Akilo v Komini [2013] PGNC 158; N5292 (20 June 2013)

N5292

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 116 OF 1999

BETWEEN:

LEWA AKILO, MAGARETH POLGA & SAMUEL POLGA
First Plaintiffs

AND:

AKILO PRUNO
Second Plaintiff

AND:

JOHN KOMINI
First Defendant

AND:

PETER AGILIO
Commissioner for Police
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Poole, J
2013: June 20

PRACTICE – Application to set aside default judgment – Notice under Section 5 of Claims Act – Lack of compliance with provisions renders writ a nullity – default judgment void.

Cases cited:

Daniel Hewali v PNG Police Force (2002) N2233
Paul Tohian & The State v Tau Liu (1998) SC 566
Paul Marinda v The State (1991) N1026

Counsel

Mr. Dowa, for Plaintiff
No appearance for Defendant

20th June, 2013

1. POOLE, J: This is an Application by Motion by the Defendants for Orders;

1. To set aside a Default Judgement entered on 9th September 1999;

2. Alternatively, to dismiss the Action by reason of failure to give Notice to the State under section 5 of the Claims by or Against the State Act.

3. In the further alternative, for Leave to file a Defence out of time, and for consequential Orders.

2. The facts of this matter, and the chronology, are as follows:

• On the 10 February 1999, the plaintiffs filed a Writ and Statement of Claim seeking damages allegedly sustained, by the plaintiffs Lewa Akilo and Margareth Polga and Samuel Polga, by being arrested, held in Custody, and then released because, in two cases the Committal Court found no case to answer and in the remainder, because the State entered a Nolle Prosequi to the Indictment.
  

3. The remaining plaintiff, Akilo Pruno, claims he sustained loss because he paid legal expenses for the other plaintiffs (who are family members) and expenses and, while concerned with the cases against his family, lost revenue from his farming. They claim the prosecutions against the first three plaintiffs were malicious.

4. The claim was served and a Notice of Intention to Defend was filed but no Defence was filed in time. An affidavit filed by the lawyers then retained by the State to Defend this matter, Messrs Paul Paraka Lawyers, stated that "due to quite a big number of fresh matters flooding in" coupled with the fact that the Solicitor General's Office was understaffed, the matter was neglected.

5. Default Judgement was entered on 9th September 1999, but the plaintiff took no steps nor filed any documents for three years.

On the 12 March 2004 the Defendants filed their Notice,

On the 15 May 2004 the Plaintiffs filed a Notice of Trial,

6. The Court has before it evidence (in form of affidavits by Luther Makap (filed on 15 March 2004) and Tau Tau (filed 15 March 2004)) that the Plaintiff Lewa Akilo failed to comply with the requirement that Notice under section 5 of the Claims Act be personally served, and the other Plaintiffs neglected to make any attempt to give Notice.

7. The Law applicable to these facts is plain and clear and there is no need to catalogue the lengthy list of authorities for the propositions which govern the matter before the Court.

8. First, the Court is hearing the Defendant's Motion, not a trial for assessment of damages. No proof of damage has been submitted by any Plaintiff.

9. Secondly, the provisions of Section 5 of the Claims by and Against the State Act are clearly mandatory. Service must be prior to the institution of proceedings, must be personal service on the designated persons, must be within 6 months of the event which gave rise to the claim and must be sufficiently detailed to enable the State to identify the incident and obtain adequate instructions.

(See Daniel Hewali v PNG Police Force (N2233) and Paul Tohian & The State v Tau Liu (SC 566).

10. Failure to comply with the requirements of the Claims Act is not only a cause to set aside a default judgement (see Paul Marinda v The State (N1026)). The real effect of failure to give Notice is that, as stated by the Supreme Court in Paul Tohian and The State v Tau Liu (SC 566), notice is a condition precedent to the issue of the Writ. No Notice means no valid (my emphasis) Writ exists and if there is no valid Writ, there can be no default Judgement on the Claim pleaded on the Writ. Accordingly, this entire Action must be dismissed.

12. The formal Orders of the Court are:

1. This Action is dismissed by reason of failure to comply with section 5 of the Claims by and Against the State Act;

2. The parties shall bear their own Costs.

3. Time is abridged to the time of sealing of these Orders by the Registrar.

______________________________________
P. M. Dowa Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendant