Moi v State [2004] PGDC 39; DC383 (8 March 2004)

DC383

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 23 OF 1998

BETWEEN

Janet Moi by her next friend Karo Moi
Complainant

and

The Independent State of PNG
Defendant

Reasons for Decision

15th July, 6th, 28th November, 2003 and 10th February and 8th March. 2004.

KORONAI, PM: This is a Claim against the State by the Complainant over a Motor Vehicle accident resulting in injuries to the Complaint for which she is claiming the following:

1. General damages for pain and suffering.

2. Damages for loss of amenities

3. Interests

4. Costs

Accanufa & Associates - Lawyers for Complainant;
No appearance for or by the defendant.

History:

Complainant is the daughter of Karo Moi and comes from Tuempingka village, Kainantu in the Eastern Highlands Province while the defendant is the Independent State of Papua New Guinea.

On or about 10th of March, 1992, whilst on her way to a Creek and whilst walking along the Okuk Highway near Tuempingka she was hit on the right side of this highway by a Toyota Land cruiser ten seater bus registration number AFZ-438, driven by George Toyoha and owned by the defendant, which was travelling out of Kainantu towards Goroka.

As a result of this accident the Complainant sustained serious injuries to her right hand and is now assessed that she has suffered 5% permanent disability in the effective use of her right hand and is now claiming damages in the following order:

1. General damages for pain and suffering.

2. Damages for toss of amenities.

3. Interests

4. Costs.

This Complaint and Summonses were filed on the 24th day of July, 1998 some six years, four months arid eleven days after the cause of this accident.

Issues:

1. Whether this Court has jurisdiction to hear this Complaint in it's current form.

2. Whether this Complaint is statute barred.

3. Whether the defendant is vicariously liable for the negligent driving of George Toyoha.

The Law:

District Courts, Act Chapter 40, Section 21 applies in respect of issue number (1) and Statute of Fraud and Limitation applies to issue Number (2) and laws of tort on vicarious liability applies in respect of issue number (3).

In this Claim there' is no monetary' value of the subject matter of the claim but a general Claim leaving this Court to decide how much it should award. The jurisdiction of this Court is given under Section 21 of the District Courts Act Chapter 40 and which reads:-

21 Civil Jurisdiction

(1) Subject to this Act, in addition to any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the Claim or the amount or value of the subject matter of the claim does not exceed -

(a) Where the Court consists of one or more principal Magistrates" – K10,000.00 and

(b) Where the Court consists of one or more Magistrates -K8,000.00.

(2) repeated

(3)

Clearly in this claim there is no claim for money or monetary value of the subject matter of the claim to bring it within this Court's jurisdiction either under section 21 (1) (a) or (b) of the Act, General Claims such as the one in this Case cannot be entertained by this Court and only the National Court would have jurisdiction over it and therefore this Claim should be struck out for lack of jurisdiction.

Secondly as facts as proven by documentary evidence show, the cause of this Claim arose on the 10th of March, 1992 and this Complaint and Summonses over it were filed on the 24th of July, 1998, some six years, four months and eleven days later, This is clearly statute barred under the provisions of section 16 (1) (a) of Statute of Frauds and Limitation Act No. 3 of 1998 and therefore there is no longer a cause of action maintainable in this Court and this matter should be struck out.

Thirdly there's no evidence in this Court or on record to show that notice of intention to make a claim against the state has been given in accordance with the provisions of Claim by and Against the State Act of 1998. There is also no evidence of any extension given by Principal Legal Advisor to make a Claim against the State after the expiry of the Statutory period in which to do so and for this reason this Complaint should be struck out.

Conclusion

Based on the above reasoning, this Claim should be struck out without costs and there is no need for this Court to decide issue Number (3)"

Formal Orders

It is formally ordered that:

1) Complaint Number D/C 123 of 1998 is struck out without costs; for lack of jurisdiction.

2) Parties have 30 days from 08/03/04 in which to appeal against this decision to the National Court of Justice, if aggrieved by it.

Accanufa & Associate: Complainant.
In Person: Defendant.