SC1974

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 81 of 2018

BETWEEN:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Appellant

AND:
ROGER BAI NIMBITUO, JEFFERY WOSI,
RONALD WAFIA, JACOB WAPAI
and GILBERT GUARI
First to Fifth Respondents

Waigani: Kirriwom J, Hartshorn J, Kariko J
2020: 4th March
: 30th June

APPEAL - human rights application - delay in delivery of judgment on verdict - complaint of being unreasonably detained - application for release from custody awaiting judgment - damages awarded but not pleaded

APPEAL - s.5 notice, Claims By and Against the State Act - whether notice required only for "money" claims - whether appellate court may consider a jurisdictional issue not raised in the court below 

Cases Cited:
Paul Tohian v. Tau Liu (1998) SC566
Kokopo Building & Maintenance Ltd v. Department of Police (2005) SC786
Asiki v. Zurenuoc (2005) SC797
State v. Downer Construction (PNG) Ltd (2009) SC979
Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144
Renali v. Loko (2012) SC1186
Moime v. National Housing Corporation (2012) SC1191
Minicus v. Telikom (2014) SC1368
Public Curator of Papua New Guinea v. Kara (2014) SC1420
Kalinoe v. Paul Paraka (2014) SC1366
Thomas Wapi v. Koga Ialy (2014) SC1370
National Capital District Commission v. Central Provincial Government (2015) SC1429
Amben v. Telikom (2015) SC1422 
Mal v. Commander Beon Correctional Institution (2017) N6710
Karo v. Commissioner of Correctional Services (2018) N7799
National Airports Corporation v. Simitap (2019) SC1883
Nikint Investment Ltd v. Thomas Niganu (2020) SC1919

Counsel:

Mr. T. Mileng, for the Appellant
Ms. E. Wurr, for the Respondents

30th June 2020

1.    KIRRIWOM J: I have read the draft judgment by Hartshorn J and Kariko J and agree with the conclusion they reached that the appeal be upheld. But I differ in the reasoning only to the extent that I do not agree that the question interposed or raised by the Court on its own volition with regard to the Section 5 Notice under Claims By and Against the State Act (Claims Act) and such pre-requisite not being adhered to being a reason to uphold the appeal. The issue was not addressed by or before the primary judge, and it is not appropriate for the Court to introduce it on its own accord in my considered opinion. I explain more on this below.

2. The view that human rights cases filed under section 57 and section 58 of the Constitution seeking declaratory orders/reliefs or compensation for breaches of constitutional rights do not require applicants to give Section 5 Notice under the Claims Act deserves a Special Reference comprising 5-men bench to hear and state the legal position once and for all. I do not think that a three-men bench can determine such an important question in a haphazard manner without being fully and properly assisted by a well-researched submission that failed to address argument for and against the need for Section 5 Notice in Human Rights cases.

3. Counsel representing the parties who were requested to present fully researched submissions did not meet the expectation of being fully prepared and did not even address the court exhaustively on this topic given hordes of authorities emanating from the decisions of the trial judges including Mal v. Commander Beon Correctional Institution (2017) N6710.

4. At the trial, the lawyer for the State upon whom the burden fell to raise Section 5 Notice, deliberately chose to ignore it or not raise it because of his perceived belief that the trial judge before whom he was appearing held a different view of Section 5 Notice being given, that it was not required in Human Rights application cases. That being so, the Supreme Court must not descend into the arena of the parties and use its inherent powers to do what the parties deliberately left behind.

5. I am however content to find that the trial judge exceeded his powers in proceeding to award damages in a case where the Respondents did not seek damages or compensation, all they were seeking was release on bail pending decision in their trial, a sad scenario where they have been in remand awaiting decision in their criminal trial for more than four years (and sadly continue to await their decision even now).

6. And I want to further add that this Court will not be doing justice by simply upholding the State’s appeal and nullifying the orders of the trial judge on damages in the light of the continuing breach of the Respondent’s rights under the Constitution to a fair and speedy trial. As the highest court of the land, we must take a more responsible approach to guiding the Respondents to seek appropriate remedy for their sufferings by commencing fresh proceedings for damages, lest the court is seen as encouraging and condoning the prevailing breach as to denial of right to a fair trial.

7. Therefore, apart from upholding the appeal by the State, in the light of the continuing breach of the Respondents’ right to fair and speedy trial as guaranteed under Section 37 of the Constitution, options be left open to the Respondents to file or commence fresh proceedings for damages and let the Court decide on whether the breach is compensable.

8. I also agree with the orders proposed except for costs, parties to bear their own costs.

9. HARTSHORN J and KARIKO J: This contested appeal is against a National Court decision which awarded damages for infringements of human rights to be paid by the State.

Background

10. The five respondents were arrested and charged with serious criminal offences on various dates in 2009 and 2010. Their trial in the National Court commenced in August 2012 and occupied six sitting days. The trial was completed in November 2014 when submissions upon verdict were made. A verdict was not, and we understand regrettably, still has not been delivered at the date of the delivery of this decision.

11. The primary judge heard the respondents' application for enforcement of human rights in November 2015. He granted their applications, ordered their release from custody on certain conditions and ordered that the State was liable in damages to each respondent for infringement of three of their human rights being: the full protection of the law, in particular the right to a hearing within a reasonable time (ss. 37(1), (3) Constitution); the right not to be subject to harsh or oppressive acts (s. 41(1) Constitution) and the right not to be unreasonably detained (s.42(5) Constitution).

12. A trial on assessment of damages was conducted. On 4th May 2018, amongst others, damages were awarded to be paid by the State to the first four respondents (decision appealed). The State appeals against the award of damages and the amount of the damages.

Consideration
13. First, we refer to one of the orders sought by the State which is that the National Court proceeding should be dismissed. It is not controversial that the State did not appeal the decision of the primary judge delivered on 18th December 2015 which amongst others, upheld the respondents' application for enforcement of human rights, ordered that three of their human rights had been infringed and that they be released from custody on conditions. 
14. What is before this Court for consideration is the appeal by the State of the decision appealed which amongst others, ordered certain damages to be paid. The decision appealed did not determine the liability of the State. The decision of the 18th December 2015 did that. In this context, we are reminded of and reproduce the following passage from Thomas Wapi v. Koga Ialy (2014) SC1370 at [12]:
"... we are of the view that where a judgment, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the statement of claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award of damages. This is in accord with him being able to consider the question of liability for the damages claimed. To dismiss the entire proceeding however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error."
15. In this instance, as the State has not appealed the decision which found it liable, it is not for this Court to consider dismissing the entire National Court proceeding. This Court should consider the decision appealed which concerns the award of damages.

16. Secondly, during the hearing of the appeal, counsel for the respondents' conceded that the primary judge should have ceased deliberating on this matter after he had found that there were breaches of human rights and granted the respondents bail. This was because the respondents had not pleaded for or claimed damages. The respondents' in their application had only sought, " bail whilst awaiting the National Court Decision." The primary judge noted in his decision on liability that although the respondents had only completed a human rights enforcement application form, it was sufficient to show that they complained about being unreasonably detained.  There is no mention that the respondents had sought damages. The concession by counsel for the respondents was a correct concession in our view. We note further that counsel for the State had raised with the primary judge that the respondents had not pleaded or sought damages.

17. That a claimant is not entitled to relief unless such relief has been pleaded or claimed, has consistently been the position of this Court: Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144 at [147] - [151]; Renali v. Loko (2012) SC1186 at [10]; Kalinoe v. Paul Paraka(2014 ) SC1366 at [19] and National Capital District Commission v. Central Provincial Government (2015) SC1429 at [11] - [16].

18. Given the concession made and the authorities cited, we are satisfied that the primary judge fell into error in making the decision appealed. Consequently, this appeal should be allowed and the decision appealed quashed.

19. If further attention is given by this Court to the decision appealed, an issue raised by this Court of its own motion warrants consideration.

20. It was conceded by both counsel for the parties that the issue of whether notice was required to be given and if so whether such notice was given by the respondents of their intention to make a claim against the State pursuant to s.5 Claims By and Against the State Act (Claims Act), was not raised or considered before or by the primary judge.

21. Counsel for the respondents submitted that a notice pursuant to s. 5(1) Claims Act was not required to be given in this instance as "claim" in s. 5(1) should be interpreted to mean a monetary claim. Reliance was placed upon the National Court decisions of Mal v. Commander Beon Correctional Institution (2017) N6710 and Karo v. Commissioner of Correctional Services (2018) N7799.

22. Counsel for the State made reference to the Supreme Court decisions of Asiki v. Zurenuoc (2005) SC797; State v. Downer Construction (PNG) Ltd (2009) SC979 and Public Curator of Papua New Guinea v. Kara (2014) SC1420. These decisions considered in different contexts how "claim" in s. 5(1) Claims Act should be defined. None of these decisions gave consideration to whether "claim" should be defined as a monetary claim and did not limit their definitions of "claim" to that of a monetary claim.

23. Section 2(2) Claims Act is as follows:

"(2) The provisions of this Act apply to applications for 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."

24. Section 5(1) Claims Act is as follows:

“5.	Notice of claims against the State.
(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 by the claimant to—"
25. As various Supreme Court decisions have considered "claim" in s. 5(1) Claims Act and stated that it includes applications for enforcement and compensation for a breach of Constitutional rights under s. 57 and s. 58 Constitution, and given that the National Court is bound by decisions of the Supreme Court, the question whether notice pursuant to s.5(1) Claims Act was required to have been given in this case should have been considered by the primary judge when the proceeding initially came before him. If this issue was not raised by the State, then in our view, it was incumbent upon the primary judge to raise the issue upon his own motion.
26. This is especially the position in our view, as the Supreme Court has consistently maintained that the requirement to comply with the Claims Act is a condition precedent that must be complied with before a proceeding is issued: Paul Tohian v. Tau Liu (1998) SC566; Kokopo Building & Maintenance Ltd v. Department of Police (2005) SC786 and Nikint Investment Ltd v. Thomas Niganu (2020) SC1919. 
27. As it is, the decision appealed is an award of damages in a proceeding which at least prima facie, should only have been commenced after a notice pursuant to s.5(1) Claims Act had been given but was not. The primary judge fell into error in making the decision appealed as the proceeding in which the decision appealed was given was not competent.
28. Consequently, pursuant to the Supreme Court decisions of Moime v. National Housing Corporation (2012) SC1191; Minicus v. Telikom (2014) SC1368; Amben v. Telikom (2015) SC1422 and National Airports Corporation v. Simitap (2019) SC1883, which endorse that this Court has the inherent jurisdiction to ensure the integrity of its processes, as the decision appealed was given in a proceeding that is prima facie incompetent because of a failure to comply with s.5(1) Claims Act, this appeal should be upheld and the decision appealed quashed. Given the above, it is not necessary to consider the other submissions of counsel.

Orders
29. It is ordered that:
a)	The appeal is upheld;
b)	The orders of the National Court made on 4 May 2018 in the National Court at Kimbe in proceeding: HRA No. 182 of 2015, Roger Bai Nimbituo, Jeffery Wosi, Ronald Wafia, Jacob Wapai & Gilbert Guari v. The Independent State of Papua New Guinea is quashed and the said applicants/respondents are not awarded anything.
c)	The respondents shall pay the costs of and incidental to this appeal.
__________________________________________________________________
Office of the Solicitor General:  Lawyers for the Appellant                                       
Office of the Public Solicitor:  Lawyers for the Respondents