DC2071

PAPUA NEW GUINEA

[In the Civil Jurisdiction of the District Court held at Mendi]

DC No. 510 of 2009

BETWEEN:

WILLIAM BOLI
(Complainant)

AND:

PROVINCIAL WORKS MANAGER – MENDI
(First Defendant)

AND:

THE DEPARTMENT OF WORKS & IMPLEMENTATION
(Second Defendant)

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Third Defendant)

Mendi: C Inkisopo
2010: 28th April & 26th May

District Courts Act Chapter 40 – District Court a creature of Statute - practice and procedure at District Court defined by enabling statute itself – application by notice of motion seeking dismissal of proceedings – Section 22 of Act provides for grant or otherwise of reliefs such as sought –

Claims by and Against the State Act, 1996 – condition precedent - service of s 5 notice of claim is condition precedent to suit against State – validity of service of s 5 notice on regional office – lay illiterate villager serving s 5 notice on regional office – service accepted & 'acknowledgement of service' endorsed by office assistant – whether service valid as required under Act – 

Practice & procedure (evidence) – evidence by affidavit - affidavit in support must state facts & not legal opinions & submissions – affidavits containing legal opinions & submissions of law to be rejected –

Legislations referred to:

1:	Claims By and Against the State Act, 1996
2:	District Courts Act Chapter No 40

Cases cited/referred to: 

1:	John Bokin & Ors -vs- Sergeant Paul Dana & Ors (2001) N2111
2:	Gobe Hongu Ltd -vs-NEC & 3 Ors (1999) N1964
3:	Kamapu Minato -vs- Philip Kumo & State (1998) N1768
4:	Tohian -vs- Liu (1998) SC 566

Appearances:

1:	Mr William Boli – Complainant in person
2:	Ms Tania'lofa Tupou of Counsel of the Solicitor General's Mt Hagen Office

HELD:

1:	The purported service of s 5 notice on the Solicitor General's Mt Hagen Office is not a valid service on the State as required by s 5 (3) of the Claims By and Against the State Act, 1996. 

2:	These proceedings are dismissed for want of compliance with s 5 of the Claims By and Against the State Act, 1996. 

26th May, 2010

JUDGMENT

C INKISOPO:: This is a ruling on an application by the Defendants by way of a Notice of
Motion dated 29th September, 2009 and filed on 1st October, 2009 in which they seek the dismissal of the proceeding in its entirety on the sole ground of want of s 5 notice prior to the commencement of the proceeding.

2:	Respondent/Complainant filed proceedings at Mendi District Court claiming costs of damage allegedly sustained by his Nissan Urvan 15 seater PMV bus during a road mishap with a road repair tractor owned and operated by the National Department of Works in Mendi. The alleged incident occurred on 25th March, 2009. And after correspondences entered into with the First Defendant for damages fell through, Respondent/Complainant served a letter dated 27th May, 2009 on the Solicitor General's Mt Hagen Office purportedly giving notice of his intention to sue the State and its agency the Department of Works, Mendi for the damage to his PMV bus.

3:	The Respondent/Complainant served this letter (of his intention to sue the State) on the Regional Office of the Solicitor General's in Mt Hagen on the 2nd day of June, 2009 at exactly 2:25pm. This 'service' was accepted and endorsed as received by one Timothy Rauk, Office Assistant of the Solicitor General's Mt Hagen Office.

4:	The Complainant then took out this Court proceeding from the Mendi District Court by way of a Complaint and Summons upon Complaint dated 22nd September, 2009. He then served the processes (Complaint/Summons upon Complaint & supporting documents) on the Applicants/Defendants by way of service again on the Regional Office of the Solicitor General's at Mt Hagen which was accepted and the Acknowledgement of Service form duly engrossed and endorsed by one Jubilee Tindiwi, a lawyer of that Office on 23rd September, 2009 at exactly 11:35am.
5:	The Applicants/Defendants thereafter filed their Notice of Intention to defend the claim as well as this Notice of Motion dated the 1st of October, 2009 raising the sole ground of want of s 5 notice under the Claims by and Against the State Act, 1996 (hereinafter called the Claims Act for short).

6:	When the Notice of Motion was filed on 1st October, 2009, the hearing of it was fixed for the 6th of October, 2009 for both 9:30 am and 1:30pm but Applicants (nor their Counsel) on both alternate times were not available to move their motion. The Court rescheduled the motion to 17th November, 2009 at 9:00am for hearing with direction for the Clerk of Court to communicate that fixture in writing to the Applicants/Defendants' lawyers but still there was no appearance by Counsel for Applicants from Mt Hagen. It is not clear if this direction to communicate was carried out by the Clerk as Applicants' Counsel still did not appear then. The matter was next adjourned for mention to 23rd November, 2009 allowing Counsel ample time to make the then next appearance to move the motion. There was still yet nil appearance of Counsel so the matter was further adjourned for return mention to 1st December, 2009. Still there was nil appearance of Counsel so the matter next got adjourned to 9th March, 2010 at 9:00 which did not yet get mentioned in Court on that day (as the Court did not sit) until the 8th of April, 2010 when the matter was given a specific fixture for hearing to 28th April, 2010 at 9:00am with the Court itself drafting the letter of notice of this fixture for to Applicants' lawyers at Mt Hagen. I believe this letter must have reached Counsel as she is now in appearance in Court today ready to advance her clients' application. 

7:	It must be noted here that on all of those mention Court return dates when Counsel made nil appearances, Respondent/Complainant had always made personal appearances before the Court.

8:	On 28th April, 2010, Counsel made appearance so did the Complainant yet again in person and the Court heard arguments for and against the motion from both parties and the Court undertook to deliver written judgment in the matter on 26th May, 2010 at 9:00am - and this is that written judgment.

9:	Counsel for Applicants/Defendants Ms Tupou moved her clients' motion and relied upon her own Affidavit dated 29th September, 2009 and filed on 1st October, 2009 in support of the Applicant/Defendants' Notice of Motion. Counsel's oral arguments in support of her clients' application were well-presented with the legal principles succinctly advanced and the Court understood her arguments on the points of law under the Claims Act for which this Court is greatly indebted. However, the only downside to what I considered to be a well-prepared oral argument is that I could not say the same for her affidavit in that in my humble view it consisted primarily of submissions than facts. If the substantive relief of the Notice of Motion was to be determined on facts alone, I would have rejected it outright as it did not state facts but what I consider to be mainly submissions of law. The National Court has had an occasion to be critical of lawyers straying into making submissions instead of stating facts in affidavits for use in proceedings for and on behalf of their clients. His Honour Mr Justice Sevua in rejecting a lawyer's affidavit for supposedly containing 'submissions of law' said the following in Gobe Hongu Ltd -vs- NEC & 3 Ors (1999) N1964;
 
"…the contents of the affidavit were basically submission of law, not evidence to support the Application. Affidavits are written evidence within the exception of the hearsay rule in the law of evidence, not submission. There is a trend now where lawyers are allowing extraneous materials including opinions, legal submissions, law etc., etc., in affidavits and this must stop." 

10:	If I may add some remarks of my own regarding this trend; lawyers nowadays seem to be freely entering the fray of their clients' controversies with their adversaries either through careless ignorance or just pure indifference thereby laying themselves open to the unenviable risks of being cross-examined as witnesses in controversial and contentious matters they are involved as Counsel. The Courts would rather have Counsel at the Bar table assisting them (the Courts) and advocating for their clients than in the witness box undergoing sessions of cross-examinations (or being given 'their own medicines' so to speak).

11:	I have read and considered Counsel's affidavit and noted paragraphs 5, 6, 7 and 8 to be substantially legal submissions as opposed to attestation of facts; and I can reject it on that basis but I do not consider it to be overly offensive against the notion that affidavits must state facts and not submissions particularly in this case, because this case is not going to be decided on what fact there is but purely a question of law against a substantially undisputed fact. That is; as the relevant fact of the purported service by Complainant on the Mt Hagen regional Office of the Solicitor General's is not in dispute, I will not reject it as it is only a question of whether or not that 'service' was a valid and permitted 'service' under the Claims Act that remains the issue before this Court.
 
12:	Respondent/Complainant for his part submitted that; as far as he was concerned, he had personally served his notice of claim on the State within the required six (6) months notice period on the Office of the Solicitor General's at Mt Hagen before he filed and served his District Court Summons issued out of Mendi District Court. As a lay illiterate person, he knew the Regional Office of the Solicitor General in Mt Hagen was established for purposes of receiving such processes from poor lay villagers like him who could ill afford to fly to Port Moresby for service of their s 5 notices. He next argues that the staff of that Office by accepting the service and not telling him that they would not accept it and also not advising him; a villager to go to Port Moresby to serve it, they have acknowledged that his service on their Mt Hagen Office was validly done. They should not now deny this service and get on with the matter.

13:	The primary fact not in dispute is that the Respondent/Complainant served a notice of his intention to make a claim against the State on the Solicitor General's regional Office in Mt Hagen on 2nd June, 2009 which was received and endorsed by an Office Assistant of that Office, a Mr Timothy Rauk.

ISSUE

14:	The question before this Court therefore is;-

"Is the Respondent/Complainant's service of his s 5 notice of intention to make a claim against the State on the regional Office of the Solicitor General's at Mt Hagen a valid service under the Claims Act, 1996?"

15:	The superior Courts in this jurisdiction have dealt with and made pronouncements on the various aspects of the processes, procedures and the requirements relating to the service of s 5 notices under the Claims Act as for example; the National Court case of John Bokin & Ors vs Sergeant Paul Dana & Ors (2001) N2111 where the Court dealt with the question of service of s 5 notice via letter in the mail which was held to be invalid as being not in accord with the Claims Act. Whilst at the Supreme Court in Paul Tohian & Ors -vs- Tau Liu (1998) SC 566, it was held that personal service of s 5 notice of intention to claim is a condition precedent to filing suits against the State in all circumstances.

16:	I am not presently aware of any superior Court decision on the question of service of s 5 notice of potential claims on a regional Office of the Solicitor General's since the Solicitor General established its regional offices around the Country a number of years ago. I must confess that if a case on point has already been deliberated on and decision made by one of the superior Courts that I am not aware of, I humbly stand corrected on that point. But from my own researches so far there seems to be none as yet and the slate appears clean on that point!

17:	That being the case, I believe I have a carte blanca to work on and doing the best I can I will express my views as a District Court on the question posed above. The Supreme Court in Paul Tohian & Ors vs Tau Liu (1998) SC 566 said that personal service of section 5 notice to make a claim against the State is a condition precedent to issuing a writ of summons in all circumstances."
 
18:	It simply means that no proceedings before the Courts against the State will lie without the service of the s 5 notice on the referred Officers under Section 5 (1) of the Claims Act having been served before-hand within six (6) months from the event giving rise to the claim. This is now trite law and a condition precedent for purposes of any potential claims by any person against the State or agencies of the State that must be complied with in all circumstances.

19:	Then there is the issue of service of s 5 notice of claim by letters through mail howsoever they may be to have been within the required notice period that have however, been held to be invalid service under the Claims Act. See the case of John Bokin & Ors -vs- Sergeant Paul Dana & Ors (2001) N2111, a judgment by her honour Ms Justice Davani on service by letter through mail which was held to be not in accordance with the requirements of s 5 (3) of the Claims Act. In that case her honour said:

"…The Claims Act is very specific, in that it states "notice shall be personally served."
This was probably done to avoid situations where these letters may get lost in the mail or may be received by the Solicitor General's Office well after the six months notice period." 

 20:	All these cases are clear and specific that the service of s 5 notices under the Claims Act is a condition precedent to any suit against the State and that the act of service must be done by 'personal service' (s 5(3)(a) & (b) of Act) on the Officers referred in s 5(1) of the Claims Act 'or by leaving the document at the office of the Officer with a person apparently occupying the position of Personal Secretary to the Officer between the hours of….'

21:	Here we have a potential claimant who executed personal service of a notice of an intention to claim against the State and its works implementation Agency, the National Department of Works, Mendi on the Mt Hagen regional Office of the Solicitor General's for an alleged damage to vehicle within the required notice period. Respondent/Complainant in his argument in submission maintained that he had served his s 5 notice personally on the Office of the Solicitor General within the six months notice period and that he had met the basic requirements. He quipped; if it was otherwise, why would the Solicitor General have at all opened up a regional Office in Mt Hagen if it was not for that purpose; the purpose being to cater for poor illiterate villagers like him who could ill afford to make it to Port Moresby for that service when an Office of the Officer intended to be served personally has been established and existing close by within easy reach of lay villagers like him. He therefore said he had fully met the requirements under the Act so the Defendants should file their defence and allow this case to proceed. 

22:	Whilst I do appreciate Respondent/Complainant's argument and the points he raised to be logical under the circumstance, the bottom line here is that we are dealing with a legislation that sets out the specific steps and procedures to be followed in serving s 5 notices. When the Act provides that the s 5 notice shall be by 'personal service' on the Officers specified in s 5(1) of the Claims Act, it means that particular Officer or his/her personal secretary or officer apparently occupying the position of Personal Secretary to the s 5(1) officer under the Claims Act. The Act does not say service may be made at any Offices of the Officers referred to under s 5(1) of the Claims Act but shall be by "personal service" on the Officer referred in s 5(1) of the Claims Act or alternatively "by leaving the document at the Office of the Officer with a person apparently occupying the position of Personal Secretary to the Officer between the hours of…" When the Claims Act is being specific with its specific dictates, I believe there to be no room for judicial acts to extend the service of s 5 notices under the Claims Act to include personal deliveries of the notices of claim on the regional Office of the Solicitor General's. This is not what the law says.
23:	Similarly in my view, the fact that the Office Assistant in our instant case (or any other officer of that Office including lawyers etc. for that matter) accepting service of the Respondent/Complainant's purported personal service of his s 5 notice equally does not by that fact render valid what is otherwise an invalid service in the first place under the Claims Act.
 
24:	There is no dispute that the Respondent/Complainant personally hand-served his purported s 5 notice dated 27th May, 2009 on the Mt Hagen regional Office of the Solicitor General's on the 2nd of June, 2009 but the problem is; that the particular Officer referred in Section 5(1) of the Claims Act who must be personally served is in his Office in Port Moresby as well as his Personal Secretary who by necessity has to be located at the Office where the Section 5(1) Officer is based and that is where by law, the s 5 notice must be served – by 'personal service' of course and any purported service other than that is but invalid; for it obviously can not be served personally on the Officer referred to in Section 5(1) at his regional Offices as he only has legal and ancillary staff working there. In the same breath and by way of an analogy, I would add a hypothetical scenario; if the Solicitor General himself happens to be visiting one of his regional Offices and some potential claimant by pure co-incidence or by design chances upon the Solicitor General himself at his regional Office and personally serves his s 5 notice of an intention to claim on the Solicitor General himself in person whilst visiting his regional Office, then I suppose this to be a complete and valid "personal service" for all intents and purposes of the Claims Act.

25:	But the facts of our instant case is that the Respondent/Complainant personally executed the service of his purported s 5 notice on the regional Office of the Solicitor General's at Mt Hagen and the question arises as to whether that purported 'service' is valid under the Claims Act.

26:	In the final analysis and in my humble view the answer must necessarily come down on what the Claims Act says about the requirements for service of s 5 notices by potential claimants that have been deliberated on and pronouncements made by the superior Courts in our jurisdiction on the various aspects of the service of notice of claim on the State. On the basis of the above discussions, it is my humble view that the Respondent/Complainant's personal service of his purported s 5 notice of his intention to make a claim against the State on the Solicitor General's regional Office at Mt Hagen is invalid as it was not done in accordance with the Claims Act. These proceedings must therefore fail. 

27:	[But before pronouncing my formal orders in this case, I'd like to make a comment here for the Solicitor General's consideration. It would be of a lot more benefit in the administration of the Claims Act if the Solicitor General could consider setting in motion a process permissible at law or under the Rules of Court in referring this decision to the National Court for that superior Court to deliberate on and make a determination on this particular issue for precedent purposes to help deal with later similar issues that are bound to arise in view of the fact that regional Offices of the Solicitor General's have been established around the four (4) regions of the Country that are being manned full time by both legal and ancillary (secretarial, clerical and other) staff serving those regional Offices. 

28:	Equally competent in my humble view is, as this area of the law so far under the Claims Act seems to be rather gray and a superior Court decision could go either ways, the Respondent/Complainant, Mr William Boli, might even consider challenging this decision by way of an appeal to the National Court and allow that Court to review this case and make a determination on the question of the validity of service of s 5 notices on the Solicitor General's regional Offices.]
 
28:	The Court's formal orders are;-

1:	There is no valid service of s 5 notice on the State as required under the Claims by and Against the State Act, 1996

2:	The Complaint and Summons in this case are dismissed as having been commenced in violation of the Claims By and Against the State Act, 1996.

3:	Each party shall bear own costs of this Application.
 
4:	The Applicants/Defendants shall pay the Respondent/Complainant's costs of his past six (6) Court appearances; which are to be taxed if not agreed.

29:	Orders accordingly.

Lawyers:

1:	NIL - Complainant Self in Person

2:	Mr Neville Devete - Solicitor General & Lawyer for the Applicants/Defendants