Tigi v Augerea [2018] PGNC 194; N7273 (18 May 2018)

N7273

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 274 OF 2018

BETWEEN
JOHNSON TIGI as the District Administrator of
Koroba Lake Kopiago District
Plaintiff

AND
IAN AUGEREA as the Registrar of the
National Court of Papua New Guinea
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Dingake J
2018 : 18^th May

PRACTICE AND PROCEDURE – Order 12 Rule 1 – Notice of Motion for transfer of funds from National Court Registrar’s Account to plaintiff’s account – insufficient evidence – application refused.

Counsel:

Mr. Alphonse Ayako, for Plaintiff
Mr. Robbie Kabaya, for Defendants

18^th May, 2018

1. DINGAKE J: This is an application brought by Johnson Tigi as the District Administrator of Koroba Lake Kopiago District, herein after referred to as the applicant, seeking an order of this Court that monies in the sum of K280,000.00 held in the National Court Registrar’s Trust Account be released into the Koroba Kopiago District Treasury Account forthwith.
   
2. The applicant seeks that the aforesaid amount be paid into the Koroba Kopiago District’s Bank South Pacific Ltd, Port Moresby, Branch Account styled: Koroba Kopiago District Treasury Operating Account, No. 1000931774.
   
3. The application is not opposed by the defendants.
   
4. The application is supported by the affidavit of Johnson Tigi, and Alphonse Ayako, the latter being a lawyer in the employ of Haiara’s Legal Practice.
   
5. It seems plain from the affidavits filed in support of the application that the controversy between the parties is traceable to proceedings in OS No. 295 of 2016, wherein the sum of K280,000.00 was held in Account No. 1001080195 in the name of John P Kekeno and it was sought to transfer the said funds into the National Court Registrar’s Trust Account.
   
6. On or about the 6^th of December, 2017, the Court ordered the said amount held in Bank of South Pacific to be paid to the National Court Trust Account.
   
7. It would seem on the evidence tendered by the applicant that in OS No. 295 of 2016, Bank of South Pacific Limited was the plaintiff and John Kekeno was the first defendant, Ombudsman Commission of Papua New Guinea was the second defendant and Johnson Tigi as the District Administrator of Koroba Lake Kopiago District was the third defendant.
   
8. The Order of the 6^th of December, 2017 ordered that upon payment of the sum of K280,000.00 into the National Court Trust Account, the Bank of South Pacific Limited be removed as a party to the proceedings. The Ombudsman Commission was also removed as a party to the proceedings.
   
9. It is plain from the evidence tendered that the said amount has since been transferred into the National Court Trust Account.
   
10. On the evidence tendered it would seem some contradiction or inconsistency exists as to who the money belongs to, or where it should be transferred to.
    
11. The applicant avers that the money belongs to the people of Koroba Lake Kopiago District.
    
12. On the other hand there is evidence, tendered by the applicant, in the form of Annexure ‘F’ attached to the affidavit of Johnson Tigi, that at some stage, the Chief Ombudsman held the view that the funds in question are public funds and the State is the definitive owner of those funds. At the time the Chief Ombudsman opined that the most appropriate account for those funds to be transferred to is the Consolidated Revenue Trust. This is clear from the Chief Ombudsman’s letter dated 29^th of September, 2017.
    
13. The above view was expressed by Michael Dick, Chief Ombudsman, in a letter addressed to the Managing Director of Haiara Legal Practice.
    
14. It is also plain that, at some stage, one John Kekeno laid claim to the funds. He claimed that he was entitled to the money for road works done in the District by his company when he was a Member of Parliament for the District. The money, the subject matter of proceedings in OS No. 295 of 2016, was held in Bank of South Pacific, Bank Account No. 1001080195 in the name of John Kekeno.
    
15. The manner in which the monies aforesaid were acquired was subject of an investigation by the Ombudsman Commission, but the said investigation was discontinued when the Commission, ceased to have jurisdiction over John Kekeno, when he lost his seat during National Elections.
    
16. Having concluded that it has lost jurisdiction over John Kekeno, the Commission recommended that the funds in question can revert to Koroba Kopiago District Treasury Operating Account, Bank of South Pacific Account No. 1000931774. Needless to mention that this position contradicts the Chief Ombudsman’s letter of 29^th September, 2017, and no explanation or clarification is offered for the change of opinion by the Chief Ombudsman.
    
17. On the evidence, it is not clear what happened to the claim of John Kekeno. There is nothing to suggest that he too was removed as a party.
    
18. It seems probable on a consideration of the evidence in its entirety that perhaps what the applicant wants to assert is that the money in question belongs to the state but was appropriated to the applicant by the State.
    
19. It seems to me that if the applicant is claiming the funds by virtue of appropriation, it must attach evidence to that effect.
    
20. On the evidence tendered there are three factors that militate against the order sought.
    
21. The first factor is that in terms of the evidence of the applicant, or some aspects of his evidence, the money in question should be transferred to the Consolidated Revenue Trust Account. The other version of the applicant’s evidence supports the transfer to the Operating Account of Koroba Lake Kopiago District.
    
22. Secondly, there is no evidence to support appropriation of State funds to the applicant.
    
23. Thirdly, I have been concerned that a matter that started as Proceedings OS No. 295 of 2016, where John Kekeno, laid claim to the funds should now proceed without him being served with Court process. This does not sit well with my conscience and seems plainly at odds with the principles of fairness.
    
24. It would seem to me that the principles of natural justice dictate that since as a matter of record and on the evidence placed before this Court, John Kekeno laid claim to the funds he should be notified of the application intended to transfer money held in the National Court Registrar’s Trust Account to Koroba Kopiago District Treasury Account. The applicant advances no reasons why Mr. Kekeno has fallen out of the picture. It may well be that Mr. Kekeno no longer has any interest in the matter, but if that is the case, evidence to that effect must be tendered.
    
25. For all the reasons stated above, I find that it would be unsafe, at this stage, to grant the applicant the orders sought.
    
26. In the result, the application is without merit and it is refused.

________________________________________________________________
Haiara’s Legal Services: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants