Warwein v Lokowai, Acting Provincial Education Adviser [2005] PGDC 134; DC379 (3 March 2005)

DC379

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO'S 187 OF 2004

BETWEEN

Jonah Warwein
Complainant

V

Arnold Lokowai Acting Provincial Education Adviser
First Defendant

Provincial Education Board of Sandaun Province
Second Defendant

REASONS FOR DECISION

3rd March, 2005.

KORONAI, PM: This is an action by the Complainant against the Defendants, in defamation, for which he is seeking the following relief:-

1. damages for defamation

2. legal costs

3. such other orders as the Court deems appropriate

Jonah Warwein appears in person.
Frank Evans appears for defendants.

FACTS:

The Complainant, through his lawyer, Ignas Mambei of Mambei Lawyers and Consultants, filed his complaint against the defendants on the 27th day of September, 2004, seeking the relief referred to above. His complaint resulted from a letter written by the former Acting Education Advisor, Mr. Lokowai over the abuse or misuse of Teachers' In-service monies in which the complainant was alleged to be responsible.

The District Court made an Ex parte Order on 30th September, 2004 awarding the complainant K8,000.00 together with costs of K2,000.00, which was later, set aside, upon successful application by the defendants on 2nd November, 2004. It is now before me for hearing as the then Presiding Magistrate disqualified himself from continuing to hear it.

ISSUES:

1. Whether this Court can hear this complaint in its current form.

2. Whether the complainant has fulfilled his obligations of giving notice of his intention of making a claim against the State, under the provisions of Claims By and Against the State Act of 1998.

THE LAW:

District Courts Act Chapter 40, Section 21 applies in respect of issue number (1) and Claims By and Against the State Act, Section 5 (1) (a) and (b), in respect of issue number (2).

The facts show that this claim by the complainant did not state any monetary value he is seeking as damages from the defendants but is making a general claim, leaving this Court to assess and award it.

I am of the view that this is not proper and does not give this Court jurisdiction under Section 21 of the District Courts Act Chapter 40 and which is as follows:-

21 CIVIL JURISDICTION

1. Subject to this Act, in addition to any jurisdiction conferred by 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.

Clearly in this claim there was no value of the amount of claim or the subject matter given, in order to give this Court jurisdiction either under Section 21 (1) (a), which could be heard by myself, a Principal Magistrate or 21 (1) (b) which could be heard by either Mr. August, a Magistrate or myself.

District Courts are creatures of statute, that is the District Courts Act Chapter 40 and they derive their jurisdictions from it and must strictly comply with it. (See K/AU NIGINTS v MOK/ RUMINTS [1990] PNGLR 123 and KIMBE BAKERY PTY LTD v BEN JALATANG APP. 241 of 1992 N1274). General claims such as the one in this case can only be heard and determined by the National Court, for if the amount of damages assessed at the end of a trial is more than K10,000.00 then this Court would lack jurisdiction under Section 21 (1) (a) or (b) to award it and for this reason, this claim should be struck out.

Secondly the Complainant filed this complaint on the 27th September, 2004 which was well after the Supreme Court handed down its decision in Supreme Court Reference No.1 of 1998; SC No. 672 of 9th November, 2001.

The decision in the above case amongst other things, states that the term "STATE" includes Provincial Governments, their instrumentalities and institutions other than their commercial or business arms. So before filing this claim against the defendants, the complainant has an obligation under Section 5 (1) (a) or (b) of Claims By and Against the State Act, 1998, to give to the State, notice of his intention of making a claim against the State under Section 5 of Claims By and Against the State Act 1998 which is as follows:-

5 NOTICE OF CLAIMS AGAINST THE STATE

(1) No action to enforce any claims 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 responsible for justice matters; or

(b) the Solicitor - General.

(2) A notice under this Section shall be given ---

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) whether the claim is for breach of a contract, within a period of six months after the claimant became aware of the breach; or

(c) within such further period as ----

(i) the Principal Legal Advisor; 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 office 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).

Section 5 (1) (a) and (b) places a statutory obligation on the complainant, in this case, to give the required statutory notice, before filing his claim in this Court and he has not shown that he had done this so that his claim should be struck out. (See PAUL TOHIAN, MINISTER FOR POLICE AND THE STATE v TAU LlU SCA No. 67 of 1997). Giving notice is a condition precedent to the right of making a Claim Against the State.

The cause of this action arose on the 6th of February, 2002 as per the complainant's statement of claim filed on the 27th of September, 2004, which is filed more than six months after the occurrence out of which his claim arose and this is contrary to Section 5 (2) (a) of the said Act and he has not shown that he was granted an extension of time, either by the Principal Legal Advisor or this Court, after the six months statutory period had expired, to give notice to the state under Section 5 (2) (c) (i) or (ii), before filing this complaint and for this reason his complaint should also be struck out.

CONCLUSION:

The end result is that the complainant's claim against the defendants' is not properly before this Court and therefore it lacks jurisdiction to hear and determine it and it should be struck out and parties should meet their own costs and security deposit of K5,000.00 should be repaid to Sandaun Provincial Government.

FORMAL ORDER:

1. COMPLAINT NUMBER DC. 187 OF 2004 IS STRUCK OUT FOR LACK OF JURISDICTION.

2. PARTIES ARE TO MEET THEIR OWN COSTS.

3. SECURITY DEPOSIT OF K5,000.00 IS REPAID TO SANDAUN PROVINCIAL GOVERNMENT FORTHWITH.

In Person: Complainant
Frank Evans: Defendants