N7223

PAPUA NEW GUINEA 
   [IN THE NATIONAL COURT OF JUSTICE] 

WS 1281 of 2005 

BETWEEN: 
SAKAREA AKOM TAKOLE, JOEL PUPU 
and 82 others whose names are listed 
at the back of the Statement of Claim
    Plaintiffs 

AND:
 VINCENT TAULI
First Defendant

      AND:
JOHN HANAWE
           Second Defendant

AND:
 SAM INGUBA, 
Commissioner of Police
Third Defendant

AND:
THE INDEPENDENT STATE 
OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Hartshorn J 
        2018: 1 March  

Application for order that Solicitor General endorse proposed Consent Order 

Cases cited: 

Polem Enterprises Ltd v. Attorney General (2008) SC911
Simon Mali v. The State (2002) SC690
State v. Zachary Gelu and Manorburn Earthmoving Ltd (2003) SC716
Yer, Secretary, Department of Finance v. Yama (2009) SC996

Counsel:

Mr. S. Japson, for the Plaintiffs
Mr. T. Mileng, for the Third & Fourth Defendants

1st March, 2018

1.    HARTSHORN J: This is a decision on a contested application by the plaintiffs that seek an order to have the Solicitor General endorse certain proposed consent orders. The proposed consent orders, if ordered, will settle this proceeding in accordance with approval given by the Attorney General on or about 4th August 2015.

Background

2.   This case concerns a police raid conducted at Akom Village in Enga Province in February 2003. This proceeding was filed claiming amongst others, damages for property and livestock lost and breach of Constitutional rights. The State’s defence was struck out and judgment entered with damages to be assessed.

3.   The Solicitor General sought the approval of the Attorney General to settle this proceeding on 30th July 2015. The Attorney General signed his approval on the Solicitor General’s “Submission for Action” dated 4th August 2015.

4.   The Solicitor General then changed her position and decided that this court, “should properly assess the damages suffered and further revisit the issue of liability through trial proper.”

This application

5.  The plaintiffs rely on Order 12 Rule 1 National Court Rules and the Supreme Court decisions in State v. Zachary Gelu and Manorburn Earthmoving Ltd (2003) SC716 and Polem Enterprises Ltd v. Attorney General (2008) SC911 in support of their application to have the Solicitor General endorse the proposed consent orders, as those decisions are to the effect that the Solicitor General cannot act without the instructions of the Attorney General and the Attorney General has approved that this proceeding be settled.

6.  The third and fourth defendants, the Commissioner of Police and the State (State defendants) submit that the circumstances of this case can be distinguished from those in Manorburn (supra) and Polem (supra) and that this court should follow the approach of the Supreme Court in Simon Mali v. The State (2002) SC690 which supports the Solicitor General being able to act without the instructions of the Attorney General.

7.  Further, the State defendants submit that only the Attorney General may approach the court to seek enforcement of his direction or order and not the plaintiffs.

Consideration

8.   In Manorburn (supra) which was followed in Polem (supra), the Supreme Court said as to Mali’s case (supra) that:

“… the Supreme Court in this case did not consider all the relevant provisions of AG Act and CBAS Act. We would not follow this decision for this reason.”

9.   This court is bound by the decisions in Manorburn (supra) and Polem (supra). In Manorburn (supra) the Court said:

“Not only is the SG appointed by AG but,…… its functions are made subject to instructions by the AG.”

“In practice, where the State is a party in any litigation before the courts, the SG may act as an advocate if instructed to do so by the AG in accordance with s. 13(2) of AG Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter.”

10.  I note also in Yer, Secretary, Department of Finance v. Yama (2009) SC996, the Supreme Court said at [69]:

“If the Solicitor General wishes to enter into a deed of settlement, this can only be done on the instructions, i.e. approval, of the Attorney General. The Solicitor General cannot act independently. In Manorburn the Supreme Court overturned its previous decision in Simon Mali v. The State (2002) SC690.”

11.  In this instance the then Attorney General gave his approval to settle on the basis detailed in the, “Submission for Action” prepared and submitted to him by the existing Solicitor General. The submission was made to the then Attorney General for his approval most likely because of the decisions in Manorburn (supra) and Polem (supra). There is no evidence that the Attorney General instructed, as distinct from giving his approval to, the Solicitor General to settle.

12.  Whilst it may be argued that the Solicitor General does not require the approval of the Attorney General for each procedural step to be taken in acting for the State before the courts, and that Manorburn (supra) and Polem (supra) are not strictly on point as to whether the Solicitor General of her own volition is able to decide not to settle after the Attorney General has given his approval to settle; in circumstances where the approval of the Attorney General has been specifically obtained to settle a proceeding, logic, best practice and indeed prudence, dictates that if the Solicitor General then decides not to settle, the Solicitor General should seek the permission of the Attorney General not to settle on the basis that had already been approved, and give reasons why there has been a change in position.

13.  There is no evidence to suggest, and no submissions were made to the effect that, the Solicitor General has sought the permission of the Attorney General not to settle as outlined.

14.  I am of the view that this step should be taken before a decision is made on the application before this court.

Orders

15. The Orders of the Court are:

a)	The notice of motion of the plaintiffs’ filed 7th February 2017 is adjourned part heard to 9:30 am 4th April 2018 for continuation of hearing;

b)	The Solicitor General shall apply for the approval of the Attorney General not to settle this proceeding contrary to the approval of the Attorney General given on or about 4th August 2015, within 14 days from today;

c)	The Attorney General shall reply in writing to any application made pursuant to Order (b) above by the Solicitor General, within 14 days of receiving any such application;

d)	Time is abridged.

___________________________________________________________
Japson & Associates: Lawyers for the Plaintiffs                           
Office of the Solicitor General: 	 Lawyers for the Third and Fourth Defendants