Tukuliya v Director, Papua New Guinea National Museum & Art Gallery [2018] PGSC 44; SC1697 (15 August 2018)

SC1697

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 23 OF 2013

BETWEEN:
MICHAEL MANGAL TUKULIYA for and on behalf of the KUNALINI TRIBE of ANDITALE Village, Kompiam Ambum District, Enga Province.
Appellants

AND:
THE DIRECTOR, PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLERY
First Respondent

AND:
THE TRUSTEES OF PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLARY
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPAUA NEW GUINEA
Third Respondent

Waigani: Gavara-Nanu J, Manuhu & Kassman JJ.
2018: 30^th April & 15^th August

APPEAL –Claim for damages - Defence based on indemnity – Pleadings not disclosing a reasonable cause of action.

APPEAL – Claim for damages against the State – Claims By and Against the State Act, 1996; s. 5 – Notice of Intention to make a claim against the State– Notice filed out of time – Notice a condition precedent to a valid claim for damages – Competency of the proceeding.

APPEAL – Claim for damages against the State – Inherent power of the Court – Claims By and Against the State Act, s. 5 – Notice - Failure to comply with mandatory statutory requirement.

Cases cited:

Bokin v. The Independent State of Papua New Guinea (2001) N211
Daniel Hewali v. PNG Police Force (2002) N2233.
Maps Tuna Ltd v. Manus Provincial Government (2007) SC857
Marmda v. The State (1991) N1026
Habolo Building & Maintenance Ltd v. Hela Provincial Government (2016)
SC1549
Paul Tohian, Minister for Police v. The State
William Powi v. Niugini Building Supplies Ltd (2016) SC1501
PNG Ports Corporation Ltd v. Islands Salvage (2009) N3780

Counsel:

J. Yakasa, for the Appellants
D. Kamen, for the First and Second Respondents.

1. BY THE COURT: The appellants are appealing the whole of the decision of Salika DCJ, given on 4 March, 2013, in proceeding WS No. 245 of 2000, in which his Honour dismissed appellants’ claims for damages for the loss of their ancestral stone (“stone”) which was in the custody and care of the first and second respondents.
   
2. The learned trial judge found that a person named Paul Bokon from the appellants’ tribe had indemnified the respondents against all claims regarding any damage done to the stone or its loss. The first and second respondents released the stone which was being kept at the National Museum and Art Gallery (Museum) to Paul Bokon’s care and custody. His Honour found that the appellants had no reasonable cause of action against the first and second respondents and dismissed the entire proceeding.
   
3. The appeal lies without leave.
   
4. The appellants belong to Kunalini tribe in the Ambum Valley in Enga Province. Paul Bokon also belongs to the same main Kunalini tribe, but they all have smaller tribes within the main Kunalini tribe.
   
5. The appellants claimed the stone was found by one of their ancestors in a forest. Paul Bokon on the other hand claimed that the stone was found by one of his direct ancestors, he was therefore the rightful owner of the stone.
   
6. The stone was shaped like a fetus inside a woman’s womb with round belly and nose. The people treated the stone as a form of a deity, and believed that it had supernatural powers for good will, success and good fortune. The people also regarded the stone as a source of women’s fertility, good harvest and success for men in tribal wars.
   
7. Evidently, the cultural value of the stone was recognized by archeologists, anthropologist and missionaries within Papua New Guinea and abroad. According to the appellant, many years later the missionaries preached against the stone as ‘evil’ which resulted in the stone being hidden in one of the sacred sites.
   
8. In 1984, after the stone was retrieved from a sacred site the principal appellant took it to Port Moresby and gave it to Museum for safe keeping.
   
9. Paul Bokon claimed that the principal appellant stole the stone without his knowledge. When he became aware of what the principal appellant did, in April, 1998, he travelled to Port Moresby and got the stone back from the Museum and took it back to Enga. When he got the stone from the Museum, he signed a deed of release releasing and indemnifying the respondents from or against any claim for damages regarding the stone.
   
10. The stone was later destroyed by fire in Enga. However, Paul Bokon and his family believed that it returned to the forest.
    
11. The appellants’ claims were based on negligence and breach of contract. The appellants claimed the first and second respondents were negligent in releasing the stone to Paul Bokon. Their claim for breach of contract was based on an undertaking given by one Pamela Swadling in a letter dated 5 February, 1984, to the principal appellant in which Ms Swadling an officer of the Museum assured the principal appellant that the Museum would take good care of the stone and that it would not release it to anyone else except him and that all correspondences regarding the stone would be addressed and sent to him.
    
12. In the affidavit sworn by Paul Bokon on 26 July, 2012, he confirmed that he signed a “deed of release” with the Museum to take the stone to Enga. In the affidavit, he said if the principal appellant wanted to claim damages, he should make such claims against him and “not’ against the Museum or the State - “as I have indemnified the Museum and the State from any claims by any person, including the plaintiff”. That affidavit was sworn for proceeding WS 245 of 2000. The indemnity reads:
    

“I Paul Bokon of PO Box 299, Sigiro Catholic Mission, Wabag, Enga Province take full responsibility, for the acceptance of store figure, Cat No.48.21.1 QAV.2 briefly described as being shaped like the foetal stage of an echidna ant eater, returned to (sic) upon request by the Director of the National Museum and Art Gallery. I will be held responsible for the loss or displacement of the figure.

(sign)

________________

Paul Bokon”

13. The return of the stone to Paul Bokon was confirmed by the then Director of the Museum, Mr. Soroi Eoe.
    
14. On or about 8 February, 2002, the appellants moved a notice of motion seeking default judgment following failure by the respondents to file their Notice of Intention to Defend and Defence.
    
15. On 3 May, 2002, the notice of motion was heard by late Justice Hincliffe in Mt. Hagen National Court, he ruled that notwithstanding the failure by the respondents to file their Notice of Intention to Defend and Defence, given that the plaintiffs were claiming K1 billion, the respondents should be heard, thus, allowed the respondents to file their Notice of Intention to Defend and Defence out of time so that parties could argue the claims fully. The appellants’ motion for default judgment was dismissed.
    
16. On 8 August, 2012, the first and second respondents filed a notice of motion seeking dismissal of proceeding WS NO. 245 of 2000, in its entirety for not disclosing a reasonable cause of action, for being frivolous and vexatious, abuse of process, that it was statute barred, parties being incorrectly named and failure to give notice under s. 5 of the Claims By and Against the State Act 1996.
    
17. On 4 March, 2013, the learned trial judge gave his ruling, in which he found among others things that the appellants did not dispute that Paul Bokon owned the stone. His Honour found that there was an agreement between the first and second respondents and the principal appellant that they (respondents) would not release the stone to anyone else except him. His Honour said the respondents breached that agreement, so they would have been liable for any damages suffered by the appellants, but because Paul Bokon had fully indemnified the respondents from all claims for damages, the appellants had no cause of action against the respondents. His Honour said the appellants should have sued Paul Bokom. His Honour did not consider it necessary to address the other claims by the respondents.
    
18. Two other principal defences raised by the respondent against the appellant were statutory bar and that proceeding WS No. 245 of 2000 was incompetent because the appellants did not give notice of their intention to claim against the State in accordance with the requirements of s. 5 of the Claims By and Against the State Act. The appellants gave a notice of their claims but the notice was given after the expiry of six months from when the cause of action arose.
    
19. The original writ of summons was issued on 8 March 2000. On 27 February, 2014, the appellants issued an amended writ of summons.
    
20. In the affidavit of the principal appellant sworn on 9 September, 2004, in respect of proceeding WS No. 245 of 2000, at paragraph 3, he deposed that he served the notice under s. 5 of the Claims By and Against the State Act, on 14 December, 1998, addressed to the Solicitor General. He deposed that he served the notice on the then Acting Solicitor General, Mr. John Kawi. These are not disputed.
    
21. Mr. Yandaken, counsel for the appellants told the primary court that the principal appellant became aware of the stone being given away to Paul Bokon in April, 1998 (p.1029 Appeal Book).
    
22. Ms Kulumbu, counsel for the respondents argued before the primary court that the cause of action arose on 26 January, 1989, when the stone was returned to Paul Bokon and the appellants knew about it. However, there is no evidence to substantiate this claim, we are therefore inclined to accept Mr. Yandaken’s submission that the appellants became aware of the stone being given to Paul Bokon in April, 1998. Issues of statute bar and the requirements for service of s. 5 notice should run from this date.
    
23. It is not disputed that s. 5 notice was served on the State on 14 December, 1998. We consider that s. 5 notice was deemed to have been given when the principal appellant became aware of the stone being given to Paul Bokon by the Museum in April, 1998.
    
24. It is instructive that we set out s. 5 of the Claims By and Against the State Act, it is in these terms:
    

5. NOTICE OF CLAIMS AGAINST THE STATE.

(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.

(3) A notice under Subsection (1) shall be given by -

(a) personal service on an officer referred to in
Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act, 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321)

25. Thus it is clear that service of s. 5 notice by the appellants on the State on 14 December, 1998, did not comply with the requirements of s. 5 (2) of the Claims By and Against the State Act, in that the notice was not served within six months after the principal appellant became aware that the stone had been given to Paul Bokon by the Museum.
    
26. So it is plain that the appellants failed to comply with the mandatory statutory requirements regarding service of s. 5 notice on the State. This was fatal to the appellants’ claims against the State in proceeding WS 245 of 2000. Proper and valid service of s. 5 notice on the State is the condition precedent to competency of any civil suit against the State. This was emphasized in Paul Tohian, Minister for Police and The State v. Tan Liu (1998) SC566. The Supreme Court said:
    

“It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons”.

27. Many subsequent decisions of the Supreme Court and the National Court adopted and followed Paul Tohian, Minister for Police and The State (supra) in approval: See for example; William Powi v. Niugini Building Supplies Ltd (2016) SC1501; Maps Tuna Ltd v. Manus Provincial Government (2007) SC857; Habolo Building & Maintenance Ltd v. Hela Provincial Government (2016) SC1549; Marmda v. The State (1991) N1026; Bokin v. The Independent State of Papua New Guinea (2001) N211 and Daniel Hewali v. PNG Police Force (2002) N2233.
    
28. As we alluded to earlier, the learned trial judge dismissed the claims by the appellants because of the indemnity given by Paul Bokon against all claims for the damages against the respondents, thus finding there was no cause of action against the respondents. We respectfully agree with the learned trial judge. In our view the effect of the indemnity was to prevent any liability arising against the respondents, either based on negligence or breach of contract. See, PNG Ports Corporation Ltd v. Islands Salvage (2009) N3780. The indemnity was unconditional and complete. It is clear and unambiguous in its terms. We do not find any error in the decision of the learned trial judge regarding the effect of the indemnity given by Paul Bokon.
    
29. We also find that entire proceeding WS 245 of 2000 was incompetent because the notice of intention by the appellants to make claims against the State was not given as required under s. 5 (2) of the Claims by and Against the State Act.
    
30. For the foregoing reasons we dismiss the appeal.
    
31. The appellants will pay the respondents’ costs.
    

Orders according.
__________________________________________________________
Yandaken Lawyers: Lawyers for the Appellants
Solicitor General: Lawyers for the Respondents