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Paga Hill Development Co (PNG) Ltd v Parkop [2019] PGNC 367; N8105 (30 January 2019)

N8105

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 153 of 2013

BETWEEN:
PAGA HILL DEVELOPMENT
COMPANY (PNG) LIMITED
Plaintiff

AND:
POWES PARKOP,
NCD Governor and Chairman of the National
Capital District Commission Board
First Respondent

AND:
LESLIE ALU
as the City Manager for National
Capital District Commission
Second Respondent

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Third Respondent

AND:
HON. PETER O’NEILL,
Prime Minister and Chairman
of National Executive Council
Fifth Respondent

AND:
THE NATIONAL EXECUTIVE COUNCIL
Fifth Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Sixth Respondent

Waigani: Hartshorn J.
2019: 30^th January

Trial

Cases Cited:

Mark Ankama v. Papua New Guinea Electricity Commission (2002) N2303
National Capital District Commission v. Jim Reima (2009) SC993
Paul Tohian v. Tau Liu (1998) SC566
Yamanka Multi Services Ltd v. National Capital District Commission (2016) N6556

Counsel:

Mr. N. Gimaia, for the Plaintiff
Mr. M. Mukwesipu, for the First, Second and Third Respondents

30^th January, 2019

1. HARTSHORN J. The plaintiff, Paga Hill Development Company (PNG) Ltd (PHDC), sues the National Capital District Commission, its Governor and Acting City Manager (collectively referred to as NCDC) and the State, amongst others, for breach of contract.

Background

2. PHDC owns land at Paga Hill, Port Moresby, National Capital District. It pleads that it entered into an agreement pursuant to which PHDC would provide its land for a road development. The State through NCDC, would provide funding to PHDC for the construction and development for the road, that NCDC would provide 75% of the funding and PHDC would provide 25% of the total cost of the road development through materials and land.

3. PHDC further pleads that the agreement was breached by amongst others, NCDC publicly tendering the proposed road construction, awarding the tender to Curtain Brothers Ltd and failing to award the work to PHDC.

Preliminary

4. NCDC claims that PHDC has failed to prove that PHDC gave the requisite notice of intention to make a claim pursuant to s. 5 Claims By and Against the State Act (Claims Act) and therefore this proceeding should be dismissed for lack of compliance with the mandatory requirements of the Claims Act.

5. I will consider this issue first as a successful finding in favour of NCDC will be determinative.

6. PHDC submits that, “the mandatory Section 5 notice was served on the State on 22^nd March 2013 and thus the Sixth Respondent has been put on sufficient notice of this claim.” It is also pleaded in its statement of claim that, “..... appropriate notice of intention to claim as required under Section 5 (Claims Act) has been given and the claim is property (sic) made against the Sixth Respondent.”

7. NCDC submits amongst others, that:

1. as. 5 notice under the Claims Act is required to be given in respect of a claim against NCDC;
   
2. the only evidence of a s. 5 notice being given is a copy of a letter dated 22^ndMarch 2013 from PHDC’s lawyers addressed to the Acting Solicitor General;
   

100. there is no evidence of the personal service of this letter and no evidence of an acknowledgement of personal service of the letter from the office of the Acting Solicitor General;
     

4. the onus is upon PHDC to establish proof of personal service as required by s. 5 Claims Act.
   

Consideration

8. The Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566 held that compliance with s. 5 Claims Act is a condition precedent to the commencement of a proceeding which relates to a claim against the State where a s. 5 notice is required to be given, and the Supreme Court case of National Capital District Commission v. Jim Reima (2009) SC993 held that NCDC is an entity of the State and that notice pursuant to s. 5 Claims Act must be given before proceedings are commenced. (see also Yamanka Multi Services Ltd v. National Capital District Commission (2016) N6556)

9. In this instance, I am satisfied that a s. 5 notice should have been given as PHDC’s claim against NCDC is for a breach of contract. Section 5(3) Claims Act is:

“(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).”

10. The onus is upon PHDC to prove its case on the balance of probabilities. In the defence of NCDC it is pleaded amongst others, that PHDC failed to issue a s. 5 notice. PHDC was therefore on notice concerning this issue.

11. The only evidence concerning whether a s. 5 notice was given and in accordance with s. 5(3) Claims Act is by Stanley Liria, the lawyer for PHDC in this proceeding. He does not depose that he personally served the subject letter and there is no evidence that the subject letter was served personally or served at all, or that any service was acknowledged.

12. The evidence concerning the s. 5 notice does not prove that it was served and that the service was personal service. It has not been proved that the mandatory requirements of s. 5(3) Claims Act have been complied with.

13. I am satisfied that PHDC has failed to discharge its burden to prove its case on this issue on the balance of probabilities. As was stated by Kandakasi J. (as he then was) in Mark Ankama v. Papua New Guinea Electricity Commission (2002) N2303:

“It is settled law that he who alleges must prove it. See Yooken Pakilin and Alvis Kandai v. The Independent State of Papua New Guinea (2001) N2212 and Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095 for examples of authorities on point.”

14. Consequently, as a condition precedent and mandatory requirement has not been properly and sufficiently proved to the requisite standard, this proceeding should be dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

15. The Court orders that:

1. This proceeding is dismissed;
   
2. The plaintiff shall pay the costs of the first, second and third respondents of and incidental to this proceeding to be taxed if not otherwise agreed;
   

100. Time is abridged.

__________________________________________________________________
Liria Lawyers: Lawyers for the Plaintiff
Mukwesipu Lawyers: Lawyers for the First, Second and Third Respondents