Inspector Kisi Solomon v Brian Pebo

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 13 March 2009
• Citation: (2009) N3698
• Court: National Court
• Year: 2009
• Judgement Number: N3698

Full : W.S. NO. 1115 of 2005; Inspector Kisi Solomon—Acting as Commander of Police Mobile Squad 05, Representing himself & other members of Police Mobile Squad 05 v Brian Pebo, Provincial Administrator, Southern Highlands Province and Southern Highlands Provincial Government (2009) N3698

National Court: David, J

Judgment Delivered: 13 March 2009

N3698

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1115 OF 2005

BETWEEN

INSPECTOR KISI SOLOMON – ACTING AS COMMANDER OF POLICE MOBILE SQUAD 05, REPRESENTING HIMSELF & OTHER MEMBERS OF POLICE MOBILE SQUAD 05

Plaintiffs

AND:

BRIAN PEBO, PROVINCIAL ADMINISTRATOR, SOUTHERN HIGHLANDS PROVINCE

First Defendant

AND:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

Second Defendant

Mt Hagen: David, J

2009 : 11 & 13 March

PRACTICE & PROCEDURE – application to dismiss proceedings for non-compliance with conditions precedent – s.7 Organic Law on Provincial Governments and Local-level Governments - s.4 Claims By and Against the Southern Highlands Provincial Act 2000 – s.5 Claims By and Against the State Act 1996 – onus on applicants to prove circumstance of non-compliance – onus not discharged – application dismissed.

PRACTICE & PROCEDURE – failure to plead compliance with condition precedent - O.8 r.12 National Court Rules – proceedings not voided - O.1 r.8 National Court Rules.

Cases cited:

Ume More v. University of PNG [1985] PNGLR 401

Sidi Adevu v. Motor Vehicles Insurance (PNG) Trust [1994] PNGLR 57

Motor Vehicles Insurance (PNG) Trust v. Nand Waige & Ors [1995] PNGLR 202

Theresa’s Pty Ltd and PNGBC v. Rio Vista Pty Ltd [1998] PNGLR 283

Emmanuel Mai trading as Mai Lawyers v. Southern Highlands Provincial Government (2004) N2558

Caspar Kondi v. Provincial Administrator, Department of Western Highlands Province (2004) N2755

Grace Lome v Allan Kundi (2004) N2776

Mickey Kaip Wassey v Felix Rangit Aigilo (2005) N2876

The State v. John Talu Tekwie (2006) SC843

Wellcos Engineering Limited v. Hami Yawari & Ors, WS 959 of 2006, Unreported Judgment of His Honour, Justice Hartshorn delivered on 21st May 2007

John Wasis & Ors v. Brian Pebo & Ors, WS 472 of 2006, Unreported Judgment of His Honour, Justice Cannings delivered on 14th November 2008

Counsel:

Roger Otto, for the Plaintiffs

Stanis Japson, for the Defendants

RULING ON MOTION

13 March, 2009

1. DAVID, J: INTRODUCTION: When I gave my brief reasons for my ruling in this matter, I undertook to correct and publish my full reasons later. This meets that undertaking.

2. This is an application by the First and Second Defendants (the Defendants) on notice to dismiss the entire proceedings alleging the Plaintiffs’ non-compliance with s.4 of the Claims By and Against the Southern Highlands Provincial Government Act, 2000 (the Provincial Claims Act) and O.8 r.12 of the National Court Rules prior to commencing these proceedings.

3. The Defendants rely on their Notice of Motion filed on 24th October 2008 supported by the Affidavit in Support of William Powi sworn on 2nd October 2008 and filed on 24 October 2008.

4. The Plaintiffs contest the application. They rely on the Affidavit in Response of Roger Otto sworn on 10th March 2009 and filed on 11th March 2009 in rebuttal.

BACKGROUND

The Plaintiffs’ allegations

5. On 25th July 2005, the Plaintiffs, who are members of Police Mobile Squad 05 based at the Kimininga Police Barracks in Mt. Hagen, Western Highlands Province, filed their Writ of Summons and Statement of Claim claiming that the Defendants were indebted to them in the sum of K235,440.00. The claim was for outstanding travelling and camping allowances which they state they were entitled to receive for their engagement by the Second Defendant, Southern Highlands Provincial Government in post-election police operations in the Southern Highlands Province and to provide general security after the 2003 Supplementary National Elections there. The operations began on 30th June 2003 and ended on 20th December 2003. After paying part of the initial claim, the last of which having been made on 6th June 2004, and despite the Plaintiffs making numerous enquiries, the Defendants were unwilling to settle the balance of their claim.

6. The Plaintiffs state at paragraph 10 of their Statement of Claim that on 28th September 2004, they issued their notice of intention to make a claim against the Defendants in accordance with the Provincial Claims Act.

The Defendants’ defence

7. The Defendants filed their defence on 12th September 2005 basically denying liability. At paragraph 1 of their defence, they aver that the proceedings were a nullity because the Plaintiffs had not complied with s.5 of the Claims By and Against the State Act, 1996 (the National Claims Act) and s.4 of the Provincial Claims Act.

THE ISSUE

8. The major issues are:-

1. Whether the Plaintiffs have failed to comply with O.8 r.12 of the National Court Rules and if so whether it warrants a dismissal of the proceedings.

2. Whether the Plaintiffs have breached s.4 of the Provincial Claims Act to warrant a dismissal of the proceedings.

3. Whether the Plaintiffs have breached s.5 of the National Claims Act to warrant a dismissal of the proceedings.

SUBMISSIONS OF THE DEFENDANTS

9. Mr. Japson of counsel for the Defendants submitted that the Plaintiffs did not give any notice of claim against the Defendants, a mandatory requirement under s.4 of the Provincial Claims Act therefore the proceedings were defective right at the outset. This fact he said was confirmed by Mr. Powi at paragraph 9 of his Affidavit where he said that neither he nor his personal secretary was served with a notice of claim.

10. While counsel conceded that Mr. Powi was not the Administrator at the material time and that Mr. Powi did not state in his Affidavit that he conducted a search of his office and failed to discover the Plaintiffs’ notice of claim, he nevertheless urged the Court to accept Mr. Powi’s Affidavit over Mr. Otto’s. This he said was because the latter’s Affidavit was a lawyer’s evidence that showed uncertainties as to; firstly, the mode of service of the Plaintiffs’ notice of claim if one had in fact been served; secondly, the identity of the person who served it; and thirdly, the place where it was served. If a proof of service had been filed by the person who served the notice of claim, it would have eliminated all those uncertainties counsel said.

11. Counsel also submitted that the copy of the purported notice of claim annexed to Mr. Otto’s Affidavit as annexure “A” was not signed by a lawyer and therefore its authenticity was questionable.

12. Counsel referred to the cases of Wellcos Engineering Limited v. Hami Yawari & Ors, WS 959 of 2006, Unreported Judgment of His Honour, Justice Hartshorn delivered on 21 May 2007 and John Wasis & Ors v. Brian Pebo & Ors, WS 472 of 2006, Unreported Judgment of His Honour, Justice Cannings delivered on 14 November 2008 to support the propositions that; service of a notice of claim against the Second Defendant, the Southern Highlands Provincial Government is a condition precedent to the issuing of a writ of summons and that the notice requirements of the Provincial Claims Act were in addition to those of the National Claims Act. In both cases, the Court rejected arguments raised by the plaintiffs that giving a notice of claim under the National Claims Act was sufficient counsel said.

13. Moreover, counsel submitted that s.4 of the Provincial Claims Act which gave effect to s.7 of the Organic Law on Provincial Governments and Local-level Governments (the Organic Law) was in almost identical terms as s.5 of the National Claims Act and therefore the principles guiding the courts in respect of non-compliance with s.5 of the National Claims Act should also apply in respect of non-compliance with s.4 of the Provincial Claims Act.

14. Relying on the above-mentioned principles, counsel urged the Court to find that the Plaintiffs breached s.4 of the Provincial Claims Act and the Plaintiffs having failed to discharge the onus placed upon them to prove service of the notice of claim before commencing this action, the entire proceedings should be dismissed.

SUBMISSIONS OF THE PLAINTIFFS

15. Mr. Otto of counsel for the Plaintiffs conceded that the Second Defendant, Southern Highlands Provincial Government did have in operation at the material time the Provincial Claims Act.

16. Counsel submitted that at paragraph 10 of the Statement of Claim, the Plaintiffs averred that a notice of claim indicating their intention to make a claim against the Defendants was served on 28th September 2004 in accordance with the Provincial Claims Act. He said the letter from Mawa Lawyers to the Provincial Administrator, Southern Highlands Province dated 28 September 2004 was the Plaintiffs’ notice of claim, a copy of which was annexed to his Affidavit as annexure “A, but the Defendants disputed that assertion at paragraph 1 of their defence. The notice of claim counsel said was served following advise from Tamutai Lawyers in a letter to them dated 8th September 2004, a copy of which was annexed to his Affidavit as annexure “B”.

17. Mr. Otto also argued that Mr. Powi was...