Morris Manum and Benjamin Mano on Behalf of themselves and as representatives of 44 other persons of Portion 511 Billia Point Madang, Madang Province v Senior Constable Dimuk Dage, Chief Inspector Ben Simanjon—Provincial Police Commander of Madang Province, Peter Aigilo The Police Commissioner and The Independent State of Papua New Guinea (2003) N2435

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 11 June 2003
• Court: National Court
• Citation: (2003) N2435
• Year: 2003
• Judgement Number: N2435

Full Title: Morris Manum and Benjamin Mano on Behalf of themselves and as representatives of 44 other persons of Portion 511 Billia Point Madang, Madang Province v Senior Constable Dimuk Dage, Chief Inspector Ben Simanjon—Provincial Police Commander of Madang Province, Peter Aigilo The Police Commissioner and The Independent State of Papua New Guinea (2003) N2435

National Court: Sawong J

Judgment Delivered: 11 June 2003

N2435

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

WS 92 of 1999

BETWEEN:

MORRIS MANUM & BENJAMIN MANO on

Behalf of themselves and as representatives of

44 other persons of Portion 511 Billia Point

Madang, Madang Province

(Plaintiffs)

AND:

SENIOR CONSTABLE DIMUK DAGE

(First Defendant)

AND:

CHIEF INSPECTOR BEN SIMANJON –

PROVINCIAL POLICE COMMANDER OF

MADANG PROVINCE

(Second Defendant)

AND:

PETER AIGILO

THE POLICE COMMISSIONER

(Third Defendant)

AND:

THE INDEPENDENT STATE OF PAPUA

NEW GUINEA

(Fourth Defendant)

MADANG : SAWONG J.

2003 : 7TH & 11TH JUNE

CLAIMS AGAINST THE STATE - Judgments obtained–Compliance with Claims by and

Against the State Act–Secretary for Treasury failing to pay judgment–mandamus-section

14(3) and 14(5) of the Claims By and Against the State Act considered-

PRACTICE & PROCEDURE – Claims Against the State-Judgement obtained-

Compliance with Claims By and Against the State Act-Certificate of judgement

not endorsed by Solicitor General-

PRACTICE & PROCEDURE – Claims Against State-Application by Notice of Motion

in the nature of mandamus to seek payment of judgment-Certificate of judgment

not endorsed by Solicitor General Application refused-

FACTS:

The Applicants obtained a judgement in the National Court against the State. Subsequently a certificate of judgement was issued duly signed by the proper officer of the Court. The certificate of judgement did not have the endorsement of the Solicitor General. The Applicants lawyers have been corresponding with the respective officers of the Department of Finance and Treasury but the judgement debt remained unpaid.

The Applicants then applied by way of Notice of Motion in the nature of mandamus to have the Head of the Department of Finance and/or Treasury to pay the judgment debt.

HELD:

1. The Solicitor General must sign or endorse the Certificate of judgement pursuant to s.14(2) of the Claims By and Against the State Act, 1996.

2. Where the Solicitor General has not endorsed the Certificate of judgement any application in the nature of a mandamus will not succeed.

3. Any application in the nature of mandamus pursuant to s.14(5) of the Claims By and Against the State Act, 1996 must be by way of judicial review applications under O.16 of the National Court Rules.

C. NARAKOBI, for the Applicant

NO APPEARANCE, for the Respondents

11th June, 2003

SAWONG J: By a Notice of Motion the applicant sought the following orders:

1. That the defendant pay the judgment debt within 14 days failing which defendants pay 15.5% interest on judgment till paid.

2. Time be abridged to the date of settlement of this order which shall take place forthwith three such orders court deem fit.

In support of the relief claimed Mr Narakobi relied on this affidavit sworn on the 1st February, 2003 and filed on the 5th of March, 2003.

The State’s lawyers had been served with the Notice of Motion and the other relevant materials but did not appear at the hearing of the motion. I granted leave to Mr Narakobi to proceed exparte.

The Motion was in the nature of a mandamus to compel the State and it’s officers and agents to satisfy the judgment debt within 14 days failing which they be ordered to pay interest at the rate of 15.5 percent until the judgment debt that is paid.

Before I deal with the application and the submissions it is necessary to set out a brief history of the matter from the affidavit evidence. On the 14th of August, 2002 the court ordered the fourth defendant, the Independent State of Papua New Guinea to pay on behalf of all other defendants the sum of one million nine hundred and fourty-seven thousand three hundred and thirty kina (K1,947,330.00) inclusive of costs and interest (the judgment debt) to the plaintiff. On the 21st of August, 2002 a certificate of judgment was issued by the Registrar of the Court. Mr Narakobi then deposes that he has written numerous letters and made numerous contacts with all relevant agencies for the payment of the judgment debt but no payments have been made whatsoever. He also deposed that he has been instructed by his clients to invest the monies upon receipt of it with the Government Treasury bills at interest rates of 15.5 percent. He deposed that the long delay in the payment of the judgment debt has deprived his clients of the potential interest that they could have earned had they made that investment.

During submissions Mr Narakobi relied on the provisions of s. 14 of the Claims By and Against the State Act, 1996. He also relied on the Supreme Court decision in Pansat Communications Pty. Limited v Morea Vele & The Independent State of Papua New Guinea unreported judgment SC 604. He submitted that s. 14 (3) and (4) provides for the departmental head responsible for financial matters to satisfy the judgment out of the monies legally available within reasonable time. The satisfaction of those monies could be in the whole or in part by way of instalments. He submitted that as he has made numerous efforts both in writing and verbally to the various relevant government agencies and that they have not responded and the judgment has not been satisfied either in full or by way of part payments, he submitted that the court should grant the orders as sought in the Notice of Motion. He submitted that only in having such an order and the subsequent failure by the person responsible for financial matters failing to comply with the court orders than he would seek pursue either contempt or other proceedings against that person.

In relation to the claim for interest he conceded during argument that the proper rate would be 8 percent.

It is necessary to set out in full the relevant provisions of the Claims By and Against the State Act namely, s.13 & 14.

s. 13 NO EXECUTION AGAINST THE STATE.

(1) In any suit, execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.

(2) Where a judgment is given against the State, the registrar, clerk or other proper officer of the court by which the judgment is given shall issue a certificate in Form 1 to the party in whose favour the judgment is given.

“s. 14 SATISFACTION OF JUDGEMENT AGAINST THE STATE.

(1) The certificate referred to in Section 13(2) shall be served on the

Solicitor-General by –

(a) Personal service; or

(b) Leaving the document at the office of the Solicitor-General with the person apparently occupying the position of personal secretary to the Solicitor-General between the hours of 7:45a.m. and 12 noon p.m. and 4.06p.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 or duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

(2) The Solicitor-General shall, within 60 days from the date of service

upon him of a certificate under Section 13(2), endorse the certificate

in Form 1.

(3) Upon receipt of the certificate of a judgment against the State bearing the Solicitor-General’s endorsement that judgement may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgment out of moneys legally available.

(4) Any payment in satisfaction of judgment may, in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgment is thereby satisfied within a reasonable time.

(5) No action –

(a) for or in the nature of mandamus; or

(b) for contempt of court,

or otherwise lies against the Solicitor-General or the Departmental Head responsible for finance matters in respect of the satisfaction of a judgment under this Act, other than for failure to observe the requirements of Subsection (2), (3) or (4), as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the court.”

These provisions have been interpreted by the Supreme Court in Pansat case...