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Pinje v Kera [2018] PGNC 455; N7557 (2 November 2018)

N7557

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 895 OF 2004

BETWEEN:
FRANCIS PINJE
Plaintiff

AND:
SENIOR INSPECTOR JEFFERY KERA
First Defendant

AND:
SAM INGUBA, the Police Commissioner
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018: 10^th April

Cases Cited:

Lihir Mining Area Landowners Association v Basani [2018] PGNC 11 N7077 (31 January 2018)

Counsel:

Mr. Stanis Japson, for the Plaintiff
Mr. George Akia, for the Defendants

2 November, 2018

1. DINGAKE J: This is an application by the Defendants filed on the 11^th of May, 2018, to set aside the interest component of 8% on Certificate of Judgment entered on the 11^th of May, 2018.
2. There is also another motion, filed by the Plaintiff on the 11^th of May, 2018, seeking endorsement of the Certificate of Judgment entered on the 11^th of May, 2018.
3. The parties have agreed that the Defendant’s application be heard first, and if it succeeds, the Plaintiff may withdraw his application.
4. The issue that falls for determination is a legal one. It must be considered in the context of a judgment granted in favour of the Plaintiff in the amount of K509,000.00 with costs and interest at the rate of 8% from the date of filing the Writ of Summons to the date of Judgment. The Judgment was delivered in December, 2017.
5. The State seeks to set the interest component aside contending that the proper interest that the Court should have awarded is 2%.
6. During the course of argument on an issue that seemed to touch on the jurisdiction of the Court arose. This was concerning the meaning and effect of Section 4(4) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
7. The said Section provides that:
   • “A judgment entered contrary to Subsections (2) and (3) is a nullity and is liable to be set aside and re-issued according to law by the same Judge or Judges on application.”
8. The issue that arose having regard to the above provision is whether ‘judges’ should be taken to mean another judge and if so whether this would not amount to an impermissible judicial amendment of an Act of Parliament.
9. On a purposeful construction of Section 4 (4) of the Judicial Proceedings Act, 2015, it seems to me that the use of the word, “judges”, was a patent error. The Legislature clearly intended to confer jurisdiction on the same judge who gave the judgment or issued the order, or in his absence any other Judge. It could not have reasonably intended to mean the Supreme Court, because if it had so intended it would have said so in clear terms. It is part of our daily functions as judges to ‘iron out the creases’ in the language employed by the legislature to give effect to the clear intention of the legislation. I therefore hold that ‘judges’ in the aforesaid section simply means another judge.
10. It is important to note that the Judicial Proceedings Act (Interest on Debts and Damages Act 2015, permits interest not exceeding 2% yearly (Section 4(2) and (3) of the Act).
11. Section 4(4) provides that a Judgment entered contrary to subsections (2) and (3) is a nullity and is liable to be set aside.
12. Section 2 provides that the Act applies to all Court Orders made against the State on or after 1 January, 2014.
13. In my considered opinion, the effect of Section 2 and (4) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015, is that in any award of interest against the State, the maximum rate is 2%. This prescription applies to all Court Orders made on or after 1 January, 2015, irrespective of the date on which the proceedings were commenced.
14. I am fortified on this view that I hold by the opinion of my brother Cannings J, to the same effect in the case of Lihir Mining Area Landowners Association v Basani (2018) PGNC 11; N 7077 (31 January 2018).
15. It follows therefore that the 8% interest imposed by this Court (per Sakora J) is a nullity and liable to be set aside, as I hereby do.
16. The appropriate interest in the circumstances is 2%, and I so hold.
17. In the premises:
    1. The Defendant’s application succeeds;
    2. The interest component of 8% in the Certificate of Judgment entered on the 15^th of May, 2018 is set aside and replaced with interest rate of 2%.
    100. Costs to be paid by the Plaintiff.

___________________________________________________________
Japson & Associates Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Defendants