JULIA DAIA BORE
THE Supreme Court has quashed an order by a National Court judge for the Finance Department, to pay businessman Peter Yama, K7.75 million in damages.
This decision was handed down last Friday in Waigani by a Supreme Court panel comprising Justices Bernard Sakora, Panuel Mogish and David Cannings.
Quashed is the order of the National Court of July 3, 2008, which ordered the secretary for Finance Gabriel Yer to release and clear a cheque for K7.75 million intended as part payment to Peter Yama.
The case stemmed from Mr Yama’s original claim of K38 million, relating to a block of land in Madang which he claimed he had been deprived of, resulting in loss of business.
He filed a claim, and purportedly entered into a deed of settlement in 2002 where he and then Solicitor-General Zacchary Gelu, agreed to settle for K15.5 million payout by the State.
On June 24 last year, a cheque for K7.75 million was processed by the Finance Department and given to Mr Yama.
Mr Yer was overseas and intervened by stopping the payment on the cheque on June 27.
Five days later on July 2, Yama commenced proceedings in the National Court to have the money paid.
On the same day, he filed a motion to have the court force Mr Yer to release the payment to him within 24 hours.
Mr Yer was not served the court documents personally as required.
On July 3, a day after the motion was filed, Mr Yama’s lawyer Ben Lomai appeared before acting judge Pomat Paliau and argued that the payment be released.
Acting Deputy Solicitor General Lais Kandi appeared but did not oppose the motion.
He, in fact, told the court he had no instruction why the payment was stopped, and suggested that Mr Yer be summoned to explain.
Justice Paliau ruled at the hearing that Mr Yer immediately release the payment to Mr Yama.
Mr Yer appealed to the Supreme Court, and on July 9, last year, the Supreme Court stayed Justice Paliau’s orders.
The cheque was withheld pending the appeal by Mr Yer.
In its 23-page ruling handed down last Friday, the Supreme Court upheld the appeal of Mr Yer.
The court found that Mr Yer performed his duties in accordance with the laws and Public Finance Management Act, and he is not subject to the direction or control of the solicitor-general.
The court said in this case, Mr Yer had a right to at least three days notice, but was given little time and was denied that right when the motion was served on his office on July 2, and the motion heard the next morning.
The court also queried Mr Kandi’s role in the whole saga, saying Mr Kandi told the court he appeared for Mr Yer when he “gave ample indication to the court that in fact he did not have instructions from Yer”.
The top court said as secretary for Finance, Mr Yer should be given ample time to determine what to do when faced with a claim for such a large sum of public money.
By dispensing with the requirement of service, and hearing the motion quickly, Justice Paliau deprived Mr Yer of his right and capacity to meet his obligation as custodian of public funds, the court said.
The Supreme Court quashed the July 3 order where Mr Yer was supposed to clear the cheque, and sent Mr Yama’s (substantive) claim back to the National Court to be dealt with in a full hearing.