N1340

PAPUA NEW GUINEA
[IN THE NATIONAL COURT JUSTICE AT WAIGANI]

WS N0. 350 OF 1995

BETWEEN:

RIMBINK PATO trading as PATO LAWYERS
Plaintiff

AND:

ENGA PROVINCIAL GOVERNMENT
Defendant

Waigani: KAPI DCJ
5 & 7 July 1995

Application for Garnishee notice - National Court Rules, O 13 r 56.

Judgment and Orders - Enforcement - Claims By and Against the State Act (ch 30), s 6 - meaning of State discussed.

Execution and Attachment - Enforcement - Legal Proceedings By and Against the Provincial Government Act 1978 (Enga) - no prohibition of execution or attachment against the provincial government.

Mr J. Bray for the Plaintiff.

7 July 1995

Kapi DCJ. This is an application by the plaintiff by way of notice of motion for leave to issue a garnishee notice pursuant to O 13 r 56 of the National Court Rules. Under this rule, leave shall not be given unless the Court is satisfied that (a) a judgment order is not satisfied and (b) there is a debt due on the judgment debtor. The application is supported by an affidavit of Rimbink Pato sworn 19 June 1995 and satisfies these requirements.

During argument the question of the applicability of the provisions of Claims By and Against the State Act (ch 30) arose. The relevant provision is s6 which is in the following terms:

"6. No execution against 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 Sate."

The question is whether a Provincial Government comes within the meaning of the word "State". This word is not defined by the Act. Interpretation Act (ch 2) defines "the state" as the Independent State of Papua New Guinea. This is consistent with the definition given by Interpretation Act 1990 (Enga). 

The Constitution does not define the word "State" but it defines the name "Papua New Guinea" under Sch 1.2 to mean the Independent State of Papua New Guinea. The Independent State of Papua New Guinea derives its legal existence or capacity from the Constitution of Papua New Guinea (see Preamble to the Constitution). The power and the authority of the people are vested in the State of Papua New Guinea and this power is exercised by the National Government (see s 99 of the Constitution). Subject to any other provision of the law the term "the State" for purposes of Claims By and Against the State Act (ch 30) means the National Government, an arm, department, agency or instrumentality of the National Government. This does not include a provincial government.

The provincial government system is separately established by the Constitution (see s 187A). Establishment of a particular Provincial Government is a matter left to an Organic Law to provide for (see s 187B of the Constitution). Part II of the Organic Law on Provincial Government sets out the manner in which a Provincial Government may be granted. The Enga Provincial Government would have been granted under these provisions.

Section 12 of the Organic Law provides:

"12. Legal capacity of provincial governments.
A provincial government-
(a) may acquire, hold and dispose of property of any kind; and
(b) may sue and be sued,
and a provincial law may make provision for and in respect of the manner and form in which it may do so."

The Enga Provincial Assembly passed the Legal Proceedings By and Against the Provincial Government Act 1978 and made provision for matters allowed to be made by the Organic Law. Sections 2 and 3 provide for the manner in which the Enga Provincial Government may be sued or may sue. There is no provision which prohibits any execution or attachment or a process in the nature of execution or attachment against the Provincial Government.

It is therefore clear that any suit, execution or attachment, or process in the nature of execution or attachment may be issued against the Provincial Government.

I grant leave for garnishee notice.

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Lawyers for the Plaintiff: Pato Lawyers