Trans Niugini Tours Ltd v Bando [2017] PGNC 104; N6744 (25 May 2017)

N6744

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO 1706 OF 2015

BETWEEN:
TRANS NIUGINI TOURS LTD trading as AMBUA LODGE
Plaintiff

AND
WILLIAM BANDO, Acting Provincial Administrator, Hela Provincial Administration
First Defendant

AND
HELA PROVINCIAL GOVERNMENT
Second Defendant

Tari: Ipang, J

2016: December 16

2017: May 25

CIVIL – Motion filed by the Defendants to dismiss court proceedings for non-compliance with section 5 of Claims By and Against the State Act, 1996 and Order 12 Rule 40 (1) (c) of the National Court Rules.

CIVIL – Motion – Defendants seeking an alternative relief to dismiss the entire proceedings for being defective and incompetent pursuant to Order 12 Rule 1 NCR and section 122 (4) of the Constitution.

Cited Cases:

Habolo Building & Maintenance Ltd v. Hela Provincial Government [2016] PGSC 67; SC 1549 (23 November, 2016)
Maps Tuna Ltd v. Manus Provincial Government [2007] PGSC 23; SC 857 (26 June, 2007)
SCR. No 1 of 1998: Reservation Pursuant to section 15 of the Supreme Court Act ( 2001) SC 672

Counsel:

A. Benny, for the Plaintiff
N. Tipitape, for the Defendants

RULLING

25^th May, 2017

1. IPANG, J: The Defendants move their motion filed on the 10^th November, 2016 seeking the following orders:
   
   1. the entire proceeding be dismissed pursuant to Order 12 Rule 40 of the National Court Rules for being ;
      
      • (a) abuse of court’s process by not complying with section 5 of the Claims By and Against the State Act, 1996 and pursuant to Order 12 Rule 40 (1) (c) of the Rules;
        
      • (b) for failing to disclose a reasonable cause of action pursuant to Order 12 Rule 40 (1) (a) of the Rules; and
        
      • (c) for being frivolous and vexatious pursuant to Order 12 Rule 40 (1) (b) of the Rules ;
        
2. alternatively the Defendants seeks to dismiss this proceeding in its entirety pursuant to Order 12 Rule 1 of the Rules and/or pursuant to section 155 (4) of the Constitution for being defective and incompetent.
   
3. Cost to be paid by Plaintiff on a solicitor client basis.
   
4. And other orders the court deems fit.
   
2. The motion filed is supported by the Affidavit of William Bando.

Background

3. The Writ of Summons (WS) and Statement of Claim filed had the following pleaded;
   
   1. The Plaintiff is a company incorporated under the Company Act 1997 and can sue and be sued in its own name and style as cited.
      
   2. The First Defendant is the Administrator of the Second Defendant and is responsible for running the day to day affairs of the Second Defendant and can be sued in that capacity.
      
   3. The Second Defendant is the Provincial Government created under the Organic Law on Provincial and Local Level Government Act and has the capacity to be sued or be sued.
      
   4. Notice of the Plaintiff’s Notice of Intention to sue the Provincial Government has been served on the Second Defendant through the office of the Provincial Administrator.
      
   5. On or about 1^st February, 2014, a National Court sanction mediation and ILG registration was conducted for the Tari Airport Landowners including the presentation of 15 ILG Certificates for the Clans living around the Tari Town and Airport Facility.
      
   6. The Mediation Team consisting of the officers from the National Court, the Department of Lands and Physical Planning, ILG Division and Mapping Bureau, the Office of Civil Registry and members of the disciplinary forces including Army and Police were engaged in the National Court sanctioned mediation and ILG registration process.
      
   7. As part of the Hela Provincial Government’s commitment, the First Defendant agreed to meet the costs and expenses of the Civil Registry Officers and the other officers’ meals and accommodation at the Plaintiff’s Ambua Lodge.
      
4. Apart from Mr. Bando denying the claims as contained in paragraphs 4, 5, 6, 7, 8, 9 & 10 of his Affidavit (supra), the First Defendant in paragraph 11 and 12 raised the issue of relevant notice. He deposed that the Second Defendant comes under the name State and therefore section 5 of the CBAASA was not complied with meaning that section 5 of CBAASA ought to have been served on the Second Defendant.
   
5. Mr. A Benny for the Plaintiff argued that it was not necessary for the Plaintiff to issue section 5 Notice under CBAASA to Second Defendant when State is not named as a party in this proceeding and also State is a nominal defendant. Mr. Benny referred to the case of Habolo Building & Maintenance Ltd v. Hela Provincial Government [2016] PGSC 67; SC1549 (23 November, 2016). In this case the Supreme Court stated in Obiter Dictum and I quote, “If a person sues a provincial government from the State, and does not sue the State, it is not necessary to give a section 5 notice (MAPS Tuna Ltd v. Manus Provincial Government [2007] PGSC 23; SC 857 (26 June, 2007) SC 857 considered.
   
6. In the Supreme Court case of Maps Tuna v. Manus Provincial Government [2007] PGSC 23; SC 857 (26 June, 2007) the Court stated;
   

“55. The fact is that because Provincial Government have legal capacity to sue or be sued, the service of process is provided for in section 7 of the Organic Law which provides in part “Any notice, summons, writ or other process” which are required on the Provincial Government or a Local Level Government may be served on a designated officer for that Provincial Government or Local Level Government.

57. It is our view that according to the hierarchy of laws under s.9 of the Constitution, s.7 of the Organic Law on Provincial and Local Level Government takes precedence over s.5 of the Claims by and Against the State Act or any other Acts of Parliament. To this Court it means that, in a case where the Provincial Government or a Local Level Government is sued, service ought to be affected on a designated officer of that form of government in compliance with s.5 of the Organic Law on Provincial and Local Level Government.

7. In SC No. 1 of 1998; Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC 672, the Supreme Court (comprised of Amet CJ, Los J, Sheehan J, Salika, J and Sakora J) held that the term “the State” in section 13 (no execution against the state) of the Claims By and Against the State Act includes provincial governments. However, in a proceeding where there is no claim against “the State” a section 5 notice under CBAASA is not necessary. The Supreme Court in Habolo Building case (supra) made this remarks and I quote, “if a person sues a provincial government, as distinct from the State and does not sue the State, it is not necessary to give a section 5 notice.”
   
8. The approach in Habolo Building case (supra) only cemented the position in MAPS Tuna Limited case (supra) where the Supreme Court stated that it is not necessary to give a section 5 notice to the Secretary for Justice or the Solicitor General if proceedings are commenced only against a provincial government and/or an individual person and not against the State.
   

Application of the Law

9. It is not disputed that the plaintiff has not served section 5 notice under CBAASA to the Second Defendant. What the Plaintiff did was that it served copies of the Writ of Summons (WS) and the Statement of Claim to the Defendants respectively. The Plaintiff then relied on the cases of Habolo Building (supra) and MAPS Tuna Limited (supra) where these two (2) cases held that where proceedings are commenced only against the provincial government and not against the State then section 5 notice is not necessary.
   
10. I have gone through the Statement of Claim and there are certain claim(s) made against certain State Agencies like; Officer of the National Court, Department of Lands and Physical Planning, ILG Division and Mapping Bureau, the officer of Civil Registry and members of the Disciplinary Forces, PNGDF and Police. Whilst the State has not been named as a party, the claim is also against the State.
    
11. I consider in the interest of Justice that I should refuse the application by the Defendants and have the matter listed for further Directions.

ORDER

12. Defendants’ motion dated 10^th November, 2016 is dismissed.
    

_____________________________________________________________
R. Mai & Company Lawyers : Lawyers for Plaintiff

Hela Provincial In-House Lawyer : Lawyer for Defendants