Ruta trading as Ariti Road & Building Maintenance v Eastern Highlands Provincial Government [1998] PGNC 45; N1814 (12 June 1998)

Unreported National Court Decisions

N1814

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 1049 OF 1997
KAYAPAS RUTA trading as ARITI ROAD & BUILDING MAINTENANCE
-Vs -
EASTERN HIGHLANDS PROVINCIAL GOVERNMENT

WS NO. 1188 OF 1997
JOE A. MENANIKE
- Vs -
EASTERN HIGHLANDS PROVINCIAL GOVERNMENT

Goroka

Sawong J
10 June 1998
12 June 1998

JUDGEMENTS AND ORDERS - Enforcement - Claims By and Against the State Act, s. 13 - Application for garnishee Notice - National Court Rules O13 R 56.

JUDGEMENTS AND ORDERS - Execution and attachment - Enforcement - Organic Law on Provincial and Local Level Governments, s. 6. No prohibition of exec or n or attachments against the provincial government.

WORDS AND PHRASES - Meaning of “the State” discussed.

Facts:

The Plaintiffs appliedleave to attach or garnishenishee the accounts of the Eastern Highlands Provincial Government. The Pcial Government claimclaimetection under the Claims Byms By and Against the State Act.

Cases Cited:

Rimbink Pato v Enga Provincial Gover [1995] PNGLR 469

Steven Pupune & 8 OtherOthers v Ubum Makarai and PNGBC, (Unpublished - Unreported Judgement dated 26 September 1997, by Injia J).

Counsel:

D. A. Umba, for the Plaintiffs

N. Teninge, for the Defendant

12 June 1998

SAWONG J: These are aations by the tthe two plaintiffs by way of a notice of motion to issue a garnishee notice pursuant to o 13 r 56 of the National Court Rules. Two criteriat be fied unde under this rule, and these are:

(a)&#(a) ;ټ a judgejudgement oent order is not satisfied, and

(b) ټ there iere is a debt due to the judgement debtor.

The applications ions in these cases apport two avits oits of Denf Dennis Umba, both sworn on 26 March 1998. The evidence cont&#ned&#16d in these affidavits fied bied both these rements.

During submisubmissions, Mr Teninge, counsel for the Defendant submitted that the Provincial Government being part or ument of the State, noe, no execution proceedings could be issueissued against it. He referred to the of R Rimbink Pato v Enga Provincial Government [1995] PNGLR 469 and Steven Pupune & 8 Others v Ubum Makarai and PNGBC. (Unreported and Unnumbeudgement of Injia J dated 26 September 1997.)

I

I have read both of those cases. Both ecisions of the NatioNationurt.

In Pato, Kapi DCJ, held, inter alia, that any suit, execution or a or attachment or process in the nature ofution or attachment maybe issued against the Provincial Govl Government.

In view of the arguments put by Mr Teninge, I consider it necessary to consider two relevant laws. The first is the claimand and Against the State Act, (being Act No. 52 of 1996) which came into force on 6 February 1997. The second is the provisions of the Organic Law on Provincial and Local Level Governm

The relevant provisrovisions of the Act is s. 13(1), which is in the following terms:

“13. No tion st the State.

.

.

(1) &ـ In any any suit, uit, execution or attachment, or process in the nature ecuti attat, may noissued against the pthe property or revenue of the StateState.R.”

The relevant provisions of the Organic Las. 6, which is in the following terms:

“6. &##160;; LegalLegalLegal Caal Capacity.

A Provincial Government or a Local Level Government -

(a) &#160 acqyire, hold and disd dispose of property of any kind

b) y; ma and bend be sued,sued,

and a provincial law or a localvel law may may make prons fd in ct of the manner and formhich each respective government may do so.”

Kapi>Kapi DCJ DCJ in Pain Patoto’s case considered and analysed thdessors of those provisionssions. In that case he said (at p. 470 - 471).

“The question is whether a provincial government comes within the meaning of the word “State”. This word is not defined by the Act.

Inteation Act ) de2) defines &#es “the State” as the Independent State of Papua New Guinea. This nsistent with thenitienitioen by Interpretation Act 1990 (Enga).

The >The Constitution does not define the word word “State”, but it defines ame “Papua New Guinea” under Sch 1.2 to mean than the Independent State of Papua New Guinea. The Independent State pua apua New Guinea derives its legal existence or capacity from the Constitution of Papua New Guinea (see Preamble to the Conston). The power and the authority of the people are vested in the State of Papua New GNew Guinea, and this power is exercised by the National Government (see s. 99 of the Constitution). Subje any other provision sion of the law, the term “the State”, for purposes of Claims By and Against the State Act, means the National Government or an arm, department, agency, or insntality of the National Govl Government. This does not include a provincial government.

The provincial government system is separately established by the Constitution (see s. 187A). Esshment of a particular plar provincial government is a matter left to an Organic Law to provide for (see s. 187B of the Constitution). Part II of the Organic L P on Provincial Government out the manner in which a ch a provincial government may be granted. The Enga Provincial Government would have been granted unhese provisions.”

“12. #160; Legal capacityrof pcivincial governments.

A provincial govern-

(a) & may acqy acquire, hoe, hold and dispose of property of any kind; and

(b) &#1160y nd ed,

and a provincial law may make provision for and in respect of the mthe manner and form in which it may do so.”

0;The Provincial Assembly passed the Legal Proceedingsdings By a By and Against the Provincial Government Act 1978 and made provision for matters allowed to be made by the Organic Law. Section 2 aprovide for ther the manner in which the Enga Provincial Government may be sued or may sue. The no provision which proh prohibits any execution or attachment or a process in the nature ocution or attachment againsgainst the Enga Provincial Government.

It is, therefore, clear that any suit, execution or attachment, or process in the nature of execution or attachment may be issued against the Enga Provincial Government.”

In Pupune & others, Injia did not follow the decision in Pato. ad, his Honour came to theo the conclusion that as a provincial government is an organ of the State. And therefore by implication it was part and partial of the State. Accordingly ld that thountcounts of thef the provincial government could not be garnisheed.

It is quite clear that these decisions are coning ame to two d60; different conclu.&#16. With the greatest respecthto the trial jual judge in Pupune’s case, I am of the view that the decision by Kapi DCJ and the reasons he expounded are sound. In Pupune’s case trie trial judge applied a wide and liberal interpretrpretation to come to the conclusion that he did. However, I would preferdece decision and reasoningato’s case and I apply it here.

I have not beet been referred to any Eastern Highlands Provincial Government Legislationh either expressly or otherwise prohibit any execution or a or attachment or a process in the nature of execution or attachment.

It is, therefore, clear that any suit, execution or attachment, or process in the nature of execution or attachment maybe issued against the Eastern Highlands Provincial Government.

I grant leave for Garnishee Notice.

Lawyers for the Plaintiff: Acanufa & Associates

Lawyers for the Defendant: N. Teninge