MAPS Tuna Limited v Manus Provincial Government (2007) SC857

• Jurisdiction: Papua New Guinea
• Date: 26 June 2007
• Citation: (2007) SC857
• Docket Number: SCA NO. 77 OF 2005
• Court: Supreme Court
• Year: 2007

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

CIVIL LAW—Practice & Procedure—Appeal against dismissal of the entire proceedings—Issues argued on appeal—Service pursuant to s5 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—s247 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, s6 & s7.

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; Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672; 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.

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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 s5 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 s5 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 s5 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 s5 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...