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Kots Investment Ltd (trading as Kots Catering) v Toa [2019] PGNC 248; N7972 (24 June 2019)

N7972

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1058 of 2016 (COMM)

BETWEEN:
KOTS INVESTMENT LIMITED
trading as Kots Catering
Plaintiff

AND:
PHILIP TOA,
Chairman of Simbu Teachers
College Governing Council
First Defendant

AND:
SIMBU TEACHERS COLLEGE
Second Defendant

AND:
Hon. NOAH KOOL, MP
Governor of Simbu Province
Third Defendant

AND:
SIMBU PROVINCIAL GOVERNMENT
Fourth Defendant

Waigani: Hartshorn J.
2018: 13^th December
2019: 24^th June

Application for lawyers to cease representing the defendants as the requisite authority of the Attorney General has not been obtained pursuant to s. 7(i) Attorney-General Act 1989

Cases Cited

Reservation pursuant to s. 15 Supreme Court Act (2001) SC672
Application by Steven Mark (2008) SC925
Larelake v. Kavo (2008) N3563
Marape v. O’Neill (2016) SC1487

Counsel:

Mr. R. Awalua, for the Plaintiff
Mr. C. Gagma, for the Defendants

24^th June, 2019

1. HARTSHORN J: This is a decision on an application for Gagma Lawyers to cease representing the defendants in this proceeding.

Background

2. The plaintiff filed this proceeding seeking damages for breach of an agreement which it entered into with the second defendant. Summary judgment was entered against the first, second and fourth defendants on 9^th March 2017 and an application to set aside the summary judgment was refused on 13^th November 2017.

This application

3. The plaintiff makes application pursuant to Order 4 Rule 37 and Order 12 Rule 1 National Court Rules. The defendants did not take issue with the jurisdictional bases relied upon by the plaintiff.

4. The plaintiff submits that Gagma Lawyers should cease acting for the defendants as:

a) the Simbu Provincial Government is part of the State;

b) the approval of the Attorney General is necessary pursuant to s. 7(i) Attorney-General Act 1989 for Gagma Lawyers to act for the defendants;

c) such approval has not been obtained.

5. The defendants and Gagma Lawyers submit that;

1. Gagma Lawyers have been instructed to act for the defendants in this proceeding by the Provincial Administrator of the Simbu Province;
   

b) it is not necessary to comply with the requirements of s.7(i) Attorney-General Act 1989 in respect of the representation of a Provincial Government as s. 6 Organic Law on Provincial Governments and Local-Level Governments (Organic Law) provides that a Provincial Government has the capacity to sue and be sued.

Consideration

6. The Supreme Court cases of Reservation pursuant to s. 15 Supreme Court Act (2001) SC672 and Application by Steven Mark (2008) SC925, recognised that the State includes a Provincial Government. Consequently, s.7(i) Attorney-General Act 1989 applies and the approval of the Attorney General is required for Gagma Lawyers to act on behalf of the Simbu Provincial Government in this proceeding and the other defendants who are being sued as officers, or a body of the State. I rely upon the decision of Davani J in Larelake v. Kavo (2008) N3563 and the Supreme Court decision of Marape v. O’Neill (2016) SC1487 in this regard.

7. As there is no evidence of Gagma Lawyers having the requisite approval from the Attorney General, the plaintiffs are entitled to the relief which they seek. Given this it is not necessary to consider the other submissions of counsel.

Orders

8. The relief sought in paragraphs 1, 2, 3 and 5 of the notice of motion of the plaintiff filed 15^th August 2018 is granted.
_____________________________________________________________
Ame Lawyers: Lawyers for the Plaintiff
Gagma Legal Services: Lawyers for the Defendants