MAPS Tuna Limited v Manus Provincial Government (2007) SC857

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe Gavara-Nanu & Lenalia JJ
• Judgment Date: 26 June 2007
• Citation: (2007) SC857
• Docket Number: SCA NO. 77 OF 2005
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC857

Full Title: SCA NO. 77 OF 2005; MAPS Tuna Limited v Manus Provincial Government (2007) SC857

Supreme Court: Hinchliffe, Gavara-Nanu, & Lenalia JJ

Judgment Delivered: 26 June 2007

SC857

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 77 OF 2005

BETWEEN:

MAPS TUNA LIMITED

Appellant

AND:

MANUS PROVINCIAL GOVERNMENT

Respondent

Lae: Hinchliffe, Gavara – Nanu, & Lenalia JJ

2006: 28th June & 26th June 2007

CIVIL LAW – Practice & Procedure – Appeal against dismissal

of the entire proceedings – Issues argued on appeal – Service pursuant to s. 5 of the Claims By and Against the State Act – Whether the term “State” includes Provincial Government – Claims By and Against the State Act – Whether s.5 of the Act applicable to Provincial Governments -

PRACTICE & PROCEDURE – Service of process where State is

not nominal Defendant – Whether service under s.5 should be effected on the State as well.

PRACTICE & PROCEDURE – Legal entity of the State – Section

247 of the Constitution – Legal entity of Provincial Governments and Service of process against Provincial Governments and Local Level Governments – Organic Law on Provincial Governments and Local Level Governments, Sections 6 & 7.

Cases Cited

Reve Mase v District Land Court (1980) N260

The State v District Land Court [1982] PNGLR 192

Rimbink Pato Trading as Pato Lawyers v Enga Provincial Government [1995] PNGLR 469

Pupune and Others v Umbum Makarai and Others [1997] PNGLR 622

SCR N0.1 of 1998; Reservation Pursuant to Section 15 of the Supreme Courts Act (2001) SC 672 of 1998

Karl Paul v Arua Kispe and Another (2001) N2085

Paul and Mary Bal v Kenry Taia and 3 Others (2003) N2481

Morobe Provincial Government v Independent State of PNG. (WS 1534 of 2003 WS 86 of 2003 and WS 1415 of 2004)

Timothy Lim Kok Chuan v Simon Goh Say Beng and Another (2004) N2753.

Counsels

T. Pryke, for Appellant

P. Kuman, for the Respondent.

26 June 2007.

1. BY THE COURT: In 2002 the parties entered into an agreement whereby they agreed that the appellant was to manage two fishing vessels of the respondent. However in 2003 a dispute arose and the respondent decided to retake possession of such vessels. Due to that dispute, in August 2003 the appellant filed an Originating Summons wherein it sought restraining orders to restrain the respondent, its employees, servants or agents from removing or interfering in any way with the two vessels FV. Manus 1 and FV. Manus 2 from the appellant’s possession and management until further orders.

2. In 2005, the respondent applied to the court for the proceedings to be dismissed or alternatively to have the proceedings proceed by way of pleadings. The court ordered that the proceedings proceed by pleadings and also ordered that the two fishing vessels were to remain at the appellant’s wharf but not to be engaged on fishing activities.

3. The appellant filed pleadings and in its pleading, it pleaded the terms of the contract that was entered into between the appellant and the respondent. The debt in the appellant’s pleadings amounted to K663, 180.10. The respondent disputed the terms of the contract and applied for better particulars and further pleaded that the agreement was unfair in terms of the Fairness of Transaction Act 1993.

4. In the course of pleadings, when the respondent filed its defence to the Amended Statement of Claim, they included a Cross-Claim. In that Cross-Claim the respondent claimed damages for the use of the two vessels and it also alleged negligence and cause of damages to the machinery on the vessels. The respondent’s claim in the Cross-Claim amounted to K240, 000.00.

5. In the process of providing Further and Better Particulars, the appellant revealed that it had not given notice to the State in accordance with Section 5 of the Claims By and Against the State Act of 1996.

6. Being aware of the above position, the respondent filed a Notice of Motion on 22 June 2005 in which it sought orders that the question of whether a Section 5 notice of the Claims By and Against the State Act ought to be given prior to suing a provincial government and if so, whether the failure by the plaintiff (now appellant) to give such notice made those proceedings a nullity.

7. On 11 July 2005, the motion was argued before Davani, J and on 18th of that same month, the trial judge ruled that she did not think it was necessary for the issue of whether or not Service pursuant to Section 5 of the Claims By and Against the State Act 1996 requires the giving of notice prior to suing a Provincial Government be tried as a stated case.

8. We note from the Appeal Book and the transcript of proceedings before the trial judge that, the Notice of Motion filed by the respondent on 22 June 2006 sought specific orders under Order 10 Rule 21 of the National Court Rules. The questions in the Notice of Motion were whether notice pursuant to Section 5 of the Claims By and Against the State Act ought to be given before suing a Provincial Government.

9. Secondly, if the answer to question (a) was in the positive, whether failure by the plaintiff to give such notice nullifies the proceedings.

10. Instead of considering and answering the questions posed for her consideration, the trial judge ruled inter alia that because it was a clear case where the appellant had not given the mandatory notice pursuant to s.5 of the above Act, and since they admitted failure to give such Notice, the trial judge concluded that, the court must in cases where there is an apparent irregularity in the process, exercise its inherent powers to ensure that such proceedings should be brought to an end.

11. The court further held that the court has a duty to control the conduct of its proceedings that come before it and to ensue sure that the proceedings that come before the court are subject to jurisdictional limits. The cases of Karl Paul v Arua Kispe, the Regional Manager PNG Forest Authority-Lae (2001) N2085, Paul and Mary Bal v Kenry Taia & 2 Others and The State (2003) N2481 and a few other cases were cited by the trial judge to support the conclusion she reached.

12. The above cases simply say that service of notice under s.5 of the Act is a must and should be complied with before suing the State of its agencies.

13. As result of the above conclusion, the trial judge dismissed the whole proceedings. From such dismissal, the appellant appealed.

14. There are nine (9) grounds to this appeal and the amended supplementary Notice of Appeal contains the following grounds:

“(a). The trial judge erred in law in determining the question of whether notice under Section 5 of the Claims By and Against the State Act 1996 (CBAASA) needs to be given prior to suing a provincial government when the court was asked to determine under Order 10 Rule 21 of the National Court Rules whether the question should be tried separately from the other issues or together with other issues in the proceedings.

(b). The trial judge erred in law in incorrectly assuming or determining that notice under Section 5 of the CBAASA needs to be given prior to suing a provincial government.

(c). The trial judge erred in law in that she erred in the exercise of her discretion by failing to consider Order 10 Rule 21 and failing to consider issues relevant to the application prior to finding that it was necessary to try the issues as a stated case.

(d). The trial judge in law in dismissing the proceedings upon finding that it was not necessary to try the issue as a stated case when the correct course would have been to order that the issue be tried together with the other issues.

(e). The trial judge erred in law in that she took into consideration her errors of law referred to in paragraphs 3(a) and 3(b) above when determining to dismiss the proceedings in their entirety and order return of the vessel to the defendant/applicant.

(f). The trial judge erred in law in making orders for return of the vessel to the defendant/applicant when such an order was not sought by the notice of motion or otherwise.

(g). The trial judge erred in law in making orders for the return of the vessel to the defendant applicant in that she failed to first entertain argument in that regard, thereby denying the plaintiff/respondent natural justice.

(h). The trial judge erred in law in failing to give any or any proper consideration to the oral submission of submission of counsel for the plaintiff/respondent that the plaintiff/respondent had a common law lien on the vessel for a debt owed to it by the defendant/applicant in respect of monies expended on the vessel for repairs and improvements before ordering the plaintiff respondent to return the vessel to the defendant/applicant.

(i). The trial judge erred in fact in finding that the lawyers for the plaintiff/respondent did not respond to Mr.Kuman’s letter of 30/5/2005.”

15. In arguing this appeal, Mr. Pryke of counsel for the appellant submitted on three basic issues. On procedure, counsel argued that when the matter came on for hearing before the trial judge on 11th of July 2005, it was an application for orders that issues be tried as a stated case. He further argued that it was not an application to determine the question of law nor was it an application for summary dismissal.

16. The appellant’s counsel further argued that, the Notice of Motion dated 22nd of June 2005 was put in specific terms for the trial judge to try the preliminary question separately from the issues of law and fact on the intended trial proper. Such argument is...