N2797

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1669 OF 2002

BETWEEN:

OTTO NAPI
Plaintiff/Applicant

AND:

NATIONAL CAPITAL DISTRICT COMMISSION
Defendant/Respondent

RULING

WAIGANI	:	DAVID, A.J.
2004		:	14th July, 15th September

PRACTICE & PROCEDURE – enforcement of judgment – respondent falls within the meaning of the term "State" under the Claims By and Against the State Act – provisions for satisfaction of judgments under the Claims By and Against the State Act apply – orders valid until discharged even where a party believes same to be irregular or void. 

Cases Cited:
Reservation pursuant to S.15 Supreme Court Act, SCR 1/1998, (2001) SC672
Pato v. Enga Provincial Government [1995] PNGLR 469
Pupune & Ors v. Ubum Makarai, Administrator, Eastern Highlands Provincial Government [1997] PNGLR 622
Yap v. Tan and Ors [1987] PNGLR 227

Counsel:
Mr Powes Parkop for the Plaintiff/Applicant
Mr John Palek for the Defendant/Respondent

INTRODUCTION:

The Plaintiff/Applicant (the Applicant) seeks, by way of a Notice of Motion filed on 6th May 2004, ("the Notice of Motion") the following orders:-

1.	That the Defendant provides an explanation as to why it has not satisfied the judgment debt ordered on 19th December 2003.

2.	Alternatively, an order that the Defendant provide an explanation as to why its Manager and Financial Controller should not be charged for contempt pursuant to S.14(5) of the Claims By And Against The State Act for their failure to settle the judgment debt.

3.	Summary judgment be entered in favour of the Plaintiff to the balance of his claim of K36,000.00.

4.	Costs and interest.

5.	Any other orders the Court deems to make in the circumstance.

The Applicant relies upon his Affidavits sworn on 5th May 2004 and 7th July 2004 respectively. Mr Parkop, counsel for the Applicant, during the course of his submissions also made reference to the Affidavits of Paul Keikei sworn on 17th December 2003 and 23rd April 2004 and the Affidavit of Joseph Edward Aisa of 8th December 2003. 

In his opening address, Mr Parkop informed the Court that the application was in two (2) parts. Firstly, to seek orders which would enable the Respondent to pay the Applicant the sum of K27,000.00 with interest and costs pursuant to an order of this Court of 19th December 2003. Secondly, summary judgment be entered in favour of the Applicant in the sum of K36,000.00 with interest and costs.

The Respondent has not filed any Affidavit in response to the application or the Affidavits that the Applicant relies on.

BACKGROUND:

On 19th December 2003, His Honour, Justice Kandakasi granted orders alluded to earlier which were consented to by the parties herein ("the Orders") in the following terms:-

1.	That the Defendant pays the Plaintiff the amount of K27,000.00 plus interest and costs for the application.

2.	Plaintiff’s claim to further payment of K36,000.00 be adjourned to be settled if not tried.

Briefly, by a Writ of Summons and Statement of Claim filed on 23rd December 2002, the Applicant claims against the Respondent an order for specific performance of a contract entered into by the parties herein in 2001 for the Applicant to provide services involving collection and disposal of waste or refuse from the Port Moresby North West area.

The Respondent filed a Defence to the Applicant’s claim on 9th January 2003 in essence denying that the Applicant was entitled to losses claimed totalling K63,000.00.

The Orders were made by consent of the parties as a result of the Applicant filing an application by way of Notice of Motion filed on 19th November 2003 seeking, inter alia, summary judgment to be entered in favour of the Applicant for K63,000.0 plus interest and costs.

The Applicant in essence is seeking to enforce Clause 1 of the Orders which is covered by paragraphs 1 and 2 of the Notice of Motion and also seeks summary judgment to be entered in favour of the Applicant for K36,000.00 with interest and costs being that part of his claim referred to in Clause 2 of the Orders which is covered by paragraphs 3 and 4 of the Notice of Motion.

ISSUES:

The issues I must decide are:-

1.	Whether the Court can order or compel the Defendant to provide an explanation as to its non-satisfaction of the judgment debt being the sum of K27,000.00 plus interest and costs and why its Manager and Financial Controller should not be charged for contempt of Court.

2.	Whether the Court should enter summary judgment in favour of the Applicant for K36,000.00 with interest and costs for the balance of his claim.

I will deal with both issues together.

THE LAW:

The Respondent, in my view, falls within the meaning of the word "State" in the Claims By And Against The State Act, 1996 ("the Claims Act"). In the case of Reservation pursuant to S.15 Supreme Court Act, SCR 1/1998, (2001) SC672, the Supreme Court held that the term "State" includes Provincial and Local Level Governments for the purposes of the Claims Act. Two (2) differing views were expressed by this Court prior to that decision in relation to garnishee proceedings instituted against and involving the Enga Provincial Government and the Eastern Highlands Provincial Government respectively: Pato v. Enga Provincial Government [1995] PNGLR 469, Kapi, DCJ, as he then was, and Pupune & Ors v. Ubum Makarai, Administrator, Eastern Highlands Provincial Government [1997] PNGLR 622. In Pato’s case, His Honour Kapi, DCJ, as he then was, held that Provincial Governments did not fall within the meaning of the word "State" therefore execution process could be issued against them. In Pupune’s case, His Honour, Injia J., as he then was, held that the word "State" for the purpose of the Claims Act included Provincial Governments.

The National Capital District Commission is an entity established under Section 4 of the National Capital District Commission Act 2001 ("the NCDC Act") and can sue and be sued and enter into contracts, etc. It is established to govern the National Capital District as required by Section 4 of the National Constitution: see Preamble and Section 3 of the NCDC Act. Section 4(5) of the National Constitution provides that for the purpose of calculating the number of provincial electorates, the National Capital District shall be treated as a province. The Organic Law on Provincial Governments and Local Level Governments 1995 applies to the Respondent as well by virtue of Section 4(1) of that Organic Law. The National Capital District Commission therefore is the same as a provincial government and in this case for the National Capital District.

The Claims Act applies to the Respondent and therefore execution against its property or revenue is clearly not possible by virtue of Section 13(1) of the Claims Act.

Section 14 of the Claims Act sets out the procedure that must be followed for the satisfaction of judgments against the State. A Certificate of Judgment issued pursuant to Section 13(2) of the Claims Act is required to be served personally upon the Solicitor General who shall endorse it within sixty (60) days of it being served and then forward it to the Departmental Head responsible for finance matters with his endorsement that the judgment may be satisfied. Payment in satisfaction of the judgment shall then be made within a reasonable time out of moneys legally available.

Section 14(5) of the Claims Act provides that no action in the nature of mandamus or for contempt of Court can be taken against the Solicitor General or the Departmental Head responsible for finance matters for satisfaction of judgments against the State except for failure to observe the requirements of Section 14(2), (3) or (4) of the Claims Act unless other exceptional circumstances are present.

Mr Palek submits that a sum of K24,300.00 (K27,000.00 less 10% VAT) was paid into the Applicant’s account and not K27,000.00 as evidenced by annexures attached to the Applicant’s Affidavit of 7th July 2004 hence satisfaction of Item 1 of the Orders. The Applicant at paragraphs 8 and 9 of that Affidavit denies receiving the money nor being informed of the deposit nor withdrawing it. I am not convinced on the evidence before me that the Applicant actually received the sum of K24,300.00 nor am I satisfied that that payment relates to the claim for which an order to pay K27,000.00 was made by the Court on 19th December 2003.

The Orders were granted with the consent of the parties. The orders remain valid until discharged even where a party affected by them believes the orders to be irregular or void: Yap v. Tan & Ors [1987] PNGLR 227. No effort has been made by the Respondent to discharge the Orders and as they stand, they are valid and the Respondent must obey them.

I note that the Court file has no record of a Certificate of Judgment having been issued in respect of Clause 1 of the Orders. The Applicant cannot pursue satisfaction of the judgment without that Certificate which is a mandatory requirement under Section 13(2) of the Claims Act. I will therefore refuse to make the orders sought in paragraphs 1 and 2 of the Notice of Motion.

In respect to Clause 2 of the Orders, settlement has not occurred up until now. The order is self executing in that it clearly states without any doubt in my mind that, if settlement is not achieved, then that aspect of the Applicant’s claim must be tried. Therefore, I will refuse the orders sought in paragraphs 3 and 4 of the Notice of Motion but direct that the Applicant take steps to set that aspect of the matter down for trial at the next civil call-over.

CONCLUSION:

The Respondent falls within the meaning of the word "State" in the Claims Act and therefore provisions relating to the satisfaction of judgments under the Claims Act apply as well to judgments entered against the Respondent.

In respect to Clause 2 of the Orders, settlement has not occurred therefore the matter must proceed to trial as ordered by His Honour, Justice Kandakasi.

ORDERS:

Accordingly, I make the following orders:-

1.	I refuse the orders sought in the Notice of Motion.

2.	Costs of the application be borne by the Applicant.
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Lawyers for the Plaintiff/Applicant		-	Powes Parkop Lawyers
Lawyers for the Defendant/Respondent	-	NCDC – A/Principal Legal Officer