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Pomat v Tanuvasa [2021] PGNC 146; N8882 (18 June 2021)

N8882

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 41 OF 2021 [IECMS)

BETWEEN:
KEPO POMAT
Plaintiff

AND:
TAUVASA TANUVASA AS SOLICITOR GENERAL OF PAPUA NEW GUINEA
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 03^rd June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave Application – Mandamus – Endorsement Judgement Debt Claims By & Against State Act S 14 – Locus Standi – Delay – Arguable Case – Exhaustion of Administrative Process – Materials relied sufficient– Leave granted for Judicial Review – cost follow event.

Cases Cited:

Agmark Pacific Ltd v Devete [2010] PGNC 234; N4191

Raka v Tohichem [2000] PGNC 105; [2000] PNGLR 328

PNG Aviation Services Ltd v Tanuvasa [2020] PGNC 476; N8751

South Pacific PNG Seafoods Co Ltd v Tanuvasa [2020] PGNC 464; N8750
Counsel:

B. Boma, for Plaintiff
R. Mesa, for Defendant

RULING

18^th June, 2021

1. MIVIRI, J: This is the Ruling on the originating summons of the plaintiff pursuant to Order 16 Rule 3 (1) of the National Court Rules, “the Rules” to seek leave for judicial review to apply for mandamus to compel the first defendant to within 14 days to request the Department of Finance and the Secretary of Finance to settle the judgement debt of K 947, 000.00 plus interest per the consent orders of the court granted on the 25^th April 2014.
   
2. His application is supported by his own affidavit of the 23^rd February 2021 filed of the 09^th March 2021. Including the Statement in support with the affidavit verifying the facts of the 23^rd February 2021 filed of the 09^th March 2021.
   
3. What is established by this material is that on the 25^th April 2014 in WS No. 926 of 2011 Kepo Pomat & ors v. PNG Waterboard, Lands Department, and the State (WS 926 of 2011) this Court presided by Justice Kandakasi (as he then was) entered Judgement by consent against the State in the sum of K 947,000.00. A Certificate of Judgement was issued by the Registrar of the Court on the 22^nd May 2017. But it is unclear as to whether or not it was served on the Solicitor General there and then. So that what is now followed to current and incumbent Mr. Tauvasa Tanuvasa on the 22^nd May 2017 is simply following on because it was not actioned as contended. That is, it has remained outstanding without being endorsed so that it could be forwarded to the Secretary for the Department of Finance to settle the Judgment debt. There is no evidence of the plaintiff firstly sending that judgement debt by form 1 certified to then Solicitor General Faith Barton Keene. But that is now satisfied as of the 22^nd May 2017 to the incumbent the First defendant. It therefore satisfies that proper service has taken place to avoid what happened in Agmark Pacific Ltd v Devete [2010] PGNC 234; N4191 (30 December 2010). There service of the Certificate of Judgement did not take place so was not enforced until it was so executed. The facts were in all material particulars similar as is the present.
   
4. It means leave must be secured for mandamus to be accorded. And this is based on whether or not the applicant has standing in the matter. Secondly that there is no undue delay. And thirdly an arguable case must be demonstrated and fourthly, the applicant must exhaust all administrative avenues in the matter: Raka v Tohichem [2000] PGNC 105; [2000] PNGLR 328 (20 October 2000).
   
5. The applicant is affected by the actions of the first Defendant in not endorsing and requesting the Secretary for Finance to make the payment. He has secured a judgment debt through the process of law that must be paid, but the process starts with the actions on the part of First Defendant, without which he will not get his money. His interest has been affected; He has raised the matter and has presented a Judgement Debt to the First defendant since 22^nd of May 2017 and it has been outstanding since without any indications as to why it has not been executed by him. No material has been filed explaining by the First Defendant and the effect is that despite service it remains to be executed so that it is realized in the terms of the order secured. Plaintiff is therefore affected because a lawful process has come to a stop. He satisfies that he has locus standi in the matter to the required balance discharging in his favour.
   
6. Administrative process has eventuated since the 22^nd May 2017 to obtain endorsement of the Judgement Debt for processing onward to the Secretary for Finance to be paid out. He has gone through the administrative process to secure the first defendant so that what is due is administered administratively and discharged he attains the discharge of the orders of this Court. This is now the resort to the Court to enforce because internal administrative process has not materialized to attain discharge of the fruits of that Judgement. He has therefore discharged that internal process which has been exhausted and this ground is discharged in his favour.
   
7. There cannot be any delay because this is a Judgement Debt by Form 1 that was so granted of the 22^nd May 2017. It was taken on that day to the first Defendant to endorse and discharge the next process by law under the claims by and Against the State Act to discharge so that he realized the fruits of the Judgement. Up to the present date of 18^th June 2021 it has not been realized so as to give effect to section 14 (2) in particular of the Claims by and Against the State Act:
   

“SATISFACTION OF JUDGEMENT AGAINST THE STATE

(1) The certificate referred to in Section 13(2) shall be served on the Solicitor-General by–

(a) personal service; or
(b) leaving the document at the office of the Solicitor-General with the person apparently occupying the position of personal secretary to the Solicitor-General between the hours of 7.45 a.m. and 12 noon p.m. or 1 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (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 1953.

(2) The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1.

(3) Upon receipt of the certificate of a judgement against the State bearing the Solicitor-General’s endorsement that judgement may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgement out of moneys legally available.

(4) Any payment in satisfaction of judgement may, in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgement is thereby satisfied within a reasonable time.

(5) No action–

(a) for or in the nature of mandamus; or
(b) for contempt of court,

or otherwise lies against the Solicitor-General or the Departmental Head responsible for finance matters in respect of the satisfaction of a judgement under this Act, other than for failure to observe the requirements of Subsection (2), (3) or (4), as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the court.”

8. It is clear subsection 1 of that Act has been complied in the service of the Judgment Debt on the First Defendant on 22^nd May 2017 and a certificate to that effect annexure “B” of the affidavit of the Plaintiff confirms fulfilling that requirement by the law. It is now subsection 2 of that law that has not been executed by the Solicitor General that has prompted this application for leave for mandamus. Interestingly there is no time within which the Secretary for Finance is supposed to act on after the actions of the Solicitor General which is timed as within 60 days after service of the Judgement debt. So, for our purposes here it is 60 days counting after the 22^nd May 2017.
   
9. Clearly that is more than almost four (4) years since service with the Judgement Debt. And the application is relied upon section 14 subsection 5 as set out above. It is therefore within the powers of that Act to grant as applied for leave for judicial review for mandamus. Because subsection 2 is covered as set out above, given the circumstances here enlightened for the plaintiff. The Solicitor General has not endorsed Form 1 to give effect to the next process in law by the Act. It is different from what was observed in PNG Aviation Services Ltd v Tanuvasa [2020] PGNC 476; N8751 (4 November 2020) where not only the administrative process was put into play, but attempts were made to pay the judgement debt which was obtained by trial as opposed to here where it was by consent. There should not be any real problem with the settlement of that here.
   
10. It must be noted that it is not the same for payment, a certificate maybe endorsed for payment and settling will be in trickles, or instalments, but it will not be the subject of contempt against or mandamus, section 14 (5) of that Act as set out above, against both Solicitor General and the Secretary for Finance, departmental head responsible for Finance. This is a consent order that has culminated and should not be a problem against the Solicitor General. It was entered by consent. And the Solicitor General was part of that process in so attaining, it should therefore not be an issue seen by the State. It ought to be settled without recourse back here. It did not arrive after trial and dispute so it ought rightly to be no problem to see out the certificate as required by section 14 (2) CBASA. The Solicitor General of all Law offices of the State must lead by example to honour and give effect without question to court orders per se and not incur court appearance time for Orders of the Court to be enforced. Here especially a consented Judgemental Debt it should be the last matter that is disputed by that office.
    
11. All in all, therefore there is arguable cause demonstrated by these set out above in aggregate and therefore a basis satisfied on the balance for leave to be accorded for judicial review to the Plaintiff to apply for an order in the nature of mandamus to compel satisfaction endorsement of the certificate of Form 1 by the First Defendant. Consider the contrary demonstrated in South Pacific PNG Seafoods Co Ltd v Tanuvasa [2020] PGNC 464; N8750 (4 November 2020) those are not similar here to draw against. Therefore, in all the circumstances leave is granted to the plaintiff for judicial review. He has discharged all requirements for leave to be accorded. He is further granted liberty to process the next process under law to effect. For the present leave is granted for judicial review as pleaded.
    
12. The formal orders of the court are:
    
    • (1) The application for leave for judicial review is granted.
    • (2) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Boma Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants