Namba v Mondo [2008] PGNC 15; N3288 (18 March 2008)

N3288

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 505 OF 2004

NICHOLAS NAMBA & DAVID MAIP
Plaintiffs

AND

MICHAEL MONDO
First Defendant

AND

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant

AND

THE SECRETARY,
DEPARTMENT OF AGRICULTURE & LIVESTOCK
Third Defendant

AND

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Defendant

Mount Hagen: Makail AJ
2008: 15 February
18 March

INTERLOCUTORY RULING

PRACTICE AND PROCEDURE - application to dismiss court proceeding - action based on alleged breach of contract - non payment of salaries or fees for security and care taker services provided to defendants - want of compliance of Claims By & Against the State Act 1996 - section 5(3)(a)&(b) - notice of intention to make a claim against the State - mode of service of notice on intention to make a claim against the State - no personal service of notice on Attorney General or Solicitor General - notice given by facsimile transmission - Solicitor General acknowledged receipt of notice - whether notice by facsimile transmission proper notice to State - literal interpretation rule applied - notice must be personally served on either Attorney General or Solicitor General or persons occupying positions of personal secretary to either of these two officers - mandatory for personal service of notice - no personal service of notice.

PRACTICE AND PROCEDURE - Claims By & Against the State Act 1996 - section 5(3)(a) & (b) purposive interpretation rule also applied - rational of personal service of notice on either Attorney General or Solicitor General - to ensure notice is received by either Attorney General or Solicitor General - also to avoid notices going missing either by facsimile transmission or by post - purpose of personal service of notice - serves as a forewarning of new law suits or court proceeding against the State - notice to enable State lawyers to conduct preliminary investigation or inquiry to allegations raised in notice - preliminary investigation or inquiry with State departments or agencies - to properly and adequately prepare for State’s defence against any law suits or court proceedings - State being a large institution - no personal service of notice - does not necessarily amount to defective notice or no notice to State if State received notice and acted on it - notice proper.

PRACTICE AND PROCEDURE - also notice given to State outside six (6) months - date of cause of action - action based on alleged breach of contract - non payment of fees for security and care taker services provided to defendants - amounts to defective notice or no notice to State - cross application for leave sought to extend time to give notice outside six (6) months - cross application for leave also sought to personally serve notice on Attorney General or Solicitor General - Claims By & Against the State Act 1996 - section 5(1) (a) & (b) and (2)(a),(b) & (c)(i) & (ii) - both applications are an abuse of process of court - plaintiffs should withdraw court proceeding - plaintiffs should also file separate court proceeding to seek leave to extend time to give notice - commence court proceeding by originating summons to seek leave to extend time - both cross applications refused - whether the entire writ of summons should be struck out - any discretion in Court to allow court proceeding to proceed to trial - no discretion - court proceeding amounts to abuse of process - application to dismiss granted - entire court proceeding dismissed.

Cases cited:

Paul Tohian, Minister for Police & The State -v- Tau Liu (1998) SC566
William Trnka -v- The State (2000) N1957
John Bokin & Others -v- Sergeant Paul Dana & the State (2001) N2111
Daniel Hewali -v- Papua New Guinea Police Force & The State (2002) N2233
Eliakim Laki & 167 Others -v- Secretary for Department of Lands & The State (2005) N2818
Motor Vehicles Insurance Limited -v- Sanage Kuri (2006) SC825
Maps Tuna Limited -v- Manus Provincial Government (2007) SC857
Naomi Vicky John -v- National Housing Corporation N2770

Counsel:

Plaintiffs in person
No appearance for the First Defendant.
Mr R Otto, for the Second Defendant.
Mr B Kome, for the Third & Fourth Defendants.

18 March, 2008

1. MAKAIL AJ: INTRODUCTION: This is an application by the Third & Fourth Defendants by Notice of Motion filed on 6 December 2007 to dismiss the entire court proceeding for want of compliance with the requirement to give notice of intention to sue the State under section 5 of the Claims By & Against the State Act 1996. The application was support by the Second Defendant.

2. I must state here that the Plaintiffs have represented themselves in this court proceeding since its commencement on 7 May 2004. The Plaintiffs also filed a cross application by Cross Notice of Motion on 3 January 2008 to seek leave of the Court for them to serve the notice of claim against the State in person and for leave to extend time to give the said notice to the State under section 5 of the Claims By & Against the State 1996.

EVIDENCE

3. In support of the application, the Third & Fourth Defendants rely on the Affidavit in Support of Ruth Kokiva Gelu sworn on 21 October 2007 and filed on 3 December 2007.

4. The Plaintiffs have responded to the Defendants’ Affidavits by relying on the Affidavit in Support of Nichlais Namba sworn and filed on 3 January 2008.

BRIEF BACKGROUND

5. In this court proceeding, by a Writ of Summons filed on 7 May 2004 the Plaintiffs seek damages of unpaid salaries or fees from the Defendants for security and care taker services rendered to the Defendants between 23 September 1992 and 24 February 2002.

6. The Plaintiffs alleged that they were engaged by the First Defendant who was then the Principal Advisor in the Third Defendant to provide the security and care taker services over the property of the Third Defendant located at Kuk DPI Research Station outside the town of Mt Hagen of the Western Highlands Province.

7. Despite providing these services to the Defendants and despite numerous requests for payment of their salaries or fees, the Defendants failed to pay them. As a result, on 7 May 2004, the Plaintiffs commenced this court proceeding to recover their unpaid salaries or fees from the Defendants.

8. On 21 June 2004, the Plaintiffs duly served a sealed copy of the Writ of Summons on the Second Defendant at Kapal Haus in Mt Hagen by leaving it with the Executive Officer to the Governor by the name of Mr William Wandaki.

9. In response to the Writ of Summons, on 17 August 2004, the Second Defendant filed a Notice of Intention to Defend and on 27 October 2004, the Second Defendant filed its Defence.

10. On 10 January 2005, the Plaintiffs duly served a sealed copy of the Writ of Summons on the Fourth Defendant at the office of the Solicitor General by leaving it with the Personal Secretary to the Solicitor General by the name of Ms Mary Bulina.

11. On 27 April 2006, the Fourth Defendant filed a Notice of Intention to Defend but had not filed a Defence. Instead, the Fourth Defendant took issue with the giving of notice of the Plaintiffs’ intention to make a claim against the State on 4 June 2004 when it replied by letter to the Plaintiffs’ letter of notice dated 29 January 2004. The Plaintiffs’ letter of notice to make a claim against the State dated 29 January 2004 was received by the Solicitor General by facsimile transmission on 11 February 2004.

12. The Fourth Defendant also took issue with the notice to make a claim against the State on the basis that the said notice was given to the State well after the six (6) months of the occurrence of the cause of action, hence the Plaintiffs were required to seek leave of the Attorney General or the Court to extend time to give the said notice.

13. Despite taking issue with the Plaintiffs’ letter of notice, the Solicitor General proceeded to register the claim in its computer record system on 11 February 2004 and wrote another letter to the Plaintiffs dated 30 June 2005 to maintain their objection to the Plaintiffs’ notice on the grounds that the said notice was not properly served and also for being served outside the six (6) months time period.

14. At this point, it is not known if the Defendants and in particular, the Solicitor General had sought and obtained any instructions and documentation from the Third Defendant to prepare their Defence in anticipation of any court proceeding the Plaintiffs may commence against the Defendants. Further, it is not known if the Third and Fourth Defendants filed any Defence in this court proceeding as I note there is none in the Court file.

15. As noted above, only the Second Defendant instructed its lawyers and its lawyers were able to file a Defence on 27 October 2004.

ISSUES

16. I do not agree with Mr. Kome of counsel for the Third and Fourth Defendants in his written submissions that one of the issues to be determined in the application of the Third and Fourth Defendants is whether or not a notice of intention to make a claim against the State under section 5 of the Claims By & Against the State Act 1996 is a condition precedent or mandatory requirement? I say this because it is not an issue here. The Plaintiffs have accepted that it is a mandatory requirement to give notice to the State if they intend to make a claim against the State.

17. The issues which I consider as arising in both of the applications before me are as follows:

1. whether or not a notice of intention to make a claim against the State given by facsimile transmission to the State is proper and in compliance with section 5 of the Claim By & Against the State Act 1996.

2. whether or not the Plaintiffs’ cause of action arose after the six months of the occurrence of the cause of action, hence the Plaintiffs would have required leave from either the Principal Legal Advisor (Attorney General) or the Court to extend time to give the said notice to the State.

3. if leave is required, whether or not the Plaintiffs should be given leave in the present court proceeding to give notice of intention to sue the State.

4. if not, is the proceeding frivolous, vexatious and an abuse of process and should be dismissed?

THE LAW

18. The relevant section is section 5 of the Claim By & Against the State Act 1996 which states as follows.

"(1) No action to enforce any claim 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 of the Department responsible for justice matter; 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;

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

(c) within such further period as -

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on 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 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 declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any date which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321)."

PARTIES’ SUBMISSIONS

19. Mr Kome of counsel for the Third and Fourth Defendants submitted that it is clear from the evidence of the Defendants and also the Plaintiffs that first the Plaintiffs have given notice of their intention to make a claim against the State in their letter dated 29 January 2004 by facsimile transmission. In other words, the Plaintiffs’ faxed their letter of notice dated 29 January 2004 to the office of the Solicitor General.

20. He contended that, as the Plaintiffs had given their notice to make a claim against the State by facsimile transmission, they have failed to comply with the mandatory requirement of service of notice on the State. He contended that under section 5(3) of the Claims By & Against the State Act 1996, notice to make a claim against the State must be personally served on the Attorney General or the Solicitor General or any one occupying the position of personal secretary to either of these two (2) officers.

21. As the Plaintiffs had faxed the said notice to the Solicitor General, that did not amount to service of the said notice on the Solicitor General. It follows that there was no notice of intention to make a claim against the State given by the Plaintiffs to the State.

22. Secondly, Mr Kome of counsel submitted that the Plaintiffs’ notice in their letter of 29 January 2004 was given well after the six (6) months after the occurrence of the cause of action. He submitted that the Plaintiffs’ cause of action is one of breach of contract. The alleged breach of contract arose on 1 January 1993. As the Plaintiffs were well outside the six (6) months to give the said notice to the State, they should have sought leave from the Principal Legal Advisor (Attorney General) or the Court before giving the said notice to the State.

23. First, the Plaintiffs conceded that they had not personally served the notice of their intention to make a claim against the State on the Solicitor General. They only faxed the said notice to the Solicitor General’s office on 11 February 2004. They however claimed that as lay persons with no legal knowledge, they were not aware of the legal requirement under section 5 of the Claims By & Against the State Act 1996 to personally serve the letter of notice on anyone of the officers named in section 5 of the said Act.

24. They submitted that not withstanding the fact that they had not personally served the said notice on the Solicitor General, the Solicitor General had acknowledged receipt of the said letter of notice by facsimile. They said that it is not a case where the Defendants and in particular the Solicitor General not been given the said notice or not being made aware of an intended or potential claim against the State by the Plaintiffs. They said that the Solicitor General had not denied receiving their letter of 29 January 2004. On that basis they submitted that their facsimile letter of 29 January 2004 was proper notice and asked that the court proceeding should not be dismissed.

25. As for the argument that they had given notice to make a claim against the State to the Solicitor General outside the six (6) months from the date of the occurrence of the alleged cause of action, they accepted that their said notice may have been given outside the six (6) months but they repeated their argument that being lay persons with no legal knowledge, they were not aware of the legal requirement to give notice within six (6) months of the date of the occurrence of the alleged cause of action or the requirement to seek leave from either the Principal Legal Advisor (Attorney General) or the Court. For this reason, again they asked that the proceeding should not be dismissed.

26. In the alternative, they moved on their Cross Notice of Motion filed on 3 January 2008 for leave to serve the said notice on the State and also for leave to extend time to give notice to the State outside the six (6) months.

27. They submitted that as the court proceeding has reached a stage where it is almost ready to be set down for trial, the Court should exercise its discretion in their favour by simply granting their application of leave to extend time to give notice of their intention to make a claim against the State outside the six (6) months in this present court proceeding and if leave is granted, a further leave of the Court for them to personally effect service of the notice on the Solicitor General.

RULING

28. As I said earlier, the issue here is not whether or not a notice of intention to make a claim against the State under section 5 of the Claims By & Against the State Act 1996 is a condition precedent or a mandatory requirement? This is because the Plaintiffs have accepted that it is a mandatory requirement to give notice to the State if they intend to make a claim against the State. That is why on 11 February 2004 they had faxed the said notice in their letter to the Solicitor General dated 29 January 2004.

29. Further, the law is now settled on this point after the Supreme Court in Paul Tohian, Minister for Police & The State -v- Tau Liu (1998) SC 566 was decided on 27 August 1998 which has been subsequently followed by so many other cases like John Bokin & Others -v- Sergeant Paul Dana & The State (2001) N2111, Daniel Hewali -v- Papua New Guinea Police Force & The State (2002) N2233, Eliakim Laki & 167 Others -v- Secretary for Department of Lands & Physical Planning & The State (2005) N2818 and Maps Tuna Ltd -v- Manus Provincial Government (2007) SC857.

Service of notice to make a claim to the State by facsimile transmission.

30. Thus, in my view the first issue I have to determine is whether or not a notice of intention to make a claim against the State given by facsimile transmission to the State is proper notice and in compliance with section 5 of the Claim By & Against the State Act 1996. That is one of the issues I have to determine.

31. I have considered the evidence and the submissions of all the parties very carefully and it is with regret that I have reached the conclusion that the Plaintiffs’ notice of intention to make a claim against the State in their facsimile letter to the Solicitor General dated 29 January 2004 is not defective.

32. I said that I have regretted reaching this conclusion because as far as I can see, on 11 February 2004 the Solicitor General had received the Plaintiffs’ facsimile letter of 29 January 2004. The said letter is very detailed and it sets out the background facts of the intended claim against the Defendants including the State. It can be found in Annexure "A" to the Affidavit in Support of Ruth Kokiva Gelu sworn on 21 October 2007 and filed on 3 December 2007 which I set out in full below to show that the Solicitor General and his lawyers in my opinion should not have any excuse or reason to claim that they had not been notified or not being made aware of the Plaintiffs’ intended claim against the State. It reads:

"We, messrs; David Maip and Nichlais Namba have been appointed and authorized to care take Kuk Research station by the Department of Western Highlands, Division of Primary Industry. The appointment was made in or about late 1992 through formal letter of which its (sic) copy is enclosed. It was after the department of Agriculture and Livestock closed its operations there.

The understanding before taking up the job was that, we would be remunerated for our services. However, there have been negative signs for any form of remuneration within the first three (3) months thereafter. On the 1st January 1993, we enquired about the remuneration. And followed by more correspondence but obtained negative response all through.

On the 24th February 2002 (sic) gave notice and effectively ceased the caretaker responsibility. Soon after, lodged an industrial complaint to Mt Hagen based labour office. Department of Labour have (sic) written to the advisor, Division of Primary Industry on two (2) consecutive dates to settle the issue which have also never been replied to.

On the 7th June 2003, we submitted our wage claim for the 9.5 years service provided. That claim was never settled or given us any reply. It has shown that, all correspondence may have fallen onto deaf ears, which have caused so much inconveniences, sufferings and damages.

Therefore, we forward this letter as our formal NOTICE that within ninety (90) dates No favorable response from you then we will file proceedings against the Department and the State.

Forwarding for your information, actions and advice, please.

Yours faithfully,

NICHLAIS NAMBA	DAVID MAIP
Ex – Caretaker Kuk Station	Ex – Caretaker Kuk Station

33. In my view, the said letter is very clear and self explanatory. It gives the background of the intended claim, being an alleged claim for breach of contract of services as a result of the Defendants’ failure to pay the Plaintiffs’ salaries or fees for providing security and care taker services to the Defendant at Kuk Station between 1992 and 2002. Whether there is any merit in the claim or not is a matter to be determined at another time. For now, the point I am making from these observations is that, in my view the Defendants are not being left in the dark so to speak about what to face if the Plaintiffs were to file a court proceeding against them. They have been informed or have been made aware of the Plaintiffs’ intention to make a claim against the State in the form of a claim of an alleged breach of contract.

34. Now, to better appreciate why I have reached this conclusion, I consider a little bit of history on the Claims By & Against the State Act 1996 and why it was enacted by the National Parliament to replace the old Claims By & Against the State Act Ch 30 might be relevant and useful to all parties and the public as I begin to set out my reasons for reaching this conclusion.

35. In late 1996, the National Parliament passed the Claims By & Against the State Act 1996 which came into effect on 8 January 1997 as a means to inter alia at least address or minimize the exposure of the State’s liability in respect of the ever increasing number of law suits or claims made against the State which were and are being not properly defended because of the shortage of State lawyers at that time and also in the present times.

36. The rational of giving notice to the State is that, it enables the Solicitor General and his lawyers as lawyers for the State to immediately conduct any preliminary investigation or inquiry into any allegations made against the State in any notice of intention to bring a claim against the State. From the preliminary investigation or inquiry, the State lawyers maybe able to collect any relevant information and documentation and of course relevant instructions from the relevant State departments or agencies to enable them to properly and adequately defend any court proceedings that may be instituted against the State.

37. This is because, in almost all the law suits or court proceedings against the State, State lawyers have encountered and are still encountering difficulties in obtaining or collecting relevant information and documentation and of course relevant instructions from the relevant State departments or agencies to properly and adequately defend any law suits or court proceedings that have been and are being instituted against the State. This is for obvious reason, that the State being a large institution would be a hard place to take any meaningful step to assess the claim as early as possible before it is lodged.

38. So bearing in mind the rational behind the National Parliament enacting the Claims By & Against the State Act 1996, I am of the firm view that whilst section 5(3)(a) & (b) of the said Act require personal service of the notice, it would defeat the whole purpose of section 5 of the said Act for the State to argue as in the present case that the Defendants were not notified or made aware of the Plaintiffs’ intended claim against the State simply because the said letter of notice dated 29 January 2004 had been faxed to the Solicitor General’s office despite them acknowledging receipt of it.

39. Further, in my view, section 5(3) of the Claims By & Against the State Act 1996 was enacted by the National Parliament to ensure that any notices of intention to bring a claim against the State are received by the State. If the notices are sent by facsimile or by post, the chances of them not being received by or reaching either the Attorney General or the Solicitor General are very high. That is why section 5(3) of the said Act requires personal service of the notice.

40. However, in my view in a case where the party intending to bring an action against the State gives notice to the Attorney General or the Solicitor General by facsimile transmission and the said notice is received by either of these officers and the notice is referred to the State lawyers to conduct preliminary investigation or inquiry in preparation of the law suit or court proceeding to be issued against the State, then I do not see any basis or merit or logic for the State lawyers to object to the notice on the ground that it was not personally served.

41. I consider that it would be most unfair to the Plaintiffs for the Defendants to argue that the notice they received was defective because it was received by facsimile transmission or not by personal service. After all, what is the difference? The fact of the matter is that, the Plaintiffs had given notice to the State. That is where I consider section 5(3) of the Claims By & Against the State Act 1996 should also be given a purposive interpretation apart from the literal interpretation already being applied to it because, if it is literally interpreted in the way it was drafted by the draftsman, then it would only mean that if a notice of intention to bring a claim against the State is not personally served, the said notice would be defective for want of proper service regardless of whether or not it has been received by either the Attorney General or the Solicitor General through other mode or manner of service.

42. If we apply the purposive interpretation rule, then it means that if a notice of intention to make a claim against the State is served on the State other than personal service, for example it may have been served by facsimile transmission or by post and so long as it is being received by the Attorney General or Solicitor General in my view, the said notice would not be defective for want of proper service.

43. I consider that in any given case, as long as there is evidence of proof of receipt of the notice by the Plaintiff(s) or either the Attorney General or the Solicitor General regardless of whether it was personally served or sent by facsimile or by post to the Attorney General or the Solicitor General, the notice complies with section 5(3) of the Claims By & Against the State Act 1996 and it is proper notice.

44. This is where I beg to differ from my learned sister in Her Judgment in John Bokin & Others -v- Sergeant Paul (2001) N2111 where Her Honour held that section 5(3) of the Claims By and Against the State Act 1996 is a mandatory provision and is very specific on how notice of intention to make a claim against the State is to be delivered and that is, the notice shall be personally served on either the Attorney General or the Solicitor General or the personal secretary to either of these officers.

45. I note Her Honour’s reason for holding this view on page 4 of the Judgment is that; "This was probably done to avoid a situation where these letter may get lost in the mail or may be received by the Solicitor Generals office, well after the six months notice period."

46. I distinguish the facts of John Bokin’s case (supra) to the present case in that, in John Bokin’s case (supra), the Plaintiffs posted their letter of notice to the Solicitor General which was received some five (5) months after the expiration of the six (6) months period. In the present case, the Plaintiffs faxed their letter of notice to the Solicitor General dated 29 January 2004 which was received on 11 February 2004 which would have been well within the six months period, but for the lack of leave to extend time to give notice the said notice is defective, which I will discuss later in this ruling.

47. Whilst I agree entirely with Her Honour’s reasoning on the enactment of section 5(3) (a) & (b) on page 6 of the John Bokin’s case (supra) where she said; "That is why the legislators specifically inserted section 5(3) (a) (b) of the Claims Act to prevent or avoid queries being raised regarding receipt of the notice, as the State is responsible for the actions of so many people over the whole nation. One letter, if properly served, will prevent a lot of uncertainty", I am still of the firm view that if section 5(3)(a) & (b) is given a purposive interpretation, any notice sent by facsimile transmission would not be defective.

48. That is, so long as a notice is received by either the Attorney General or the Solicitor General within six (6) months of the occurrence of the claim, contains detailed information of the intended claim and the State lawyers act on the notice by conducting their preliminary investigation or inquiry, then I do not see any logic for the Defendants to dispute the proprietary of the mode or manner of service of the notice.

49. Another reason for me holding this firm view is that if the intended claimant(s) live or work outside Port Moresby where the offices of the Attorney General and the Solicitor General are located, say for example, in this case in Wahgi Valley of Western Highlands Province, it would cause a lot of inconvenience and hardship for the claimant(s) to effect personal service of the notice on the State. It will require time to travel and costs for travelling to undertake this task. I am sure, this is the experience many of the claimants against the State have undergone and will be undergoing as part of the long process of seeking any form of redress from the State for the actions and/or omissions of its servants, agents, officers and employees.

50. And so I consider the Judgment of my learned brother Mr Justice Kandakasi in his Judgment in Daniel Hewali’s case (supra) and again my learned sister Madam Justice Davani in her Judgment in Eliakim Laki & 167 Others’s case (supra) should be distinguished from their facts from this present case.

51. The Daniel Hewali’s case (supra) stands for the proposition that a notice of intention to make a claim against the State must set out clearly and in detail the intended claim against the State so as to prepare the State lawyers with adequate information to conduct their own investigation or inquiry before the court proceeding is served on the State. The notice must contain such information as date, time and place of the alleged cause of action, nature of the cause of action, personal details of the intended claimant(s), and any other relevant information that may enable the State to carry out its investigation or inquiry to properly prepare its Defence when a law suit or court proceeding is instituted against it. Thus, I consider Daniel Hewali’s case (supra) not relevant and inapplicable to the present case in so far as the mode of service of section 5 notice is concern.

52. I will have to express the same reason for not following the Eliakim Laki & 167 Others’s case (supra) because that case stands for the proposition that if the National Court has dismissed a previous court proceeding issued by the same Plaintiff(s) for reasons other than lack of section 5 notice, such as for lack of authority to represent the Plaintiffs in a court proceeding against the State, then in re commencing a fresh court proceeding against the State, the Plaintiff(s) must give another notice under section 5 of the Claims By & Against the State Act 1996 to the State before commencing the fresh court proceeding against the State. Thus, I consider the Eliakim Laki & 167 Others’s case (supra) not relevant and inapplicable to the present case in so far as the mode of service of section 5 notice is concern.

53. For the foregoing reasons, I am of the view that the Plaintiffs’ notice by their facsimile letter to the Solicitor General dated 29 January 2004 and received by the Solicitor General on 11 February 2004 is proper. I refuse the Third and Fourth Defendant’s application to dismiss the Plaintiffs’ entire court proceeding for want of proper service of notice.

Notice to make a claim to the State given outside six (6) months period

54. The second issue is whether or not the Plaintiffs’ cause of action arose after the six (6) months of the occurrence of the cause of action, hence the Plaintiffs should have sought leave from the Principal Legal Advisor (Attorney General) or the Court to extend time to give the said notice to the State.

55. I accept Mr Kome’s submission that the Plaintiffs alleged cause of action is one of breach of contract but I do not accept his submission that the alleged breach of the contract occurred on 1 January 1993, hence the time to give notice to the State within six (6) months ran from 1 January 1993.

56. To my mind, I find that the alleged breach of contract occurred on 24 February 2002 which was when the Plaintiffs tendered their letters of resignation or notices of termination of their services to the Defendants. They had done so because they alleged that since their engagement by the Defendants on 23 September 1992 up until 24 February 2002, they were not paid their salaries or fees for the services rendered to the Defendants. This was despite numerous and repeated requests to the Defendants to settle their outstanding salaries or fees. In my view, by 24 February 2002, it became apparent that the Defendants were not going to settle their outstanding salaries or fees and this was when the Plaintiffs realized that they were not going to get paid for their services. This was when the cause of action arose.

57. Thus, if we compute the six (6) months time period to give notice to the State from 24 February 2002, the Plaintiffs should have given their notice by or before 24 August 2002. It is obvious to me that the Plaintiffs had given notice to the State on 11 February 2004 in their facsimile letter to the Solicitor General dated 29 January 2004. This was well and truly outside the six (6) months of the alleged breach of contract.

58. Therefore, I accept the Third and Fourth Defendants’ submission that the Plaintiffs had given notice outside the six (6) months period from the date of the alleged breach of contract being 24 February 2002, hence they would require leave of the Principal Legal Advisor (Attorney General) or the Court to extend time to give the necessary notice to the State should leave is granted either by the Principal Legal Advisor (Attorney General) or the Court.

59. From my experience as a private practitioner and also as an acting Judge of this Court in this short period of time since my appointment in January 2008, I have experienced and also have heard applications to extend time to give notice of claim out of time simply because the Principal Legal Advisor (Attorney General) has delayed his response to the request for extension of time or has failed to respond at all to the request for extension of time to give notice outside the six (6) months time period.

60. I might hasten to counsel lawyers and parties who seek leave to extend time to give notice to the State from the Principal Legal Advisor (Attorney General) in cases which fall outside of the six (6) months time limitation and where the Principal Legal Advisor (Attorney General) has delayed his response to the request for extension of time or has failed to respond at all to the request for extension of time to also exercise the second option available to them under section 5(2)(c)(ii) of the Claims By & Against the State Act 1996, by bringing an application for leave before the National Court. This is to avoid any delays in expediting any intended claims against the State.

61. Thus, in this case, I observe that the court proceeding has almost reached a stage where it is almost ready to be set down for trial although I note in passing that the Third and Fourth Defendants have yet to file their Defence as I have not seen one in the Court file. The Solicitor General and his lawyers had taken issue with the compliance of section 5 notice and had not even bothered to file a Defence for the Third and Fourth Defendants. The Third and Fourth Defendants stand the risk of having Default Judgment entered against them for want of a Defence.

62. I also observe that the Defendants should have filed the application to dismiss the court proceeding for want of section 5 notice in good time but they did not do so. For some unexplained reasons, they waited until 6 December 2007 and then filed this application. This is about some three (3) years and seven (7) months after the Plaintiffs commenced this court proceeding. As a result, the Plaintiffs considered that all was well and pursued this matter to a stage where the matter is almost ready to be set down for trial. Why the last minute the Third and Fourth Defendants through the Solicitor General are taking issue with the late notice by filing this application?

63. In the present case, I note that the Plaintiffs had accepted that whilst they had given notice to the State, they were not aware that they were supposed to give the said notice within the six (6) months time period from the date of the alleged breach of contract. I accept that they are lay persons with no legal knowledge. Their case can be distinguished from the Judgment of His Honour Mr Justice Sevua in William Trnka -v- The State (2000) N1957 where His Honour inter alia found that the Plaintiff had lawyers acting for him and they should have made an application to the Court for leave to extend time to give notice to the State instead of writing so many letters to the Minister for Police, Commissioner for Police and even the Prime Minister about the alleged assault committed upon him by the members for the police force.

64. However, I must, with the greatest respect to the Plaintiffs as lay persons reject their contention that they were not aware of the requirement to give notice within six (6) months of the date on which the alleged cause of action arose. For there is a rule that says, ignorance of the law is no excuse. As section 5(2) of the Claims By & Against the State Act 1996 requires a claimant to seek leave from the Principal Legal Advisor (Attorney General) or the Court to extend time to give notice to the State, the Plaintiffs’ reason that they were not aware of this law prior to giving their notice must fail. I must find in favour of the Defendants on this point as was found by Her Honour Madam Justice Davani in Eliakim Laki & 167 Others’ case (supra).

65. I find Her Honour’s statements on page 7 of the Judgment a useful reminder not just to the Plaintiffs but also to the public who may be unaware of the requirement to seek leave from the Principal Legal Advisor (Attorney General) or the Court to extend time to give notice outside the six (6) months time period before one may give notice to the State. I quote them below:

"The plaintiffs should have exercised their right to seek an extension of time knowing that on the striking out of proceedings, the proceedings are no longer on foot. They could have under those circumstances, written a letter giving notice or if they were out of time, to write seeking an extension of time, to which they would appropriately have attached his Honour Justice Sevua’s decision in relation to the validity of that earlier notice and also enclosing a copy of the earlier letter giving notice. This would have been the appropriate thing to do. But they did not do so.

This is not a case where the court can adjourn to allow the plaintiff time to rectify an anomaly. This is a case where the plaintiffs do not have a basis on which to continue to pursue their claim".

66. For these reasons, I must with reluctance find in favour of the Defendants. That is, I accept the Defendants’ submissions that the Plaintiffs had given notice to the State outside the six (6) months time period and as they had not sought leave from either the Principal Legal Advisor (Attorney General) or the Court prior to giving the said notice and subsequently commencing this court proceeding against the Defendants, the notice is defective. That means, whilst as a matter of fact the Plaintiffs had given notice to the State of their intended claim, as a matter of law, I find that they had not given any notice of their intended claim to the State.

Should leave be granted to extend time for Plaintiffs to give notice to the State out of time?

67. The next question I have to determine is, should the Court grant leave to extend time for Plaintiffs to give notice to the State?

68. First, I am of the view that the Plaintiffs cannot ask this Court to extend time for them to give notice to the State because to do so will be an abuse of process and also contrary to the whole purpose of having section 5(1) of the Claims By & Against the State Act 1996 enacted in the first place.

69. To my mind, the wording of section 5(1) of the Claims By & Against the State Act 1996 is very clear and that is "No action to enforce a claim 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 - ........." (Emphasis is mine). See also Paul Tohian, Minister for Police & The State -v- Tau Liu’s case (supra) and Maps Tuna Limited -v- Manus Provincial Government (2007) SC857.

70. As the Plaintiffs had commenced this court proceeding under a misapprehension or ignorance of the law by giving the appropriate notice of intention to make a claim against the State to the Solicitor General outside the six (6) months time period, they cannot in the same court proceeding now turn around and ask the Court for leave to extend time to give notice to the State. In my view, it would be an abuse of process because a notice under Section 5 (1) of the Claims By and Against The State Act 1996 is a condition precedent to the issuing of this court proceeding.

71. But as the Plaintiffs now seek leave of the Court, I am of the view that the correct process is for the Plaintiffs to file a fresh court proceeding by way of an Originating Summons to seek leave of the Court to extend time to give notice to the State outside the six (6) months period under section 5(2)(c)(ii) of the Claims By & Against the State Act 1996. Of course, the Plaintiffs must give satisfactory explanation for the delay and if leave is granted, then they can give the required notice and then recommence a fresh court proceeding based on the same cause of action.

72. Secondly, I also find that the Defendants through the Solicitor General had reminded the Plaintiffs twice of the requirement to seek leave from the Principal Legal Advisor (Attorney General) or the Court to extend time to give notice outside the six (6) months time period before they may give notice to the State. In that respect, I find that the Solicitor General had written a letter to the Plaintiffs on 4 June 2004 and objected to the Plaintiffs’ letter of notice to the Solicitor General dated 29 January 2004 amongst other reasons that the notice was given outside the six (6) months of the occurrence of the alleged cause of action. See a copy of the letter from the Solicitor General to the Plaintiffs dated 4 June 2004 marked as Annexure "B" to the Affidavit in Support of Ruth Kokiva Age sworn on 21 October 2007 and filed on 3 December 2007.

73. As the Plaintiffs had gone ahead and filed and served the Writ of Summons on the Third and Fourth Defendants, I find again that the Solicitor General for the second time had written a letter to the Plaintiffs on 3 June 2005 and objected to the Plaintiffs’ Writ of Summons filed on 5 May 2004 and served on 7 May 2005 amongst other reasons that the notice was given outside the six (6) months of the occurrence of the alleged cause of action. See a copy of the letter from the Solicitor General to the Plaintiffs dated 4 June 2004 marked as Annexure "C" to the Affidavit in Support of Ruth Kokiva Age sworn on 21 October 2007 and filed on 3 December 2007.

74. To my mind, I find that the Plaintiffs had been informed twice of the requirement to seek leave from the Principal Legal Advisor (Attorney General) or the Court to extend time to give notice outside the six (6) months time period before they could give notice to the State but they failed to adhere to these requests. I find that they were by that time fully aware of this requirement. And so I must find that their claim of ignorance of the law must fail.

75. For these reasons, I will decline the Plaintiffs’ cross application by Cross Notice of Motion filed on 3 January 2008 seeking leave to extend time to give notice to the State out of time and also to personally serve the said notice on either the Attorney General or the Solicitor General.

Should the entire court proceeding be dismissed as being frivolous, vexatious and an abuse of process?

76. The final issue is whether or not I should dismiss the entire proceeding as being frivolous, vexatious and an abuse of process.

77. I answer the question in the affirmative. As I said above, the correct process is for the Plaintiffs to file a fresh court proceeding by way of an Originating Summons to seek leave of the Court to extend time to give notice to the State outside the six (6) months period pursuant to section 5(2)(c)(ii) of the Claims By & Against the State Act 1996. Of course, the Plaintiffs must give satisfactory explanation for the delay and if leave is granted, then they can give the required notice and then recommence a fresh court proceeding based on the same cause of action.

78. I consider that had the Plaintiffs accepted the Third and Fourth Defendants requests, they would have in the earliest of time withdrawn this court proceeding and filed fresh court proceeding to seek leave of the Court to extend time to give notice to the State. They failed to do so.

79. For these brief reasons, I have reached the conclusion that the entire court proceeding should not be allowed to progress any further until and unless the mandatory requirements of section 5(1) & (2) of the Claims By & Against the State Act 1996 are complied with.

80. That does not mean that the Plaintiffs do not have a cause of action against the Defendants. As the Supreme Court said on page 6 of the Judgment in Motor Vehicles Insurance Limited -v- Sanage Kuri (2006) SC825 whilst acknowledging the decision of His Honour Mr Justice Lay in Naomi Vicky John -v- National Housing Corporation N 2770:

"Lay J acknowledges that in his decision in the case of Naomi Vicky John -v- National Housing Corporation N 2770 dealing with the condition precedent to issue a writ against the State required by s5 of the Claims By & Against the State Act, his statement that "Without the notice there is no cause of action" is more accurately stated as "without the notice there is no enforceable cause of action." The same applies to Motor Vehicle (Third Party Insurance) Act s54 (6). Without the notice there is no enforceable cause of action, although a cause of action may have accrued."

81. Accordingly, whilst there maybe an enforceable cause of action here, the court proceeding is however frivolous, vexatious and an abuse of process of the Court and I dismiss it in its entirety.

ORDERS

The Orders of the Court I make are as follows:

1. The Third and Fourth Defendants’ application by Notice of Motion filed on 6 December 2007 is granted.

2. The Plaintiffs’ cross application by Cross Notice of Motion filed on 3 January 2008 is dismissed.

3. The Plaintiffs’ entire court proceeding is dismissed.

4. The Plaintiffs pay the Defendants’ costs of the application and the entire proceeding.

5. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
___________________________________________________________

The Plaintiffs in Person
Mawa Lawyers: Lawyer for the Second Defendant
Acting Solicitor General: Lawyer for the Third & Fourth Defendants