Rewil Engcorp (PNG) Ltd v Sarea [2005] PGDC 126; DC414 (13 December 2005)

DC414

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2865 OF 2005

BETWEEN

Rewil Engcorp (PNG) Ltd
Complainant

V

Jackson Sarea
First Defendant

Peter Loko
City Manager
Second Defendant

National Capital District
Commission
Third Defendant

Port Moresby: Bidar, Pm
2005: 24th November; 14th December

Counsel
L. Kila for Defendant
Complainant appeared in person

Civil Debt – Claim for Debt owing- for supplying various office stationeries to Social Services Department of the Third Defendant - Whether or not Defendants liable

Claims By And Against The State Act Section 5 Notice is condition precedent to filing of proceedings against the State or its instrumentalities – Failure to give S.5 Notice renders proceedings nullity.

DECISION

13th December 2005:

BIDAR, PM: Complainant filed Default Summons on a Complaint for a Civil Debt on 16th August 2005 against the Defendants, claiming non payment of debt outstanding for supplying various office stationeries at the Defendants request. A liquidated sum of K8, 752.98 is claimed together with interest.

The Defendant, National Capital District Commission filed its Notice of Intention to defend on 6th September 2005, and defence on 7th October 2005.The Complainant filed his reply to defence on 18th October 2005. Both parties have filed affidavits, which they rely on.

Before considering the merits of the case, an important issue which none of the parties raised needs to be considered. This issue relates to requirement of giving Notice under S.5 of the Claim By and Against The State Act. National Capital District Commission is a state instrumentality and as such prior to filing proceedings it is necessary to give required S.5 Notice to the appropriate authority. S.5 Notice is a condition precedent to filing of proceedings. Failure to give such notice and proceedings filed is a nullity. Reading the file, I am unable to be satisfied that such nature was given either to the Departmental Head of the Department responsible for justice matters or to the Solicitor General, within a period of six months after the cause of action arose. If they had given such notice, there is no evidence of it.

Secondly, on the evidence adduced by both Complainant and the defendants, particularly the third Defendant, and as far as the records show Complainant had been paid K1, 050.00 for supply of an executive chair. There is no record supply of various office stationery to the Social Services Department. If there was any arrangement it was a private arrangement between Complainant and former Social Services Manager. Having assessed all the evidence, the court is not satisfied on the balance of probabilities that the Defendant, particularly the Third Defendant is liable. I therefore find in favour of the Defendant and enter Judgment for the defendants. I dismiss these proceedings with costs to the defendants.

In Person: Complainant
Mrs. L. Kila: Defendant