N10165

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 215 OF 2022
BETWEEN

BUKA BLACKY YONDOLA 
Applicant / Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Respondent

Waigani: Sambua, AJ.
2023: 13th   & 16th March.
CLAIMS BY AND AGAINST THE STATE ACT 1996, S. 5 – Notice of intention to make a claim – Application for extension of time – Relevant considerations – cause of action not demonstrated with evidence – Lack of fund not a genuine excuse – Lack of sophistication & knowledge of applicable is no excuse – 8 years is a very long delay. Application refused.
Cases Cited:
Rawson Construction Ltd v Department of Works [2005] SC777 
Viviso Seravo v Jack Bahofo (2001) N2078 
Kore v Independent State of Papua New Guinea (2011) SC1136 

Legislations & Text
Claims By and Against the State Act 1996

Counsel:
S Karaut, for the Applicant/Plaintiff. 
I Kopi, for the Respondent/ Dependent.

16th March 2023
1.	SAMBUA, AJ: This is an application by the Plaintiff Buka Blacky Yondola seeking extension of time to give section 5 Notice on the State.  The application was brought by way of Originating Summons filed 28th September 2022 and supported by an Affidavit of Buka Blacky Yondola, the Plaintiff, also filed on the same day as the Originating Summons.

Brief Background

2.	The Plaintiff was the owner of the vehicle described as a dark blue Toyota Landcruiser, Chassis No. 7090836 with Registration No. HAL 553.

3.	On or about the 25th of September 2014, the Plaintiff was involved in a road traffic accident along the Mendi Highway which resulted in the death of Musek Konge. He was arrested by Senior Constable Raymond Kipoi and was subsequently charged with wilful murder of Musek Konge, contrary to section 299 (1) of the Code.The motor vehicle keys were surrendered to Senior Constable Raymond Kipoi and the vehicle was impounded at the Mendi Police Station.

4.	He was detained at the Mendi Police Station cells from the date of the accident to February 2015, after he was granted bail by the National Court, he approached Senior Constable Raymond Kipoi and Mendi Police Station Commander and asked if his vehicle could be released to him but was given an unfavourable response.

5.	Whilst the Plaintiff was in custody and after being released on bail, he observed and witnessed his vehicle being used by Mendi Police personnel without his consent.

6.	 The criminal proceeding took at least six (6) years to be completed. He was assisted by the Public Solicitor's office in Mendi who eventually had him acquitted and discharged on the 15th of June 2020

7.	 After his acquittal, the Plaintiff enquired with the Senior Constable Raymond Kipoi and the Mendi Police Station Commander at the Mendi Police Station about his motor vehicle and by then his vehicle had already vanished.
8.	Therefore the Plaintiff is seeking to institute court proceedings against the State to recover his lost motor vehicle (Blue Toyota Land Cruiser, Registration number HAL 553.

Issue

9.	Whether or not the Plaintiff be granted extension of time to serve or give his notice of Intention to make a claim against the State?

The Laws

10.	 The applicable law is section 5 of the Claims By and Against the State Act 1996. That section provides:
"(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 Departmental Head of the Department responsible for justice matters; 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; or
(b) where the claim is for breach of a 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."

The Plaintiff’s Case
11.	The Plaintiff had submitted that there is sufficient cause and that he has a cause of action and that the State will not be prejudiced if the extension is granted.

Sufficient Cause

12.	The Plaintiff had argued that after he was acquitted on the 15th of June 2020, he sought retrieval of his motor vehicle from the Police, but it had vanished when he enquired with the arresting officer Senior Constable Raymond Kipoi and the Mendi Police Station Commander. He received no responses from them and waited for at least two (2) years. Numerous other attempts were made to retrieve his vehicle however, all were in vain as he was ignored and not being attended to by the Police in Mendi.

13.	He argued that he is a simple village man and was not aware of the requirement of giving the required notice within a certain time frame and was not sure of the Court processes and could not seek assistance from the Mendi Court House as it was burnt down.

14.	 He then sought assistance from the Office of the Public Solicitor in Port Moresby given that the Mendi Court House has been burnt down, and Legal Aid was then granted to him in July 2022. On the 15th   of July 2022, a Section 5 notice was given to the State however no response was receipt hence this application.

Cause of Action

15.	 The Plaintiff argues that his cause of action was in his pleading on Conversion and Negligence against the Mendi Police Officers and the State which he allegedly incurred loss of his Landcruiser in the hands of the negligent conduct of the officers of the Defendant.

Prejudice

16.	The Plaintiff argues that he stands to suffer more because of the negligent conduct of the servants of the State in the discharge of their duties in coverting his motor vehicle. He says that this transpired whilst he was being processed through the criminal justice system in trying to clear his name.

17.	 In conclusion, it was submitted that the delay in giving the Notice was not deliberate and not intentionally caused by the plaintiff. There were other factors that contributed to the delay. The fact that he was a simple villager and would not have known the requirement of giving notice within the time required by law.

18.	 The most likely place that any ordinary man would go to seek legal advice was the Mendi Court House which was burnt down and because of that was denied of that avenue.

19.	 And therefore said that his claim is still active and was not time barred and respectfully submitted that the extension of time sought should be granted to him to give Section 5 Notice to the State.

The Defence Case

20.	 On the other hand, the Defendant submited that the Plaintiff has not shown sufficient cause for the following reasons:

i.	Lack of Appropriate Evidence and Reasonable Explanations for Delay
The defendants said that the Plaintiff was acquitted on the 15th   of June 2020. He sought extension of time to serve his section 5 notice on the Solicitor General on 19th August 2022. He failed to serve his section 5 notice within the 6 months time frame as provided for under the Claims By and Against the State Act 1996. He further delayed for another 20 months (1 year, 8 months) and then served his letter seeking extension of time from the Office of the Solicitor General. In total, the Plaintiff delayed for 2 years and 2 months before  serving his letter seeking extension of time from the Solicitor General.
The Defendant submitted that the Plaintiff’s delay has been for far too long and there has been no evidence and reasonable explanations put forth by the Plaintiff to justify the delay.
The Plaintiff was in contact with the Office of the Public Solicitor in Mendi since 2020 and they assisted and had him acquitted as stated in paragraph 1 on page 2 of the Plaintiffs letter to Solicitor General seeking extension of time. 
It is evident that the Plaintiff had the opportunity to enquire in 2020 for legal assistance and advice to recover his vehicle. However, he did not do so which shows that he was negligent. Therefore, the reason for ignorance of law relating to the statutory time limit is not reasonable and the Court should be guided not to rely on this reason to grant extension of time.
At paragraph 2 on page 2 of the Plaintiff's letter to the Solicitor General seeking extension of time, the Plaintiff stated that one of the reasons for his delay was that he was financially handicapped. The Defendant submits that the Office of the Public Solicitor provides free legal services to its clients, therefore, lack of finance is not a reasonable explanation for the delay.
The Plaintiff also stated at paragraph 3 on page 2 of his letter to the Solicitor General seeking extension of time, one of the reasons for the delay was that he could not seek legal advice on his matter as the Court House in Mendi had been burnt down. The Defendant says that Court House is not the place where one goes to seek legal advice on how to make a claim against the State, it is the Office of the Public Solicitor, or private law firms which provide such legal service. The Plaintiff had that service available and benefited from it through his acquittal in 2020.
ii.	Failure of Plaintiff to demonstrate a reasonable cause of action to be pursued on merit.		

The Plaintiff has not demonstrated a reasonable cause of action to be pursued on merit because there is no evidence put forth by the Plaintiff to support his claim that his car was impounded by Police. It is important to establish that his car was impounded because this serves as a basis of conversion, that while his car was in Police possession, it was converted.
There is no documentation to prove that his car was impounded by Police. There is no correspondence by the Plaintiff to the Police enquiring about his impounded vehicle. An MVIL Vehicle Registration Summary is a document which only proves ownership of vehicle but does not support the Plaintiff's claim that his car was impounded by police.

Since the claim is based on conversion, it is essential for the Plaintiff to prove with evidence that his car was impounded in the beginning so that there is merit to his cause of action.

iii.	Defendant will be Prejudiced.

The Defendant submits that it will be prejudiced if the Court grants extension of time. The purpose of serving notice on the State within 6 months is to allow the State to make prompt enquiries and investigations into claims brought against it while evidence is still fresh so that it can defend itself.  The two (2) years delay in putting the State on notice is prejudicial to the State's position because the evidence may have diminished in value and become sketchy or lost over the long period of time. Hence, the State is prejudiced because the State cannot effectively defend itself.

Also the car was alleged to have been impounded in 2014 which was almost 9 years ago. During the long period, the Police officers may have retired, transferred or even died, therefore it will be extremely difficult for the State to obtain appropriate evidence for its defence, hence the State will be prejudiced if extension of time is granted.

Application of Law 

21.	 Section 5 of the Claims By and Against the State Act 1996 provides:
"(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 Departmental Head of the Department responsible for justice matters; 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; or
(b) where the claim is for breach of a 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."

22.	In Rawson Construction Ltd v Department of Works [20051 SC 777 the Supreme Court, when approving the statement by Kandakasi, J. in Viviso Seravo v Jack Bahofo (2001) N2078 held that sufficient cause will be shown if the applicant is able to: 

(a)	provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under Section 5 of the Claims By and Against the State Act 1996 and where there is a delay on applying for an extension of time, provide a reasonable explanation for that delay, 

(b)	demonstrate a reasonable cause of action to be pursued on merit; and

(c)	Show, by appropriate evidence, that the delay in giving notice has   not and would not result in any prejudice to the State.

23.	In Kore v Independent State of Papua New Guinea (2011) SC1136, a decision by their Honours Batari, Manuhu & Gabi, JJs stated that: 

"The issue of extension of time under section 5, and what is "sufficient cause", has already been discussed in Rawson Construction Ltd v Department of Works (2005) SC 777 where Their Honours Sawong, Kirriwom and Kandakasi JJ laid down the following guidelines:
"1. An applicant for an extension of time to give notice of his intention to make a claim against the State under s. 5 of the Claims By and Against the State Act 1996 must show "sufficient cause “for not meeting the requirements under the Act.
"2. "Sufficient Cause would be shown if the applicant is able to:
(a)	provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under s. 5 of the Claims By and Against the State Act 1996 and where there is a delay in applying for an extension of time, provide a reasonable explanation for that delay.
(b)	demonstrate a reasonable cause of action to be pursued on the merits; and
(c)	show by appropriate evidence that the delay in giving notice has not-and or would not result in any prejudice to the State. "

Reason for Decision

24.	The Plaintiff was arrested and charged with wilful murder contrary to section 299 (1) of the Criminal Code after he was involved in a road traffic accident along the Mendi Highway which resulted in the death of Musek Konge on or around the 25th of September 2014. Upon his arrest, Senior Constable Raymond Kipoi confiscated the Plaintiff’s motor vehicle keys and impounded the motor vehicle at the Mendi Police Station.

25.	The Plaintiff was then detained at the Mendi Police Station cells from the date of the accident to February 2015 when he was was granted bail by the National Court after his lawyers, a private law firm successfully moved his Bail Application. That would have been some five (5) months after the road traffic accident and after being charged with wilful murder contrary to section 299 (1) of the Criminal Code which was still within the 6 months period to give section 5 Notice of his intention to make a claim against the State for conversion of his motor vehicle and the negligent conduct of the servant of the State Senior Constable Raymond Kipoi and the Mendi Police Station Commander.

26.	 The Plaintiff said he approached Senior Constable Raymond Kipoi and Mendi Police Station Commander and asked if his vehicle could be released to him but was given an unfavourable response. However, there is no evidence to show that he in fact approached the Senior Constable Raymond Kipoi and Mendi Police Station Commander.

27.	 The Plaintiff has not produced evidence that after the accident, his motor vehicle was not seriously damaged and was still in good running condition and was used by Senior Constable Raymond Kipoi and the Mendi Police Station Commander. 

28.	 The Police had no right to impound the motor vehicle on the pretext that it was involved in a road traffic accident and then use the motor vehicle. It is the driver that caused the road traffic accident and not the motor vehicle. Unless it is a complete wreck or it is required to be used as evidence in court. The motor vehicle has to be released back to its owner.
  
29.	The Plaintiff said that while he was in custody and after being released on bail, he observed and witnessed his vehicle being used by Mendi Police personnel without his consent. At that relevant time he was represented by a private law firm that successfully moved his bail application and he could have easily engaged their service to reclaim his motor vehicle from the Police in Mendi. In my view that is a failure on the part of the Plaintiff.

30.	The criminal proceeding lasted about six (6) years and he said that during that time he had issues with funding and therefore was assisted by a lawyer from the Public Solicitor’s office in Mendi and eventually was acquitted and discharged on the 15th of June 2020.

31.	In his letter to the Public Solicitor seeking legal aid, the Plaintiff said that after his release on bail, he spent over K50,000.00 in cash, a Toyota Land Cruiser, 62 pigs, a cow and two cassowaries as compensation to the relatives of the deceased. 

32.	In my view, if he had that amount of money at that time, he could have easily engaged the services of a private law firm to assist him with the recovery or repossession of his motor vehicle from the Police. He did not.

33.	Hence, his reasons that he had funding issue that caused the delay in not giving Notice to the State of his intention to make a claim against the State to claim damages for the conversion of his motor vehicle and the negligent conduct of police in Mendi is not convincing.

34.	There were six (6) years between his arrest and finalization of his criminal case which was dealt with by the National Court in Ialibu. In those six (6) years there is no evidence to show that he had made genuine attempts to the Police in Mendi for the release of his motor vehicle to him. All he said was after his acquittal, he enquired with Senior Constable Raymond Kipoi and Mendi Police Station Commander at Mendi Police Station, and they told him that they have no knowledge of his motor vehicle and his motor vehicle had vanished. That was two (2) years after he was acquitted by the National Court. It was then that he decided to take court action against the Mendi Police for conversion of his motor vehicle and their negligent conduct in using his motor vehicle while being impounded at the Mendi Police Station.

35.	In my view, six (6) years is a considerable long time. The Plaintiff may have sufficient cause of action and merits however it is overshadowed with the inordinate long delay of six (6) years whilst awaiting his criminal case to be processed and then the two (2) years after his case was processed and finalized which brings to a total of eight (8) years. This is a very long delay.

36.	Furthermore, as alluded to above, the Plaintiff has not demonstrated to this court with clear and sufficient evidence that there is or was conversion of his motor vehicle he now claims that it was converted by the negligent conduct of the Mendi Police who are servants of the State.  

37.	The Plaintiff also argued that the Mendi courthouse was burnt down and there was nowhere to seek assistance. This is a lame excuse. After the Mendi Court house was burnt down the National Court relocated to Ialibu and the National Court has been sitting there and dealt with his case. He could have easily sought assistance there in Ialibu.

38.	Mt Hagen National Court Registry was easily accessible from Mendi.  This in my view is a cheap shot. 

39.	As I have alluded to above, the Plaintiff may have merits it his claim but lacks clear and sufficient evidence and furthermore overshadowed by the long and inordinate delay in giving Notice of his Intention to make a claim against the State in accordance with section 5 of the Claims By and Against the State Act 1996.

Orders of the Court

40. The Court orders that:

1. The Application seeking Extension of time to give Section 5 Notice by the Plaintiff Buka Blacky Yondola on the State is refused.

 2. Parties are to meet their own cost as I have alluded to above that the Plaintiff has shown that he may have merits in his claim.
	
 3. The Plaintiff is at liberty to sue the policeman, Raymond Kipoi individually and the Mendi Station Police Commander if he has evidence to do so.

_________________________________________________________
Public Solicitor: Lawyer for the Appellant
Solicitor-General: Lawyer for the Respondent