N2926

PAPUA NEW GUINEA

[National Court of Justice]

OS 768 OF 2005

BETWEEN

TIMOTHY BEN
Plaintiff

AND

SAM INGUBA
COMMISSIONER FOR POLICE
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani	:	Los, J
2005	:	6th September
:	10th October

Cases cited:
Paul Tohian, Minister for Police SCA No. 67 of 1997.
State v. Tou Liu, SC566.
Garamut Enterprises Limited v. Steamships Trading Company Ltd, SC625.
Kamapu Minato v. Philip Kumo & the State, N1768 and WS No. 727 of 1999
Paul & Mary Bal v. Kenny Taiya; Francis Rumba Philip Dedge & the State of PNG N2481.
State v. Philip Kapal (1987) PNGLR 417.
Kekedo v. Burns Philip (PNG) Ltd (1988-89) PNGLR 122.

Counsel:
L Yandepe, for Applicant
K Isare, for First Defendant
J Tindiwi, for State

The applicant was a police constable based at Wau/Bulolo. He was dismissed from the force on the grounds that he on 2nd November 2002 whilst in police uniform armed with firearm and under the influence of intoxicating liquor attacked Mr. Bruno Pambel and his wife at Wau without good reasons thereby causing serious bodily injuries

Secondly that on the 7th October 2002, the plaintiff entered the residence of Pastor Nicky Tera at 7th Block Wau and unlawfully wounded Bore Tera and James Sane with a bush knife causing serious knife wounds.

In the grounds of application, paragraphs 1 and 2 the challenge is on evidence and facts.

In order to have leave, the applicant must show that firstly he has locus standi. That is whether he has a cause to complain and pursue it to have a remedy. It is clear the applicant is the affected person that he has been found guilty and dismissed from the police force.

Secondly whether the applicant has brought this complaint of action without any delay. It is conceded there was no undue delay. There is therefore no need to address any further on this part.

Thirdly whether the applicant has exhausted all avenues before coming to Court. On this it was claimed that there had been no evidence that he had put his case to the Commissioner of Police. An authority on this is State v. Philip Kapal [1987] PNGLR 417. Also the case of Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

The last issue is whether there was an arguable case. The applicant was said to have used a knife. He denied having in possession of a knife. He had police pump gun. How suddenly a knife was near to be in his hand and he used it to cause injuries. So is he coming up with a trivial, vexatious or hopeless complaints or case? In at this the case in point is Diro v. Ombudsman Commission [1991] PNGLR 153. I do not consider the issue as trivial against both parties, himself and the State. There is therefore an arguable case.

The only impediment that appears clearly is that no notice had been given to the State. This is an impediment to many simple persons even the policemen and women who may be in remote areas unless necessary equipments like typewriters or papers immediately available to them. However this legal need has been authoritatively decided in strings of cases both by the National and the Supreme Court. The cases immediately made available for my help are the Supreme Court cases, SCA No. 67 of 1997 between Paul Tohian, Minister for Police and State v. Tou Liu, SC566; Garamut Enterprises Limited v. Steamships Trading Company Lltd, SC625 and some National Court decisions like Kamapu Minato v. Philip Kumo and the State, N1768m and WS No. 727 of 1999, Paul & Mary Bal v. Kenny Taiya; Francis Rumba Philip Dedge and the State of PNG N2481. These authorities put together confirm overwhelmingly that a person wishing to make a claim against the State must give section 5 notices. Some day somebody may ask whether right to give notice to parties as a constitutional right for every human being or parties, why the State has seen convenient to add special right to give notice. For the time being it does not appear and there is no evidence that Timothy Ben had given notice to the State. That being the case, he is barred from proceeding any further.

It might be a time to challenge the validity of section 5 of the claims by and against the State for fencing itself in by those provisions against individuals who may not have resources and ability to give simple things like giving notice to the State.
____________________________________________________________
Lawyers for the Applicant	:	Ketan Lawyers
Lawyers for 1st Respondent	:	Lawyer from Dept. of Police
Lawyers for 2nd Respondent	:	Solicitor General