N2842

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1184 OF 2004

Between:

IBF INVESTMENT LIMITED
-Plaintiff/Judgment Creditor-

And:

NATIONAL CAPITAL DISTRICT COMMISSION
- Defendant/Judgment Debtor-

And:

BANK OF SOUTH PACIFIC
-Garnishee-

Waigani: Injia, DCJ
2005: February 8th, 9th

Statute – Statutory interpretation – The term "the State" in s.13(1) of the Claims By and Against the State Act 1996 includes the National Capital District Commission.

Cases cited in the judgment:
Bill Skate v Ruma Tau
Okam Sakarius v Chris Tep (2003) N2366
Re Validity of National Capital District Commission Act 2001 (2001) SC680
SCR No. 1 of 1998 Re Reservation Pursuant to S.15 of the Supreme Court Act (2001) SC672

Counsel:
T. Kirio for the Plaintiff
No appearance for the Defendant
No appearance for Garnishee

9th February 2005

Injia, DCJ: The Plaintiff applies for garnishee order absolute of garnishee order nisi issued on 21 January 2005. The Plaintiff has a Default judgment against the Defendant for K71,356.81 which was entered by the National Court on 8 December 2004, which remains unsatisfied. The Defendant has an account with the garnishee out of which the Plaintiff says the judgment can be satisfied. Both the Defendant and the garnishee were served with the garnishee notice but they failed to appear on the return date which was 28 January 2001.

The only issue before me is, in the light of the decision of the Supreme Court in SCR NO.1 of 1998 Re Reservation Pursuant to s.15 of the Supreme Court Act, (1), whether the term "the State" in s.13(1) of the Claims By and Against the State Act 1996 (the Act) includes The National Capital District Commission (NCDC). The Plaintiff’s counsel sought to raise other issues such as enforcement of the Certificate of Judgment issued by the Registrar on 8th December 2004, under s.13(2) and which is enforceable under s.14 of the Act by way of mandamus or contempt. However, this issue is not properly before me and as I indicated to counsel during submissions, I decline to deal with the issue.

On the issue before me, Mr Kirio submits that the decision of the Supreme Court is confined to the issue of whether the term "the State" in s.13 of the Act includes a Provincial Government. The Court did not determine the issue now before this Court. He submits the NCDC and Provincial governments are two separate entities established under separate legislation. The NCDC is established under the National Capital District Commission Act 2001 and Provincial Governments are established under the Organic Law on Provincial & Local – Level Governments (Organic Law). Therefore the Supreme Court’s decision that the term "the State" includes a Provincial Government cannot be extended to cover the NCDC. Mr Kirio submits there is also a policy reason why the NCDC must be compelled to pay up the outstanding judgment, and that is, in the interest of justice and transparency and good governance, the NCD must discharge its liabilities.

I accept Mr Kirio’s submission that the NCDC and Provincial Governments are two separate entities. The NCDC is not a Provincial Government, until the notice provision in the Organic Law is implemented. To this day, no such notice has been issued. The Supreme Court settled that point in Re Validity of National Capital District Commission Act 2001 (2). Also see Bill Skate v Ruma Tau (3). Notwithstanding their separate statutory basis of existence, it is my view that both are government bodies or institutions or government, established by Statutes enacted by the State, and funded by government or the State with public funds. Provincial Governments come within the meaning of a "government body" defined in the Constitution as decided in SCR No 1 of 1988. The NCDC also comes within the definition of a government body, as more particularly defined in clause "(d) a body set up by statute or administrative act" for government or official purposes". It is wholly funded by the National Government through the public purse. Therefore, the assets and finances of the NCDC must also be protected from execution as assets of the National Governments or Provincial governments. This is the general import of the decision in SCR No. 1 of 1988 and I see no reason why the principles enunciated in that case relating to the term "the State", Government and institutions of government, be it Provincial, Local – Level Governments or governments such as the NCDC established under Stature for governing the affairs of the National Capital District, should equally apply to The National Capital District Commission (NCDC). Since the decision in SCR No. 1 of 1988, the National Court has given broad meaning to the term "The State" to even include government bodies set up by government administrative acts, such as the Cocoa & Coconut Extension Agency (4). I adopt the same approach by holding that the term "the State" in s.13(1) of the Act includes the NCDC. Therefore, its bank account with the garnishee cannot be attached as it is the property or revenue of the State, as a matter of law or even as a matter of public policy.

For these reasons, I refuse the application. I make no order as to costs.

Lawyer for the Plaintiff		:	Gubon Lawyers

ENDNOTES:

1	Unreported Supreme Court Judgment No. SC672 (2001)
2	Unreported Supreme Court Judgment No. SC680 (2001)
3	Unreported National Court Judgment No. N2126 ( )
4	see Okam Sakarius v Chris Tep, Unreported National Court Judgment No. N2366 (2003)