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Saun v Homiwafe [2004] PGNC 37; N2742 (25 November 2004)

N2742

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

WS 968 OF 2002

BETWEEN:

PETER SAUN
(Plaintiff)

AND:

JOSEPH HOMIWAFE
(First Defendant)

AND:

COMMISSIONER FOR POLICE
(Second Defendant)

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Third Defendant)

MADANG : SAWONG, J.
2004 : 12TH & 25TH NOVEMBER

PRACTICE & PROCEDURE – Claim for damages - Notice of Intention to make a claim against the State under s.5 of Claims By and Against the State Act – No Notice given – Proceedings Dismissed.

HELD:

(1) The giving of Notice of Intention to make a claim is a condition precedent to filing proceedings.
(2) The failure to give such a Notice will result in the proceedings being dismissed.

CASES CITED:

Minato v Philip Kumo & The State (WS 823 of 1997 (H) and 1768
Daniel Hewale v PNG Police Force & The State (2002) N2233
John Bokin v The State (2001) N2111
Olympic Stationery Limited v The State (2001) N2194
Paul & Mary Bal v Kenny Taiba (2003) N2481
Paul Tohian, Minister for Police & The State -v- Tau Liu (Supreme Court Judgment) SC566

COUNSEL:

PLAINTIFF, in person
MR. G. LAU, for third Defendant

DECISION

25th November, 2004

SAWONG, J: By an amended Notice of Motion filed on the 29th September, 2004 the second and third defendants moved the Court to have the entire proceedings dismissed on five (5) alternative grounds. These were:

1. For non-compliance with s.5 of the Claims by and Against the State Act.
2. For want of prosecution pursuant to O.4 r.36 (1) of the National Court Rules.
3. For disclosing no cause of action against the defendants pursuant to O.12 r.40 of the National Court Rules.
   

The plaintiff appeared before the Court in person and leave was granted to him to address the Court.

The brief facts are that the plaintiff alleges that the first defendant on or around 19th April, 1999 authorized and cause a private sale under a Warrant of Execution issued by the Wewak District Court over a motor vehicle, the property of the plaintiff to recover a judgment debt.

Mr Lau has filed written submissions which I have read and considered. The plaintiff did not make any submissions in response. Counsel for the applicant relies on six (6) affidavits. These are the affidavits in support of George Lau sworn and filed on 27th September 2004, the affidavit in support of Joseph Hombiwafe sworn on the 10th September 2004 and filed on the 29th September 2004, two affidavits of Francis Kuvi both sworn on the 17th September 2004 and both filed on the 27th September 2004, the affidavit of Tautau sworn on the 17th September 2004 and filed on the 27th September 2004, the supplementary affidavit in support of the amended Notice of Motion of George Lau sworn on the 29th September 2004, and filed 30th of September, 2004 and the Affidavit of Service of Joseph Hombiwafe sworn on the 18th October 2004, and filed on the 26th of September, 2004.

The relevant issues for determination in this application are:

1. Whether the entire proceedings should be dismissed for non-compliance with s.5 of the Claims by and Against the State Act.
2. Whether the proceedings be dismissed for want of prosecution.
3. Whether the proceedings should be dismissed for disclosing no reasonable cause of action.
4. Whether the second defendant should be removed as a party to the proceedings for lack of capacity to sue and be sued.
   

I think this matter can be disposed off fairly quickly by determining the first issue. Mr Lau submitted that non-compliance with s.5 of the Claims by and Against the State Act is fatal to any proceeding against the State. He submitted that s.5 provides a mandatory requirement for a party to issue notice of his or intention to make a claim against the State within six (6) months of the date on which the cause of action arose prior to instituting any proceedings against the State. He submitted that a breach of this mandatory requirement to give notice would mean that the proceedings are incompetent and ought to be dismissed. He relied on Minato v Philip Kumo & The State (WS 823 of 1997 (H) and 1768), Daniel Hewale v PNG Police Force & The State (2002) N2233, John Bokin v The State (2001) N2111, Olympic Stationery Limited v The State (2001) N2194 and Paul & Mary Bal v Kenny Taiba (2003) N2481.

He submitted that in this case the plaintiff had failed to give his notice of intention to claim as required under s.5 of the Act prior to filing these proceedings. Accordingly, he submitted that the proceeding should be dismissed in its entirety with costs.

As I have alluded to earlier, the plaintiff made no response to the applications. The submissions advanced, requires a consideration of s.5 of the Act. It reads:

"No action to enforce any claims against the State lies against the State, unless notice in writing of intention to make claim is given in accordance with this section by the claimant to:

(a) Department Head of Department responsible for justice matters; or
(b) the Solicitor General."

This provision has been judicially considered in the cases that have been cited by Mr Lau. In addition, the Supreme Court in Paul Tohian, Minister for Police & The State v Tau Liu, (Supreme Court Judgment) SC566 said at p.2:

"...The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within 6 months or within such period as may be granted by the Principal Legal Advisor or the Court. It is clear to us that the Notice of Intention to make a Claim is a condition precedent to issuing a Writ of Summons in all circumstances."

From these authorities it is abundantly clear that the giving of notice of intention to make a claim within the stipulated time frame is a condition precedent to filing a claim against the State in Court. The failure to comply with this condition precedent will be fatal to any proceedings filed against the State.

In the present case the uncontested evidence from Mr Kuvi and his clerk is that, no such notice has been given by the plaintiff before the filing of proceedings. Mr Kuvi, the acting Solicitor General within the Department of Justice and Attorney General deposes that he conducted a search in their manual and electronic records and ascertained that no notice had been given by the plaintiff as required under s.5 of the Act. His professional legal assistant, TauTau also deposes to similar evidence.

As I have alluded to the plaintiff has offered no evidence contradicting this evidence. I therefore conclude that the plaintiff has not given notice to the State in accordance with s.5 of the Act. That being the case the proceeding is incompetent and must therefore be dismissed.

In view of my conclusion I do not consider it necessary to consider the other alternative remedies. My formal orders are:

1. The entire proceedings be dismissed.
2. That each party pays their own costs.
   

__________________________________________________________________
PLAINTIFF IN PERSON
LAWYERS FOR THE DEFENDANTS : PARAKA LAWYERS