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South Pacific PNG Seafoods Co Ltd v Tanuvasa [2020] PGNC 464; N8750 (4 November 2020)

N8750

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 627 OF 2019

BETWEEN:
SOUTH PACIFIC PNG SEAFOODS CO LIMITED
Plaintiff

AND:
TAUVASA TANUVASA SOLICITOR General
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2020: 19^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Application for Mandamus – Judgement & Orders – Enforcement of – Section 14 (2) Claims By & Against the State Act – Certificate of Judgment – Affidavit of compliance by Solicitor General – Whether sufficient compliance with Section 14 (2) CBASA – Subject to availability of funds Court Order Vote – sufficient Compliance – Adherence to administrative financial practises set by NEC proper – Mandamus not granted – cost in the cause.

Cases Cited:

Tiensten v Independent State of Papua New Guinea [2014] PGSC 74; SC1468
Atlas Corporation Ltd v Ngangan [2018] PGNC 544; N7674

Counsel:

C. Joesph, for all Plaintiffs in 3 proceedings
I. Mugugia, for all Defendants in all 3 proceedings

RULING

04^th November, 2020

1. MIVIRI, J: This is the Ruling on the Plaintiff’s substantive notice of motion filed on the 25^th November 2019 seeking mandamus pursuant to Order 16 Rule 1 (1) of the National Court Rules to compel the first defendant to endorse a certificate of Judgment, dated the 03^rd May 2018 issued in the National Court Proceeding WS No. 492 of 2013, and to deliver the certificate of Judgment to the Secretary for Finance within 14 days pursuant to section 14 (2) of the Claims by And Against the State Act. This is for the Judgment sum of K 1, 501,974.30 in damages awarded together with orders as to interest and costs.
   
2. The motion is supported by the affidavits of Elizah Tapie filed 13^th September 2019, affidavit of service by Rocky Madi filed of the 24^th September 2019.
   
3. The essential of this evidence is that the plaintiff commenced WS 492 of 2013 on the 23^rd May 2013. He named the National Executive Council as the First Defendant and the Independent State of Papua New Guinea the Second Defendant. He obtained Judgment on the 06^th April 2018 in the Judgment sum of K 1, 501, 974. 30 in damages coupled with interests and costs. On the 03^rd May 2018 the Registrar of the National Court issued a Certificate of Judgment which was served on the office of the Solicitor General and the First Defendant on the 06^th September 2018. Despite requests to endorse the certificate of Judgement the first defendant did not accede. By section 14 (2) of the (CBASA) Claims by and against the State Act he was required within 60 days after receipt to endorse it. That has exceeded the 60 days and so prompting the plaintiff to move as he does here.
   
4. Against this contention the First defendant relies on his own affidavit sworn the 28^th October 2020 document 25 on the court file. He deposes confirming his position as Solicitor General and that he has been named first defendant in the matter. He confirms the Judgment figure and the certificate relating of K 1, 501, 974.30 together with interests and costs. That he is required by section 14 (2) of the CBASA 1996 to endorse the certificate of Judgment. “However, since the judgment sum is in excess of K 1 million, it has to go to the National Executive Council (NEC) for approval. The NEC in decision No. 150/2003. Special Meeting No. 33/2003. Approved that all out of court Settlement in excess of K 1, 000, 000. 00 are to be approved by the NEC prior to any payments by the Department of Finance.” And the NEC decision is attached as annexure “TT” to his affidavit. Submission was made to the current Attorney General in April 2020 which resulted in the instruction from that office to prepare a settlement proposal under a submission to the NEC. And this has been done to the NEC.
   
5. The NEC decision number 150/2003 is headed Claims by and against the State and Judgment Debt. Section 14 (2) of the CBASA reads; “The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1.” There are no limitations imposed under this section or that the endorsement is subject to limitations imposed by law. It simply says he shall endorse a certificate of Judgment served upon him. And which upon receipt by the Departmental head responsible for finance matters shall within a reasonable time be satisfied out of moneys legally available for the same. Practically it means moneys if available in the Court Order vote will be paid to settle the Judgment debt. It can be by instalments as per section 14 (4) of the CBASA. This reading in a way gives substance to the argument advanced by the Plaintiff.
   
6. But that would be parting company with reality everyday administration of public moneys set out and reflected by what has been set out by NEC decision number 150/2003. That is not new as it is analogous to a section 32 officer under the Public finance Management Act 1995, or section 47B authority to pre-commit expenditure. Other similar sections include section 39 Central supply and tenders board, other specialized supply and tenders board section 39A, Provincial Supply and tenders board section 39B tender amounts or financial purchasing power from K 10, 000, 000.00 down to K 1, 000, 000.00. This in a way is what is intended by NEC decision number 150/2003. It is an appropriate financial management tool and cannot be ignored by the Solicitor General. It may not have the force of law but administratively it is always the case in the management of public moneys that there is purchasing power installed in public officers: Tiensten v Independent State of Papua New Guinea [2014] PGSC 74; SC1468 (19 December 2014). And the Solicitor General is a public official and is no different. Hence, his spending power is reflected accordingly.
   
7. And it makes perfect sense to heed the NEC decision number 150/2003 which the Solicitor General has undertaken set out by his affidavit. It is not defiance of the call of duty under section 14 (2) of the CBASA as argued strenuously by the plaintiff, but meticulous observation by a public official to the way government funds are spent. Here it is clear he heeds that it is an order from the National Court and he concedes to its settlement as ordered and has set in place the administrative process to attain the funds and to make the payment. That is clear by the affidavit that he has sworn. Court Orders are meant to be obeyed without question. That is what is set out by the evidence of the Solicitor General set out above. In my view he has not defied nor wilfully disobeyed the court order for the payment. He has put in place the means to realize that money.
   
8. Money and finance are annually settled by the Budget appropriation Act by Parliament. Like any other act of parliament passed it is law bound passed every year in every budget allocation. It is by that fact not broken down at will, but by a process of law. Because it is law unto itself for proper management, budget of the country as a whole. Votes are created as a result of this act of parliament. Here the specific vote is the Court Order vote which is specifically designated for that purpose and that purpose alone. The Solicitor General has simply abided by financial administration instilled by the National Executive Council following. That cannot be the same as defiance of the court order for payment of the Judgement sum. But rather compliance of the law to meet out an order of the court. That will not be held out against him. It would be to his credit. The long arm of the law is slow but sure to provide what the plaintiff seeks only through compliance of the law not without.
   
9. Given these facts mandamus does not lie to compel the Solicitor General to endorse the subject court order granting the sum set out above. That will be processed through with the National Executive Council because it is over K 1, 000, 000. 00. The motion is refused with costs following the event. But to ensure that the order outstanding from the Judgment debt is settled parties are granted liberty to file further affidavit material to show settlement and discharge. In this regard the matter will return to court on Monday 15^th March 2021 at 9.30am for further directions and or orders to expedite. This is not a case where the Solicitor General has refused to endorse the certificate of Judgement: Atlas Corporation Ltd v Ngangan [2018] PGNC 544; N7674 (29 November 2018). Here the reasons disclosed by the affidavit filed by the Solicitor General is not the same as refusing but following very well settled administrative and financial process in managing public funds. It would need time to see out that purpose fulfill so that both parties are satisfied with the matter so that it is settled.
   
10. The formal orders of the court are:
    
    • (1) The application of the Plaintiff is denied.
    • (2) Mandamus is denied.
    • (3) Parties are granted liberty to file further affidavits and material to settle and discharge the orders made.
    • (4) The matter is in this respect adjourned to Monday 15^th March 2021 at 9.30am for the further directions and or orders to expedite the matter.
    • (5) Parties are granted liberty to seek variation of these orders by notice within a week’s notice.
    • (6) Costs follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Ashurst PNG: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants