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Erebebe v Commissioner of the Correctional Service [2025] PGNC 352; N11479 (12 September 2025)

N11479

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NOS 3 & 4 OF 2025

ALOIS EREBEBE & TAROS TOGOTE
Applicants

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First respondent

THE STATE
Second respondent

WAIGANI: CANNINGS J
8, 12 SEPTEMBER 2025

CLAIMS BY AND AGAINST THE STATE ACT – whether prisoners who seek fresh warrants of commitment to reflect fact that their death sentences have been commuted to life imprisonment are required to give notice of their intention to make a claim against the State – Claims By and Against the State Act, s 5.

Two prisoners were sentenced to death in 2013 but in 2022 their death sentences were commuted to life imprisonment. Nothing has been done to give effect to the altered sentence. They applied for enforcement of their right to the full protection of the law under s 37(1) of the Constitution. They sought fresh warrants of commitment. They also applied for declarations that they are eligible for parole. The respondents to the applications, the Commissioner of the Correctional Service and the State, applied by notice of motion for summary dismissal of the applications on the ground that the applicants had not given notice of their intention to make claims against the State under s 5 of the Claims By and Against the State Act. The Court ruled on the application for summary dismissal.

Held:

(1) These are straightforward applications for enforcement of human rights by correction of the terms of warrants of commitment and by declaration of the dates of eligibility for parole. The applications do not involve any “claim” against the State.

(2) There was no need for the applicants to give notice to the State prior to filing the applications. It serves no purpose to require prisoners to give prior notice of their intention to make applications of this nature. The State will not be prejudiced in any way by the orders that are sought by the applicants.

(3) The application for summary dismissal was refused and the applications will proceed to trial.

Cases cited
The following cases are cited in the judgment.
Application by Keith Lasi Aera (2025) N11272
Application by Wesley Yanduo (2025) N11265
Ben Simakot Simbu v Commissioner of the Correctional Service (2024) N11095
Commander of Beon Correctional Institution v Mal (2022) SC2186
The State v Nimbituo (2020) SC1974

Counsel
A Erebebe, in person, for the applicants
N Sasagombi for the respondents

1. CANNINGS J: Alois Erebebe and Taros Togote are prisoners at Bomana Correctional Institution. They were sentenced to death in 2013 but in 2022 their death sentences were commuted to life imprisonment. Nothing has been done to give effect to the altered sentences. They applied for enforcement of their right to the full protection of the law under s 37(1) of the Constitution. They sought fresh warrants of commitment. They also applied for declarations that they are eligible for parole.

2. The respondents to the applications, the Commissioner of the Correctional Service and the State, have responded to the applications by filing a notice of motion in each matter. They apply under Order 12 rule 40(1) of the National Court Rules for summary dismissal of the applications on the grounds that the proceedings:

• disclose no reasonable cause of action;
• are an abuse of process;
• are frivolous;
• are vexatious; and
• fail to comply with s 5 of the Claims By and Against the State Act
  

RULING

3. No submissions have been made by counsel for the respondents to support the argument that the proceedings disclose no reasonable cause of action, are frivolous or are vexatious.

4. Clearly, these proceedings do disclose a reasonable cause of action. The proceedings are not frivolous. The proceedings are not vexatious. There are precedents provided by my decisions in Ben Simakot Simbu v Commissioner of the Correctional Service (2024) N11095, Application by Wesley Yanduo (2025) N11265 and Application by Keith Lasi Aera (2025) N11272. In those cases, prisoners in the same situation as the applicants – they were on death row and had their sentences commuted in 2022 to life imprisonment, but were still detained under warrants of commitment stating that they be sentenced to death – applied successfully for issuance of fresh warrants of commitment and declarations that they were eligible for parole.

5. I fail to see any good reason for the respondents wanting to claim that applications of this nature are frivolous or vexatious or do not disclose a reasonable cause of action. Clearly these are genuine applications that have been filed by prisoners who seek some solace that they are not at risk of being put to death.

6. The only genuine issue raised by the motions is whether the applications are an abuse of process due to failure to comply with s 5 of the Claims By and Against the State. There is evidence in support of the motions for dismissal that no notice of the intention to make the applications was given prior to filing the applications. However, the applications, once filed, were served on the office of Solicitor-General in accordance with an order of the Court.

7. A majority of the Supreme Court (Kandakasi DCJ and Anis J, Makail J not deciding the issue) in Commander of Beon Correctional Institution v Mal (2022) SC2186 held that a prisoner applying for early release was required to give notice of their intention to make a claim against the State under s 5 of the Claims By and Against the State Act. That case is to be distinguished on its facts. It did not involve a straightforward application of the type being made by the applicants, which is simply an application to correct the records of the State as to the circumstances of their detention.

8. There was an opinion expressed obiter by two Judges of the Supreme Court (Hartshorn J and Kariko J; Kirriwom J dissenting on this issue) in The State v Nimbituo (2020) SC1974 that the giving of notice to the State under s 5 of the Claims By and Against the State Act should precede without exception any award of damages for human rights breaches. However, that case is also to be distinguished from the present case, as the applicants do not seek damages. They just want a warrant to indicate clearly that they are sentenced to life, not death, and a declaration that they eligible, not entitled, to parole

9. I am not bound by any Supreme Court decision to determine these motions any way other than sensibly and fairly, in a way that gives, in compliance with s 158(2) of the Constitution, “paramount consideration to the dispensation of justice”.

10. Section 5 of the Claims By and Against the State Act states:

(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 and Section 5A 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).

11. I appreciate that s 2(2) of the Act states:

The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (compensation) of the Constitution.

12. However, s 2(2) must be read in the context of s 5(1). It is only when a person intends to “enforce any claim against the State” that they are obliged to give notice in writing of intention to make a claim.

13. These are straightforward applications for enforcement of human rights by correction of the terms of warrants of commitment and by declaration of the dates of eligibility for parole. The applications do not involve any “claim” against the State.

14. There was no need for the applicants to give notice to the State prior to filing the applications. It serves no purpose to require prisoners to give prior notice of their intention to make applications of this nature. It would be a painim wok exercise. The State is not prejudiced by the applicants not giving prior notice of their intention to make their human rights applications. It will not be prejudiced in any way by the orders that are sought by the applicants. The motions for summary dismissal must be refused.

ORDER

1. The motions for summary dismissal of the applications for enforcement of human rights are refused.
   
2. The applications shall proceed to trial forthwith.

__________________________________________________________________
Lawyer for the respondents: Solicitor-General