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Uriap v Tokivung [2008] PGNC 119; N3444 (11 July 2008)

N3444

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 532 OF 2008

BETWEEN:

BERNARD URIAP in his capacity
As a Clan Leader for and on behalf of
RONGOL CLAN of Himau & Poronbus
Villages, Namatanai-New Ireland Province.
Plaintiff

AND:

SIMON TOKIVUNG in his capacity
As the Clan Leader of ANTALIA CLAN of
Himau village, NAMATANAI-New Ireland
Province.
First Defendant

AND:

TUTUMAN DEVELOPMENT LIMITED.
Second Defendant

AND:

RAKUBANA DEVELOPMENT PTY LTD.
Third Defendant

AND:

THE PAPUA NEW GUINEA FOREST AUTHORITY.
Fourth Defendant

Kokopo: Lenalia; J.
2008: 27th June & 11th July

PRACTICE & PROCEDURE – Service of the process – Claims By and Against the State Act 1996 s.5 – Whether Papua New Guinea Forest Authority is an organ of the State – State entities are organs of the State.

PRACTICE AND PROCEDURE – Section 5 of the Claims By and Against
the State Act – Application to dismiss proceedings – Writ of Summons issued prior to notice of intention to make a claim given – Service of the Writ of Summons is not a notice of intention to make a claim under Section 5 – Proceedings dismissed for non-compliance with s.5 of the Claims By and Against the State Act.

Cases cited.
Graham Rundle v Motor Vehicle Insurance (PNG) Trust [1998] PNGLR 20
Marinda v The State (1991) N1026
Rimbink Pato Trading as Pato Lawyers [1995] PNGLR 469
Pupune & Others v Umbu Makarai Administrator Eastern Highlands Province [1997] PNGLR 622
Minato v The State (1998) N1768
SCR.No.1 of 1998 Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672 of 1998
Tohian & The State v Tau Liu (1998) SC566
William Trnk v The State (2000) N1957
Bokin v Independent State of PNG (2001) N2111
Hewali v The Police Force & The State (2002) N2233
William Wrondimi & Others v Alphonse Vokene (2007) N3148
Maps Tuna Limited v Manus Provincial Government (26.6.07) SC857
Wamena Trading Limited v Civil Aviation Authority of Papua New Guinea (2006) N3058

Counsel
Mr. W. Donald, for the Plaintiffs
Mr. E. Paisat, for the 1st & 3rd Defendants
Mr. M. Maraleu, for the 2nd Defendant
Mr. S. Mitige, for the 4th Defendant

11 July, 2008

1. LENALIA, J: The Plaintiffs in this claim are claiming for K2, 800,000, 000 damages for trespass and illegal entry into the plaintiffs’ customary land known and described as KADAMAU within the Poronbus area, Namatanai, New Ireland Province. They also claim punitive damages of K45 million.

2. The plaintiffs filed these proceedings in the National Court registry office here in Kokopo on 12th of May this year. On that same date, the Plaintiffs lawyer applied for certain injunctive orders to prevent the 2nd and 3rd defendants from continuing with logging and removing machinery, equipment and logs from Namuh camp site.

3. Since then counsels representing the parties have been in an out of court for various reasons. On 21st of May this year, the Second Defendant through their employed lawyer Mr. Maraleu filed a Notice of Motion in which they seek orders for the whole proceedings to be dismissed. That notice of motion has not been argued.

4. On 27th June 2008, counsels indicated to the court that they consented to have the application by the 4th Defendant heard first. The Notice of Motion filed on 5th of June 2008 by the 4th Defendant seeks one order only. They seek an order to dismiss the entire proceedings for non compliance with s.5 of the Claims By and Against the State Act.

Submissions

5. On arguing this application, Mr. Mitige of counsel for the 4th Defendant submitted that, the Plaintiffs did not serve a notice on the State in compliance with s.5 of Act. Counsel argued that, the Fourth Defendant was established under the Forestry Act 1991 with perpetual succession, has its common seal and may acquire, hold and dispose of property and it may sue and be sued in its corporate name.

6. Counsel further argued that, despite the fact that, the 4th Defendant is a corporate entity, it is an agency and instrument of the State. He submitted that it is under political control of the Minister responsible and the National Forest Board receives direction from the Forest Minister to carry out its functions and manage its affairs and operations.

7. Part of his argument is that, the Papua New Guinea Forest Authority depends entirely on appropriation of finance from the National Budget and the Authority is subject to the requirements of the Public Finances (Management) Act 1995.

8. Mr. Mitige submitted therefore that, the Plaintiff has to show whether he has given the required notice under s.5 of the Claims By and Against the State Act as the 4th Defendant is an instrumentality of the State. In these proceedings, Mr. Mitige submitted that, there has been no service on the State as required by the above proviso of the Act and as such the proceedings should be entirely dismissed.

9. In reply, Mr. Donald of counsel for the Plaintiff submitted that, the PNG Forest Authority is not an organ of the State as it is a legal entity with capacity to acquire, hold and dispose of property and it can sue or be sued in its own name. Counsel submitted that, unlike Provincial Governments and Local Level Governments, the subjects of the Constitution and Organic Law on Provincial Governments and Local Level Governments, the PNG Forest Authority is not part of the State since it is a corporate entity.

10. Mr. Donald suggested that, this court should do a reference to the Supreme Court to decide whether or not, the 4th Defendant being a corporate entity is an agent of the State. Counsel submitted that there is a case authority a case decided by Lay, J which held that, the Civil Aviation Authority of Papua New Guinea although a State instrumentality and it is a governmental body is not part of the "three-tier system of government". Mr. Donald of counsel for the Plaintiff belatedly as late as just yesterday provided a copy of that judgment to the court to confirm that part of his submission.

Law

11. The relevant law of service of process on the State and its instrumentalities is provided for under s.5 of the Claims By and Against the State Act. The above proviso states:

"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 –

(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

(i) 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 am and 12 noon, or 1.00 pm and 4.06 pm, 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)."

12. The key issues in relation to service under Section 5 of the Claims By and Against the State Act have been stated over and over again. The case of Tohian and The State v Tau Liu (1998) SC566 establishes that notice of intention to make a claim against the State is a condition precedent to issuing a writ of summons. The Court in the above case comprising of Kapi, DCJ; (as he then was) Sheehan; & Jalina; JJ further held that notice under s 5 of the Claims By and Against the State Act must be given first before the writ is issued, even if the writ is issued within six (6) months after the date of the occurrence out of which the claim arose.

13. Where there has been non-compliance with the requirements of the above Act that is a ground for setting aside a default judgment: Marinda v The State (1991) N1026. The method of service to the appropriate persons mentioned under s 5 is mandatory: Bokin v The Independent State of Papua New Guinea (2001) N2111.

14. In Hewali v Police Force and The State (2002) N2233 Kandakasi; J held that a notice under s.5 must be in writing and it must give sufficient details of the intended claim such as time, date, and place of occurrence. In William Trnka v The State (2000) N1957 Sevua; J said that both the Attorney General and the Court before whom an action is instituted have discretion to extend the time for giving notice of intention to sue the State. According to the above case "sufficient cause" ought to be shown to have existed why notice was not given within 6 months. The example of that would be "inaccessibility" to legal advice.

15. The reasons why notice under s.5 of the above Act must be given within 6 months is that the State should be given early warning while the evidence is fresh. It would enable the State to make its own investigation if it wanted to and depending on whatever evidence it gathers may decide to either settle or dispute an intended claim: Minato v The State (1998) N1768.

16. In SCR N0.1 of 1998; Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC 672 of 1998 consisting of Amet; C.J (as he then was), Los; Sheehan; Salika and Sakora; JJ, held that Provincial Governments and Local Level Governments are part of the State, (see also Rimbink Pato, Trading as Pato Lawyers v Enga Provincial Government [1995] PNGLR 469 and Pupune and Others v Ubum Makarai Administrator Eastern Highlands Provincial Government [1997] PNGLR 622).

17. In William Wrondimi & Others v Alphons Vokene (7.2.07) N3148, Gabi; J adopted and applied what the Supreme Court said in Tau Liu’s case (supra), that a notice of intention to make a claim is a condition precedent to a claim against the State. His Honour said a notice under s.5 of the Claims By and Against the State Act must precede the claim. A claimant has no cause of action against the State unless the notice of claim is given.

18. It is now law that the notice under s.5 must precede the claim. A claimant has no cause of action against the State unless the notice of claim is given. The service of an originating process on the State is not a notice of intention to make a claim under s.5 of the Claim Act. The originating process is the claim itself. (See Graham Rundle v Motor Vehicle Insurance (PNG) Trust No. 1 [1988] PNGLR 20).

19. The Supreme Court in Maps Tuna Limited v Manus Provincial Government (26.06.07) SC.No.857 comprising of Hinchliffe; J, Gavara-Nanu; J and Lenalia; J, took a differing view on the issue of service of any process on a Provincial or Local Level Governments because, s. 7 of the Organic Law on Provincial Governments and Local Level Governments provide specifically for service of any process to be served on "a designated officer" of either a Provincial Government or a Local Level Government.

20. In the above appeal, the Supreme Court was of the view that, s.5 of the Claims By and Against the State Act may conflict with Section 7 of the Organic Law on Provincial Governments and Local Level Governments, (O.L on P.Gs. and L.L.Gs.). The above law sets out the legal capacity of the Provincial Government and Local Level Government in s.6 and s.7 in the following terms:

"6. Legal capacity.

A Provincial Government or a Local-level Government—

(a) may acquire, hold and dispose of property of any kind; and

(b) may sue and be sued,

and a provincial law or a local-level law may make provision for and in respect of the manner and form in which each respective government may do so.

7. Service of process.

Any notice, summons, writ or other process required to be served on a Provincial Government or a Local-level Government may be served on an officer designated by the Provincial Government or the Local-level Government for that purpose."

21. In the above case, the Court took the view that the Constitution and Organic laws are the supreme laws of the land according to s.10 of the Constitution as compared to s.5 of the Claims By and Against the State Act which is an Act of the Parliament and the Supreme Court should interpret s.5 of the Claims By and Against the State Act and Sections 6 & 7 of the Organic Law on Provincial Governments and Local Level Governments.

Issues

22. The issue in this application is, whether or not the Papua New Guinea Forest Authority is an arm or instrument of the State. If it is an organ of the State, then service under s.5 of the Claims By and Against the State Act is required. The argument by Mr. Mitige is that, the 4th Defendant is an entity of the State, as it is in fact a body essentially controlled and administered by the government.

23. The above argument seems to be valid in the sense that, unlike in the case of Provincial Governments and Local Level Governments, where service of processes are specifically provided for under s.7 of the Organic Law on Provincial Governments and Local Level Government, s.5 the Forestry Act 1991 provides for legal capacity of that body but no where in the Act does it say where service of any process against it should be effected. Section 5 of the Forestry Act states:

"5. Establishment, etc., of Papua New Guinea Forest Authority.

(1) The Papua New Guinea Forest Authority is hereby established.

(2) The Authority—

(a) is a corporation with perpetual succession; and

(b) shall have a seal; and

(c) may acquire, hold and dispose of property; and

(d) may sue and be sued in its corporate name.

(3) The common seal of the Authority shall not be affixed to any instrument except in pursuance of a resolution of the Board and the affixing of the seal shall be attested by any two members of the Board.

(4) All courts, Judges and persons acting judicially shall take judicial notice of the common seal of the Authority affixed to a document and shall presume that it was duly affixed."

24. Looking at the Forestry Act 1991 there may not be any expressed provisions for service of the processes in cases where the PNG Forest Authority is sued but may be by looking at the whole mechanism and intention of the Act, one may understand and know if the Authority is a State instrumentality or not. For example, just by reading a few other provisions in the Act such as Sections 6 & 7 of the Act, should probably throw some light on the question of whether or not the Authority is part of the State. These two provisions define the objectives and functions of the Authority in the following terms:

"6. Objectives of the Authority.

In carrying out its functions under this Act, the Authority shall pursue the following objectives:—

(a) the management, development and protection of the Nation's forest resources and environment in such a way as to conserve and renew them as an asset for succeeding generations; and

(b) the maximization of Papua New Guinea participation in the wise use and development of the forest resources as a renewable asset; and.

(c) the utilization of the Nation's forest resources to achieve economic growth, employment creation and industrial and increased "down-stream" processing of the forest resources; and

(d) the encouragement of scientific study and research into forest resources so as to contribute towards a sound ecological balance, consistent with the National development objectives; and

(e) the increased acquisition and dissemination of skills, knowledge and information in forestry through education and training; and

(f) the pursuit of effective strategies, including improved administrative and legal machinery, for managing forest resources and the management of National, provincial and local interests."

25. On the functions of the Authority, s.7 states:

7. Functions of the Authority.

(1) The functions of the Authority are—

(a) to provide advice to the Minister on forest policies and legislation pertaining to forestry matters; and

(b) to prepare and review the National Forest Plan and recommend it to the National Executive Council for approval; and

(c) to direct and supervise the National Forest Service; and

(d) to negotiate Forest Management Agreements; and

(e) to select operators and negotiate conditions on which timber permits, timber authorities, large scale agricultural or other land use and road forest clearing authorities and licences may be granted in accordance with the provisions of this Act; and

(f) . . .

(g) subject to the Customs Act, Customs Tariff Act and Exports (Control and Valuation) Act, to control and regulate the export of forest produce; and

(h) to oversee the administration and enforcement of this Act and any other legislation pertaining to forestry matters, and of such forestry policy as is approved by the National Executive Council; and

(i) to undertake the evaluation and registration of persons desiring to participate in any aspect of the forestry industry; and

(j) to act as agent for the State, as required, in relation to any international agreement relating to forestry matters; and

(k) to carry out such other functions as are necessary to achieve its objectives or as are given to it under this Act or any other law.

(2) Subject to this Act and any other law, the Minister may give to the Authority, through the Board, any direction in regard to the carrying out of the functions of the Authority as he considers necessary for the purpose of achieving the objectives of the Authority."

26. Let me refer to just two of the functions performed by the PNG Forest Authority under s.7 (1) (a) & (b) of the Act. Under those two Subsections the 4th Defendant is to provide advice to the Minister on forest policies and legislation pertaining to forestry matters and it prepares and reviews
the National Forest Plan and recommends it to the National Executive Council for approval. To this court, this is a clear process involving the Minister directly.

27. The notice under s.5 of the Claims By and Against the State Act must precede the claim. A claimant has no cause of action against the State unless the notice of claim is given. The service of an originating process on the State is not a notice of intention to make a claim under s.5 of the Claims by and Against the State Act. It has been said that a Writ of Summons or an Originating Summons are processes or claims themselves: Graham Rundle v Motor Vehicle Insurance (supra).

28. In this case, the evidence is clear. This action was filed on 12th of May 2008. Moving back down the track as to when the Plaintiff claims the matter arose, was in about November 2007. From the date of occurrence of the act to the time the Writ was filed would have been about 6 months. That would just be about almost 6 months, the time required by s.5 of the Claims By and Against the State Act. On the file there is no notice or copy of it to show if the Plaintiff had taken any steps to at least attempt service in accordance with the Act. No notice was given prior to commencement of the proceedings. As the condition precedent for issuing a Writ of Summons had not been complied with.

29. It was said in Graham Rundle v MVIT Insurance (supra) that:

"The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within the 6 months or within such further period as may be granted by the Principal Legal Adviser or the Court. It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances".

30. By the same token, it is a condition precedent that the notice of claim must be served in accordance with the provisions of s.5 (3) (a) or (b) of the Claims Act. As was held by Akuram, J in Kapaau Minato v Philip Kumo and The State N1768 (23 October 1998);

"the purpose of s.5(1) and (2) of the Claims By and Against the State Act 1996, is to give the State early notification of the claim so that it can make inquiries as to, as in this case, the raid itself, the policemen involved, the properties damaged or destroyed, their value, the witnesses and whether the action is time-barred...".

31. Applying the above principles to the circumstances of the case before me, did the plaintiff default in giving notice pursuant to s.5 of the Claims By and Against the State Act? The requirement under s.5 (2) (a) of the Act is that, a claimant must give notice to the State within a period of 6 months from the time the act occurred. The Plaintiff pleads in paragraph 10 on the Statement of Claim that, on an unknown date in November 2007, the 3rd Defendant requested the 2nd Defendant without the consent of the Plaintiff and his clan entered onto their customary land and thereafter harvested timber for commercial and economic purposes.

32. For purposes of doing justice to all parties in these proceedings, the court must infer that, the unknown date in November 2007 could have been about the middle or the end of that month which would be about 15th or 30th of late November. Walking up the track from any of those inferred dates, to the 12th of May 2008, the date on which the Writ of Summons in these proceedings was filed, the Plaintiff still has time about two or three days to file and serve a s.5 Notice on the State.

33. The case of Wamena Trading v Civil Aviation Authority (2006) N3058 does not bind this Court. In the case before me, I am satisfied that the 4th Defendant is an organ of the State and service pursuant to s.5 of the Claims By and Against the State Act is required. However the time required for service had not expired.

34. Exercising the powers given this Court under s.166 of the Constitution and s.5 (2) (c) (ii) of the Claims By and Against the State Act, the Court now extends the time for the Plaintiff to give Notice pursuant to s.5 of the above Act. The Plaintiff is given thirty (30) days to give their intention to sue the State.

34. The Court orders that the 4th Defendant shall pay the cost of this application.

Donald & Co Lawyers: Lawyer for the Plaintiff
In-House Legal Officer: Lawyer for 4th Defendant.