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Solomon v Pebo [2009] PGNC 312; N3698 (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 appointed as the Administrator of the Southern Highlands Province just prior to the 2007 National Elections and therefore he was not in a position to state what actually transpired in 2004. That being the case, he urged the Court not to rely on Mr. Powi's Affidavit.


18. To remedy that scenario and as a matter of prudence, evidence of a search conducted at the office of Mr. Powi to locate the notice of claim and its outcome should have been brought before the Court counsel said. Counsel went on to say that there was no evidence from Mr. Powi of a search having taken place in his office or from anyone else nor was there any evidence from Mr. Powi's predecessor or his personal secretary in respect of service of the notice of claim.


19. Counsel therefore submitted that in the circumstances; it was unsafe for the Court to dismiss the proceedings based on the kind of evidence before the Court, but suggested that the case be listed for trial after the disposition of some other motions that were still on foot.


THE LAW


20. I concur with the proposition advanced in Wellcos Engineering Limited and John Wasis 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 under s.4 of the Provincial Claims Act are in addition to those stipulated under s.5 of the National Claims Act: see also Emmanuel Mai trading as Mai Lawyers v. Southern Highlands Provincial Government (2004) N2558 and Caspar Kondi v. Provincial Administrator, Department of Western Highlands Province & Ors (2004) N2755.


21. Two (2) notices of claim were therefore required to be given in the present case as conditions precedent prior to commencing these proceedings; one under s.4 of the Provincial Claims Act and the other under s.5 of the National Claims Act.


22. I also concur with counsel for the Defendants that s.4 of the Provincial Claims Act which gives effect to s.7 of 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 as had been applied in Wellcos Engineering Limited and John Wasis should also apply in respect of non-compliance with s.4 of the Provincial Claims Act. In Wellcos Engineering Limited, His Honour, Justice Hartshorn stated:-


"24. In respect of no notice of an intention to make a claim being given, to my mind, guidance in this regard can be obtained from considering the approach of the courts to non-compliance with s.5 Claims By and Against the State Act (Claims Act).


25. In the Supreme Court case of Tohian and the State v. Tau Liu (1998) SC566, it was held that notice of an intention to make a claim against the State is a condition precedent to the issuing of a writ of summons. Notice under s.5 must be given first before the writ is issued. The requirement to give notice to the appropriate person and the method of serving the notice are mandatory; Bokin v. Independent State of Papua New Guinea (2001) N2111. The notice must be given "within a period of six months after the occurrence out of which the claim arose", or if the claim is for a breach of contract, "within a period of six months after the claimant became aware of the alleged breach.


26. The reasoning in these cases applies equally to Provincial Legislation. Consequently, notice of intention to make a claim against the SHPG is a condition precedent to the issuing of a writ of summons."


23. I set out below for convenience the relevant provisions under consideration namely, s.7 of the Organic Law; s.4 of the Provincial Claims Act; s.5 of the National Claims Act; and O.8 r.12 of the National Court Rules.


24. Section 7 of the Organic Law reads:-


"7. Service of process.


Any notice, summons, writ or other process required to be served on a Provincial Government or a Local-level Government may be served on an officer designated by the Provincial Government or the Local-level Government for that purpose."


25. Section 4 of the Provincial Claims Act reads:-


"4. NOTICE OF CLAIM AGAINST THE SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT


(1) No action to enforce any claim against the Southern Highlands Provincial Government lies against the Southern Highlands Provincial Government unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to the Administrator of Southern Highlands Province.


(2) A notice under this section shall be given:-


(a) within a period of six (6) months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six (6) months after the claimant became aware of the alleged breach; or

(c) within such further period as –

(2) A notice under Subsection (1) shall be given by:-

26. Section 5 of the National Claims Act reads:-


"5. Notice of claims against the State.


(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—


(a) the Departmental Head of the Department responsible for justice matters; or


(b) the Solicitor-General.


(2) A notice under this Section shall be given—


(a) within a period of six months after the occurrence out of which the claim arose; or


(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or


(c) within such further period as—


(i) the Principal Legal Adviser; or


(ii) the court before which the action is instituted,


on sufficient cause being shown, allows.


(3) A notice under Subsection (1) shall be given by—


(a) personal service on an officer referred to in Subsection (1); or


(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321)."


27. Order 8 rule 12 of the National Court Rules reads:-


"12. Condition precedent (15/11)


Where it is a condition precedent necessary for the case of a party in any pleading that a thing has been done or an event has happened, a statement that the thing has been done or that the event has happened shall be implied in the pleading."


28. Section 5 of the Provincial Claims Act also gives effect to s.7 of the Organic Law by detailing the mode of service of the originating process issued against the Second Defendant, Southern Highlands Provincial Government post-service of a notice of claim. It is also convenient to set out the provision below. It reads:-


"5. SERVICE OF PROCESS WHERE SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT IS A PARTY


(1) Where the Southern Highlands Provincial Government is a party to a suit, all process in the suit required to be served on it shall be served on the Administrator of the Southern Highlands Province.

(2) Service under this section shall be effected by:-

Onus of Proof


29. A person seeking to dismiss proceedings for non-compliance with any rule of practice or procedure bears the onus of proving the circumstance of non-compliance relied on: see Theresa's Pty Ltd and PNGBC v. Rio Vista Pty Ltd [1998] PNGLR 283 and Grace Lome v Allan Kundi (2004) N2776. In Theresa's Pty Ltd, His Honour, Justice Sevua dealt with an application filed by the defendant pursuant to O.12 r.40 (1) seeking to dismiss the plaintiffs' action. His Honour dismissed the application because the defendant did not establish any of the grounds under the rule invoked. His Honour, at page 287, said:-


"In my view, in order for the Court to exercise its discretionary power conferred by the rules, or its inherent powers under its inherent jurisdiction, the applicant must establish one of the grounds for stay or dismissal found in rule 40 (1) Order 12. In the present application, I find that the defendant has not established any of these grounds. I consider that, for an applicant to succeed in an application for stay or dismissal under Order 12 Rule 40(1), he has the onus of proof, and he must establish any of the grounds in rule 40(1)(a) to (c) before the Court exercises its discretion in his favour."


30. The above legal proposition accords with the overriding principle that the onus is on the plaintiffs to prove their case: see Sidi Adevu v. Motor Vehicles Insurance (PNG) Trust [1994] PNGLR 57 and Motor Vehicles Insurance (PNG) Trust v. Nand Waige & Ors [1995] PNGLR 202. In Nand Waige & Ors, the Supreme Court at p.207 said:-


"There is always the overriding principle that the onus is on the Plaintiffs to prove their case. This principle has been reiterated by the Supreme Court in Adevu v M.V.I.T. [1994] PNGLR 57...."


31. Therefore in the present case it is the Defendants, as the applicants, who bear the onus of proving on the balance of probabilities that the notices of claim were not served in accordance with s.4 of the Provincial Claims Act and s.5 of the National Claims Act. They must prove that the notices of claim which must be in writing and containing sufficient details of the claim were:-


ANALYSIS OF THE ISSUES, EVIDENCE AND LAW


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


32. Apart from pleading in their Statement of Claim that they have met the requirements of s.4 of the Provincial Claims Act, the Plaintiffs on the other hand do not plead that they have also met the requirements of s.5 of the National Claims Act. There is therefore a breach of O.8 r.12. Does the breach necessarily render the proceedings void? I do not think so. That is because according to O.1 r.8 of the National Court Rules, non-compliance with any of the rules will not render the proceedings void, unless the Court so directs. That rule reads:-


"8. Non-compliance with Rules not to render proceedings void.


Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit."


33. I will not dismiss the proceedings for non-compliance with O. 8 r.12.


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


34. Mr. Japson contends that the Plaintiffs did not give any notice of claim under s.4 of the Provincial Claims Act. This argument he says was given impetus by the fact that the copy of the purported notice of claim which is in evidence is not signed by a lawyer raising questions as to its authenticity.


35. The evidence given by Mr Otto is that; a notice of claim was actually served upon the then Provincial Administrator, Mr. Brian Pebo in accordance with s.4 of the Provincial Claims Act by way of his firm's letter addressed to the Provincial Administrator of the Southern Highlands Provincial Government dated 28th September 2004 (Annexure "A" of Mr. Otto's Affidavit); and it was done within six (6) months after the occurrence out of which the claim arose given the last payment in respect of Plaintiffs' outstanding claim was made on 6th June 2004. Mr. Otto also deposes in his Affidavit that notice was given following advise from Tamutai Lawyers by their letter to his firm dated 8th September 2004 (Annexure "B") to comply with s.4 of the Provincial Claims Act.


36. I have perused the copy of the purported notice of claim and find that it contains sufficient details of the claim the Plaintiffs are pursuing in the present case.


37. As to the submission by Mr. Japson questioning the authenticity of the purported notice of claim because it was not signed by a lawyer, I would rather accept the evidence proffered by Mr. Otto that the notice of claim was given on 28th September 2004 and the letter annexed to his Affidavit as annexure "A" was a copy of that. This is simply because, more often than not, copies of correspondence retained and filed way usually are not signed. However, it is advisable that a signed copy of a document of this significance should always be kept to avoid suspicions being raised as to its authenticity. Additionally, there is a strong presumption in favour of the Plaintiffs' issuing their notice of claim by looking at the chronology of events from the receipt by Mawa Lawyers of the letter dated 8 September 2004 from Tamutai Lawyers which I find prompted the issue of the letter from Mawa Lawyers addressed to the Provincial Administrator dated 28 September 2004.


38. Mr. Otto also deposes in his Affidavit that William Powi was appointed as the Administrator of the Southern Highlands Province in 2007 or thereabouts, but prior to the 2007 National Elections so he would not have been around in 2004 to receive the Plaintiffs' notice of claim. Mr. Japson concedes that; Mr. Powi was not the Administrator at the material time; and there was no evidence from Mr. Powi that he conducted a search of the relevant file in his office to ascertain whether or not a notice of claim had been served.


39. I find that Mr. Powi's evidence is unreliable so far as the question of service of the Plaintiffs' notice of claim in 2004 is concerned. This is because:-


40. The evidence of another person including Mr. Powi's personal secretary about conducting such a search in the Office of the Provincial Administrator and from the then Provincial Administrator or his personal secretary as to whether or not they were actually served with the Plaintiffs' notice of claim could have been useful.


41. As to compliance with other requirements for service which Mr. Japson submitted that the Plaintiffs have provided no evidence of, I reiterate that it is the Defendants, as the applicants, who bear the onus of proving on the balance of probabilities that the notice of claim was not served in accordance with s.4 of the Provincial Claims Act. The Defendants have not done so. I think the benefit of any reasonable doubt as to compliance with s.4 due to the passage of a considerable length of time since commencing the proceedings should be given to the Plaintiffs: see Mickey Kaip Wassey v Felix Rangit Aigilo (2005) N2876.


42. I am not convinced by the Defendants that the Plaintiffs have breached s.4 of the Provincial Claims Act. I find that the Plaintiffs have complied with that provision instead.


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


43. The Defendants do not rely on the purported breach of s.5 of the National Claims Act as a basis for seeking the dismissal of the proceedings in this application although from perusal of the Court's record, it was pleaded at paragraph 1 of their defence filed on 12th September 2005 as a basis for averring that the proceedings were a nullity. It is not clear why the Defendants have not done so. Paragraph 1 of the defence reads:-


"The proceedings is a nullity because the Plaintiffs have not complied with s.5 of the Claims By And Against The State Act, 1996 and the s.4 of the Claims By And Against The Southern Highlands Provincial Government Act, 2000." (sic)


44. Should the Court entertain discussions on the issue then? As the Defendants have not specifically pleaded the purported breach in their notice of motion as is required under O.4 rr. 40 (1) and 49 (8) of the National Court Rules, the Court would not normally entertain the matter. The rules clearly require that an applicant must state concisely in its notice of motion the nature of the order which is sought and a reference to the Court's jurisdiction otherwise it may be struck out for being incompetent and for lack of form. I think those rules accord with the general principle that a party to civil proceedings cannot obtain relief which it has not sought in its pleadings either originally or by way of proper amendment: see Ume More v. University of PNG [1985] PNGLR 401.


43. This case is slightly different. This is basically because the giving notices of claim under s.5 of the National Claims Act and s.4 of the Provincial Claims Act are conditions precedent to the issuing of a writ of summons against the Second Defendant. They are interrelated and must be dealt with together when issues of competency are raised either by the parties in the proceedings or by the Court of its own volition. The Court has its inherent powers under its inherent jurisdiction to deal with the matter. The Supreme Court in The State v. John Talu Tekwie (2006) SC843 also makes it clear that pleading is not the only way of bringing to the Court's attention lack of compliance with a condition precedent.


44. As I have adverted to earlier; the Plaintiffs do not plead in their Statement of Claim that they have met the requirements of s.5 of the National Claims Act; and the Defendants state in their defence that the proceedings were a nullity because the Plaintiffs were in breach of s. 5 of the National Claims Act and s.4 of the Provincial Claims Act. I also reiterate here that the onus was on the Defendants to produce evidence of non-compliance. There is no evidence before the Court that the Plaintiffs did not serve a notice of claim under s.5 of the National Claims Act. Adopting what I have said earlier, I think the benefit of any reasonable doubt as to compliance with s.5 due to the passage of a considerable length of time since commencing the proceedings should be given to the Plaintiffs.


44. I therefore find that the Plaintiffs are not guilty of breaching s.5 of the National Claims Act.


ORDER
46. These are the formal orders of the Court:-


1. The motion by the Defendants to dismiss the entire proceedings is refused.


2. The Defendants shall meet the costs of this application.


___________________________________________________________________
Lawyers for the Plaintiff : Mawa Lawyers
Lawyers for the Defendants : Jerry Kiwai Lawyers

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