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Wuliman v Taupa [2022] PGNC 456; N9877 (3 August 2022)

N9877

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 14 OF 2021

BETWEEN:
EMMAH WULIMAN & ALOIS CLETUS
Appellants

AND:
ROBIN TAUPA
Respondent

Kokopo: Dingake J
2022: 03^rd August

APPEAL – District Court decision – grounds of appeal - that the District Court erred in fact and in law when it dismissed the Appellant’s Notice of Motion - Respondent instituted proceedings in the District Court against the Appellants for a breach of contract relating to the alleged sale of the Respondent’s 5L engine - appellant failed to appear in court resulting in court granting order ex parte – appellant filed motion to set aside ex parte order – district court dismissed ex parte order – no defence filed to see if defendants defence was meritorious – no substantial miscarriage of justice by district court magistrate – appeal dismissed

Counsel:

Mr. Epita Paisat, for the Appellants.
Ms. Sharon Pitep with Mr. Gabriel Tugah, for the Respondent.

3^rd August, 2022

1. DINGAKE J: This is an Appeal against the decision of the Kokopo District Court dated the 03^rd of March, 2021. I notice that the Notice of Appeal at page 8 of the Appeal book says the decision was dated 03^rd of March, 2020, when the said decision was in fact delivered on the 03^rd March, 2021.
2. I have perused the record with care and I am satisfied having regard to the contents of the decision of the District Court dated 03^rd March, 2021, and the content of the Notice of Appeal that the date of 03^rd March, 2020, was an error, the decision appealed against is the one dated the 03^rd March, 2021.
3. The Appellant’s grounds of appeal are not a model of clarity and overlap in significant respects. These grounds are reflected in pages 8 and 9 of the Appeal Book. It is not necessary to reproduce same. Essentially, they can be reduced into one ground, being that the District Court erred in fact and in law when it dismissed the Appellant’s Notice of Motion filed on the 17^th December, 2020, with costs.
4. The background to this matter is that the Respondent instituted proceedings in the District Court against the Appellants for a breach of contract relating to the alleged sale of the Respondent’s 5L engine. The full particulars of the complaint appear at page 67 of the Appeal’s Book. This resulted in an Ex-parte Order issued by the court on the 23^rd of November, 2020.
5. It is important to set out the background that explains how the Ex-parte orders of the 23^rd of November, 2020, were issued.
6. It is clear from a reading of the record (The Appeal’s Book) that at all material times following the institution of this proceedings, the Appellants although enjoying the advantage of being represented by a lawyer, compared to the Respondent, who was a self-actor, did not litigate diligently and with due dispatch. The record shows that the Appellants missed a number of court appearances and caused unnecessary delays in the disposal of the matter. Compared to the Appellants, the Respondent honoured court appointments more than the Appellants as I shall demonstrate hereunder.
7. It is a matter of record that the Appellants did not make an appearance when the matter was mentioned on 21^st of October, 2020, on the 18^th of November, 2020 and on the 23^rd of November, 2020.
8. After the Appellants had failed to appear in court without any valid explanation on three occasions, the Respondent on the 23^rd of November, 2020, prayed the court to grant the relief sought, in the absence of the Appellants, and the court proceed to do so.
9. A week or so later the Appellants by way of Notice of Motion dated the 02^nd of December, 2020, sought to set aside the Ex-parte Orders of the 23^rd of November, 2020. This motion was returnable on the 14^th of December, 2020. On the return date the Respondent appeared but the Appellants did not appear. The Notice of Motion of the 02^nd December, 2020 was dismissed for Want of Prosecution.
10. On the 17^th of December, 2020, the Appellants, through their lawyers, Paisat Lawyers, sought to set aside the Order of the 14^th December, 2020, in which the court dismissed the Notice of Motion of the 02^nd of December, 2020, for Want of Prosecution. The said application was adjourned twice, before it was finally set down on the 01^st of February, 2021.
11. Earlier, on the 25^th of January 2021, the matter could not proceed because Mr. Paisat, for the Appellants, appeared but could not produce a practicing certificate. His application to appear without a practicing certificate was refused.
12. It is plain from the above narrative that the Appellants adopted a very casual attitude to this matter and needlessly wasted the court’s time, a consideration that the learned magistrate was alive to.
13. In terms of s.230(2) of the District Court Act an appeal against a decision of the District Court shall only be allowed if it appears to the National Court that there has been a substantial miscarriage of justice.
14. I have gone through the record with a fine comb in the context of the grounds of appeal raised and failed to discern any error of fact or law that entitles this appeal to succeed.
15. The learned Magistrate was alive to the applicable principles to the setting aside of Ex-parte orders and proceeded to apply them in his judgment with clinical precision.
16. Although the Defendants application to set aside the Ex-parte orders was made without delay there was no valid explanation to set the Ex-parte orders aside and no draft Defence was attached on the basis of which the learned magistrate could assess whether the Defendants had a meritorious Defence to the claim the Plaintiff made against them.
17. Additionally, the manner in which the Defendants litigated, and their frequent absence in court reinforced the correctness of the judgment of the learned Magistrate.
18. In all the circumstances of this case, I am satisfied that no substantial miscarriage of justice occurred to warrant the appeal succeeding.
19. In the result this Appeal is without merit and it is dismissed

________________________________________________________________
Paisat Lawyers: Lawyer for the Appellant
Office of the Public Solicitor: Lawyer for the Defendants