEL YER as Acting Secretary for Department of Finance
Second Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Shepherd, J
2017: 11th August
2022: 6th September


PRACTICE & PROCEDURE – Application to set aside ex parte summary judgment – Order 12 Rules 8(2)(b) and 8(3)(a) National Court Rules – whether judgment irregularly obtained – matters to be considered – must be reasonable explanation why judgment was obtained ex parte – must be reasonable explanation for delay – must be defence or arguable case on the merits - respondent must demonstrate prejudice if setting aside of ex parte summary judgment is opposed.


MOTIONS – proper notice of new hearing date for adjourned motion must be given – Court must enquire and be satisfied that respondent has been given adequate or effective notice of new hearing date.


LAWYERS – duty of lawyer on ex parte application to disclose all relevant matters of fact and law to Court even if adverse to applicant’s cause.


CIVIL CLAIMS – liquidated claim and unliquidated claim – meaning of – Order 12 Rule 27 and Rule 28 National Court Rules - claim is liquidated when damages can be readily ascertained or capable of being ascertained by arithmetical calculation – claim is unliquidated when quantum of damages requires investigation and assessment.


CLAIMS AGAINST THE STATE – Section 12(3) Claims By and Against the State Act 1996 - where State is in default – judgment by default may only be entered for liquidated demand if claim is for debt only – in all other cases the claim is unliquidated and judgment by default must be entered with damages to be assessed at trial.


Cases Cited:


Chapeau v The State (1999) N1933
Dempsey v Project Pacific Pty Ltd [1985] PNGLR 93
Elema v Pacific MMI Insurance Ltd (2007) SC1321
George Page Pty Ltd v Balakau [1982] PNGLR 140
Green & Co Pty Ltd v Green [1976] PNGLR 73
Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505
Kalan Constructions v Chegg (2014) N5665
Kittika v Kavana (2010) N4051
Lome v Kundi (2004) N2776
Mission v Bank of South Pacific Ltd (2005) N2845
Niale v Sepik Coffee Producers Ltd (2004) N2637
Public Officers Superannuation Fund Board v Imanakuan (2001) SC677
Rangip v Loko (2009) N3714
Rural Development Bank Ltd v Laka (2007) SC897
Smith v Ruma Constructions Ltd (2002) SC695
Tulapi v Lagea (2012) N4939
Wawoi Guavi Timber Company Ltd v Molu (2016) SC1514
Yamanka Multi Services Ltd v National Capital District Commission (2010) N3904


Legislation Cited:


National Court Rules 1983: Order 1 Rule 15(1), Order 12 Rule 8(2)(b) and Rule 8(3)(a).
Claims By and Against the State Act 1996: ss 12(3), 13(2), 14(2).


Counsel:


Mr J. Asupa, for the Plaintiffs
Mr M. Kipa, for the Defendants


DECISION


6th September, 2022


  1. SHEPHERD J: By notice of motion filed on 2 February 2017 the defendants are seeking a raft of orders. The defendants primarily seek an order to set aside a summary judgment which was granted ex parte on 6 December 2006 whereby the sum of K1,925,000 plus statutory interest and costs was entered against the defendants in favour of the plaintiffs. The defendants also seek an order that the whole of this proceeding be struck out for being frivolous, vexatious and an abuse of process. Alternatively, the defendants seek orders that they be granted leave to file a defence out of time or that directions be issued to progress the case to trial for assessment of damages.
  2. The defendants’ motion was heard by the Court on 11 August 2017 and decision reserved because of the convoluted history of this case and the complexity of factual matters which were presented in evidence at the hearing.
  3. The writ which commenced this class action in WS No. 1492 of 2005 on 27 September 2005 was filed by Narokobi Lawyers for the plaintiff Mathew Moiga who asserted that he represented 68 clan agents for customary landowners of Vanimo Block 6 Timber Rights Purchase Area. Mr Moiga, now deceased, was one of those 68 clan agents. The writ alleges negligence by the State in connection with a series of payments made by the Department of Finance purportedly in satisfaction of a judgment debt of K2,225,000 awarded on 22 October 2001 to related plaintiffs, including Mr Moiga, in prior proceeding WS No. 353 of 1999, which concerned royalties owed to the customary landowners of the Vanimo Block 6 Timber Rights Purchase Area. Since then this proceeding WS No. 1492 of 2005 has had a tortuous history, including many motions hearings, several Supreme Court appeals against interlocutory orders and a series of contempt orders issued against former A/Solicitor-General Neville Devete for his refusal to endorse any certificate of judgment under s.14(2) of the Claims By and Against the State Act 1996 in connection with the ex parte summary judgment of 6 December 2006.
  4. Quite apart from prior proceeding WS No. 353 of 1999 from which this present proceeding WS No. 1492 of 2005 emanates, there is a bevy of additional cases involving parties who are the same or similar to each other and which relate to issues arising from the same subject matter of royalty entitlements derived from the Vanimo Block 6 Timber Rights Purchase Area. Those additional cases include:
  5. Related cases WS No. 1203 of 2004 and WS No. 398 of 2006 both involve allegations of payment by the Department of Finance to payees who were said to have no entitlement to receive those judgment monies awarded in WS No. 353 of 1999, or to payees who, having received payment, wrongfully withheld judgment monies or who have paid other persons having no entitlement to those judgment monies.

Reason for delay in delivery of this Decision


  1. There is a preliminary issue that needs to be addressed, namely the reason for the lengthy delay in the delivery of this Decision.
  2. The Civil Registry has a total of 7 Court files for this case. These files have been progressively created over the years in response to the prodigious number of Court documents this case has generated. The files comprise folders known as Parts 1, 2, 3, 4 and 5 for WS No. 1492 of 2005, replete with 152 Court documents, and two further files containing correspondence and miscellaneous papers.
  3. Soon after the hearing of the defendants’ subject motion on 11 August 2017, the Court’s most recent file for this case, the file for Part 5, went missing from the Registry. Despite numerous searches over the years, starting in early 2018, the file for Part 5 could not be located by my Associate or by any of the staff of the Civil Registry. The file for Part 5 contained the originals of numerous affidavits and submissions essential to the defendants’ subject motion which, as at August 2017, had not been scanned into the Court’s Case Docketing System (CDS). After many fruitless annual searches, my Associate sent an email dated 2 March 2021 to the law firms whose lawyers had appeared on the defendants’ motion heard by the Court on 11 August 2017. The email requested the law firms concerned to furnish the Civil Registry with copies, from their own files, of the documents held in the Court’s missing file for Part 5, which spanned the period 19 February 2016 to 11 August 2017, so that a supplementary file for Part 5 could be created. The missing Court process comprised Court documents nos. 130 to 149. The law firms failed to respond to this request. Preparation of this decision therefore continued to lay in abeyance pending the location of the missing file for Part 5.
  4. When my Associate recently repeated his many earlier searches, after being prompted to do so, he reported on 22 July 2022 that the file for Part 5 had finally resurfaced in the Civil Registry. It is thought that the file for Part 5 became mislaid when it went from the Civil Registry back in late 2017 to Court staff responsible for the scanning and uploading of digital copies of court documents to the CDS. What thereafter happened is a matter of conjecture. However a member of Court staff must have located the file for Part 5 elsewhere in the National Court precincts several months ago and then anonymously returned it to an archive area in the Civil Registry. On locating the erstwhile missing file for Part 5, my Associate notified the law firms concerned by email on 27 July 2022 that the file for Part 5 had finally been found and that therefore the Court’s outstanding reserved decision on the defendants’ motion could now be prepared as crucial relevant court documents were now available and the Court’s reserved decision would soon be delivered on a date to be advised.
  5. I turn now to a consideration of the lengthy background to this case which has given rise to the defendants’ subject motion.

BACKGROUND AND RELEVANT FACTS


  1. On 22 October 2001 the landowners as plaintiffs in earlier National Court proceeding WS No. 353 of 1999 – Raymond Turu, John Maku & Ors v The State – were awarded a judgment against the State which included the sum of K2,225,000. According to the plaintiffs in this proceeding WS No. 1492 of 2005, the judgment in WS No. 353 of 1999 comprised:

Judgment debt: K 844,000
Pre-judgment interest at 8% per annum:K 356,000
Post-judgment interest: K 75,000
Costs: K 950,000
Total: K 2,225,000


The late Mr Moiga was one of the plaintiffs in WS No. 353 of 1999, along with Raymond Turu and John Maku.


  1. However it is alleged by the plaintiffs in this proceeding WS No. 1492 of 2005 that the Department of Finance, instead of paying the judgment sum of K2,225,00 awarded to them in WS No. 353 of 1999 to the Solicitor-General’s Office for verification of payees and payment, negligently disbursed amounts totalling K1,925,000 to multiple unauthorised third parties, despite warnings from the Police Fraud Squad and Henaos Lawyers, the lawyers then acting for the plaintiffs at the time, not to do so. It is not in dispute that the balance of the judgment sum in WS No. 353 of 1999, an amount of K300,000, was in fact paid by the Department of Finance to the trust account of Henaos Lawyers and then accounted for by that law firm to certain of the plaintiffs in that case. However it is pleaded by the plaintiffs in WS No. 1492 of 2005 that, apart from that amount of K300,000, the Department of Finance negligently paid out a total of K1,925,000 from the judgment sum of K2,225,000 in WS No. 353 of 1999 to unauthorised persons, without verification of those persons by the Solicitor-General’s Office, thereby allegedly depriving the plaintiffs as rightful payees of the sum of K1,925,000.
  2. The plaintiffs’ writ and statement of claim in WS No. 1492 of 2005 was filed by Narokobi Lawyers on 27 September 2005 and served on the Solicitor-General’s Office on 3 October 2005. An amended statement of claim was filed for the plaintiffs on 14 June 2006 and served on the Solicitor-General’s Office the same day.[2] The plaintiffs obtained default judgment against the defendants on 11 August 2006, with damages to be assessed.[3] The default judgment was granted by Kandakasi J at an ex parte hearing because his Honour was satisfied that the time required by Order 12 r.25(b) of the National Court Rules (NCR) for the defendants to have filed their defence had expired and the defendants were accordingly in default.
  3. On 6 December 2006 the plaintiffs’ counsel from Narokobi Lawyers appeared before Los J and obtained ex parte summary orders against the defendants, including an order that judgment be entered against the defendants pursuant to Order 4 r.32 NCR for the sum of K1,925,000 with statutory interest and for the defendants to pay the plaintiffs’ costs on an indemnity basis (the ex parte summary judgment).[4]
  4. After a most circuitous route, the issue which is now squarely before this Court is the defendants’ motion filed on 2 February 2017,[5] which seeks to have set aside the ex parte summary judgment granted by Los J on 6 December 2005, which judgment was made in the absence of any legal representation for the defendants. On 3 September 2010 Davani J ruled that a prior motion of the defendants filed on 29 May 2009, seeking essentially the same relief as the defendants’ present motion filed on 2 February 2017, raises serious issues that must be heard by the Court because her Honour found that the ex parte summary judgment which the plaintiffs obtained on 6 December 2006 was prima facie an irregularly entered judgment.[6]
  5. The defendants’ motion filed on 2 February 2017 was filed by Fairfax Legal as present lawyers for the defendants pursuant to leave granted by order made by Kandakasi J on 25 November 2016.[7] A series of previous motions filed for the defendants seeking the same relief had previously floundered and became immersed in the morass of litigation that was engendered by the ex parte summary judgment of 6 December 2006.
  6. At the hearing of the defendants’ subject motion before me on 11 August 2017, the plaintiffs/respondents were represented by counsel Mr Jonathan Asupa of Narokobi Lawyers. The defendants were represented by counsel Mr Maleva Kipa from Fairfax Lawyers, that law firm having subsequently merged with Pacific Legal Group.

LAW


  1. The defendants have applied by their motion for the ex parte summary judgment against them which was ordered by Los J on 6 December 2006 to be set pursuant to Order 12 r.8(1), (2) and (3) NCR, as well as under Order 8 r.35 NCR.
  2. Order 12 r.8 NCR provides:

8. Setting aside or varying judgement or order

(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgment.

(2) The Court may, on terms, set aside or vary a judgement—

(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgment); or

(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order—

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or

(b) where notice of motion for the setting aside or variation is filed before entry of the order.


  1. The Court’s discretion under Order 12 r.8 NCR to set aside a judgment is the same whether a party is seeking to set aside:

The Court has a wide discretion in each of these categories to either set aside or to vary the impugned judgment or order. The discretion afforded to the Court under Order 12 r.8 does not, however, extend to power of dismissal of a proceeding: Order 12 r.8(4). An applicant seeking the dismissal of a case must look to other powers of the Court if that is the relief sought.


  1. Quite apart from the Court’s jurisdiction under Order 12 r.8(2)(a) to set aside a default judgment, the Court has an additional procedure for setting aside a default judgment. Division 3 of Order 12 NCR deals with the process for obtaining a default judgment in proceedings which have been commenced by writ of summons. Division 3 of Order 12 comprises rules 24 to 36.
  2. Order 12 r.35 NCR, which is also relied on by the defendants for the purpose of their application to set aside the ex parte summary judgment of 6 December 2006, is expressed in succinct terms:

35. Setting aside judgement

The Court may, on such terms as it thinks just, set aside or vary a judgement entered in pursuance of this Division.


  1. The ex parte summary judgment of 6 December 2006 was styled as an order. It dismissed on the ground of abuse of process the defendants’ motion filed on 25 October 2006 which had in effect been seeking extension of time to file a defence, and directed the entry of judgment against the defendants in the sum of K1,925,000 with statutory interest and costs on an indemnity basis. This judgment for K1,925,000, obtained in a summary manner in the absence of any legal representation for the defendants, effectively bypassed any trial for assessment of damages which was required to take place pursuant to the earlier default judgment of the Court granted by Kandakasi J on 11 August 2006. The amount of K1,925,000 referred to in the ex parte summary judgment is for exactly the same amount as was claimed by the plaintiffs in the prayer for relief in their initial statement of claim and in their amended statement of claim. The terms of the default judgment of 11 August 2006 are clear: the plaintiffs obtained judgment by default against the defendants with damages to be assessed.
  2. Contrary to the misconceived submission which was made by the plaintiffs’ counsel at the hearing of the defendants’ motion before me on 11 August 2017, the defendants’ motion is not seeking to have the default judgment of 11 August 2006 granted by Kandakasi J set aside. The defendants’ subject motion is instead challenging the validity of the ex parte summary judgment which was granted by Los J on 6 December 2006 and it is that summary judgment which the defendants are seeking to have set aside.
  3. Order 12 r.8(2)(b) and r.8(3)(a) NCR refer to judgments and orders made in the absence of a party. Judgments and orders obtained by a party in the absence of another party are conventionally referred to as having been made ex parte. The term “ex parte” is Latin for “for one party” and is used in reference to motions, hearings, orders, or cases where one party applies to a court for orders or directions in the absence of another party. This is an exception to the general legal principle that both parties must be present for legally mandated appointments or court dates.
  4. Where a judgment has been obtained by a party ex parte, the Court has express power to set the judgment aside under Order 12 r.8(2)(b). If it is an order that has been obtained ex parte, then the order can be set aside by the Court under Order 12 r.8(3)(a).
  5. The Court should in this instance therefore focus on whether the defendants can satisfy the Court that it should, in the exercise its discretion, set aside the ex parte judgment of 6 December 2006 under Order 12 r.8(2)(b) and/or Order 12 r.8(3)(a). All other summary rules relied upon by the defendants in seeking to have the judgment set aside would appear to be irrelevant or not directly on point for the purpose of their application, including Order 12 r.8(1) and r.8(3)(b) (motion filed before entry of judgment or order), Order 12 r.8(2)(a) (default judgment), Order 12 r.8(2)(c) (ex parte judgment entered in proceedings for possession of land) and Order 12 r.35 (default judgment entered in pursuance of default procedure prescribed in Division 3 of Order 12).
  6. The law on setting aside summary judgments and orders obtained ex parte is well settled. The leading authority on this category of interlocutory relief is Smith v Ruma Constructions Ltd (2002) SC695 (Kapi DCJ, Los J, Kandakasi J). This was an appeal against an order made by the primary judge whereby an ex parte summary judgment was set aside and leave granted to the defendant to file its defence. It was held by the Supreme Court that before a judgment or order obtained in the absence of the other party can be set aside, the Court must be satisfied that:

(1) there is a reasonable explanation for allowing judgment to be made ex parte;

(2) the application has been made promptly or if there has been delay then there is a reasonable explanation for the delay; and


(3) there is a defence or an arguable case on the merits.


  1. The Supreme Court also held in Smith v Ruma Construction Ltd that these three principles for the setting aside of ex parte judgments and orders apply equally to applications to set aside default judgments: see observations made by Kandakasi J at pp. 14 and 15.
  2. When application is made to set aside a judgment, no matter whether the application is brought in respect of a judgment coming within any of the categories allowed by Order 12 r.8 or under Order 12 r.35 in respect of a default judgment, a general distinction is made by the Court between a judgment that has been regularly obtained under the Rules as opposed to a judgment that has been irregularly obtained.
  3. In Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505 (Kapi DCJ, Los J, Salika J) the Supreme Court observed that there are two broad categories of cases: judgments that are entered regularly and judgments that are entered irregularly.
  4. For a judgment that has been obtained regularly, that is to say where the judgment has been obtained in full compliance with the Rules, the Supreme Court in Hannet said this at p. 6:

“ Where a judgment is regularly obtained, the manner in which the Court may exercise its discretion to set aside such a judgment is set out in Barker v The Government of Papua New Guinea, David and Bux [1976] PNGLR 340, namely:

1.there must be an affidavit stating facts showing a defence on the merits;

2. there must be reasonable explanation why judgment was allowed to go by default; and

3. The application must be made promptly and within a reasonable time.


  1. As to a judgment that has been obtained irregularly, a further distinction is made between a judgment that is a nullity and one which is irregular because of factors not amounting to a nullity. This further distinction was explained by Lay J in Lome v Kundi (2004) N2776 at p.7:

“ If the judgment is irregularly entered in such a way that it is a nullity, then the defendant is entitled to have it set aside as of right. In all other cases, including those where there is an irregularity in entry of judgment not amounting to a nullity, the applicant defendant must show:

1. the application is made within a reasonable time of judgment becoming known to the defendant ... ;

2. an explanation as to why judgment was allowed to be entered by default;

3. a defence on the merits.

Where the irregularity is fundamental and thus a nullity, the Court must set aside the judgment. But where the irregularity is, for example, non-compliance with a Rule of the Court, the Court has a wide discretion as to how to deal with it.”


  1. A judgment which has been irregularly obtained because it is a nullity must be set aside as of right. The nullity can occur for a variety of reasons. For example, where the proceeding has been a nullity from the start, as where a plaintiff such as an unincorporated company has no legal standing or legal capacity to commence suit.
  2. In Kalan Constructions v Chegg (2014) N5665 (Sawong J) the plaintiff’s default judgment was set aside pursuant to Order 12 r.35 NCR as having been irregularly obtained because the proceeding was a nullity at the outset, the plaintiff having sued in an unregistered business name and because the named defendants were incapable of being served as they had died several years before the case was filed.
  3. This then leaves that category of cases where a judgment or order has been irregularly obtained in circumstances other than where there is nullity. This frequently happens where a judgment or order has been obtained ex parte in circumstances where procedural rules and court practice have been breached or have not been properly complied with by an applicant.
  4. Where service of a motion seeking judgment by default has not been served, or has not been properly served in accordance with the Rules, and a plaintiff proceeds to obtain judgment by default, a defendant is entitled to have the default judgment set aside ex debito justitiae (as required in the interests of justice): Green & Co Pty Ltd v Green [1976] PNGLR 73 (O’Leary AJ); George Page Pty Ltd v Balakau [1982] PNGLR 140 (Greville-Smith J).
  5. As to what is required to set aside an ex parte judgment or order that has been irregularly obtained, Hartshorn J said this in Rangip v Loko (2009) N3714 at para. 15:

“As referred to, the principles governing the exercise of discretion as to whether an ex parte order should be set aside are well settled and were detailed by Kapi DCJ in Smith v Ruma Constructions (supra). The onus is on the applicant to satisfy the Court:

(a) why the ex parte order was allowed to be entered in the absence of the applicant,

(b) if there is a delay in making the application to be set aside, a reasonable explanation as to the delay,

(c) that there is a defence on the merits.”


  1. These principles for setting aside an ex parte judgment or order irregularly obtained were articulated again by Hartshorn J only 6 months later in Yamanka Multi Services Ltd v National Capital District Commission (2010) N3904. See also Kittika v Kavana (2010) N4051 (Makail J).
  2. In the case of Elema v Pacific MMI Insurance Ltd (2007) SC1321 (Batari J, Mogish J, Cannings J) the appellant had appealed an order of the primary judge setting aside an ex parte order by another judge. The ex parte order had dismissed the case for want of prosecution. The primary judge who had set aside the ex parte order had not been alerted to the fact that a third judge had ordered a stay of the proceeding such that nothing further could be done in the case without leave of the Court. No leave to allow further steps to be taken in the case had been granted by the National Court. On appeal against the setting-aside order made by the primary judge, the Supreme Court held:

(1) The National Court has power to set aside an order it has previously made ex parte, irrespective of whether the ex parte order was made by the judge hearing the motion to set it aside.

(2) The power to set aside an ex parte order is a matter of discretion. Considerations relevant to the exercise of discretion include whether the judge making the ex parte order was aware of all previous orders concerning the conduct of the proceeding.

(3) A lawyer moving a motion ex parte has a duty to alert the presiding judge to all facts relevant to the matter, especially whether there are any existing orders concerning the conduct of the proceedings.


  1. As the lawyer who had moved the ex parte order in the National Court in the Elema case had not alerted the primary judge to the earlier order which required leave of the Court to be given before any further action could be taken, and as leave had not been granted, the Supreme Court had no hesitation in setting aside the ex parte order. The Supreme Court found that the primary judge who had set aside the ex parte dismissal order had made no error of law. The appeal was dismissed and the matter was remitted back to the National Court for trial.
  2. The Supreme Court in Elema v Pacific MMI Insurance Ltd had this to say at paragraph 11 regarding the duty of lawyers appearing for applicants in ex parte proceedings:

“ All lawyers are officers of the Court. Their paramount duty is to the Court. They must bring all relevant matters of fact and law to the attention of the Court, even, and especially, matters that do not or might not favour their client’s cause. This duty is acute when the proceedings are heard ex parte and where there are existing orders concerning the conduct of the proceedings.”


  1. For the purposes of this Decision I adopt and apply the principles for setting aside an ex parte judgment or order irregularly obtained as pronounced by the Supreme Court in Smith v Ruma Constructions Ltd and as iterated by Hartshorn J in Rangip v Loko and Yamanka Multi Services Ltd v National Capital District Commission. I also bear in mind that a lawyer has a fundamental duty of full and frank disclosure to a presiding judge in ex parte proceedings, which duty was stressed by the Supreme Court in Elema v Pacific MMI Insurance Ltd.

ISSUES


  1. Based on applicable law and the arguments presented by the parties’ counsel at the hearing of the defendants’ subject motion, I consider that the issues for the Court to determine are these:

EVIDENCE


  1. The defendants rely on the following affidavits in support of their motion filed on 2 February 2017:

(1) Affidavit of Acting Solicitor-General Neville Devete sworn 21 August 2007 and filed 23 August 2008;[8]

(2) Supplementary Affidavit of Solicitor-General Neville Devete sworn 21 February 2008 and filed 27 February 2008;[9]

(3) Affidavit of Deputy Solicitor-General Laias Kandi sworn 9 December 2011 and filed 10 December 2011;[10]

(4) Affidavit of Emma Daroa, lawyer of Fairfax Legal, sworn and filed 12 November 2014;[11]

(5) Affidavit of Solicitor-General Faith Barton-Keene sworn 10 November 2015 and filed 17 November 2015;[12]

(6) Affidavit of Hillary Masiria, lawyer of Fairfax Legal, sworn and filed 17 February 2016; [13]

(7) Affidavit of Monalisa Irakau, lawyer of Solicitor-General’s Office sworn 3 July 2017 and filed 4 July 2017.[14]


  1. The plaintiffs rely on the following affidavits in opposition to the defendants’ motion:

(1) Affidavit of plaintiff late Mathew Moiga sworn and filed 6 April 2006;[15]

(2) Affidavit of Vergil Los Narokobi of Narokobi Lawyers sworn 30 October 2006 and filed 31 October 2006;[16]

(3) Affidavit of Yer Awi, lawyer of Narokobi Lawyers sworn 1 January 2016 and filed 1 February 2016;[17]

(4) Affidavit of Yer Awi, lawyer of Narokobi Lawyers sworn and filed 24 February 2016.[18]


  1. The written submissions handed up by counsel for the plaintiffs Mr Jonathan Asupa at the hearing on 11 August 2017 state at page 4 that the plaintiffs are also relying on an affidavit by Vergil Los Narokobi said to have been sworn and filed in this proceeding on 7 August 2006. I have conducted a thorough inspection of Parts 1 to 5 of the Court’s file for this case but have found no record at all of any affidavit sworn by that deponent, or indeed any other deponent, having been filed in this proceeding on 7 August 2006. There is an affidavit sworn by Vergil Los Narokobi on 12 July 2006 and filed 21 July 2006 which is Court document no. 22, but that affidavit relates to interlocutory orders of the Court made prior to the default judgment with damages to be assessed which was granted by Kandakasi J on 11 August 2006. The defendants are not contesting the validity of that default judgment. The affidavit of Vergil Los Narokobi sworn 12 July 2006 has no bearing on any of the issues now before the Court.

ISSUE 1: Why was the ex parte summary judgment of 6 December 2006 allowed to be entered in the absence of the defendants?


  1. At the material time in December 2006 when the default judgment of 11 August 2006 was obtained by the plaintiffs, the lawyer on the record for the State in this proceeding was A/Solicitor-General Madam Hitelai Polume-Kiele.[19]
  2. To appreciate the circumstances which gave rise to the ex parte summary judgment which the plaintiffs then obtained on 6 December 2006, it is necessary to set out the sequence of events which preceded the hearing of the plaintiffs’ amended motion which came before the Court, Los J presiding, on 6 December 2006.
  3. As already stated, the plaintiffs obtained default judgment against the defendants on 11 August 2006, with damages to be assessed. The default judgment was granted by Kandakasi J because his Honour was satisfied that the time required under a prior order of the Court made on 26 May 2006 for the defendants to file their defence to the amended statement of claim by 28 July 2006 had expired and the defendants were in default. Mr Vergil Los Narokobi from Narokobi Lawyers appeared for the plaintiffs on 11 August 2006. There was no appearance for the defendants before his Honour on that occasion by Mr Jimmy Bokomi, counsel from the Solicitor-General’s Office who at that time had the carriage of this case for the defendants.
  4. The wording of the default judgment granted by Kandakasi J on 11 August 2006 is significant. The Court ordered that:

“ 1. Default judgment be entered against the Defendants pursuant to Order 12 Rule 25(b) of the National Court Rules for failing to file and serve their Defence within the extended time as ordered by the Court on 26th May 2006, with damages to be assessed.


2. Costs to be borne by the Defendants.”


[underlining added]


  1. I observe at this juncture that after the default judgment was granted on 11 August 2006, there is no satisfactory proof of service on the Court’s file that a sealed copy of the default judgment was ever formally served by Narokobi Lawyers on the Solicitor-General. The only document in this regard is an internal office document bearing the masthead of Narokobi Lawyers which states that a Court order, undated, was received by Betty Makis, legal secretary with the Office of the Solicitor-General on 16 August 2006. A copy of this office document is annexure “F” to the affidavit of Vergil Los Narokobi filed 31 October 2006. This office document is referred in para. 8 of that affidavit as being a true copy “of the affidavit of service of the Court Order on the Office of the Solicitor General”. It is nothing of the sort. The document does not even state the date of the Order purportedly served on Betty Makis on 16 August 2006. This is indicative of a pattern of inadequate proof of service of court process by Narokobi Lawyers on the Solicitor-General’s Office which is discernable when inspecting Parts 1 to 5 of the Court’s file.
  2. After grant of default judgment by Kandakasi J on 11 August 2006 with damages to be assessed, the case returned before the Court on 17 October 2006, Sevua J presiding. Mr Vergil Los Narokobi appeared for the plaintiffs. Mr Kumura of the Solicitor-General’s Office, who then had carriage of this case for the State at that Office appeared for the defendants. Sevua J directed the defendants to file an amended defence and adjourned the case to return on 24 October 2006 for directions.[20]
  3. I do not know why the defendants were directed by Sevua J on 17 October 2006 to file an amended defence. As at that date the Solicitor-General’s Office had not filed any defence at all for the defendants. Perhaps what was intended by Sevua J was that the defendants were to file a defence to the plaintiffs’ amended statement of claim filed by Narokobi Lawyers on 14 June 2006. The plaintiff’s amended statement of claim had added Boas Hembehi, an officer with the Department of Finance and Gabriel Yer, then A/Secretary of the Department of Finance, as first and second defendants respectively, with the State continuing as a party and named as the third defendant. Be that as it may, the defendants were nevertheless required by the order made by Sevua J on 17 October 2006 to file an “amended defence”.
  4. There is no record of endorsement on the Court’s file for Part 1 for WS No. 1492 of 2005 to indicate whether the case came back before the Court on 24 October 2006 in accordance with the order of Sevua J made on 17 October 2006.
  5. However, the Solicitor-General’s Office failed to file the defendants’ amended defence by 24 October 2006 in technical breach of the order made by Sevua J on 17 October 2006. This, it transpires, was caused because of the departure from the Solicitor-General’s Office in September 2006 of Mr Jimmy Bokomi, the lawyer who had previously had the carriage of this case for the State before this proceeding was assigned to Mr Kumura.
  6. On 25 October 2006, less than one day into default, the A/Solicitor-General, Madam Polume-Kiele, filed a motion for the State seeking leave to file an amended defence out of time.[21] The State’s motion stated that it was returnable before the Court on 15 November 2006 at 9:30 am.
  7. The State’s motion filed on 25 October 2006 was supported by a comprehensive affidavit from counsel Mr Kumura sworn 24 October 2006.[22] Mr Kumura deposed that he was the lawyer at the Solicitor-General’s Office who had then recently taken over the carriage of this case for the defendants in September 2006. Set out hereunder are relevant extracts from Mr Kumura’s affidavit:

“2. I came across the file on this matter when Mr Tauvasa Tanuvasa, a lawyer in the Solicitor General’s Office, came to discuss the file with me some time in September 2006. That was after default judgment was entered against the Defendants on the 11 August 2006. Mr Tanuvasa came to see me because this matter is related to another file we have in our office on a related National Court proceeding, which we have since closed and placed away. That other proceeding is Raymond Turu and John Maku as representatives of clan leaders forestry agents and landowners of Vanimo Blocks Timber Rights Purchase Area -v- The Independent State of Papua New Guinea WS No. 353 of 1999.


3. After a quick perusal of the two files, I noted the following pertinent facts:

(1) The plaintiffs in the current WS No. 1492 of 2005 Mathew Moiga & Others claim to be plaintiffs in the previous related proceeding WS No. 353 of 1999 Raymond Turu & Others. Therefore the current plaintiffs were parties to the previous proceedings, which has been dealt with by the National Court and concluded.

(2) The material facts relied on and which gave rise to the plaintiffs’ claim in the previous proceeding are the same as in the present proceeding.

(3) Judgment was entered for the plaintiffs in the previous National Court proceeding. The total judgment debt plus interest and costs for the amount of K2,225,000.00 was settled in full by the Department of Finance. There is no amount outstanding to the plaintiffs.

(4) There is evidence that the current plaintiffs did receive and did benefit from the payments made pursuant to the judgment debt in the previous proceeding.

(5) The current plaintiffs did not file an application and take out any formal orders from the National Court restraining or stopping the Department of Finance from making payments to allegedly wrong or unauthorized representatives or agents of the plaintiffs in the previous proceeding.

(6) At the material time, the Secretary for the Department of Finance was making payments pursuant to a valid Court judgment.

(7) The current plaintiffs, who were plaintiffs in the previous proceeding, knew or ought to have known that payments were being made to unauthorized third parties, yet did not take out appropriate Court Orders to stop the payment until the judgment debt was settled in full, and they had benefited from these payments.

(8) The plaintiffs are now in Court for a second bite, claiming for the same monies which they have already claimed in a previous claim, and obtained judgment on and which has been settled in full.

...

6. The Solicitor General filed a Notice of Intention to Defend on behalf of all the Defendants on the 21 April 2006.

...

8. The plaintiffs by their lawyers filed an Amended Writ of Summons on the 14 June 2006. The First and Second Defendants are specifically named and serious allegations of negligence and fraud made against them. That was served on the Solicitor General on or about the 14 June 2006.

9. The Solicitor General did not file ... a Defence to the Amended Writ of Summons and has since defaulted as of on or about 14 September 2006.

10. Jimmy Bokomi, the officer who initially had carriage of this matter, resigned from the Solicitor General’s Office on or about September 2006.

11. The file on this matter was left unattended to until it was brought to my attention some time in September 2006.

12. On perusal of the file, I noted that the pleadings referred to a previous claim lodged by the same plaintiffs. On perusal of our file on the previous claim, I noted that the plaintiffs in this claim were in fact plaintiffs in a previous claim. The material facts in this claim were the same as in the previous claim. Judgment was entered for the plaintiffs in the previous clam and was settled in full by the Third Defendant, and there is no further liability. The plaintiffs in this claim are here for a second bite of the same thing.

13. I believe the Third Defendant, the Independent State of Papua New Guinea, has a valid Defence under the circumstances described. It has settled its liability in full pursuant to a valid Judgment of the Court. It cannot make another payment over the same liability to same plaintiffs. If the plaintiffs’ claim is true, which is denied, they should pursue their claim against the alleged unauthorized third parties who collected their cheques.

14. I have drafted a Draft Defence, which is attached to this affidavit and marked as Annexure JK 1, which I intend to file on behalf of the Third Defendant if the Court grants me leave to file out of time.”


  1. Narokobi Lawyers for the plaintiffs swiftly responded to the A/Solicitor-General’s notice of motion filed 25 October 2006 by five days later filing a motion on 31 October 2006 seeking dismissal of the State’s motion (erroneously said in the plaintiffs’ motion to have been filed on 24 October 2006 instead of 25 October 2006), on the ground that the State had been “given notice but failed to turn up and time for appeal had expired under the Supreme Court Act”. The plaintiff’s motion filed on 31 October 2006 also sought pursuant to Order 4 r.32 NCR that judgment be entered against the defendants for K1,925,000 with statutory interest and costs.[23]
  2. On 31 October 2006 Narokobi Lawyers filed an amended notice of motion to replace the notice of motion they had filed earlier that day. The plaintiffs’ amended notice motion claimed the same relief as had been sought in the motion it was replacing but it also sought dismissal of the State’s motion filed on 25 October 2006 on the additional ground that the State had failed to file its defence by 24 October 20006 in breach of Sevua J’s order of 17 October 2006.[24] The plaintiffs’ amended notice of motion filed on 31 October 2006, which was primarily seeking judgment against the defendants for K1,925,000 with statutory interest and costs on an indemnity basis, was given a return date of 15 November 2006 at 9:30 am, which was exactly the same date and time for the State’s motion filed 25 October 2006 seeking an extension of time for the State to file its defence.[25]
  3. The next event of note is that there is an endorsement dated 13 November 2006 on the Court’s file which indicates that the case was listed before Salika J but that as there was no appearance for the parties on that occasion, the case was adjourned to the Registry. There is no explanation on the Court’s file as to why this case came before Salika J on 13 November 2006 instead of 15 November 2006, which was the date appointed by the Registry for the return of the State’s motion filed on 25 October 2006 and the plaintiffs’ amended motion filed on 31 October 2006.
  4. Whatever occurred before Salika J on 13 November 2006, the evidence adduced by the parties at the hearing of the defendants’ present motion before me on 11 August 2017 indicates that the case was listed again by the Registry to return before the Court on 17 November 2006, this time before Chief Justice Sir Mari Kapi. That evidence is furnished by a copy of a faxed letter dated 5 December 2006 from Narokobi Lawyers addressed to “Mr Ian Augerea, Deputy Registrar of the National Court”, which is annexure “ND3” to the supplementary affidavit of A/Solicitor-General Neville Devete filed 27 February 2008. The text of that faxed letter from Narokobi Lawyers is reproduced below:

“ 5th December 2006 Copy by Fax: 323 1092

Original by Mail

Mr. Ian Augerea
Deputy Registrar
National Court Registry
PO Box 7018
WAIGANI
National Capital District
Dear Sir,
RE: WS No. 1492 of 2005 – MATHEW MOIGA & ORS v THE STATE
We refer to the above matter, where we act for the Plaintiff.
This matter was adjourned from 17th November 2006 by His Honour Sir Mari Kapi CJ to 4th December 2006, for a special fixture to be obtained. This matter did not appear on the list, nor was the file located by Clerks in the Registry.
This matter was mentioned in Court, and His Honour Los J issued the following directions to the Registrar:
1. This matter is adjourned to Wednesday 6th December 2006 at 9:30 am;
2. The file is to be produced in Court at that time; and
3. Should the file not be produced in Court, the Registrar is to be present in Court to explain why the file is missing.
We ask your cooperation, so that we can dispose of this matter.
This letter is also copied to Solicitor General’s Office for the Defendants.
Please contact Vergil Narokobi on 323 626 for any further information.
Yours faithfully,
NAROKOBI LAWYERS
[signature]
Per: Vergil L. Narokobi ”

[underlining added]


  1. I note that Narokobi Lawyers’ faxed letter of 5 December 2006 should have been addressed to Mr Ian Augerea in his capacity as Registrar of the National Court, not Deputy Registrar. It is a matter of public record that Mr Augerea was appointed Registrar of the National and Supreme Courts in August 2006. He was no longer the Deputy Registrar of the National Court as at December 2006. However, this minor infraction of protocol is inconsequential. What is more noteworthy is that the copy of Narokobi Lawyers’ faxed letter of 5 December 2006 contains a fax header which has a fax machine’s date stamp showing that the letter was faxed from Narokobi Lawyers’ fax number 323-6264 at 9:43 am on 5 December 2006. The header does not show that the letter was faxed to the Registry’s fax number 323-1092 or to any other destination fax number on 5 December 2006. I nevertheless accept as an uncontested fact that a copy of Narokobi Lawyers’ letter of 5 December 2006 was faxed to the Registry at 9:43 am that day. I do not accept that the copy of this faxed letter, which is annexed to Mr Devete’s affidavit, is proof, reasonable or otherwise, that the letter was also faxed by Narokobi Lawyers to the Solicitor-General’s Office on or about 5 December 2006 or that the original of that letter was served on the Solicitor-General’s Office on or about 5 December 2006.
  2. It is clear from the evidence now before this Court that there were three matters that were waiting to be dealt with by the Court when this proceeding came before Chief Justice Sir Mari Kapi on 17 November 2006 and again before Los J on 4 November 2006 and 6 November 2006. Those three matters were:

(1) directions and allocation of a trial date for assessment of the plaintiffs’ damages as required by the default judgment granted by Kandakasi J on 11 August 2006; and

(2) the defendants’ motion filed by A/Solicitor-General Madam Polume-Kiele on 25 October 2006, less than one day into default, seeking extension of time to file a defence; and

(3) the plaintiffs’ amended motion filed by Narokobi Lawyers on 31 October 2006 seeking the dismissal of the defendants’ motion filed on 25 October 2006 and summary judgment against the defendants for K1,925,000 and related orders.


  1. According to the copy of the faxed letter dated 5 December 2006 from Narokobi Lawyers addressed to Deputy Registrar Mr Augerea (the Registrar), on 17 November 2006 Chief Justice Sir Mari Kapi adjourned this proceeding to 4 December 2006 “for a special fixture to be obtained.” However, the faxed letter does not explain just what it was that the Court was supposed to deal with when the case returned before the Court on 4 December 2006 for allocation of a special fixture date. As I have already observed, the evidence adduced before me shows that when Chief Justice Sir Mari Kapi adjourned the case on 17 November to 4 December 2006, a special fixture needed to be obtained for all three matters which were then pending before the Court, namely a special fixture for the trial of assessment of the plaintiffs’ damages, the State’s motion filed on 25 October 2006 and the plaintiffs’ amended motion filed on 31 October 2006. Narokobi Lawyers’ faxed letter to the Registrar refers to the whole of this proceeding as being “this matter”. The faxed letter does not refer to the matter that was adjourned by Chief Justice Sir Mari Kapi on 17 December 2006 to 4 December 2006 as being solely the plaintiffs’ amended motion filed on 31 October 2006.
  2. There is no evidence before me that Narokobi Lawyers, once they became aware of the adjournment of the case to 4 December 2006 as ordered by Chief Justice Sir Mari Kapi on 17 November 2006, ever gave notice of that adjournment on 17 November 2006 to 4 December 2006 to the Solicitor-General’s Office.
  3. The copy of faxed letter from Narokobi Lawyers dated 5 December 2006 does however confirm that when the case came before Los J on 4 December 2006, it did so in an informal way in circumstances when the Court’s file for WS No. 1492 of 2005 was not in Court because the file had not been located by Registry clerks. It seems that Mr Narokobi was in Court on 4 December 2006 and had the case mentioned, such that Los J, without having the benefit of the Court’s file on the bench, gave directions for the “matter” to be adjourned at short notice to two days later on 6 December 2006 at 9:30 am and for the Court’s file for WS No. 1492 of 2005 to be produced in Court on that occasion, failing which the Registrar was to present himself in person in Court on 6 December 2006 to explain why the Court’s file was not available.
  4. The inside cover of the file for Part 1 for WS No. 1492 of 2005 contains an associate’s endorsement which states that this case came back before Los J on 6 December 2006, the listing of the case on the Court’s daily diary for that day having obviously been prompted as a result of the Registry’s receipt of the faxed copy of Narokobi Lawyers’ letter of 5 December 2006 to the Registrar. The associate’s endorsement on the cover sheet of the file as to the order which was made by Los J on 6 December 2006 is brief. The text of the endorsement simply states:

“ Waigani 6/12/06
Los, J
Mr V. Narokobi – for Ps
N/A – Defendant
ORDER
1. Orders Granted in terms of Amended NOM filed 31/10/06
2. Costs of proceedings.
[signature – indecipherable]
Associate ”


  1. However, the file endorsement by the associate to Los J noted on the cover sheet for the file for Part 1 for WS No. 1492 of 2005 on 6 December 2006 is credible evidence from the Court’s own record that the Court’s file had been brought into Court that day and was for the very first time before Los J, on which occasion Mr Narokobi appeared for the plaintiffs and had moved the Court for orders in terms of the plaintiffs’ amended motion filed on 31 October 2006. The only amended notice of motion that was filed on 31 October 2006 was of course the plaintiffs’ amended notice of motion, court document no. 33, seeking orders for the dismissal of the State’s motion filed 25 October 2006 and for judgment to be entered against the defendants for K1,925,000 and for related orders. So if the associate’s endorsement is to be accepted as correct, then the orders which Los J made on 6 December 2006, ex parte in the absence of any representation for the defendants, should have followed word-for-word the orders which were sought in the plaintiffs’ amended motion filed 31 October 2006.
  2. The associate’s endorsement makes no reference to Los J having granted orders other than those which were sought in the plaintiffs’ amended notice of motion filed 31 October 2006. In other words, the ex parte orders which were granted by Los J on 6 December 2006 effectively dismissed as an abuse of process the State’s pending motion filed 25 October 2006 and at the same summarily awarded damages of K1,925,000 plus statutory interest and full indemnity costs in favour of the plaintiffs without any special fixture having been allocated by the Court for substantive trial for assessment of the plaintiffs’ damages as ordered by the default judgment granted by Kandakasi J on 11 August 2006.
  3. Following adjournment of “the matter” by Los J on 4 December 2006, the transcript of what actually transpired before his Honour on 6 December 2006 is contained in annexure “A” to the affidavit of Hillary Masiria filed 17 February 2016. The transcript was certified on 17 February 2016 by Pavora Marupi, Director of the Court Reporting Service, as being a true and correct record of what occurred in Court in WS No. 1492 of 2005 on 6 December 2006. The transcript confirms that the hearing before Los J commenced at 1.56 pm on that date. The transcript is exceedingly short. The whole of the transcript is set out below:

“HIS HONOUR: Next. Who is appearing in this?

MR NAROKOBI: If your Honour pleases, Narokobi initial V for the plaintiffs.
HIS HONOUR: Yes, Mr Narokobi.
MR NAROKOBI: Thank you, your Honour, this is an application ---
HIS HONOUR: What about the other party, Mr Associate?

MR NAROKOBI: Mr Kumura from the Solicitor General’s Office appears for the defendants.
HIS HONOUR: Associate, does he know?
MR NAROKOBI: I did write to him to inform him.
HIS HONOUR: All right. Yes counsel, proceed please.

MR NAROKOBI: Thank you, your Honour. We are moving our motion – notice of motion filed on 31 October 2006.
HIS HONOUR: Yes.

MR NAROKOBI: Your Honour, default judgement was already entered against the defendants. They asked the court to give them time to file an application to set aside the default judgment by 24 October. They failed to file within the time given. It is ---
HIS HONOUR: Where are we now, December are we?
MR NAROKOBI: It is December yes, your Honour.
HIS HONOUR: Yes.

MR NAROKOBI: Basically, there is a default judgement already in place. What we are asking for is that an order be made for the judgment sum pursuant to order 4 rule 32 of the National Court Rules. In the affidavit of – the sum is set out in paragraph 3 of our amended notice of motion.
HIS HONOUR: 1000 – sorry, not one thousand, million is it?
MR NAROKOBI: Yes, your Honour.

HIS HONOUR: K1,925,000 plus interest of 8 per cent from 22 June 2002 to today, right?
MR NAROKOBI: That is correct, your Honour.
HIS HONOUR: And that is what you are moving?
MR NAROKOBI: Yes, your Honour.
HIS HONOUR: All right, then.

MR NAROKOBI: I rely on my own affidavit as well as that of affidavit of Mathew Moiga filed on 6 April 2006. Basically, what this affidavit states is that they have received a sum already. The balance is outstanding due to the negligence on the part of the defendants. It is a sum already ordered by the Court and on that basis your Honour we move the court for this sum.

HIS HONOUR: All right, motion is granted. Sum of K1,925,000 plus 8 per cent interest from 22 June 2002. That is a long time ago.

MR NAROKOBI: Yes, court pleases. We ask for costs, your Honour, for the entire proceedings.
HIS HONOUR: Yes, and costs.

AT 2.00 PM, THE COURT ADJOURNED INDEFINITELY ”


  1. Shortly after the ex parte order of 6 December 2006 was made by Los J granting the plaintiffs’ amended motion filed on 31 October 2006, Narokobi Lawyers filed a minute of that order. The minute bears the Court’s seal and the signature of the Registrar. The minute of the order is dated 6 December 2006 and states that it was entered on 13 December 2006.[26]
  3. An image of the minute of the controversial order made by Los J on 6 December 2006, as filed by Narokobi Lawyers, is reproduced below:[2]

2022_40100.png

  1. It is unclear from the evidence adduced at the hearing before me on 11 August 2017 why term 1 of this minute was deleted. Perhaps the Registrar conferred with Los J or his Honour’s associate after the minute was filed at the Registry by Narokobi Lawyers to check if the minute accurately reflected the terms of the order made by his Honour on 6 December 2006 and the Registrar was advised to delete term 1. In any event, this is the minute of the order made by Los J on 6 December 2006 which generated so much contentious litigation over the ensuing 11 years, right through to the hearing on 11 August 2017 of the defendants’ present motion filed on 2 February 2017.
  2. As term 1 of the minute of the order of 6 December 2006 was deleted, the deletion having been initialled by the Registrar, this means that the defendants’ notice of motion filed on 25 October 2006 was not dismissed on the ground of non-compliance with the Court’s order made by Sevua J on 17 October 2006 to file an amended defence by the return of the proceeding on 24 October 2006 but on the ground set out in term 2, namely that the defendant’s motion filed on 25 October 2005 seeking an extension of time to file an amended defence was dismissed by Los J as an “abuse of process as parties were given notice but failed to turn up and time for appeal has expired under the Supreme Court Act.” This basis for the dismissal of the defendants’ motion is phrased in a most ambiguous way. What do the words “parties were given notice but failed to turn up” mean? What do those words relate to?
  3. There is no proper evidence before this Court as to the date on which the parties, and in particular the defendants, were required to “turn up” at Court after the entry of the default judgment of 11 August 2006. The affidavit of Vergil Los Narokobi sworn 30 October 2006[27] in support of the plaintiffs’ amended motion filed 31 October 2006 is silent as to the date on which the defendants by their counsel were alleged to have failed to “turn up” at Court.
  4. Mr Narokobi’s affidavit sworn 30 October 2006 is also silent as to why the plaintiffs’ amended motion of 31 October 2006 should be seeking statutory interest at 8% to be awarded on K1,925,000 per annum as from 22 June 2002 to date of judgment on quantum of damages. The plaintiffs did not institute this proceeding WS No. 1492 of 2005 until 27 September 2005. No explanation was given in Mr Narokobi’s affidavit as to why a seemingly arbitrary date of 22 June 2002 should be the date on which any pre-judgment award of statutory interest on K1,925,000 should be calculated from. Perusal of the plaintiff’s amended statement of claim filed 14 June 2006 indicates at para. 12 that an alleged unauthorised cheque for K50,000 was issued by the Department of Finance to a non-entitled payee on 22 June 2002 but even if that were proven, that could not possibly justify interest at 8% backdated to 22 June 2002 being awarded on the whole of the amount of K1,925,000 claimed as the principal amount of the plaintiffs’’ loss.
  5. While it is self-evident from the associate’s endorsement on the Court’s file for 6 December 2006 that there was no appearance for counsel for the defendants when the plaintiffs’ amended motion filed 31 October 2006 was moved by counsel for the plaintiffs before Los J on 6 December 2006, it is equally clear from the transcript that there was no evidence at all tendered by counsel for the plaintiffs to Los J at the hearing on 6 December 2006 that Mr Kumura of the Solicitor-General’s Office or the A/Solicitor-General had in fact been served by Narokobi Lawyers with notice that “the matter” mentioned in Court only two days earlier on 4 December 2006 was to return at such short notice before the Court on 6 November 2006. Counsel for the plaintiffs did not tender to his Honour on 6 December 2006 any proof that Mr Kumura was actually on notice of the hearing of “the matter” on 6 December 2006. The transcript shows that Mr Narokobi simply said to his Honour that he had written to Mr Kumara to inform him. That is not proof of service on the defendants, or rather on Mr Kumura or on the A/Solicitor-General as lawyer on the record. It was just a general assertion made from the bar table by counsel for the plaintiffs. For whatever reason, his Honour accepted that assertion at bare face value and did not enquire further for proof that Mr Kumura or the A/Solicitor-General were on notice that the case was to return before the Court on 6 December 2006 at 9.30 am. The transcript shows that counsel for the plaintiffs did not even attempt to produce to his Honour on 6 December 2006 an office copy of the letter dated 5 December 2006 which Narokobi Lawyers had faxed to the Registrar, and which counsel for the plaintiffs was presumably guardedly referring to when he said to his Honour that he had written to counsel Mr Kumura, which of course he had not.
  6. Despite search, I have been unable to find the original or any faxed copy of Narokobi Lawyers’ letter of 5 December 2006 addressed to the Registrar on any of the Court’s 7 files for this case. That faxed letter has gone missing or has been removed from the Court’s files.
  7. However, evidence of that letter has, as noted above, been provided by annexure “ND3” to A/Solicitor-General Mr Devete’s supplementary affidavit filed 27 February 2008. The copy of this faxed letter which is annexed to Mr Devete’s affidavit has numerous handwritten notations on it as well as the imprint of an inked stamp which states: “Received Date: 06/12/06”. But the stamp and the handwritten notations on this particular copy give no indication that a copy of this letter was actually faxed or hand-delivered to Mr Kumura or the Solicitor-General’s Office.
  8. I observe that the affidavit of Mr Yer Awi sworn and filed by Narokobi Lawyers for the plaintiffs on 24 February 2016 makes oblique reference to that law firm’s faxed letter to the Registrar dated 5 December 2006. Mr Awi deposes that at the time he signed his affidavit in February 2016 he was then the lawyer at Narokobi Lawyers who was acting on instructions from Mathew Moiga and his co-plaintiffs for the purposes of this case. Mr Awi affirmatively states in paras. 9 and 10 of his affidavit as follows:

“ 9.On the 6th December 2006, Los J. ordered judgment in the sum of K1,925,000.00 with interests as pleaded in the Statement of Claim dismissing the Defendants’ application to file defence out of time.


10. The Defendants had been served the application and notified of the hearing date on 06th December 2005.

Annexed hereto and marked with the letter “C” are true copies of the Amended Notice of Motion filed on 31/10/2016 and Affidavit of Mathew Moiga sworn and filed on 6th April 006 Document No. 14 and “C1” are true copies of Affidavit of Service filed on 8/11/2006 and letter by Narokobi Lawyers notifying them of hearing date.”

[underlining added]


  1. Paragraph 9 of Mr Awi’s affidavit is a statement of fact and is a reasonable summation of the ex parte summary judgment which was awarded by Los J to the plaintiffs on 6 December 2006. However, the opening statement in para. 10 of Mr Awi’s affidavit that “The Defendants had been served the application and notified of the hearing date on 06th December 2005” is unashamedly hearsay evidence. That statement is also misleading when taken in context with the annexures Mr Awi then refers to in para. 10 of his affidavit. Annexure “C” to Mr Awi’s affidavit is material which relates to the amended notice of motion that Narokobi Lawyers filed for the plaintiffs on 31 October 2006. Annexure “C1” to Mr Awi’s affidavit is a copy of an unfiled affidavit by John Yapen, an office assistant of Narokobi Lawyers, purportedly sworn on 1 November 2006 which gives particulars of service of the plaintiffs’ amended notice of motion and supporting documents on the Office of the Solicitor-General on 1 November 2006. As I have already noted, the plaintiff’s amended notice of motion filed 31 October 2006 gave a return date of 15 November 2006, but the case was not mentioned in Court that day. And then, tacked on at the end of Mr Yapen’s affidavit of service are two copies of Narokobi Lawyers’ faxed letter addressed to the Registrar dated 5 December 2006; the first copy being a duplication of annexure “ND3” to A/Solicitor-General Mr Devete’s supplementary affidavit filed 27 February 2008; the second copy having a page 2 which states:

“ cc1: Associate to Los J. Copy by Fax: 325-7732
cc2: Mr John Kumara
Office of the Solicitor General [Copy by Fax: 325 9895]
FAX SENT [office stamp]
5/12/06: 9.43 am [handwritten] ”


  1. Furthermore, Mr Awi does not expressly state in paragraph 9 of his affidavit the nature of “the application” which was due to be heard by the Court on 6 December 2006, notice of which “hearing” had allegedly been served on the defendants according to Mr Awi, nor does Mr Awi say how the defendants, or rather Mr Kumura or the A/Solicitor-General acting for the defendants, were purportedly given one day’s notice of whatever it was that was set down for “hearing” on 6 December 2006, when Narokobi Lawyers’ own faxed letter to the Registrar dated 5 December 2006 refers to a “matter” which had been adjourned by Chief Justice Sir Mari Kapi for a special fixture to be obtained, not for the actual hearing of any outstanding matter.
  2. There is no affidavit material or other evidence from Narokobi Lawyers which was put before Los J on 6 December 2006 or before this Court at the defendants’ subject hearing on 17 August 2006 which would in any way tend to prove by way of a fax machine date stamp that a copy of that law firm’s letter dated 5 December 2006 to the Registrar was also faxed to the Office of the Solicitor-General’s fax number 325-9895 at any time on 5 December 2006 or on the morning of 6 December 2006.
  3. The transcript for the hearing on 6 December 2006 clearly shows that counsel for the plaintiff did not, at that hearing, produce to Los J any affidavit of service or even a copy of Narokobi Lawyers’ faxed letter to the Registrar of 5 December 2006 or any other purported proof of notification to Mr Kumura and the Solicitor-General of “the matter” in WS No. 1492 of 2005 which was to come before the Court at 9:30 am on 6 December 2006. Mr Kumura and the A/Solicitor-General were in effect “ambushed”.
  4. Based on the evidence now before the Court, I make the following findings:

(1) there was no proof at the hearing on 6 December 2006 that a copy of Narokobi Lawyers’ faxed letter dated 5 December 2006 addressed to the Registrar was also faxed or served that day on the office of the Solicitor-General; and


(2) the presiding judge should have insisted on satisfactory proof of service of notification to the A/Solicitor-General and/or Mr Kumura that the case was to return before the Court on 6 December 2006 at 9.30 am being produced at the ex parte hearing which took place in the afternoon of 6 December 2006, but the presiding judge did not require any proof of service to be produced by counsel for the plaintiffs at that hearing; and


(3) even if Narokobi Lawyers’ faxed letter of 5 December 2006 was indicative that a copy was intended to have been faxed or delivered to the Office of the Solicitor-General and/or Mr Kumura, the period of notice of less than one day for the return of the proceedings before the Court at 9.30 am on 6 December 2006 was unreasonable and unduly prejudicial to the defendants; and


(4) Narokobi Lawyers’ faxed letter of 5 December 2006 failed to specify what applications or matters were to come before the Court at 9.30 a.m. on 6 December 2006. The faxed letter was intentionally vague in its reference to this matter” and should instead have clearly identified that the purpose of the return of the proceeding on 6 December 2006 at 9.30 a.m. was for the Court to allocate a special fixture date or dates for the trial for assessment of the plaintiffs’ damages pursuant to the earlier default judgment of 11 August 2006 and for the hearing of the parties two motions respectively filed on 25 October 2006 and 31 October 2006.


  1. In view of these findings, I am satisfied that the defendants have given a compelling explanation as to why the plaintiffs’ ex parte summary judgment of 6 December 2006 was allowed to be entered. Issue 1 is resolved in favour of the defendants.

ISSUE 2: Has there been a reasonable explanation for the defendants’ delay in making the application to set aside the ex parte summary judgment of 6 December 2006?


  1. I have already observed that this proceeding has had a long and convoluted history. I do not intend to traverse at length matters which are now historically irrelevant to the issue of the defendants’ delay in bringing their present application before the Court to set aside the plaintiffs’ ex parte summary judgment of 6 December 2006. However, many salient historical events in this proceeding do require mention.
  2. The A/Solicitor-General at the time the ex parte summary judgment was made on 6 December 2007 was Mr David Lambu who had been appointed in an acting capacity to that Constitutional office following the appointment of his predecessor Madam Polume-Kiele as a judge. However, Mr Lambu resigned as A/Solicitor-General in early 2017 to contest the 2017 National Elections. There was then a hiatus of several months when there was no A/Solicitor General to replace Mr Lambu. The Solicitor-General’s Office went through a period of confusion and upheaval. It was not until Mr Devete was appointed as A/Solicitor-General on 3 May 2007 that the Solicitor-General’s Office was restored to some semblance of normalcy. Also, Mr Kumura who had had the carriage of this proceeding WS No. 1492 of 2005 in late 2006 was suspended in December 2006. This sequence of events, deposed to by A/Solicitor-General Mr Devete at paras. 16 to 19 of his supplementary affidavit filed 27 February 2008, explains why it took so long for the Solicitor-General’s Office to have filed the State’s motion on 23 August 2007[28] seeking extension of time to apply to set aside the ex parte summary judgment of 6 December 2006. That motion was the first of many such motions filed by the Solicitor-General’s Office seeking the same relief, motions which became embroiled and unheard in the protracted litigation which ensued from certificates of judgment and contempt proceedings against Mr Devete which were filed by Narokobi Lawyers.
  3. The minute of the ex parte summary judgment of 6 December 2006 filed by Narokobi Lawyers states that judgment was entered on 13 December 2006. Narokobi Lawyers filed a certificate of judgment in Form 1 of the Claims By and Against the State Act 1996 the same day, 13 December 2006.[29] The certificate gave a calculation of the total judgment sum at K2,611,460.27 which comprised the judgment sum of K1,925,000 plus statutory interest at 8% per annum of K686,460.27 for a period of 1,627 days calculated from the arbitrary date of 22 June 2002 to date of the ex parte summary judgment on 6 December 2006. The certificate required certification by the Registrar under s.13(2) of the Act followed by endorsement by the Solicitor-General under s.14(2) of the Act within 60 days of service of the certificate on the Solicitor-General before payment of the total judgment amount of K2,611,460.27, exclusive of indemnity costs, could be actioned for payment by the Secretary for the Department of Finance.
  4. The certificate of judgment filed by Narokobi Lawyers on 13 December 2006 was signed by Registrar Augerea the next day, 14 December 2006. However the certificate of judgment could not be endorsed by A/Solicitor-General David Lambu as by the time it was served on the Solicitor-General’s Office, Mr Lambu had already resigned as A/Solicitor-General.
  5. A further certificate of judgment was filed by Narokobi Lawyers on 1 March 2007.[30] However, when that certificate was served on Mr Devete after he was appointed as A/Solicitor on 3 May 2007, he refused to sign the endorsement on the certificate of judgment because he was of the view that the plaintiffs had already received substantial payment of the ex parte summary judgment of 6 December 2006 because of payments made in earlier related proceedings. A/Solicitor-General Mr Devete had become aware of numerous payments already made by the Department of Finance as a result of proceedings WS No. 353 of 1999 and other related proceedings including WS No. 798 of 1999 – Raymond Turu and John Maku & Ors v. The State and WS No. 398 of 2006 – Raymond Turu , John Mahu and Ors v Jack Patterson and Zachery Gelu trading as Patterson Lawyers. These related proceedings are referred to at length in para. 5 of Mr Devete’s affidavit filed 23 August 2007 and again in para. 20(iv) of his supplementary affidavit filed 27 February 2008. A/Solicitor-General Mr Devete took the position that the plaintiffs would be unjustly enriched by double payments if payment by the Department of Finance of the ex parte summary judgment of 6 December 2006 in WS No. 1492 of 2006 were to be enforced through his endorsement of the certificate of judgment filed by Narokobi Lawyers on 1 March 2007.
  6. In October 2008, while A/Solicitor Mr Devete was on a period of suspension from official duties due to the contempt proceedings against him, Narokobi Lawyers endeavoured to have another certificate of judgment for K2,611,460.27 in WS No. 1492 of 2005 signed by then A/Solicitor-General David Manoka for payment by the Department of Finance.[31] A/Solicitor Mr Manoka has denied ever signing that alternative certificate of judgment and asserts that his signature was a forgery. This is a matter which came to the attention of Sevua J on 22 May 2010 and is mentioned in the ruling of Davani J of 3 September 2010 referred to in para. 98 below.
  7. On 1 May 2009 Narokobi Lawyers filed yet another certificate of judgment[32] which they unsuccessfully sought to have endorsed by A/Solicitor-General Devete following his resumption of duties after his period of suspension.
  8. The history of the proceedings brought by the plaintiffs against A/Solicitor-General Devete by the plaintiffs in their attempts to have him sign a certificate of judgment, including the contempt proceedings the plaintiffs instituted against him in OS No. 141 of 2007 from which A/Solicitor-General Mr Devete appealed to the Supreme Court in SCA No. 43 of 2010, is recounted in the decision delivered by Davani J on 3 September 2010 and again in the affidavit of Deputy Solicitor-General Mr Laias Kandi filed on 10 February 2012.
  9. Justice Davani’s decision of 3 September 2010 arose from A/Solicitor-General Mr Devete’s motion filed on 29 May 2009 seeking to have set aside the ex parte order which had been made by Sevua J on 20 May 2009 on application by the plaintiffs and which had directed A/Solicitor-General Mr Devete to sign the plaintiffs’ certificate of judgment within 24 hours. It must be noted, however, that only two days later, on 22 May 2009, Sevua J stayed his own order of 20 May 2009 on ex parte application by A/Solicitor-General Devete who was then awaiting the outcome of his appeal in SCA No. 43 of 2010 lodged with the Supreme Court against his conviction by Salika DCJ in OS No. 141 of 2007 on 20 April 2010 for contempt for his having refused to sign the certificate of judgment.
  10. The reserved decision of Davani J of 3 September 2010 sets out a chronology of the events in this proceeding from issuance of the plaintiffs’ writ in WS No. 1492 of 2005 on 27 September 2005 through to 20 May 2009, which was the date of Sevua J’s ex parte order taken out by the plaintiffs compelling A/Solicitor-General Mr Devete to sign the certificate of judgment. After considering the prolixity of affidavit evidence before the Court and the submissions made by counsel for the respective parties, her Honour set aside the ex parte order made by Sevua J of 20 May 2009 and thereby discharged A/Solicitor-General Mr Devete from any compulsion under that order to sign the plaintiffs’ latest certificate of judgment.
  11. When giving the Court’s reasons as to why Sevua J’s order of 20 May 2009 should be set aside, Davani J said this at paras. 10(xiii), 10(xvi), 11 and 15 of her Honour’s decision delivered on 3 September 2010:

“ 10(xiii) Whilst Mr Devete’s Notices of Motion filed on 29th June, 2007, 2nd July, 2007 and 17th April, 2008 and the decision on the Contempt Charges were pending, Narokobi Lawyers and their clients purportedly, as alleged, forged David Manoka’s signature (the Acting Solicitor-General) on 5th December, 2008. This signature on a Certificate of Judgment taken out by Narokobi Lawyer, was to enable payment from the Finance Department.

...

10(xvi) Mr Devete made an “urgent” stay application on 22nd May, 2009, whereupon Sevua J ordered the stay of his own Orders of 20th May, 2009 and directed Mr Devete to file formal application to set aside His Honour’s own Orders. In making the above Orders, Sevua J expressed disgust at Mr Camillus Narokobi’s conduct in obtaining the orders of 20th May, 2009, and chided him for being dishonest, deceptive and unprofessional. His Honour also remarked that the conduct of Mr Camillus Narokobi in deceiving and misleading the Court was unacceptable and further warned Mr Narokobi that he must not repeat the same before His Honour’s Court.

...

11.No doubt the Solicitor-General’s refusal to sign the Certificate of Judgment is because of what I have reviewed above. It is also because the Solicitor-General was very much aware of the contentious history of this matter being that the present plaintiff’s claim is derived from a background that involved extensive litigation but arose from one claim and was eventually ‘split up’ into several other claims, where the named plaintiffs in those named proceedings have benefitted immensely and I must add, the lawyers as well, who all gained monetarily. It is a claim [in this proceeding WS No. 1492 of 2005] by a litigant or litigants who are obviously habitual or vexatious litigants, as demonstrated.

...

15.The Solicitor-General, who is the applicant in this case, seeks to set aside the Certificate of Judgment issued by this Court on 20 May 2009. The Certificate of Judgment was issued following the entry of judgment on 6th December 2006 following application before Los J, under O.4 r.32 Division 4 of the NCR. Rule 32 is the provision under Division 4 of the NCR, the division on “Originating Summons”. And this occurred while all parties were awaiting the hearing on assessment of damages after entry of default judgment on 11 August, 2006. In my view, the application to set aside the order of 6th December, 2006, amongst others, filed by the Solicitor-General on 29th June, 2007 and 23 August, 2007, must be heard. I say this because on the face of it, the order of 6th December, 2006, appears to be an irregularly entered judgment.”
[underlining added]


  1. With reference to the issue of any delay on the part of the defendants in seeking to have set aside the ex parte summary judgment of 6 December 2006, Davani J concluded her reasons for decision to set aside Sevua J’s ex parte order of 20 May 2009 by saying this at para. 18:

“ 18. The plaintiffs have to demonstrate the prejudice they will suffer if the Certificate is set aside. But they have not done that. In any event, in my view, it is the State that has been prejudiced by the numerous proceedings and judgments filed and taken out by the same or related groups of people. Ordinarily, one can say that the State by its inaction allowed the plaintiffs to pursue judgment, then enforcement, resulting in the Certificate being taken out. But this is a Court of Justice and justice must be seen to be done. For that to occur, the original procedural mistake upon which the order of 6th December, 2006 was taken out must be corrected. It is not as if the Solicitor-General did not take any steps to rectify this. I see that he has done so by the filing of the several Motions referred to above. The Motions must be moved and argued and at that hearing the plaintiffs will be given the opportunity to say why the judgment debt should remain. ”


[underlining added]


  1. The formal order which was made by Davani J on 3 September 2010 included these terms:

“1. The Orders of 20th May 2009 are set aside

2. The Solicitor General is at liberty to relist the hearing of any or two of the Notices of Motion filed 29th June, 2007, 2nd July 2007, 17th and 23rd August, 2007 and 17th April, 2007 and must do so within the next 7 days, on or before 9th September, 2010. ”


  1. The motions referred to in her Honour’s formal order of 3 September 2010 included motions which were previously filed by A/Solicitor-General Devete seeking orders to set aside the ex parte summary judgment granted by Los J on 6 December 2006. Her Honour made it very clear in her reserved decision of 3 September 2010 that her purpose in setting aside Sevua J‘s order of 20 May 2010 was so that the Court’s record in connection with the ex parte summary judgment of 6 December 2006 granted by Los J could be set straight.
  2. After delivery of Davani J’s decision on 3 September 2010, the chronology of what then occurred, taken from the Court’s record, is as follows:
  3. The defendants’ motion filed on 17 February 2016 was not heard by Davani J on its appointed return date of 9 March 2016 as by that stage her Honour had become seriously ill. Her Honour later succumbed to her ill-health and passed away on 4 November 2016.
  4. On 6 April 2016: The plaintiffs’ application to the Supreme Court in SCA No. 144 of 2015 for leave to appeal and for a stay of Kandakasi J’s order of 19 October 2015 refusing the plaintiff’s amended motion filed on 5 October 2015 was dismissed by Chief Justice Injia for want of prosecution.
  5. After several listings of this case by the Registry before her Honour Polume-Kiele on 14 April 2016 and 15 August 2016, the case was referred back to the Registry for relisting as her Honour ruled that she could not preside as she had previously acted for the defendants in 2006 when she was A/Solicitor-General.
  6. The chronology of events by way of explanation of the defendants’ delay in moving their present motion before Court continues:

“ (1) This matter is adjourned to 8th November 2016 at 9.30 am.

(2) Plaintiff shall turn up in Court ready to show cause why this proceeding should not be dismissed for want of prosecution and before doing so file and serve an affidavit providing reasonable explanation for the inordinate delay in having this matter prosecuted promptly.

(3) If the Plaintiff does turn up in Court, he shall come ready to take the next step in the proceeding, including if he so wishes instructing a lawyer to have carriage and conduct of this matter for his behalf well before the return of this matter.

(4) [Non-compliance] shall result in dismissal of the proceeding for want of prosecution and for failure to comply with Court orders.

(5) The Registry shall serve this order on Narokobi Lawyers notwithstanding the notice of lawyer ceasing to act ...”


  1. Before I proceed to make findings in respect of the issue of delay, I acknowledge what was said by Kandakasi J in Kaseng v The State (2004) N2735, a case which involved an application to set aside two certificates of judgments. One of the substantive issues raised in that case was the plaintiff’s contention that there had been unreasonable delay by the defendants in bringing their application to set aside the certificates of judgment. His Honour said this at pp. 24, 25 and 26:

“ Very recently in the case of Umapi Luna Pakomey & Ors v James Siai Wamo & Ors (12/11/04) N2718, I consider the issue of delay in the context of an application for leave for judicial review. There, I noted that the time limits for application for leave for judicial review under the Rules of the Court are capable of extension, conditional on provision of reasonable explanation. This ties in well with the clear law now that the Court can dispense with strict compliance of the Rules in appropriate cases to do justice. This is because the Rules are there to only assist the parties to get to judgment on the merits of their case and not succeed purely on account of the Rules: see Papua New Guinea Banking Corporation v Jeff Tole (supra).

In the same judgment, Umapi Luna Pakomey & Ors v James Siai Wamo & Ors, I noted that prejudice occasioned by any delay is a relevant consideration. If the party opposing an application that is out of time can demonstrate a case of prejudice, that might serve as an impediment to the grant of the application. In that case, I found that the plaintiff did not provide any reasonable explanation for the delay and more importantly, I noted that during the period of the delay much had taken place and that a grant of the application and the relief sought would introduce chaos and affect good administration.

In the present case, if I were satisfied that there were inordinate delay, the respondents would still have to satisfy the Court that the delay has resulted in prejudice to them. The respondents have not established a case of prejudice because of the delay. The only thing that has happened seems to be the death of the original lead plaintiff Mr Kaseng, who I note is still named as a plaintiff. This means the plaintiffs have not taken the necessary consequential steps under the Rules. Without those steps, the plaintiffs could not properly proceed to either enforce the judgment or take the next step in the proceedings.

In any case, I note that the error, mistake or misapprehension, the subject of these proceedings. resulting in the issuance of the certificates of judgment is so fundamental. Hence, in my view, the issue of delay should not step in the way of correcting that error or mistake to set the Court’s record straight and to do justice in the public interest, which is one of the twin brothers to the need to ensure finality in litigation. In the absence of any evidence to the contrary, the only thing the respondents will or may have suffered, are costs, which is easily compensable by an order for costs. ”

[underlining added]


  1. In view of the protracted history I have outlined of the defendants’ efforts to have their various motions seeking to set aside the ex parte summary judgment of 6 December 2006 finally heard, I am satisfied that the defendants have given a reasonable explanation for their initial delay in mounting a challenge to that judgment, that delay having been occasioned by the A/Solicitor-General Mr Devete’s refusal to endorse the various certificates of judgment which the plaintiffs’ persistently endeavoured through multiple motions to have him sign. That refusal by A/Solicitor-General Mr Devete which first occurred after service on him of the plaintiffs’ certificate of judgment of 1 March 2007, was the catalyst for the next 4 years of litigation. A/Solicitor-General Mr Devete’s refusal was, as I have observed, finally vindicated by the ruling delivered by Davani J on 3 September 2010.
  2. The arduous course of this proceeding which then followed Davani J’s ruling of 3 September 2010 has, I consider, been satisfactorily explained by the proliferation of interlocutory motions and adjournments which occurred in this proceeding between 15 October 2010, when the plaintiffs’ mounted their unsuccessful application for leave to appeal Davani J’s orders of 3 September 2010, through to the date of the defendants’ present motion heard on 11 August 2017.
  3. The plaintiffs have not demonstrated in their opposition to the defendants’ present motion that they have suffered any prejudice due to delay which could not properly be compensated for by an appropriate order for interest if assessment of damages pursuant to their default judgment of 11 August 2006 were to be allowed to go forward to trial and the plaintiffs were to be successful in obtaining an award of damages. Indeed, counsel for the plaintiffs made no submission at all at the hearing that the plaintiffs have suffered any degree of prejudice as a result of having the defendants’ present motion heard. Counsel for the plaintiffs did refer to the obvious passage of time and certain of the events which have occurred, but that is as far as his submissions went. As I have observed, delay in the absence of proven prejudice can be compensated for, if warranted, by an appropriate award of interest on assessment of damages at trial.
  4. I am mindful that there is a motion which was filed in this proceeding by Narokobi Lawyers on 3 November 2015 seeking an order that Jack Apai be substituted as the principal plaintiff in this proceeding in lieu of Mathew Moiga, who apparently died on 9 September 2015.[45] That motion is still pending before this Court and will at some point need to be heard. But the passing of the late Mr Moiga is not a matter which is relevant to the issue of prejudice in the absence of any evidence in that regard. In a more general sense, all parties in this proceeding have been prejudiced by delay because by the labyrinthine history of this case arising from tactics adopted by the plaintiffs and their lawyers and also by the State due to inaction by the Solicitor-General’s Office at times, but I am not satisfied that the plaintiffs have suffered any demonstrable degree of prejudice over and above that which all parties have experienced.
  5. I agree with Davani J, as indicated in her ruling of 3 September 2010, that the original procedural errors upon which the ex parte summary judgment of 6 December 2006 in this case were taken out were so fundamental that they must be corrected. In so agreeing, both Davani J and I echo the very clear pronouncement made by Kandakasi J (as he then was) in Kaseng v The State that the issue of delay should not stand in the way of correcting serious errors or mistakes so as to set straight the Court’s record and to do justice in the public interest.
  6. Given all of the byzantine circumstances of this case as reviewed by me in the context of delay, I am satisfied that the defendants have provided a convincing explanation for the many delays which beleaguered them prior to the filing of their present motion on 2 February 2017 seeking to set aside the ex parte summary judgment of 6 December 2006. I find that Issue 2 must necessarily be resolved in favour of the defendants.

ISSUE 3: Is there a defence on the merits?


  1. The initial evidence as to whether the defendants have a defence on the merits is to be found in the affidavit of Mr Kumura filed 25 October 2006. Mr Kumura explained in his affidavit that the lawyer at the Solicitor-General’s Office who previously had the carriage of this case for the State, Mr Jimmy Bokomi, had left his employment there in September 2006, following which this case was re-assigned to Mr Kumura at some later point in September 2006. Attached to Mr Kumura’s affidavit is an initial draft defence for the State marked annexure “JK1”. The main issues raised by the State as third defendant in answer to the plaintiffs’ amended statement of claim are set out in paragraphs 6 and 7 of the initial draft defence, the text of which paragraphs is set out below:

“ 6. Further, the Third Defendant says that the Plaintiffs in this proceeding were also Plaintiffs in the previous proceeding by Raymond Turu and John Maku as representatives of clan leaders, forestry agents and landowners of Vanimo Timber Rights Purchase Area -v- The State – WS No. 353 of 1999, and that the factual basis of this claim is the same as the previous claim, and that they have already obtained judgment in the previous claim, and that their claim has been settled in full by the Third Defendant, and that there is no liability outstanding, and that the Plaintiffs cannot come back to Court for the same thing. The Third Defendant therefore pleads the defence of Res Judicata and says that this claim should be dismissed.

7. The Third Defendant denies the rest of the allegations in paragraphs [9 to 26] of the Statement of Claim. The Third Defendant responds as follows:

(1) The Third Defendant has settled in full the entire judgment debt obtained by the Plaintiffs and there is nothing outstanding to settle.

(2) The settlement of the judgment debt was made pursuant to a valid Court order.

(3) At all material times that the payments were being made, the current Plaintiffs in this proceeding took no positive and meaningful steps including a Court order to prevent payments made to the Plaintiffs named in the previous proceeding, including their representatives or agents. The Plaintiffs cannot now come and say that payments were made to unauthorized third parties, when they were parties to the previous proceeding and knew or ought to have known and some of them may have benefitted from the payments made. ”


  1. The initial draft defence of the State as third defendant which is annexure “JK1” to Mr Kumara’s affidavit was later expanded. A copy of the amplified draft defence in this proceeding WS No 1492 of 2005 is annexure “S” to the affidavit of A/Solicitor-General Mr Devete filed 29 June 2007 in related proceeding OS No. 141 of 2007, which is in turn annexure “F” to the affidavit of Hillary Masiria sworn and filed in WS No. 1492 of 2005 on 17 February 2016.[46]
  2. The expanded draft defence for WS No. 1492 of 2005 which is annexure “S” to A/Solicitor-General Mr Devete’s affidavit is pleaded for all three defendants, not just the State as third defendant. The expanded draft defence reverses various denials contained in the initial draft defence but then pleads, among others, the following additional matters in answer to the plaintiffs’ (amended) statement of claim:

10. The Defendants partly admit paragraph 24 on the basis that the Cheque No. 783456 dated 6th July 2004 in the sum of K15,000.00 was released by Tau Tau of the Solicitor General’s Office to James Luvaduya of Patterson Lawyers and witnessed by Mr. Mathew Moiga himself of the 11th November 2004. The Defendants further say that as to whether the 68 clan members received that payment or not it is up to Mr. Moiga himself to explain to them why he authorised that cheque to be sent to Patterson Lawyers. The Defendants do not know and therefore cannot admit a Cheque worth K100,000 being paid to Patterson Lawyers.[47]


11. The Defendants deny paragraph 26 of the Statement of Claim and say that its agents at Finance Department were only acting under a lawful court order and evidence [is] very clear that cheques were paid to either Henao Lawyers or Pattersons Lawyers Trust Accounts. The plaintiff, Mr Moiga himself was one of those person who authorized and allowed those payments to be diverted to wrong persons. Mr Moiga on the 11th November 2006 authorized and consented to a Cheque worth K15,000.00 being paid to Patterson Lawyers knowing very well that Patterson Lawyers were not the lawyers on record for the proceeding WS No. 353 of 1999. By that conduct, he is barred from raising that as a cause of action because he was one of those persons spearheading and facilitating diversion of cheques being paid to wrong persons.[48]

...

14. The Defendants say that there is no reasonable cause of action being shown in this matter because the agents of the Third Defendant as the Department of Finance were only acting under a lawful court order. A complaint from any other persons through a letter cannot override a court order. The agents of the Defendants owed a higher duty to comply with the court orders because the risk involved in disobeying a court order is greater.


15. The Defendants further say that the problem as to how the funds are distributed to landowners or misused by Mr Raymond Turu and John Maku which gave rise to this proceeding has no bearing on the State agents. Moneys were paid through cheques which were marked “NOT NEGOTIABLE” and are only to be paid to the payees through the trust accounts of their lawyers. If there is a cause of action, then that cause of action is against their representatives Mr Turu and Mr Maku.”


  1. Photocopies of 5 individual remittance advices for cheques nos. 701257, 704187, 709932, 711438 and 808913 drawn by the Department of Finance and Treasury between 2 November 2002 to 3 February 2006 totalling K1,275,000 variously made payable to “Henaos Lawyers” and to “John Maku and Raymond Turu C/- Henaos Lawyers” are annexures “H”, “I”, “J”, “K” and “L” to A/Solicitor-General Mr Devete’s affidavit sworn on 28 June 2007.
  2. A photocopy of the remittance advice for cheque no. 762811 for K15,000 dated 6 July 2004 drawn by the Department of Finance and Treasury and made payable to “Raymond Turu & John Maku C/- Pattersons Lawyers” is annexure “M” to A/Solicitor General Mr Devete’s affidavit sworn on 28 June 2007.
  3. From my perusal of the affidavit material I have referred to, I am satisfied that the defendants have a defence on the merits for the purposes of assessment of the plaintiffs’ damages in this proceeding WS No. 1492 of 2005. There is prima facie evidence in support of the defendants’ proposed defence that monies totalling K1,275,000 of the principal amount of K1,925,000 which forms the basis of the ex parte summary judgment of 6 December 2006 in this proceeding WS No. 1492 of 2005 were paid out by the Department of Finance and Treasury to Henaos Lawyers, and to Raymond Turu and John Maku care of Henaos Lawyers, in satisfaction of the judgment amount that was owed to the plaintiffs in WS No. 353 of 1999 represented by Raymond Turu and John Maku as representatives of the 68 Clan Leaders/Forestry Agents of the landowners of the Vanimo Block 6 Timber Rights Purchase Area. The 68 plaintiffs cited in related proceeding WS No. 1203 of 2004 are predominantly the same plaintiffs who are cited in this proceeding WS No. 1492 of 2005 but represented this time by the now late Mathew Moiga. All of this evidence requires testing and explanation by both the plaintiffs and the defendants at a proper trial conducted for the purpose of assessment of the plaintiffs damages, if any, in WS No. 1492 of 2005.
  4. However, although I am satisfied that the defendants do have a credible defence on the merits, I add one caveat. To the extent that the defendants’ proposed defence contains a denial of liability for the plaintiffs’ claim, that denial must be excised from any defence which the Court may allow the defendants to file. The defence must be restricted to matters going to assessment of quantum of damages only, not liability. This is because the issue of liability has already been determined by the default judgment granted by Kandakasi J on 11 August 2006. The substantive issue which remains to be determined in WS No. 1492 of 2005 is assessment of the quantum of damages the plaintiffs may be entitled to, if any.
  5. As I have found that the defendants’ have demonstrated to my satisfaction that they have a defence on the merits, Issue 3 is resolved in the defendants’ favour, subject to the condition that the defence, if allowed to be filed, must be limited to the pleading of matters going to assessment of damages only.

ISSUE 4: Should the judgment be set aside in the exercise of the Court’s discretion?


  1. As the defendants have demonstrated that the three principles referred to in Smith v Ruma Constructions Ltd forming the criteria which guide this Court’s determination of an application to set aside an ex parte judgment have been met, the defendants must nevertheless still convince the Court that it should exercise its discretion to grant the orders sought.
  2. The issue as to whether the Court should proceed to now exercise its discretion to set aside the ex parte summary judgment of 6 December 2006 depends in turn on whether that judgment was regularly entered in the Court’s record as opposed to it having been irregularly entered.
  3. The plaintiffs oppose the defendants’ application generally. The plaintiffs are, however, mistaken as to what the defendants were seeking in their present motion. The whole of the plaintiffs’ submissions, both written and oral, are misconceived. The written submissions for the plaintiffs tendered by counsel for the plaintiffs at the hearing on 11 August 2017, augmented by oral argument, are predicated on the flawed assumption that the defendants’ present motion was seeking to set aside a default judgment. That is not what is before the Court. What is before the Court is the defendants’ motion to set aside the ex parte summary judgment of 6 December 2006, which denied the defendants the right pursuant to the default judgment of 11 August 2006 to put their case at a substantive trial on assessment of the plaintiffs’ damages where evidence could be adduced and submissions made for all parties involved in WS No. 1492 of 2005.
  4. Counsel for the plaintiffs has misconstrued the nature of the ex parte summary judgment of 6 December 2006 as a default judgment. That this is so can be seen from counsel’s written submissions tendered in Court which unequivocally state on page 4 under first numbered item 2:

“ Default judgment was then obtained on 11 August 2011. The Defendants now seek to set aside that Default Judgement.”

Counsel’s written submissions then continue under second numbered item 2 on page 4:


“ 2. Setting Aside Default Judgement


The law governing the Application to set aside a judgment entered by Default in filing a Defence is clearly stated in the National Court Rules Order 12 Rules 25, 26, 28 and 34. As the Defendants defaulted under Order 12 Rule 25 the Plaintiff is entitled to a Default Judgement under Rule 34 of the same Order. The law relating to setting aside a Default Judgement is settled in this jurisdiction. “


  1. The judgment in question here was not a default judgment. It was a summary judgment, obtained by the plaintiffs in the absence of any representation for the defendants. For that reason I take little or no cognizance of such of the written and oral submissions made by counsel for the plaintiffs at the hearing on 11 August 2017 as were directed towards the setting aside of a default judgment. In any event, none of the submissions made for the plaintiffs at the present hearing addressed the issue of whether the ex parte summary judgment of 6 December 2006 was regularly or irregularly entered.
  2. As for the defendants, their counsel did in fact address the issue at the hearing of the defendants’ motion as to whether the ex parte summary judgment of 6 December 2006 was regularly entered or was irregularly entered. Counsel for the defendant submitted that the subject judgment was irregularly entered for three reasons:
    1. The plaintiffs failed to give proper or reasonable notice to the defendants of the date and time for the hearing of the motion for entry of judgement in the sum of K1,925,000, which motion was heard ex parte; and
    2. The judgment states that it was made pursuant to Order 4 r.32 NCR, which relates to proceedings commenced by originating summons, not by writ of summons.
    3. The judgment purports to be for a debt for a liquidated amount of K1,925,000 plus statutory interest and costs whereas the purported debt of K1,925,000 was not a liquidated amount at all but required proper assessment of damages at trial by the Court under s.12(3) of the Claims By and Against the State Act 1996.

Failure to give reasonable notice


  1. It is a fundamental principle of law that persons likely to be adversely affected by orders have a right to be heard. In Wawoi Guavi Timber Company Ltd v Molu (2016) SC1514 (Makail, Sawong and Neill JJ) the appellants appealed a decision of the primary judge who had set aside an earlier order for dismissal of the National Court proceedings. In dismissing the appeal the Supreme Court said at para. 40:

“In this Appeal we give clear directions that “quickie judgements” by failure, in reality, to inform all the parties of an intended application to dismiss will result in the application not proceeding until there is effective service and any order based on the application will be liable to be set aside.”


[underlining added]


  1. In Tulapi v Lagea (2012) N4939, an electoral petition case which involved an application to strike out an objection to competency for having been filed out of time, Makail J eloquently said this at para. 9:

“ This Court is not only a court of law but also a court of justice. It must be fair to all parties and must give them sufficient time to prepare their respective cases for hearing unless it is clear that one or both are guilty of laxity. Parties must not unduly prejudice each other. The system of administration of justice that we have adopted is one of fairness and openness; not trial by ambush.”


  1. These basic principles of justice are reflected in the National Court’s requirements for service of notice of hearing of motions. The Court’s procedure for the service and hearing of motions is governed by Division 5 of Order 4 NCR. Order 4 r.38 provides:

38. Notice necessary


(1) Subject to Sub-rule (2), a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service in the proceedings.

(2) A person may move the Court without previously filing or serving notice of the motion—

(a) where the preparation of the notice, or the fling or service, as the case may be, of the notice would cause undue delay or other mischief to the applicant; or

(b) where each party interested, other than the applicant, consents to the order; or

(c) where under these Rules or the practice of the Court for the time being the motion may properly be made without the prior filing or service, as the case may be, of notice of the motion; or

(d) where the Court dispenses with the requirements of Sub-rule (1).

(3) Except with the leave of the Court, and subject to these Rules, a motion shall be moved only on a date fixed by the Court for the hearing of motions.


  1. The Court may only proceed to hear a motion in the absence of a party if the Court can satisfied that the motion was duly served on that party, unless the conditions set out in Order 4 r.38(2) are shown to exist: Public Officers Superannuation Fund Board v Imanakuan (2001) SC677 (Amet CJ, Gavara-Nanu J, Kandakasi J); Rural Development Bank Ltd v Laka (2007) SC897 (Batari J, Lay J, Hartshorn J).
  2. Order 4 r.46 NCR deals with the Court’s power to hear and dispose of a motion in the absence of a party:

46. Absence of party


The Court may hear and dispose of a motion in the absence of any party—

(a) where service of notice of the motion on the absent party is not required by these Rules or by an order, or

(b) where notice of the motion has been duly served on the absent party.


  1. Where a motion is not disposed of on the first appointed date and another date is secured for the hearing of the motion, the Court must be satisfied that the respondent to the motion has been given adequate or effective notice of the new hearing date.
  2. In Niale v Sepik Coffee Producers Ltd (2004) N2637 Cannings J ruled that proper notice of a new hearing date for an adjourned motion must be given if the motion is to be heard in the absence of a respondent to the motion.
  3. Order 4 r.43(2) NCR states:

43(2) An affidavit of service of a notice of motion shall be filed not later than the day before the day on which the motion is to be made.


  1. When considering this mandatory requirement for the filing of an affidavit of service at least one day before the hearing of a motion, the Supreme Court said this in Rural Development Bank Ltd v Laka (supra) at paras. 7 and 8:

“It is clear from Order 4 r.43(2) that the court may only dispose of a motion in the absence of a party where that party has been duly served ... Where it is necessary to prove service of the motion then that proof must be provided in accordance with rule 43(2). To proceed ex parte there must be proof of due service on the absent party. Therefore in our view the judge hearing the application for judgment fell into error in proceeding when there was no affidavit before him proving service and there were no circumstances of urgency bringing the matter within Order 4 rule 28(2). Counsel’s assurances, absent in this case, are not sufficient to fulfil the requirements of the Rules.”

[underlining added]


  1. Turning to the present case, I observe that in breach of Order 4 r.43(2) NCR Narokobi Lawyers failed to file on 5 December 2006, one day before the hearing on 6 December 2006, an affidavit of service to prove that effective service of notice of the hearing date had been served on Mr Kumura or on the Solicitor-General.
  2. Furthermore, there was no proof of service of notice of the hearing of 6 December 2006 when the case came before Los J at 1.56 pm that day. The Court Reporting Service’s brief transcript of the hearing on 6 December 2006 shows that his Honour simply accepted counsel for the plaintiffs’ assertion, with reference to counsel Mr Kumura, that “I did write to him to inform him”. His Honour made no further enquiry as to proof service of notice of the hearing on Mr Kumura or on the Solicitor-General as lawyer on the record for the defendants.
  3. The matter of lack of evidence of any proof of notice of the hearing conducted by Los J on 6 December 2006 has already been extensively canvassed by me under Issue 1 in this Decision. I do not propose to repeat what I have said there. My findings in connection with non-service of notice of the hearing of 6 December 2006 on the Solicitor-General and Mr Kumura are set out at para. 84 of this Decision.
  4. Without recapitulating my findings on the evidentiary aspects regarding absence of satisfactory proof of notice of the hearing of 6 December 2006, there are, however, certain of the parties’ submissions on this issue which I consider require comment or correction.
  5. Counsel for the plaintiffs in his written and oral submissions did not address the question of when or even if notice of the hearing of 6 December 2006 was given by Narokobi Lawyers to the Solicitor-General’s Office. All that counsel for the plaintiff confusingly had to say on this fundamental point, as recorded at page 32 of the Court Reporting Service’s transcript of the hearing before me on 11 August 2017, was this:

“MR ASUPA: ... As to the notice of the sitting of the Court on 6 December 2006, at this point in time I am not sure if the notice was given but what I am aware of is that they were aware that the plaintiffs were going to apply for default judgment 21 clear days before it actually happened and there is no reason why because they did not receive notice.”


  1. Counsel for the defendants did actively address this issue as to whether notice had been given by Narokobi Lawyers to the Solicitor-General’s Office. The transcript at page 16 contains the following submission:

“MR KIPA: ... Yes, the State had very short notice which was one day and further, the notice was for the matter to go before the court for a special fixture to be obtained on 6 December 2006. There was no mention of an application before the court for judgment to be entered for the liquidated amount of K1.925 million. In fact, that is another reason as why we say that the ex parte orders were irregular because previously on 11 August 2006, judgment had been entered against the State with damages to be assessed. Your Honour, the relevant evidence is contained in paragraphs 9, 10 and 11 of the supplementary affidavit of Neville Devete filed on 27 February 2008.”


  1. I agree with most of what counsel for the defendants submitted here except for counsel’s inference that there was evidence that the State had been short served with only one day’s notice of the hearing set down for 6 December 2006. That inference by counsel was derived, as he said, from paragraphs 9, 10 and 11 of Mr Devete’s supplementary affidavit filed 27 February 2008. I set out in full those paragraphs:

“9.On 05 December 2006, the Third Defendant was served a letter dated instant advising the matter is listed on 06 December 2006.

Annexed and marked “ND3” is a true copy of the letter dated 5 December 2006.

10. Let me state at the outset that I am not aware of any other date the matter was scheduled to be listed except 15 November 2006 as per the Notice of Motion filed the Third Defendant on 25 October 2006 and the Plaintiff’s Notice of Motion filed on 31 October 2006.

11. Although the Third Defendant was advised by Narokobi Lawyers that the matter would be listed on 06 December 2006, it was not sufficient notice.

12. The Third Defendant was not given an opportunity to present its case before judgment was ordered in favour of the Plaintiff. The matter was not assessed as per the Order dated 11 August 2006.

13. It is absolutely clear that default judgment was entered against the State on 11th August 2006 with damages to be assessed.”


  1. Contrary to what A/Solicitor-General Mr Devete asserted in paragraphs 9 and 11 of his supplementary affidavit, I have found there is no proper or effective evidence before the Court that the State, via the Solicitor-General’s Office, was ever served with the letter dated 5 December 2006 from Narokobi Lawyers to the Registrar which is annexure “ND3” to Mr Devete’s affidavit. The assertion by Mr Devete that Narokobi’s letter of 5 December 2006 was also served on the State on 5 December 2006 is an assumption on the part of Mr Devete, who had no involvement with this case as at December 2006. Mr Devete’s assertion is also hearsay. His assertions in paras. 9 and 11 of his affidavit are, to the extent that they purport to acknowledge that service of notice of the hearing of 6 December 2006 was effected by Narokobi Lawyers on the Solicitor-General’s Office on 5 December 2006, are rejected out of hand by me for those two reasons.
  2. Counsel for the plaintiffs is also recorded in the transcript at page 32 as having informed the bench, in response to my repeated question as to when notice of the return of the case on 6 December 2006 was supposed to have been given to the State via the Solicitor-General’s Office, as having said as follows:

“MR KIPA: Yes. Notice was given on 4 December 2006. That is in the affidavit of Laias Kandi. That notice sought to inform the defendants that the matter was going to return on 6 December for a special fixture to be obtained, not for any application or hearing or motion.”


  1. The affidavit of Deputy Solicitor-General Mr Laias Kandi filed 10 February 2012 in WS No. 1492 of 2005 relates to 4 motions filed for the State which were still pending as at December 2011. Mr Kandi made no reference at all in his affidavit as to when or even if notice of the hearing of 6 December 2006 was given by Narokobi Lawyers to the Solicitor-General’s Office. Counsel for the plaintiffs was mistaken in this regard.
  2. As was said by the Supreme Court in Rural Development Bank Ltd v Laka, counsel’s assurances that notice of hearing has been given are not sufficient. The presiding judge must go further and insist on being satisfied by proof by affidavit, filed at least one day before the hearing of a motion in compliance with Order 4 r.43(2) NCR, that effective service of notice of hearing has been made. The only deviation to this otherwise mandatory requirement of Order 4 r.43(2) should be where any of the circumstances set out in Order 4 r.38(2) apply, such as where the proof of service of notice would cause serious mischief to the applicant or where other parties affected have consented to the orders sought in the motion or where the Court has already dispensed with the requirement under Order 4 r.38(1) for service of notification of the hearing date of the motion. None of those exceptions applied to the circumstances of this case when it came before Los J on 6 December 2006.
  3. I find that the assertion given by counsel for the plaintiffs to Los J on 6 December 2006 that he had written to Mr Kumura, the inference being that Mr Kumura was on notice from Narokobi Lawyers of the hearing of 6 December 2006, was woefully inadequate. At the very least an affidavit deposing as to how and when notification was given to Mr Kumura of the hearing set down on 4 December 2006 for 6 December 2006 at 9.30 am should have been available for Los J to peruse. If the plaintiffs were relying on Narokobi Lawyers’ faxed letter dated 5 December 2006 to the Registrar as having also been faxed to the Solicitor-General’s Office for the attention of Mr Kumura, or if a copy of that letter had been personally hand-delivered to Mr Kumura or to the Solicitor-General’s Office, an affidavit deposing to that effect should have been filed, or at least been sworn and been available to be handed up to his Honour at the hearing on 6 December 2006. His Honour should at the hearing on 6 December 2006 have insisted on strict proof of service of notification of the hearing date being produced to the Court, and in the absence of satisfactory proof of that notification then adjourned the case to a future date to enable proper proof by affidavit of notification of the new hearing date to be made. By failing to comply with this basic requirement for proof of service of notification on a motion that was being moved ex parte, his Honour fell into error. There can be no doubt that the ex parte summary judgment that ensued on 6 December 2006 was in serious breach of the Rules and the Court’s own practice for proof of service of notification of date of hearing of a motion.
  4. I accordingly find that the ex parte summary judgment of 6 December 2006 was irregularly obtained and that the Court should, in the exercise of its discretion, set aside the judgment on this ground alone.

The summary judgment was wrongly made pursuant to Order 4 r.32 NCR


  1. Counsel for the defendants next submission in support of the Court’s exercise of its discretion in this matter is that the summary judgment of 6 December 2006 was irregularly obtained because the judgment was wrongly made pursuant to Order 4 r.32 NCR.
  2. I observe that the order made by Los J on 6 December 2006 categorically states that judgment in the sum of K1,925,000 was to be entered against the defendants pursuant to Order 4 Rule 32 NCR. That rule comes within Division 4 of Order 4 which relates only to proceedings commenced by originating summons, not by writ of summons.
  3. Order 4 rr.32 and 33 NCR provide:

32. Determination

The Court may, on the first or any later day of hearing—

(a) hear and determine the proceedings or any claim in the proceedings; and

(b) make such order or direct the entry of such judgment as the nature of the case requires.

33. Absence of party

The Court may proceed with a hearing in the absence of—

(a) a plaintiff, where he has had due notice of the hearing; or

(b) a defendant, where—

(i) he is in default of giving a notice of intention to defend; or

(ii) he has had due notice of the hearing.


  1. Division 4 of Order 4 NCR, which includes Order 4 rr. 32 and 33, only applies to proceedings commenced by originating summons. The rules within Division 4 of Order 4 have no application to proceedings commenced by writ of summons: Mission v Bank of South Pacific Ltd (2005) N2845 (Davani J).
  2. This proceeding WS No. 1492 of 2005 was commenced by writ of summons under Order 8–Pleadings NCR and in particular by statement of claim under Order 8 r.3 NCR. This suit was not commenced by originating summons under Division 4 of Order 4 NCR. Therefore the reference in the ex parte summary judgment of 6 December 2006 to it being entered under Order 4 r.32 NCR is patently wrong, but that is what the plaintiffs themselves sought in their own amended notice of motion filed on 31 October 2006.
  3. If the plaintiffs were determined to seek to have struck out the State’s motion filed on 25 October 2006 seeking an extension of time to file a defence, the plaintiffs could have applied for that relief under Order 12 r.1 NCR which gives the Court a wide discretion to make “such order as the nature of the case requires”. Alternatively, the plaintiffs could have applied on motion for the defendants’ motion to be dismissed as an abuse of process under Order 12 r.40 NCR for the defendants’ failure, even if by one day, to have complied with the inter partes order made by Sevua J on 17 August 2006 to file an amended defence. The plaintiffs did not do so. Narokobi Lawyers sought dismissal of the State’s motion on 6 December 2006 under a wholly inappropriate procedure, Order 4 r.32 NCR, which is only available to proceedings commenced by originating summons.
  4. This suit, being a proceeding instituted by writ of summons under Division 1 of Order 8 NCR, is not and never was susceptible to lawful dismissal by way of the summary dismissal procedure allowed for in Order 4 Division 4 r.32 NCR which is exclusive to proceedings commenced by originating summons.
  5. I accordingly find that the ex parte summary judgment of 6 December 2006 was irregularly obtained and irregularly entered by mistaken reliance by the plaintiffs and by Los J on Order 4 r.32 NCR. I find that the judgment is voidable for this second reason and must, in the exercise of the Court’s discretion, be set aside pursuant to Order 12 r.8(2)(b) and Order 12 r.8(3)(a) NCR.

Was the Plaintiffs claim for K1,925,000 for a liquidated amount or unliquidated amount?


  1. The third reason advanced by counsel for the defendants as to why the ex parte summary judgment of 6 December 2006 is irregular and should be set aside is because the plaintiffs’ claim in this proceeding is for an unliquidated amount of damages, and as such those damages had to be assessed at a trial conducted pursuant to Order 12 r.28 NCR.
  2. The difference between a liquidated claim and an unliquidated claim was explained by the Supreme Court in Dempsey v Project Pacific Pty Ltd [1985] PNGLR 93 (Pratt J, Amet J, Woods J). Pratt J gave the classic definition of a liquidated demand, used for many years, at pp 95-96 in these terms:

“A liquidated demand is in the nature of a debt, i.e. a specific sum of money due and payable under or by virtue of a contract. Each amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be specified or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a ‘debt or liquidated demand’ but constitutes ‘damages’ ”


  1. Woods J made the following salient observations in Dempsey v Project Pacific Pty Ltd concerning liquidated demands entered under Order 12 r.27 NCR:

“For the purposes of signing judgments in default, a claim is liquidated when it is ascertained or is capable of being ascertained by a simple calculation, as when there is no element of assessment on judgment ...

The object of... the liquidated demand is to allow a procedure whereby a plaintiff, who has a clear debt type of action with a clearly ascertainable claim, can overcome the natural reluctance of courts to allow claims in the absence of the defendant and can get a speedy justice in the face of a delaying or difficult defendant. It has a prompt and summary effect in favour of the plaintiff.

Because it allows a final judgment to be signed against a defendant in the complete absence of the defendant, it is a right which must be carefully applied to ensure no possibility of injustice being done. That is why the rules allow for a prompt application to the court to set aside a judgment by default.


This means that the court should look closely to see whether a claim really does come within the class of liquidated claims and ensure that what should really be treated as unliquidated claims do not get treated as liquidated ones. It is all too easy just because the plaintiff comes to his own assessment of his claim and puts in a sum certain to then treat it as a liquidated claim and there have been a number of situations before the National Court this year where this has happened.”

  1. When a proceeding has been commenced by writ of summons for a money claim and a defendant is in default with the filing of a defence, if the relief claimed is for a liquidated amount only, the correct procedure is for the plaintiff to apply to the Court under Order 12 r.27 for entry of judgment for the specific sum claimed. However, if the relief claimed is for an unliquidated amount which requires ascertainment, the plaintiff cannot apply under Order 12 r.27 NCR and must instead apply under Order 12 r.28 NCR for entry of judgment with damages to be assessed: Chapeau v The State (1999) N1933 (Injia J). Different consequences flow, depending on whether the default judgment sought is for a liquidated or unliquidated amount.
  2. Order 12 r.27 NCR relates to entry of judgment for liquidated claims. Rule 27 provides:

27. Liquidated demand


(1) Where the plaintiff’s claim for relief against a defendant in default is for a liquidated demand only, the plaintiff may enter judgement against that defendant for a sum not exceeding the sum claimed in the statement of claim on that demand and for costs.


(2) Where a claim for a liquidated demand includes interest at an unspecified rate, interest accruing after the date of filing the statement of claim to the date of entry of judgement shall, for the purposes of judgement under this Division be reckoned at the rate of 8% yearly.


  1. Order 12 r.28, which relates to entry of judgment for unliquidated claims, is in quite different terms. Rule 28 provides:

28. Unliquidated demand

Where the plaintiff’s claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgment against that defendant for damages to be assessed and for costs.


  1. It is apparent in the present case that as the plaintiffs’ claim in WS No. 1492 of 2005 is not for a contract debt and as the claim requires investigation into amounts actually paid out by the Department of Finance, and to whom and when those amounts were paid, the plaintiffs’ claim is not for a liquidated amount but for damages for an unliquidated amount to be ascertained.
  2. The relief sought in the plaintiff’s statement of claim is judgment in the sum of K1,925,000 plus statutory interest and costs. However, the plaintiffs’ claim for K1,925,000 is not for a contract debt or a sum certain. It is for an amount which the plaintiffs have pleaded they should have received, but did not, from the judgment sum of K2,225,000 awarded to them in prior proceeding WS No. 353 of 1999, which amount of K1,925,000 is alleged by the plaintiffs to have been negligently paid out to others by the Department of Finance.
  3. The plaintiff’s amended statement of claim in WS No. 1492 of 2005 filed on 14 June 2006 pleads a series of payments made by the Department of Finance to third parties in purported satisfaction of the judgment sum of K2,225,000 in WS No. 353 of 1999, payments which are alleged to have not been accounted by the Department of Finance to the plaintiffs. Some of the third party payees of these monies are named in the statement of claim but others are not. For instance, the plaintiffs have somewhat clumsily pleaded in paras. 19 to 18 of their amended statement of claim as follows:

“19.During March 2003, a Finance Department cheque (number not known) made out to a person [un]known for the amount of K25,000, whom the 68 clan agents have no knowledge of, nor did it go to the Office of the Solicitor General for verification and payment.

20. Correspondence from the Solicitor General revealed that the Solicitor General is only aware of K100,000.00 being paid from his office in his letter dated 27th August 2004 to the Secretary of the Department of Finance.

21. Another payment of K75,000,00 was made by the Department of Finance, details of which are not known at this stage, except to say that it was at the request of Acting Solicitor General in his letter dated 7th April 2003.

22. Another Finance Department cheque (number not known) for K50,000 was made out, but to whom, it is not known save to say that the 68 clan agents have not received it nor was it made through the office of the Solicitor General for verification and payment. ”


  1. Furthermore, the ex parte summary judgment of 6 December 2006 was granted in clear breach of Section 12(3) of the Claims By and Against the State Act 1996. Section 12(3) provides:

12(3) Where in a claim against the State the State is in default within the meaning of the National Court Rules, then notwithstanding that a plaintiff’s claim for relief is for a liquidated demand, judgment shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgment shall be entered for damages to be assessed and, where appropriate, for costs.


  1. On 6 December 2006 the plaintiffs by their counsel should have sought a special fixture date for trial for assessment of the plaintiffs’ claim for unliquidated damages, self-assessed by Mathew Moiga at K1,925,000. The necessity of a special fixture date for trial was a direct consequence of the default judgment granted by Kandakasi J on 11 August 2006. Los J should not have been invited by counsel for the plaintiffs to proceed to award a final money judgment against the defendants in circumstances where no trial for assessment of the plaintiffs’ claim for what were unliquidated damages had yet taken place, especially where no proof of service of notice of the hearing on 6 December 2006 listed at such short notice had been put before his Honour.
  2. The default judgment against the defendants granted by Kandakasi J on 11 August 2006 whereby damages were to be assessed by the Court was in conformity with Order 12 r.28 NCR and Section 12(3) of the Claims By and Against the State Act 1996. The judgment granted by Los J on 6 December 2006 was in breach of those two statutory provisions because the defendants were, on that date, still awaiting the allocation by the Court of a special fixture date for assessment of damages notwithstanding: (1) that the defendants had filed a motion on 25 October 2006 seeking an extension of time to file an amended defence, and (2) that the plaintiffs had almost immediately responded with their amended motion filed on 31 October 2006 seeking to dismiss the defendants’ motion filed on 25 October 2006.
  3. The ex parte summary judgment of 6 December 2006 for the exact sum of K1,925,00 as was sought in the plaintiff’s amended statement of claim, granted by the Court without even a preliminary assessment as to the nature and merits of the plaintiffs’ claim for damages, was a denial of the defendants’ right under Order 12 r.28 NCR and s.12(3) of the Claims By and Against the State Act 1996 to have the quantum of damages awarded under the default judgment of 11 August 2006 properly assessed at trial.
  4. I find that the ex parte summary judgment for the sum of K1,925,000 granted by Los J on application by the plaintiffs on 6 December 2006 was irregularly obtained on this third ground advanced by counsel for the defendants and is further compelling cause for the Court to exercise its discretion to set aside that judgment pursuant to Order 12 r.8(2)(b) and r.8(3)(a) NCR.

ISSUE 5: What orders should the Court make, given the lengthy history and particular circumstances of this case?


  1. This case highlights the seriousness of the duty which a lawyer has when applying ex parte for orders to disclose all relevant procedural history, facts and matters to a presiding judge, including facts and matters which may be adverse to the applicant’s case. Furthermore, to proceed ex parte, there must always be proper proof of due service on the absent party of the application or applications which are before the Court.
  2. In the present case counsel for the plaintiffs failed to bring to the attention of the presiding judge the fact that there were three applications pending before the Court requiring fixture dates to be allocated by the Court; namely an application for a trial date to be set for assessment of damages pursuant to a non-contested default judgment, the defendants’ application for extension of time to file a defence where default in filing had been less than one day, and the plaintiffs’ counter application seeking summary judgment and dismissal of the defendants’ application for extension of time to file a defence. Instead of seeking special fixture dates for these three applications, counsel for the plaintiffs misled the presiding judge by moving the plaintiffs’ application for summary judgment and dismissal of the defendants’ application for extension of time to file a defence. By failing to inform the presiding judge of the other two pending applications and by obtaining dismissal of the defendants’ application for extension of time to file a defence and summary judgment against the defendants without any assessment of damages having taken place, counsel for the plaintiffs effectively denied the defendants their right to have the plaintiffs’ claim for damages assessed and ascertained by the Court at trial. The defendants were deprived of their fundamental right for the case to proceed to trial of assessment of damages pursuant to a default judgment which they had not contested. The amount at stake claimed by the plaintiffs was substantial. The defendants had a right to have evidence of the plaintiffs’ claim tested at trial and submissions made. The defendants were denied that right as soon as summary judgment for the sum of K1,925,000 was pronounced by the presiding judge without trial and in the absence of the defendants on 6 December 2006.
  3. The presiding judge was also led into error by counsel for the plaintiffs’ assertion from the bar table that notice of the plaintiffs’ application for summary judgment had been given to the defendants’ counsel. The presiding judge should have insisted on strict proof of due service of that notice on the Solicitor-General as lawyer on the record for the State, or failing that if time was genuinely of the essence because of urgency then strict proof that counsel for the defendants had instead been served with notice of the hearing. In this instance there was no emergency. All that the presiding judge was required to do on 6 December 2006 was to make directions by way of allocation of special fixture dates for the three applications before the Court. By granting summary judgment against the defendants ex parte without trial and without calling for and being satisfied that the defendants’ legal representatives were on proper notice of the hearing of 6 December 2006, the presiding judge erred in law.
  4. What thereafter ensued was a mire of litigation instigated by the plaintiffs which centred initially on A/Solicitor-General Mr Devete’s refusal to endorse and sign the plaintiffs’ repeated filing of certificates of judgment and which then moved on to the contempt proceedings which the plaintiffs brought against him. It was not until Davani J’s decision of 3 September 2010 that A/Solicitor-General Mr Devete was vindicated in his refusal to sign certificates of judgment filed for the plaintiffs and was exonerated from having to sign those certificates. The sorry history of what then occurred leading up to the defendants’ present motion has been reviewed by me at length in this Decision.
  5. There can be no doubt that the ex parte summary judgment against the defendants which the plaintiffs so egregiously obtained from the Court on 6 December 2006 in the absence of representation for the defendants and without proper proof of due service of notice must be set aside pursuant to Order 12 r.8(2)(b) and Order 12 r.8(3)(a) of the National Court Rules on the ground of irregularity. What then are the orders which the Court should make?
  6. It follows as a matter of logic that as soon as the subject ex parte summary judgment is set aside, all certificates of judgment which the plaintiffs through their lawyers sought to be endorsed and signed over the years by the various A/Solicitors-General and by Attorney-General Mr Ano Pala (in his case ultra vires) under s.14(2) of the Claims By and Against the State Act 1996 will become null and void. The Court will make a declaration to that effect.
  7. The defendants have not in their present motion filed on 17 February 2017 sought to challenge the default judgment with damages to be assessed which was ordered by Kandakasi J on 11 August 2006. The Court will make a declaration that the default judgment remains in full force and effect.
  8. The defendants have sought in their present motion that leave be granted to them to file a defence out of time. The Court has power to grant that leave under Order 1 r.15(1) NCR as well as under s. 9 of the Claims By and Against the State Act 1996. However, as the default judgment must stand, which means that liability of the defendants is taken to have been admitted, the defendants’ defence must be limited to material facts and matters which go solely to the issue of assessment and ascertainment of the plaintiff’s unliquidated claim for damages. The quantum of those damages, if any, will be for the Court to determine at trial The defendants may not plead facts and matters which go to liability in their filed defence.
  9. The defendants will accordingly be granted leave to file their defence by 23 September 2022 subject to the condition that facts and matters pleaded in the defence must be limited to the issue of assessment of the plaintiffs’ damages only. The plaintiffs will then have opportunity to file a reply to the defendants’ defence by 7 October 2022, on which date the pleadings for all parties will close.
  10. I observe that one procedural order that needs to be made is for the defendants to file an amended notice of intention to defend. The notice of intention to defend which was filed by the Solicitor-General’s Office on 21 April 2006 was in respect of the State only. This was because at that stage the only defendant cited in the plaintiff’s writ of summons filed by Narokobi Lawyers on 27 September 2005 was the Independent State of Papua New Guinea. The plaintiffs then filed an amended statement of claim on 14 June 2006 pursuant to leave granted by the Court on 25 May 2006, this time citing Boas Hembehi as first defendant, Gabriel Yer as A/Secretary of the Department of Finance as second defendant and the State as third defendant. Order 7 r.1 NCR provides that a person shall not, without leave of the Court, take any step in a proceeding unless notice of intention to defend has been given. As I have indicated that leave will be given to the defendants to file a defence, the defendants should therefore be given leave pursuant to Order 7 r.1 to file an amended notice of intention to defend on behalf of Boas Hembehi, Gabriel Yer and the State. I realise that Mr Yer is no longer the A/Secretary of the Department of Finance, but that anomaly can be rectified at a future directions hearing on application by the plaintiffs.
  11. After close of pleadings on 7 October 2022, this case is to be referred by the Registry to Deputy Chief Justice Kandakasi for his Honour to allocate this proceeding WS No. 1492 of 2005 to another Judge for a directions hearing to be fixed no earlier than 14 October 2022 for the Court to deal with any outstanding motions of the parties, including the plaintiffs’ motion filed on 3 November 2015 seeking the substitution of Jack Apai as lead plaintiff in this proceeding in lieu of the late Mathew Moiga and for directions to progress this case to trial for assessment of the plaintiffs’ damages pursuant to the default judgment of 11 August 2006.
  12. All other relief sought the defendants in their motion filed on 2 February 2017 except for costs will be declined. This proceeding will not be struck out. As the ex parte summary judgment of 6 December 2006 is to be set aside, the plaintiffs and the defendants both have an equal right to have the plaintiffs’ claim for unliquidated damages to proceed to substantive trial for assessment by the Court.
  13. As to costs, given that there have been faults on both sides which operated to delay and at times prevent the defendants’ endeavours to have their numerous motions seeking to set aside the ex parte summary judgment of 6 December 2006 heard, I consider it only just and fair that each party should bear their own costs of and incidental to the defendants’ motion filed on 17 February 2017.

ORDER


  1. The terms of the formal Order of the Court are as follows:

1. The summary judgment and entire order of the Court made in this proceeding in the absence of the Defendants on 6 December 2006 is set aside pursuant to Order 12 Rule 8(2)(b) and Order 12 Rule 8(3)(a) of the National Court Rules on the ground that the said Order was irregularly obtained.


2. The Court declares that in consequence of term 1 of this Order, all certificates of judgment filed by the Plaintiffs in this proceeding seeking endorsement by the Solicitor-General or any Acting Solicitor General or ultra vires by the Attorney-General under s.14(2) of the Claims By and Against the State Act 1996 are null and void.


3. The Court declares that the order of the Court made on 11 August 2006 whereby default judgment was entered against the Defendants with damages to be assessed remains in full force and effect.


4. In consequence of the Plaintiffs’ Amended Statement of Claim filed on 14 June 2006, leave is granted to the Defendants pursuant to Order 1 Rule 15(1) of the National Court Rules to file an Amended Notice of Intention to Defend this proceeding no later than Wednesday 14 September 2022 giving notice that the First Defendant, Second Defendant and Third Defendant are defending this proceeding, such Amended Notice of Intention to Defend to be in substitution for the Third Defendant’s Notice of Intention to Defend filed on 21 April 2006.


5. Pursuant to Order 1 Rule 15(1) of the National Court Rules and Section 9 of the Claims By and Against the State Act 1996, leave is granted to the Defendants to file and serve a Defence to the Plaintiffs’ Amended Statement of Claim filed on 14 June 2006 no later than Friday 23 September 2022, such Defence to be limited to material facts and matters going to assessment of the Plaintiffs’ damages pursuant to the default judgment made on 11 August 2006 and entered on 15 August 2006.


6. The Plaintiffs may file and serve a Reply to the Defendants’ Defence no later than Friday 7 October 2022, on which date the pleadings in respect of assessment of the Plaintiffs’ damages pursuant to the said default judgment shall be closed.


7. This proceeding is referred to Deputy Chief Justice Kandakasi for allocation of this case to another Judge for a directions hearing to be fixed not earlier than 14 October 2022 for the Court deal with:

(a) any outstanding motions of the parties, including the Plaintiffs’ motion filed on 3 November 2015 seeking the substitution of Jack Apai as lead plaintiff in this proceeding in lieu of the late Mathew Moiga; and

(b) directions to progress this proceeding to trial for assessment of the Plaintiffs’ damages pursuant to the said default judgment.


8. All other relief sought by the Defendants in their motion filed on 2 February 2017 is declined.

9. Each party is bear their own costs of and incidental to this application by the Defendants.

10. The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.
_______________________________________________________________
Narokobi Lawyers: Lawyers for the Plaintiff
Fairfax Legal: Lawyers for the Defendant

[1] A copy of the writ and statement of claim in WS No. 1203 of 2004 – Raymond Turu & John Maku as Representatives of Clan Leaders, Forestry Agents & Landowners of Vanimo Block 6 TRP Area v The State - is annexure “A” to the affidavit of Kevin Makeu filed on 4 April 2006 in SCA No. 24 of 2006, which in turn is annexure ‘ND1” to the affidavit of A/Solicitor-General Neville Devete filed in WS 1492 of 2005 on 10 April 2008: Court document no. 56. The statement of claim in WS No. 1203 of 2004 sought judgment for K554,810.22 for alleged non-payment to the plaintiffs in that suit (including Mathew Moiga) of judgment monies alleged to be outstanding under the judgment awarded to those plaintiffs in WS No. 353 of 1999.

[2] Court document no. 19.

[3] Court document no. 25.

[4] Court document no. 35.
[5] Court document no. 143.

[6] A copy of the Decision of Davani J delivered in WS No. 1492 of 2005 on 3 September 2010 is annexure “F” to the Affidavit of Deputy Solicitor-General Mr Laias Kandi filed 10 December 2012: Court document no. 94.
[7] Court document no. 142.
[8] Court document no. 39.
[9] Court document no. 48.
[10] Court document no. 94.
[11] Court document no. 102.
[12] Court document no. 116.
[13] Court document no. 128.
[14] Court document no. 149.
[15] Court document no. 14.
[16] Court document no. 32.
[17] Court document no. 122.

[18] Court document no. 131.

[19] See Notice of Intention to Defend for the State filed 21 April 2006: Court document no. 16.

[20] Court document no. 26.
[21] Court document no. 27.
[22] Court document no. 28.
[23] Court document no. 31.

[24] Court document no. 33.
[25] Court document no. 27.

[26] Court document no. 35.

[27] Court document no. 32.

[28] Court document no. 38.

[29] Court document no. 36.

[30] A copy of this certificate of judgment filed 1 March 2007 is one of several documents comprising annexure “A” to the Affidavit of late Mathew Moiga filed 20 November 2007. The copy certificate states that it is Court document no. 33. However, there is no record of this certificate having been registered against Part 1 of the Court’s files for WS No. 1492 of 2005.

[31] A copy of this certificate of judgment, containing the purported signature of A/Solicitor-General Mr Manoka and dated 5 December 2018 is annexure “B” to the affidavit of Ruth Gelu of the Solicitor-General’s Office filed 12 June 2009: Court document no 73.

[32] Court document no. 60.
[33] Court document no. 89.
[34] See copy of National Court’s file endorsement for Order made by Cannings J on 19 July 2011 which is annexure “I” to affidavit of Deputy Solicitor-General Mr Laias Kandi filed 10 December 2011: Court document no. 94. Note: This file endorsement of the Order made by Canning J on 19 July 2011 is missing from the file for Part 3 for WS No. 1492 of 2005 as it has been removed.

[35] Court document no. 93.
[36] Court document no. 97.
[37] Court document no. 113
[38] Court document no. 105.
[39] Court document no. 107.

[40] Court document no. 126.

[41] Court document no. 127.

[42] Court document no. 137
[43] Court document no. 143.
[44] Court document no. 149.

[45] Court document no. 115.

[46] A further copy of A/Solicitor-General Neville Devete’s affidavit sworn on 28 June 2007 and filed 29 June 2007 in related proceeding OS No. 141 of 2007 is the second annexure “A” to the affidavit of Solicitor-General Faith Barton-Keene filed in WS No. 1492 of 2005 on 17 November 2015: Court document no. 116.

[47] Para. 24 of the plaintiffs’ amended statement of claim filed 14 June 2006 alleged to the effect that the proceeds of two Department of Finance cheques for K15,000 and K100,000 made payable to Patterson Lawyers Trust Account had never been received by the 68 Clan Agents who are the plaintiffs in WS No. 1492 of 2005.

[48] Para. 26 of the plaintiffs’ amended statement of claim alleged to the effect that the State by its agents the first and second defendants owed a duty of care to the plaintiffs to ensure that correct parties were paid the judgment monies in WS No. 353 of 1999, that only one or two plaintiffs in that proceeding were paid and that non-payment of judgment monies in WS No. 353 of 1999 to the many other entitled plaintiffs was a breach of duty by the defendants constituting negligence, and that as a result of that alleged negligence “the Plaintiffs have not received their moneys and suffered loss” amounting to the alleged amount of K1,925,000.

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