Bernard Uriap in his capacity as a Clan Leader for and on behalf of Rongol Clan of Himau & PoronbusVillages, Namatanai-New Ireland Province v Simon Tokivung in his capacity as the Clan Leader of Antalia Clan of Himau village, Namatanai - New Ireland Province and Tutuman Development Limited and Rakubana Development Pty Ltd and The Papua New Guinea Forest Authority (2008) N3444

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Lenalia J
• Judgment Date: 11 July 2008
• Citation: (2008) N3444
• Judgment Number: N3444
• Year: 2008
• Docket Number: WS NO. 532 OF 2008

Full Title: WS NO. 532 OF 2008; Bernard Uriap in his capacity as a Clan Leader for and on behalf of Rongol Clan of Himau & PoronbusVillages, Namatanai-New Ireland Province v Simon Tokivung in his capacity as the Clan Leader of Antalia Clan of Himau village, Namatanai - New Ireland Province and Tutuman Development Limited and Rakubana Development Pty Ltd and The Papua New Guinea Forest Authority (2008) N3444

National Court: Lenalia J

Judgment Delivered: 11 July 2008

N3444

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 532 OF 2008

BETWEEN:

BERNARD URIAP in his capacity

As a Clan Leader for and on behalf of

RONGOL CLAN of Himau & Poronbus

Villages, Namatanai-New Ireland Province.

Plaintiff

AND:

SIMON TOKIVUNG in his capacity

As the Clan Leader of ANTALIA CLAN of

Himau village, NAMATANAI-New Ireland

Province.

First Defendant

AND:

TUTUMAN DEVELOPMENT LIMITED.

Second Defendant

AND:

RAKUBANA DEVELOPMENT PTY LTD.

Third Defendant

AND:

THE PAPUA NEW GUINEA FOREST AUTHORITY.

Fourth Defendant

Kokopo: Lenalia; J.

2008: 27th June & 11th July

PRACTICE & PROCEDURE – Service of the process – Claims By and

Against the State Act 1996 s.5 – Whether Papua New Guinea Forest Authority is an organ of the State – State entities are organs of the State.

PRACTICE AND PROCEDURE – Section 5 of the Claims By and Against

the State Act – Application to dismiss proceedings – Writ of Summons issued prior to notice of intention to make a claim given – Service of the Writ of Summons is not a notice of intention to make a claim under Section 5 – Proceedings dismissed for non-compliance with s.5 of the Claims By and Against the State Act.

Cases cited.

Graham Rundle v Motor Vehicle Insurance (PNG) Trust [1998] PNGLR 20

Marinda v The State (1991) 1026

Rimbink Pato Trading as Pato Lawyers [1995] PNGLR 469

Pupune & Others v Umbu Makarai Administrator Eastern Highlands Province [1997] PNGLR 622

Minato v The State (1998) N1768

SCR.No.1 of 1998 Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC 672 of 1998

Tohian & The State v Tau Liu (1998) SC 566

William Trnk v The State (2000) N1957

Bokin v Independent State of PNG (2001)22111

Hewali v The Police Force & The State (2002) N2233

William Wrondimi & Others v Alphonse Vokene (2007) N3148

Maps Tuna Limited v Manus Provincial Government (26.6.07) SC 857

Wamena Trading Limited v Civil Aviation Authority of Papua New Guinea (2006) N3058

Counsel

Mr. W. Donald, for the Plaintiffs

Mr. E. Paisat, for the 1st & 3rd Defendants

Mr. M. Maraleu, for the 2nd Defendant

Mr. S. Mitige, for the 4th Defendant

11 July, 2008

1. LENALIA, J: The Plaintiffs in this claim are claiming for K2, 800,000, 000 damages for trespass and illegal entry into the plaintiffs’ customary land known and described as KADAMAU within the Poronbus area, Namatanai, New Ireland Province. They also claim punitive damages of K45 million.

2. The plaintiffs filed these proceedings in the National Court registry office here in Kokopo on 12th of May this year. On that same date, the Plaintiffs lawyer applied for certain injunctive orders to prevent the 2nd and 3rd defendants from continuing with logging and removing machinery, equipment and logs from Namuh camp site.

3. Since then counsels representing the parties have been in an out of court for various reasons. On 21st of May this year, the Second Defendant through their employed lawyer Mr. Maraleu filed a Notice of Motion in which they seek orders for the whole proceedings to be dismissed. That notice of motion has not been argued.

4. On 27th June 2008, counsels indicated to the court that they consented to have the application by the 4th Defendant heard first. The Notice of Motion filed on 5th of June 2008 by the 4th Defendant seeks one order only. They seek an order to dismiss the entire proceedings for non compliance with s.5 of the Claims By and Against the State Act.

Submissions

5. On arguing this application, Mr. Mitige of counsel for the 4th Defendant submitted that, the Plaintiffs did not serve a notice on the State in compliance with s.5 of Act. Counsel argued that, the Fourth Defendant was established under the Forestry Act 1991 with perpetual succession, has its common seal and may acquire, hold and dispose of property and it may sue and be sued in its corporate name.

6. Counsel further argued that, despite the fact that, the 4th Defendant is a corporate entity, it is an agency and instrument of the State. He submitted that it is under political control of the Minister responsible and the National Forest Board receives direction from the Forest Minister to carry out its functions and manage its affairs and operations.

7. Part of his argument is that, the Papua New Guinea Forest Authority depends entirely on appropriation of finance from the National Budget and the Authority is subject to the requirements of the Public Finances (Management) Act 1995.

8. Mr. Mitige submitted therefore that, the Plaintiff has to show whether he has given the required notice under s.5 of the Claims By and Against the State Act as the 4th Defendant is an instrumentality of the State. In these proceedings, Mr. Mitige submitted that, there has been no service on the State as required by the above proviso of the Act and as such the proceedings should be entirely dismissed.

9. In reply, Mr. Donald of counsel for the Plaintiff submitted that, the PNG Forest Authority is not an organ of the State as it is a legal entity with capacity to acquire, hold and dispose of property and it can sue or be sued in its own name. Counsel submitted that, unlike Provincial Governments and Local Level Governments, the subjects of the Constitution and Organic Law on Provincial Governments and Local Level Governments, the PNG Forest Authority is not part of the State since it is a corporate entity.

10. Mr. Donald suggested that, this court should do a reference to the Supreme Court to decide whether or not, the 4th Defendant being a corporate entity is an agent of the State. Counsel submitted that there is a case authority a case decided by Lay, J which held that, the Civil Aviation Authority of Papua New Guinea although a State instrumentality and it is a governmental body is not part of the “three-tier system of government”. Mr. Donald of counsel for the Plaintiff belatedly as late as just yesterday provided a copy of that judgment to the court to confirm that part of his submission.

Law

11. The relevant law of service of process on the State and its instrumentalities is provided for under s.5 of the Claims By and Against the State Act. The above proviso states:

“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

(i) 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 am and 12 noon, or 1.00 pm and 4.06 pm, 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).”

12. The key issues in relation to service under Section 5 of the Claims By and Against the State Act have been stated over and over again. The case of Tohian and The State v Tau Liu (1998) SC566 establishes that notice of intention to make a claim against the State is a condition precedent to issuing a writ of summons. The Court in the above case comprising of Kapi, DCJ; (as he then was) Sheehan; & Jalina; JJ further held that notice under s 5 of the Claims By and Against the State Act must be given first before the writ is issued, even if the writ is issued within six (6) months after the date of the occurrence out of which the claim arose.

13. Where there has been non-compliance with the requirements of the above Act that is a ground for setting aside a default judgment: Marinda v The State (1991) N1026. The method of service to the appropriate persons mentioned under s 5 is mandatory: Bokin v The Independent State of Papua New Guinea (2001) N2111.

14. In Hewali v Police Force and The State (2002) N2233 Kandakasi; J held that a notice under s.5 must be in writing and it must give sufficient details of the intended claim such as time, date, and place of occurrence. In William Trnka v The State (2000) N1957 Sevua; J said that both the Attorney General and the Court before whom an action is instituted have discretion to extend the time for giving notice of intention to sue the State. According to the above case “sufficient cause”...