PNG Aviation Services Ltd v Tanuvasa [2020] PGNC 476; N8751 (4 November 2020)

N8751

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 669 of 2019
OS (JR) No.667 of 2019

P.N.G AVIATION SERVICES LIMITED

Plaintiff

V
TAUVASA TANUVASA Solicitor General

First Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant
Waigani: Miviri J
2020: 19^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Application for Mandamus – Judgment & Orders – Enforcement of – Section 14 (2) Claims By & Against the State Act – Certificate of Judgment – Affidavit of compliance by Solicitor General – Whether sufficient compliance with Section 14 (2) CBASA – Subject to availability of funds Court Order Vote – No reason to not adhere to court order – sufficient Compliance – cost in the cause.

Cases Cited:

Atlas Corporation Ltd v Ngangan [2018] PGNC 544; N7674

Yer, Secretary, Department of Finance v Yama [2009] PGSC 28; SC996
Counsel:

C. Joesph, for all Plaintiffs in both proceedings
I. Mugugia, for all Defendants in both proceedings

RULING

04^th November, 2020

1. MIVIRI, J: This is the Ruling on the Plaintiff’s substantive notice of motion filed on the 29^th November 2019 in OS (JR) 667 of 2019 PNG Aviation Services Limited v Tauvasa Tanuvasa & The State seeking mandamus to compel the first defendant to endorse the Certificate of Judgment pursuant to section 14 (2) of the Claims by And Against the State Act. This is for the Judgment sum of K 443, 167. 13.
   
2. And further this is also the ruling in the substantive matter filed 26^th September 2019 in OS (JR) 669 of 2019 PNG Aviation Services Limited v Tauvasa Tanuvasa & The State for the Judgement sum of K 553, 299.32 from Supreme Court Appeal number 4 of 1997. The State was the fifth defendant in that proceeding. And the appeal was upheld in favour of PNG Aviation Services Limited on the 04^th December 2009 with the costs of the appeal awarded against the State in favour of PNG Aviation Services Limited on a Solicitor Client Basis. It was taxed on the 29^th October 2014 and the taxing officer allowance was the sum of K553, 299.32 to be paid by the State. Judgement was obtained against the State in that amount together with order as to interests and costs. On the 07^th July 2017 a certificate of Judgment was issued by the Assistant Registrar and was served on the office of the First defendant on the 11^th July 2017.
   
3. Both motions stem from Order 16 rule 1 (1) of the National Court Rules to compel the Solicitor General to endorse the Certificate of Judgement in the case of OS (JR) 667 of 2019 dated the 07^th July 2017 issued by the Supreme Court Appeal No. 5 of 1997 and deliver the Certificate of Judgment to the Secretary for Finance within 14 days of the date of the order. It also seeks such further orders as discretion by the Court and costs incidental to the entire proceedings. And in the case of OS (JR) 669 of 2019 also dated the 07^th July 2017 in the sum of K553, 299.32.
   
4. Both motions are supported by the affidavits of Kerin Judith Mendoza of the 26^th September 2019 document number 4 on the court file: affidavit of service of one Rocky Madi of the 1^st October 2019, document number 4 and affidavit of Clayton Joseph of the 08^th November 2019 document 10.
   
5. What stems from this evidence is that Supreme Court Action was commenced in appeal number 05 of 1997. Sir Michael Somare was then Prime Minister and so he was named as first Respondent, and the State was the second. The appeal was held in favour of the PNG Aviation Services Limited (PNGAS) on the 28^th December 2000 with costs of the appeal on a Solicitor Client basis. The costs of PNGAS was taxed on the 13^th April 2017 and the taxing officer allowed the total sum of K 443, 167. 13 to be paid by the Respondents. On the 07^th June 2017 that Judgement was obtained against the Respondents and that sum K 443, 167. 13 was awarded in favour together with interests and costs. A certificate of Judgment was issued by the Assistant Registrar of the Supreme Court which was served on the office of the First Defendant on the 11^th July 2017.
   
6. It is the contention of the applicant plaintiff that the First Defendant has not endorsed the certificate of Judgment in accordance with section 14 (2) of the Claims By and Against the State Act which requires endorsement by the First Defendant of the Certificate of Judgement within 60 days from the date of service upon him in both cases. That the letter is not the form under sections 13 and 14 of that Act. And therefore, cannot be endorsement within the law. Therefore, mandamus lies to compel him to endorse the certificate of Judgment.
   
7. Against this contention the First defendant relies on his own affidavit dated the 27^th October 2020 document 24 on the court file. He deposes that he confirms his position as Solicitor General and that he has complied with his statutory duty by section 14 (2) of the Claims by And Against the State Act 1996 by endorsing the Certificate of Judgment. “The Clearance for the Payment of the Sum of K 443, 167.13 to the Plaintiff was given by my office. A clearance letter enclosing the signed Certificate of Judgement and the Court Order were forwarded to the Department of Finance to raise a cheque for K 443, 167. 13. And the letter is attached as annexure to the affidavit “TT”. It is in Solicitor General Letter head dated 10^th March 2020 referenced SG 1736/2019 subject is, PNG Aviation Services Limited v Tauvasa Tanuvasa & The State OS (JR) 667 of 2019. It recounts what is set out above in the affidavit and importantly clearance is given by the Solicitor General for the payment of that amount. And a cheque be raised in that amount and paid into the Ashurst PNG Trust Account for the PNG Aviation Services Limited. And it is signed by the Solicitor General enclosing the court Order and the Certificate of Judgment.
   
8. Similarly, in OS (JR) 669 of 2019 PNG Aviation Services Limited v Tauvasa Tanuvasa & The State, the first defendant has filed his affidavit dated the 27^th October 2020 wherein as in the other, he swears that he is the Solicitor General the first defendant in the proceedings. And he has complied with his Statutory duty under section 14 (2) of the Claims By and Against the State Act, and endorsed the Certificate of Judgement and enclosed it with his letter annexure “TT” to his affidavit including the court order. Once again, the letter details out the history of the proceedings and gives clearance for the payment of that sum K553, 299. 32 cheque to that effect to the Ashurst trust account (for PNG Aviation Services Ltd.)
   
9. In both cases set out above the evidence filed by the Solicitor General is more towards compliance and materializing the Judgment order of the court in the sums set out above. In both cases are affidavits sworn by the Solicitor General in that capacity to ensure payment is made of the Judgment debts owing to PNG Aviation Services Limited. That cannot be the same as refusing to pay: Atlas Corporation Ltd v Ngangan [2018] PGNC 544; N7674 (29 November 2018). Where interest accumulated over 13 years so much so that the Solicitor General disputed and refused to pay. Here attempts have been made to put in train administrative tracks to ensure that money is paid into the trust account of the lawyers on record for the plaintiffs in each case. It is sworn by affidavits in each case with annexure depicting. It is in my view a genuine attempt to settle what is due and outstanding. This is not an individual but the State that is paying. For sure one way or another it will be paid and settled. It is an order of the court and there are consequences that flow after being served and no endorsement is made flowing. The law must be followed to give heed to the order of the court by law, not without: Yer, Secretary, Department of Finance v Yama [2009] PGSC 28; SC996 (30 October 2009). There is no real and immediate need for mandamus to compel as the incumbent the Solicitor General has already put in train what is called of him by law. He has discharged what section 14 (2) of the CBASA calls him to do. The plea of the plaintiff is not accorded. Instead the following orders are made to expedite the matter to finality.
   
10. The orders of the court are:
    
    • (1) The application of the Plaintiff is denied.
    • (2) Mandamus is denied.
    • (3) Parties are granted liberty to file further affidavits and material to settle and discharge the Judgment debt owing and outstanding made.
    • (4) The matter is in this respect adjourned to Monday 15^th March 2021 at 9.30am for the further directions and or orders to expedite the matter.
    • (5) Parties are granted liberty to seek variation of these orders by a week’s notice.
    • (6) Costs follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Ashurst PNG: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants