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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 56 OF 2014
BETWEEN:
ALOIS ALAURO MAIMA
Plaintiff
AND:
WALKAIMA ESSY, PRINCIPAL ADVISOR – EDUCATION DIVISION
First Defendant
AND:
SIMBU PROVINCIAL GOVERNMENT
Second Defendant
Kundiawa: Liosi AJ
2017: 27th September
PRACTICE & PROCEDURE – Application to dismiss proceedings for want of notice of claim – Civil proceedings against Provincial Government – Organic law on Provincial Government & Local-level Government – Sections 6, 7 &10 – Claims By and Against the Simbu Provincial Government Act 2001 – Where claims are lodged against both the State and the Provincial Government separate notice of claim must be given.
Case Cited:
Bokin v. Independent State of Papua New Guinea (2001)
Kunda v. Southern Highlands Provincial Government [2009] PGNC 163; N3775
Perum Youth Stationary (unnumbered & unreported Judgment of 27th February, 2015)
SC Review No.55 of 2013 – Simbu Provincial Government v. Thomas Sil t/a
Tohian & The State v. Tau Liu (1998) SC 566
Welcos Engineering Limited v. Southern Highlands Provincial Government
& the State: WS No 959 of 2006 (Unnumbered & Unreported Judgment of 21st May 2008)
Wasis & Ors v. Southern Highlands Provincial Government & the State:
WS No 472 of 2006 (Unnumbered & Unreported Judgment of 14th November 2008)
Counsel:
Mr. M Yawip, for the Plaintiff
Mr. C Gagma, for the Defendants
RULING
27th September, 2017
1. LIOSI, AJ; By a Notice of Motion filed on 15th August 2016 the defendant seeks orders that the proceedings be dismissed for lack of Notice of intention to claim against:-
And Against the Simbu Provincial Government Act 2001 and or,
2. The Notice of Motion was filed by the defendants following my earlier ruling on the defendant’s application to set aside an exparte default judgment which I granted on the 9th March 2016. I also granted orders for the defendants to file its defence out of time as a consequential order to the above.
Background facts
3. This is a claim for Higher Duties Allowance (HDA) and Housing Allowances (HA) by the plaintiff against the defendants. The writ of summons was filed on 06th February 2014 endorsed with a statement of claim (SOC). Plaintiff’s affidavit in support was filed on 06th February 2014. The plaintiff pleaded in his statement of claim that on 17th May 2004, the defendants appointed him as the acting Director Simbu University Centre (SUC) when he was at the material time a secondary school teacher, teaching at Kundiawa Day High School. He was working there up to 30th June 2008 for a period of 4 years. On 01st July 2008 he was permanently appointed by the University of Papua New Guinea as the Simbu University Centre Director. The plaintiff was relying on the entitlements of a director position based on his employment contract with UPNG and made a claim for higher duty allowance as missed out for a period of 4 years a sum of K170, 806.40. The plaintiff was relying on a Memorandum of Agreement (MOA) signed between Simbu Provincial Government and UPNG for the establishment of University Centre on 24th August 2005 and made a claim of missed out housing allowance for a period of four years a sum of K52,000. The defendants filed its defence on 28th June 2016 after this court granted leave to file its defense out of time. The defendants specifically deny the entire statement of claim as having no cause of action and no merits. The defendants say claim is/was statutorily time bared, there was non-compliance with the mandatory statutory notices requirements and the claim is frivolous and vexatious. On those basis the defendants seek to dismiss the entire proceedings.
Issues
4. Whether the proceedings be dismissed for want of statutory notices and time bar pursuant to:
(i) Section 4 of the Claims By and Against the Simbu Provincial
Government Act 2001 (CBASPG Act) and or;
(ii) Section 5 of the Claims By and Against the State Act (CBAS Act).
(iii) Whether the proceedings is statutorily time bared, if so should the
entire proceeding be dismissed in its entirety.
(iv) Whether or not the entire proceeding be dismissed for being frivolous and vexatious and abuse of process.
Failure to give statutory notice under S.4 of the Claims By and Against the Simbu Provincial Government Act 2001.
5. Under the Organic Law on Provincial and Local Level Governments, Section 10 establishes a provincial government for each province. Section 6 of the Organic Law vests the provincial government its legal status in the following manner:
6. Legal capacity.
A provincial government or a local-level government-
(a)May acquire, hold and dispose of property of any kind; and
(b)May sue and be sued,
And a provincial law or a local-level law may make provision for and in respect of the manner and form in which each respective government may do so.” (Underlining ours)
7. Service of process.
Any notice, summons, writ or other process required to be served on a Provincial Government or a Local-level Government may be served on an officer designated by the Provincial Government or the Local-level Government for that purpose.’’
6. In the case of Kunda v. Southern Highlands Provincial Government [2009] PGNC 163; N3775 (36 June 2009), His Honour, Makail J, dealt with a Provincial legislation referred to as the Claims By and Against the Southern Highlands Act which required a mandatory notice to sue the Provincial Government similar to that of Section 5 Notice under the Claims By and Against the State Act. The Court in analysing the legal setting of the provincial legislation made this observation in relation to Sothern Highlands Provincial Government in the enactment of the provincial government legislation referred to as follows:-
“The constitutional foundation of the first defendant is found in section 187A of Part IVA of the constitution which provides for a system of provincial Government for Papua New Guinea as follows; “There shall be a system of Provincial Governments and Local-level Governments for Papua New Guinea in accordance with this Part.” But in my view, the first defendant is a creature of the Organic Law, namely the Organic Law on Provincial Governments and Local Level Governments (herein referred to as “OLPG&LLG”) and can sue and be sued under its name and style and these attributes can be found in sections 6 and 10 of the OLPG&LLG.”
7. The Claims By and Against Simbu Provincial Government Act reads at Section 4 as follows:-
“4. Notice of Claims Against the Simbu Provincial Government
(1) No action to enforce any claim against the Simbu Provincial
Government lies against the Simbu Provincial Government unless notice
in writing of intention to make a claim is given in accordance with this
section by the claimant to;
(a) the Provincial Administrator; or
(b) the Provincial Legal Officer;
(2) A notice under this section shall be given;
(a) within a period of three months after the occurrence out of which
the claim arose, or
(b) where a claim is for breach of a contract, within a period of three
months after the claimant became aware of the alleged breach, or
(c) within such further period as,
(i) the Provincial Administrator, or
(ii) the court before which the action is instituted, or sufficient cause
being Shown, allows,
(3)A notice under Subsection (1) shall be given by:
(a) personal service on an officer referred to in Subsection (1); or
(b) leaving the document at the officer of the officer with the person
apparently occupying the position of personal secretary to that officer
between the hours of 7:45 am and 12 noon or 1:00 pm and 4:06 pm; or
such other hours as may from time to time be declared by or under the
Public Service (Management) Act 1995 to be the normal public service
hours of duty, on any day which is not a Saturday, Sunday or a public
holiday declared by or under the Public Holidays Act (Chapter 321).”
8. As regards, the nature of the mandatory requirement to give notice under a provincial legislation, the case of Welcos Engineering Limited v. Southern Highlands Provincial Government & the State: WS No 959 of 2006 (Unnumbered & Unreported Judgment of 21st May 2008) dealt with the mandatory nature of such a legislation. His Honour, Hartshorn J, held that:-
“In the Supreme Court case of Tohian & The State v. Tau Liu (1998) SC 566, it was held that notice of an intention to make a claim against the State is a condition precedent to the issuing of a writ of summons. Notice under s.5 must be given first before the writ is issued. The requirements to give notice to the appropriate person and the method if serving the notice are mandatory”. Bokin v. Independent State of Papua New Guinea (2001). The notice must be given “within a period of six (6) months after the occurrence out of which the claim arose” or if the claim is or a breach of contract, “within (6) months after the occurrence out of which the claim arose” or if the claim is for a breach of contract, “within a period of six (6) months after the claimant become aware of the alleged breach.
He ruled the reasoning in that cases applied equally to Provincial Legislations. Consequently, notice of intention to make a claim under the Claims By and Against the State Act must be given. The Southern Highlands Provincial Government is named as a separate party in these proceedings and so Section 5 of the Southern Highlands Provincial Government Act also applies in such a case and must also be given.
He rejected the argument that because a notice was given pursuant to S.5 of the Claims By & Against the State Act to the Solicitor
General Notice of intention to make a claim need not be given under the Southern Highlands Provincial Government Act.
9. That same rational applicable to provincial legislations in the above case was also applied in Kunda v. Southern Highlands Provincial Government (supra). The same decision was followed and applied by Cannings J, in John Wasis & Ors v. Southern Highlands Provincial Government & the State: WS No 472 of 2006 (Unnumbered & Unreported Judgment of 14th November 2008) when he was faced with the same issue.
10. The decision in the above two cases mean that if a claimant does not give notice of claim to the Provincial Government which has an equivalent provision of section 5 of the Claims By and Against the State 1996, (referred to herein as CB&AS Act”) in its provincial legislation before commencing proceedings against it, on appropriate application by the Provincial Government, the proceeding may be dismissed. In other words, a plaintiff cannot rely on the notice of claim given to the State (Attorney General or Solicitor General) under section 5 of the CB&AS Act, to say that it has given the required notice of claim to the Provincial Government. That is the effect of the decisions in the above two cases.
11. Turning to the Claims By and Against the Simbu Provincial Government Act, 2001, the Supreme Court in the case of SC Review No.55 of 2013 – Simbu Provincial Government v. Thomas Sil t/a Perum Youth Stationary (unnumbered & unreported Judgment of 27th February, 2015), the Supreme Court comprising their Honours, Salika DCJ, Poole J and Geita J dealt with that legislation as to the nature of its mandatory requirement for compliance as follows:-
“Section 4 (1) of the Act requires a notice of intention to make a claim to be in writing and given to either the Provincial Administrator or the Provincial Legal Officer. Notice cannot be validly given to any other person.
Section 4 (2) of the Act, as well as stating that a notice must be given within 3 months of the occurrence or breach of contract relied on to base a claim, explicitly states such notice also may be given “within such further period as the Provincial Administrator or the Court before which the action is instituted, on sufficient cause shown, allows.”
The Court further held as follows:-
“In this instance the respondent was not allowed extra time by the court
or by the Provincial Administrator...
The consequence of this failure to give effective notice before commencing an action is the same as the consequence of failing to give valid notice to the state under the Claims By and Against the State Act. The action is nullity from the start and the claim as pleaded in the action void ab initio.”
12. The affidavit of Walkaima, states the plaintiffs failed to give notice of their claim and intention to sue the third defendant before instituting or filing the within proceedings contrary to section 4 of the CBASPG Act 2001. The defendant’s contention for lack of respective notices are pleaded in the Defence. Further the Defendants contended in their defence and supported by affidavit evidence that the plaintiffs failed to give the required Section 5 notice to sue the State pursuant to the CBAS Act 1996.
13. In the circumstances I find that the plaintiff has no standing by failing to give Statutory Notices. I find that the defendant have no cause of action against them for failing to comply with S.4 of the CBASPG Act 2001 and S.5 of the CBAS Act 1996. To compound matters no applications for extension of time was sought by the plaintiffs.
14. I find that pursuant to the case of Simbu Provincial Government v. Thomas Sil t/a Perum Youth Stationary (unreported & unnumbered Judgment of 27th February, 2015), the lack of notice to sue the defendants is the same as the consequences of failing to give valid notice to the State under the Claims By and Against the State Act. The action is therefore a nullity from the start and the claims as pleaded in the action void ab initio.”
15. The plaintiff in this case contends that it gave a letter claiming outstanding higher duty allowance and housing allowance. Such letter is dated 2nd June 2009, attached to annexure “A” of the affidavit of Alois A. Maima filed on 30th March 2016. Subsequent follow up does not constitute Notice and not in compliance of and is in breach of Section 4 (3) of the CBASPG Act when such a notice should be given by personal services on the Administrator or the Principal Legal Officer in the prescribed form and manner. Simbu Provincial Government v. Thomas Sil t/a Perum Youth Stationary (supra).
16. The same requirement is captured and embedded as law in similar provincial legislation as in the case of Claims By and Against the Southern Highlands Provincial Government, the case of John Wasis & Ors v. Southern Highlands Provincial Government & the State: WS No 472 of 2006 (unnumbered & Unreported Judgment of 14th November 2008,Wellcos Engineering Limited v. Southern Highlands Provincial Government & the State: WS No 959 of 2006 (unnumbered and unreported judgment of 21st May 2008 and Kunda v. Southern Highlands Provincial Government [2009] PGNC 163; N3775 (26 June 2009).
17. In the circumstances I dismiss the case in its entirety against the Simbu Provincial Government.
Claims By and Against the State Act
18. Section 5 of the Claims By and Against the State Act reads at Section 5 as follows:-
“5 Notice of claims against the State.
(1) No action to enforce any claim against the State lies against the State
unless notice in writing of intention to make a claim is given in accordance
with this section by the claimant to-
(a) The Department Head of the Department responsible for justice matters; or;
(b) The Solicitor General.
(1) A notice under this section shall be given –
(a) Within a period of 6 months after the occurrence out of which a claim
arose or;
(b) Where the claim is for breach of contract, within a period six months
after the claimant became aware of the alleged breach; or
(c) Within such further period as-
(i) The principal legal Advisor; or
(ii) The court before which the action is instituted,
On sufficient cause being shown, allows.
(1) A notice under Subsection (1) shall be given by –
(a) Personal service on an officer referred to in Subsection (1); or
(b) Leaving the document at the officer with the person apparently occupying
the position of personal secretary to that officer between the hours of 7:45
am and 12 noon, or 1.00 pm and 4.06 pm, such other hours as may from
time to time be declared by or under the Public Service (Management) Act
1995 to be the normal public service hours of duty, on any day which is not
a Saturday, Sunday or a public holiday declared by or under the Public
Holiday Act 1953.”
19. In relation to the CBAS Act, Section 5 of the Act is mandatory. The law is settled in our jurisdiction. Hence the case of Kunda v. Southern Highlands Provincial Government (supra) referred to above sets out the law with respect to notice under the provincial legislation and the CBAS Act;
20. The upshot of all these discussion is that, the first defendant and the second defendant are two different and separate legal entities because they are established or created by two different legislations (OLPG& LLG and the Constitution) and governed by two different legislations in so far as litigation matters for and against them are concerned. Therefore, their rights and obligations cannot be traded for one another.
21. Secondly, the Southern Highlands Provincial Government and the State are separate defendants in this proceeding. The interest of the state as second defendant in this proceeding must be put forward independently and separately as it is sued separately by the plaintiff in this proceeding by virtue of section 2(1) of the CB&AS Act which states, “A person making a claim against the State in contract or in tort may bring a suit against the state, in respect of the claim, in any court in which such a suit may be brought as between other persons.”
22. In much similar terms, the case of Wellcos Engineering Limited v. Southern Highlands Provincial Government & the State (supra) referred to above, the court held that when lodging notices against the State and the Provincial Government, there ought to be two (2) separate notices for reasons that the parties are distinct and separate by virtue of their existence under two (2) separate legislations.
23. The law relating to the mandatory compliance of notice under Section 5 of the CBAS Act is settled with reference to the renowned case of Paul Tohian, Minister for Police and The State v. Tau Liu (1998) SC 566 which was also made reference to in the case of John Wasis & Ors v. Southern Highlands Provincial Government & the State: WS No 472 of 2006 (supra) and Welcos Engineering Limited v. Southern Highlands Provincial Government & the State (supra). Even the case of Simbu Provincial Government v. Thomas Sil t/a Perum Youth Stationary (supra) made reference to that Supreme Court case.
24. Applying the case of Welcos Engineering Limited v. Southern Highlands Provincial Government and the State: WS No 959 of 2006 (supra), notice pursuant to Section 5 of the CBAS Act cannot be substituted for a valid notice if one was done when there is in existence a provincial legislation governing same for notice and service on Provincial Governments. That similar view was taken and reflected in Kunda v Southern Highlands Provincial Government (supra), John Wasis and Ors v. Southern Highlands Provincial Government and the State WS No 472 of 2006 (supra), hence two (2) separate notices are required.
25. Given all the above I am more than satisfied that no such notices were served on the both defendants. Consequently the proceedings filed herein are void ab initio. I dismiss the proceedings in its entirety.
Ruling accordingly.
_______________________________________________________________
The Public Solicitor : Lawyer for the Plaintiff
Gagma Legal Services : Lawyer for the Applicants/Defendants
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