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Lakakit v Sambua [2019] PGNC 333; N7949 (9 August 2019)

N7949

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1024 OF 2016(CC1)

BETWEEN:
BRIAN LAKAKIT
Plaintiff

AND:
PETER SAMBUA, DEPUTY SECRETARY
FOR COMMUNITY DEVELOPMENT
First Respondent

AND:
ANNA SOLOMON, SECRETARY,
DEPARTMENT OF COMMUNITY DEVELOPMENT
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Dingake J
2019: 8^th July

CONTRACT – lease agreement between plaintiff and first defendant - lease of vehicle – plaintiff alleges defendants leased plaintiff’s car but refused or declined to pay for the lease - no defence filed by defendants – preliminary issue raised by defendant - no section 5 notice given to the state under the Claims Act –notice to make a claim against the state is condition precedent to making a claim against state – notice not given – claim dismissed

Cases Cited:

Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705;
PutPut Logging Pty Ltd v Phillip Ambalis PG NC112 (1992) PNG LR 159, N1094.

Counsel:

Mr. W Mapiso, for the Plaintiff
Mr. T Kuma, for the Defendants

9 August, 2019

1. DINGAKE J: In this case, the plaintiff instituted proceedings against the defendants claiming payment of K22,028.00 for services rendered to the defendants following a vehicle lease agreement that the parties hereto entered into.
2. In his statement of claim the plaintiff alleges that the parties entered into a vehicle lease agreement in terms whereof the defendants leased the plaintiff’s vehicle, Toyota Land Cruiser (Ten Seater) Reg. No. HAK 183, at the rate of K700.00 per day, for two weeks, commencing from the 5^th of December, 2012, and ending on the 19^th of December, 2012.
3. The plaintiff alleges that the defendants used the leased vehicle but upon being presented with invoices to pay, refused or declined to do so.
4. The defendants did not file their defence in time as required by the rules and no indulgence to file same out of time has been granted.
5. At the hearing of this matter, this Court permitted the defendants to address the Court on any points of law they may wish to raise.
6. The defendants argued that the plaintiff’s claim was illegal as the plaintiff failed to provide evidence of a properly authorised Integrated Local Purchase Order and Claim (ILPOC); or an Authority to Pre-commit Expenditure in terms of Section 2 A of Claims By and Against the State Act 1996; or for want of Section 5 Notice under the Claims By and Against the State Act 1996.
7. With respect to the argument that the plaintiff failed to provide evidence of a properly authorized Integrated Local Purchase Order and Claim (ILPOC) or an Authority to Pre-commit Expenditure, as indicated above, the defendants are essentially arguing that the alleged contract is illegal and unenforceable.
8. I have not found in the evidence adduced before me any properly authorised Integrated Local Purchase Order and Claim (ILPOC) or any Authority to Pre-commit Expenditure. It follows therefore that the contract was illegal. However, a finding of an illegality is not fatal in situations where there is evidence establishing that it would be unjust to allow a party to take advantage of illegality when such a party has benefitted from services rendered to it.
9. In this case, there is evidence that the defendants (Department of Community Development) benefited from the use of the car. (Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705; PutPut Logging Pty Ltd v Phillip Ambalis PG NC112 (1992) PNG LR 159, N1094.
10. It seems to me that if the defendants’ only defence was illegality such a defence would not be meritorious on the basis of the doctrine of unjust enrichment, in a situation such as the present, where there is evidence of unjust enrichment on the part of the defendants.
11. The defendants have also asked the Court to dismiss the plaintiff’s claim for want of Section 5 Notice under the Claims By and Against the State Act 1996.
12. I have perused the pleadings and the evidence. It is trite learning that the pleadings drive the evidence.
13. In this case, it is plain that the plaintiff on the 24^th of May, 2016, caused a notice of plaintiff’s intention to make a claim against the State to be issued to the Office of the Solicitor General as required by Section 5 of the Claims By and Against the State Act of 1996, with necessary particulars.
14. I have read the said Notice and on its face, it was written on the 24^th of May, 2016.
15. The Notice (Section 5 Notice) seems, ex facie, defective, or not sufficient in that it does not say when the cause of action accrued.
16. On the basis of the Statement of Claim (pleadings) it seems the cause of action accrued on or about the 19^th of December, 2012, (See paragraph 8 of the Statement of Claim).
17. It is trite learning that unless excused as per the stipulations of the Claims By and Against the State Act 1996, the Section 5 Notice should be given within six (6) months after the accrual of the cause of action. However, in this case, it was given several years later, rendering the proceedings issued against the defendants invalid and of no force and effect.
18. In my considered opinion failure to give Section 5 Notice within the required six (6) months from the date when the cause of action accrued renders the proceedings invalid and of no force and effect.
19. It cannot be emphasized enough that a Section 5 Notice is a condition precedent to any valid claim against the State.
20. In this case no valid Section 5 Notice was issued against the State in this matter.
21. In the result, the plaintiff’s proceedings are dismissed for non compliance with the Claims By and Against the State Act, with costs.

_______ ____________________________________________________
Lakakit & Associates Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants