DC960

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE

V/CT 2/2010

AMELE NO.2 VILLAGE COURT
Complainant

V

MALOT NAMI
Defendant

MADANG: J KAUMI

2010: 12th, 18th, 22nd, January and 1st February

ENDORSEMENT

VILLAGE COURT ACT- Endorsement of Village Court Order for imprisonment by District Court, Part V-Jurisdiction, Division 9-Sections 74 (1) (b) and 75 (2) (3) Provisions for second hearing are mandatory-Sections 75 (2)(3) and 74 (1) (b)’s mandates must be adhered to. 

PRACTISE AND PROCEDURE-"Substantial justice" and section 74 (1) (c) Village Courts Act-Sentence imposed must be proportionate in terms of reduction to the amount of payment or part payment of the judgment debt.

PRACTISE AND PROCEDURE-Incumbent upon District Court magistrates to enquire into all relevant Village Court proceedings before endorsing an order for imprisonment.

PRACTISE AND PROCEDURE-District Court Magistrate can institute Review proceedings on his/her own motion-Part V-Jurisdiction, Division 9, Section 75 (4), Division 11, Sections 87, 89 (4), 90,92 (1) (2) and 93.

Held:

(1) Amele No.2 Village Court acted beyond its jurisdiction provided for by the provisions of the Village Courts Act 1989 in not according the defendant a second hearing and in failing to reduce his sentence in proportion to the part payment he made.

(2) A Village Court must conduct a hearing to determine from a defendant whether or not he/she has a reasonable excuse for not complying with its order (in other words a second hearing).

(3) It is incumbent on District Court magistrates to scrutinize all relevant Village Court proceedings leading up to the issuance of the order for imprisonment and not merely endorse such an order as a matter of course.

(4)The applicable Standard of Proof is the civil standard in such endorsement proceedings involving civil judgments.

(5) A statute must be construed according to its express intention. If the words are precise and unambiguous, no more is necessary than to expound them in their ordinary and natural sense without recourse to outside aids to interpretation. (Anna Wemay v Kepas Tumdual [1978] PNGLR 173).

(6)There is an overriding constitutional consideration, particularly relevant to penal provisions, the courts "in interpreting the law…shall give paramount consideration to the dispensation of justice" Constitution s.158 (2) (SCR No.6 of 1984; Re Provocation).

(7) The Court is free to depart from the literal meaning of the words used in a legislative provision if giving effect to the literal meaning would result in an absurdity, or lead to a result unintended by the legislature or run counter to the dispensation of justice. (State v Yali-Cannings.J [2005] N2932 (16/11/05)).

(8) The decision of the Amele No.2 Village Court is quashed and the defendant is discharged of the Order No C102747.

Cases cited:

Anna Wemay v Kepas Tumdual [1978] PNGLR 173
PLAR No.1 of 1980 [1980] PNGLR 326 (10/10/80)
Re the Village Courts Act 1974, Re WW (An infant) presently in custody [1980] N267
Somare, Re [1981] PNGLR 265 (3/08/81) 
SCR No.6 of 1984; Re Provocation [1985] PNGLR 31 (28/02/85)
Application of Tomba Emba; Re an Order dated 5/11/85 made by The Mendi District Land Court in its Appellant Jurisdiction [1985] N549 (5/11/85)
Re Theresia Maip [1991] PNGLR 80
Re Kaka Kuk [1991] PNGLR 105
Raima; The State [1993] PNGLR 230 (20/04/93)
Re Kabia Maris and Nalik Village Court [1994] PNGLR 314
PNGBC v Jeff Tole [2002] SC694 (29/09/02)
Bank of South Pacific Ltd v Public Curator [2003] N2320 (20/01/03)
Organic Law on National & Local Level Government Elections, Agiwa v Kaiulo [2003] N2345 (18/02/03)
Wassey v Aigilo [2005] N2876 (12/08/05)
State v Yali [2005] N2932 (12/11/05)

Overseas Cases

R v Dane [1965] Qd.R.338

Reference

Magistrates Manual for Papua New Guinea Hill ER & Powles.G.Magistrates Manual of Papua New Guinea, Law Book Co (2001) Sydney NSW 2009.

Legislations

Constitution of PNG
Village Court Act 1989

Abbreviations:

The following abbreviations appear in the judgment:

J Justice
N National Court judgment
No number 
PNGBC Papua New Guinea Banking Corporation
PNGLR Papua New Guinea Law Reports
Qd.R . Queensland Review
S Section
SCR Supreme Court Reference
V Versus
V.CT ACT Village court Act
V.CT Village Court

Counsel

Mr. Oddo for the Complainant
Mr. Malot Nami in Person

INTRODUCTION

1. These proceedings started by way of an Order for Imprisonment that was brought to me for endorsement by the Amele No 2 V.Ct on 5th March 2010 pursuant to section 75 (2) of the Village Courts Act.

BACKGROUND

2. The Amele No 2 V.Ct entered an order, No C102747 against the defendant Malot Nami on the 16/03/05 ordering him to pay Sakel Mahandec an amount of K4, 000.00 which the latter had paid to the former for him to cut timber for him and he had failed to do. Further that the defendant was required to pay up Sakel by December 2005, failing that would result in imprisonment.

3. On the28/10/09 the V.CT issued an order for imprisonment, No 92363, against the defendant for failing to pay up a remaining amount of K1, 200.00.The defendant appeared on a Warrant of arrest before me as the Magistrate in charge of the Village Court track on 5/03/10 for endorsement of this Order.

4. There have already been what would appear to be "cursory" endorsements of such orders and there is a difference of opinion amongst the magistracy here as to the correct application of powers so conferred on District Court magistrates by the Village Court Act to endorse such orders, so I will consider all relevant legislation and case law in order to ascertain the correct procedure to follow to ensure justice prevails in the matter immediately before me for endorsement.

RELEVANT FACTS

5. The complainant, Mahande Sakel, in pursuance of an agreement, had prior to 16/03/05 paid K4, 000.00 into the bank account of the defendant, Malot Nami to cut timber for him. By the 16/03/05 Malot still hadn’t performed his part by cutting the timbers for the complainant in compliance with their agreement and so the complainant sued him in the Amele No2 V.Ct for repayment of his money. By the 28/10/09 Malot had repaid Sakel an amount of K2, 800.00.On 24th February 2010 a warrant of arrest was issued for Malot to be brought to Court and be dealt with according to law for failing to comply with the Amele No 2 V.Ct order No.C 102747.

RELEVANT ISSUE

6. Should the Order for imprisonment pursuant to section 75 (2) of the Village Court Act be endorsed?

Elements of s.75 (2)

7. The District Court magistrate needs to be satisfied that the following mandatory provisions have been complied with and I highlight this provision by posing the following questions:-

(i).Has the defendant been allowed the opportunity to explain whether he has a reasonable excuse for non-compliance? If yes, then the next question should be addressed. If no, then the order is void as it has been made arbitrarily and is harsh and oppressive and repugnant to the general principles of humanity and so a District Magistrate should not endorse it.

(ii).Has the Village Court received proof that the defendant has failed to pay an order for compensation, damage or to repay a debt without reasonable excuse? If yes, then the District Court magistrate may endorse the Order for Imprisonment. If no, then the District Court magistrate should not endorse the order for imprisonment and initiate a review under Division 11 of the Village Courts Act 1989 on his own motion. (Village Courts Act section 75(4)).

RELEVANT LAW

8. There are certain pieces of legislations that are relevant to the resolution of the issue and must be considered and are as follows:-

CONSTITUTION

Section158. EXERCISE OF THE JUDICIAL POWER.

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice

THE VILLAGE COURT

Section 74. ORDER TO PAY COMPENSATION ETC.

(1) Where–

(a) Under Section 45 a Village Court orders a person–

(i) to pay compensation; or

(ii) to pay damages; or

(iii) to repay a debt; and

(b) the person fails, without reasonable excuse (proof of which is on him), to obey the order, the Village Court may–

(c) Subject to Subsection (2), order the person to serve a term of imprisonment not exceeding one week–

(i) for each K10.00 or part of K10.00 unpaid; or

(ii) where the sum is ordered to be paid otherwise than in money–for each K10.00 or part of K10.00 of the value of the sum not rendered; and

(d) subject to Subsection (3) and Section 75, make an order for execution against the goods and chattels of the person liable to make the payment of the amount due.

(2) A term of imprisonment imposed under Subsection (1)(c) shall not exceed six months.

(3) An order for execution shall be in the prescribed form.

(4) Imprisonment imposed under this section does not operate as a satisfaction or discharge of the amount due on an order and, notwithstanding such imprisonment, a Village Court may make an order for execution against the goods and chattels of the person so imprisoned.

Section 68. ENDORSEMENT OF ORDER FOR IMPRISONMENT.

(1) Subject to Section 71, an order for imprisonment under this Act is of no force or effect unless it is endorsed by a Magistrate.

(2) The Village Court that made the order shall immediately cause it to be presented to a Magistrate for endorsement under Subsection (1).

(3) Subject to Section 69, the Magistrate to whom the order for imprisonment is presented under Subsection (2) shall, unless he has reason to believe that the Village Court–

(a) acted without jurisdiction; or

(b) acted in excess of its powers,

Endorse the order.

(4) If the Magistrate believes that the Village Court may have–

(a) acted without jurisdiction; or

(b) acted in excess of its powers,

he shall exercise the power of review provided by Division 11.

Section 75. ENDORSEMENT OF ORDER OF EXECUTION.

(1) Subject to Section 76, an order for execution under this Act is of no force or effect unless the order is endorsed by a District Court Magistrate.

(2) The Village Court that made the order for execution shall immediately cause the order to be presented to a District Court Magistrate for endorsement under Subsection (1).

(3) The District Court Magistrate to whom the order is presented for endorsement under this section shall endorse the order without delay, unless he has reason to believe that the Village Court–

(a) acted without jurisdiction; or

(b) acted in excess of its powers.

(4) If the District Court Magistrate believes that the Village Court may have–

(a) acted without jurisdiction; or

(b) acted in excess of its powers,

he shall exercise the power of review provided by Division 11.

Section 58. GENERAL LAW.

(1) In exercising its jurisdiction under this Division, a Village Court is not bound by any Law (other than the Constitution and this Act) that is not expressly applied to it, but shall, subject to Subsection (2) and Section 57, decide all matters before it in accordance with substantial justice.

(2) A person charged with an offence before a Village Court is presumed innocent until proved guilty.

PREVIOUS CASES

9. There have been previous cases that have dealt with similar issues in this area of law and they are as follows:-

(a)In Mark, Re (1) the National Court held that:-

(i). Section 74 (1) of the V. Cts Act requires the proof that a person has failed to pay an order for compensation without reasonable excuse and it is only after that proof has been given that the Village Court may order imprisonment. In this case there had been no hearing to determine whether payment had been made and on the same that the period of 6 weeks allowed for payment expired, a warrant was issued for the applicant’s imprisonment.

(ii). In the case of a civil claim, an order for imprisonment must be endorsed by a District Court Magistrate in accordance with s.75 (1) of the V.Cts Act. Section 68 of the Act allows a District Local Magistrate to endorse such an order in criminal procedures.

(iii). An Order for imprisonment when made arbitrary will be declared to be harsh and oppressive and repugnant to the general principles of humanity. Cases cited Re: Theresia Maip (2) and Re: Kaka Ruk (3) 

(b)In the matter of Re: Kabia Maris and Nalik Village Court (4) the National Court held that:-

(i). Further the provisions of s.61 of the V.Cts Act 1989 clearly state that,"a person who fails, without reasonable excuse (proof of which is on him) to obey an order of a V.Ct for payment of a fine is guilty of an offence." There is no record that there was any hearing to give the prisoner an opportunity to show why he had failed to pay the money, whether it was by reasonable excuse or otherwise.

(ii). But a V.Ct is bound by s.58 to decide all matters in accordance with substantial justice, and the

(iii). I consider he was held in breach of the jurisdiction of the V.Ct Act. He has already paid part of the debt, and he is entitled to be released proportionately, I order his release forthwith.

10. The general principles enunciated in these National Court cases are that it is incumbent upon firstly, a V.Ct to conduct a hearing to determine from a defendant whether or not he/she has a reasonable excuse for not complying with its order (in other words a second hearing) and secondly, a District Court magistrate must carefully scrutinize all events leading up to the issuance of the order for imprisonment instead of merely endorsing such an order as a matter of course. 

ASSESSMENT OF EVIDENCE

11. It is necessary for me therefore to determine what the relevant law is and thereafter apply these principles to the facts of this matter. It is therefore necessary for me to determine which of their evidence is credible before making a finding of the relevant fact.

12. The following approach will be taken:

(i).I will address the standard of proof

(ii).The non-contentious facts will be laid out

(iv).Contentious material issues of fact

(v).Application of issues of law to the findings and then make a determination.

STANDARD OF PROOF

13. The standard of proof applicable in Village Court decisions that are before the District Court for:-

(a) as an appeal; or

(b) under review; or

(c) for endorsement of an order for imprisonment or execution

is on the balance of probabilities, the civil standard. 

14. The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this mandated by the operation of Sections 89 (5), 59 (1) and 38 (1) of the V.Ct Act and being a matter for endorsement under s.75 (2) and not s.68 (2) therefore it follows that the criminal standard is not applicable in such matters.

15. The said V.Ct’s original determination was pursuant to a civil complaint and this matter is for endorsement of an order for imprisonment for failure to comply with that order and therefore the standard applicable is the civil one.

NON-CONTENTIOUS FACTS

16. The complainant, Mahande Sakel, in pursuance of an agreement, had prior to 16/03/05 paid K4, 000.00 into the bank account of the defendant, Malot Nami to cut timber for him. By the 16/03/05 Malot still hadn’t performed his part by cutting the timbers for the complainant in compliance with their agreement and so the complainant sued him in the Amele No2 V.Ct for repayment of his money. By the 28/10/09 Malot had repaid Sakel an amount of K2, 800.00.On 24th February 2010 a warrant of arrest was issued for Malot to be brought to Court and be dealt with according to law for failing to comply with the Amele No 2 V.Ct order No’s 102747.

17. The non- contentious facts are as follows that there was a verbal agreement between Malot and Sakel that in consideration of the latter paying K4, 000:00 into the former’s account, Malot would cut timber for Sakel:-

(a) That Sakel paid K4, 000 into Malot’s account;

(b)Sakel sued Malot in the Amele No.2 V.Ct for the refund of his K4, 000 and obtained an order in his favor on 16/03/05;

(c)By 28/10/09 Malot had repaid Sakel an amount of K2, 800;

(d)On 28/10/09 the Amele No.2 V.Ct issued an Order No.92363 for Malot’s imprisonment for 6 months for failure to comply with its order no.C102747 in only repaying part of it to Sakel.

CONTENTIOUS MATERIAL ISSUES OF FACT

18. There is one contentious material issue of fact and that is:-

(a) did the Amele No.2 V.Ct between the 16/03/05 and 28/10/09 conduct a second hearing to determine whether or not Malot had a reasonable excuse for not fully complying with its order?

19. I have perused all the said V.Ct’s records and there is nothing in them suggestive of any such hearing. There is a paucity of records in this instance.

20. I answer this issue in the negative.

APPLICATION OF ISSUES OF LAW TO THE FINDING OF FACT

I will now apply the issues of law to this finding.

21. The issues of law that arise in the present case therefore are:-

(i).Has the defendant been allowed the opportunity to explain whether he has a reasonable excuse for non-compliance? If yes, then the next question should be addressed. If no, then the order is void as it has been made arbitrarily and is harsh and oppressive and repugnant to the general principles of humanity and so a District Court Magistrate should not endorse it.

(ii).Has the Village Court received proof that the defendant has failed to pay an order for compensation, damage or to repay a debt without reasonable excuse? If yes, then the District Court magistrate may endorse the Order for Imprisonment. If no, then the District Court magistrate should not endorse the order for imprisonment and initiate a review under Division 11 of the Village Courts Act 1989 on his own motion. (Village Court Act section 75 (2) (3)).

HOW IS SECTION.75 (2) AND (3) TO BE APPLIED?

22. Because of the differing opinions as to the application of section 75 (2) and (3) the threshold question to ask is how are s.75 (2) and (3) to be applied. This entails firstly understanding what s.75 (2) and (3) mean.

23. There are various aids to construction that can be employed in the interpretation of statutory provisions. The issue of statutory interpretation has been discussed by in many cases in this country and some of them are:-

(a) In the Supreme Court case of SCR No 6 of 1984; Re Provocation (5) it upheld Mr. Injia’s (as he then was) submission inter alia that there is an over-riding constitutional consideration, particularly relevant to penal provisions-the court "in interpreting the law…shall give paramount consideration to the dispensation of justice": Constitution, S.158 (2).

(b) In Anna Wemay v Kepas Tumdual (6) [1978] the Court held that the statute must be construed according to its express intention. If the words are precise and unambiguous, no more is necessary than to expound them in their ordinary and natural sense-without recourse to outside aids to interpretation.

(c) In PLAR No.1 of 1980 (7) the Supreme Court held that statutes should be given their ‘fair and liberal meaning’-the "purposive" rule of construction as contrasted with the ‘literal’ or ‘narrow or restricted’ interpretation.

(d) In R v Danes (8) [1965] Qd R 338 it was held that if there is doubt as to which of a number of constructions should prevail in a statute that which is most favorable to the subject should be adopted.

(e) The Magistrates Manual of Papua New Guinea (9) states at paragraph 18:5 that the District Court is given the responsibility of deciding whether or not to endorse a Village Court order for payment of a fine or for execution. That it is therefore necessary for that magistrate to carefully consider the background of the order. Further that this consideration must be directed at the following question-

Is there any reason to believe that a Village Court, in making the order for fine or execution acted without jurisdiction or acted beyond its powers?

24. It is my humble view that the above authorities are amply and unambiguously clear that because the words of these two provisions are precise and unambiguous, the ordinary and natural sense of the words of s.75 (2) and (3) make it incumbent upon District Court magistrates that before the endorsement of any such Orders for imprisonment are occasioned, he/she must enquire and investigate all events leading up to the issuance of the said order. Importantly, when the penal provisions like S75 (2) or s68 (1) of the Village Court Act are under consideration, given their crucial nature, the Constitution requirement under s.158 (1) is applicable and courts have to give paramount consideration to the dispensation of justice. What this entails is for a District Court magistrate not to endorse such an order for imprisonment merely as a matter of course just because a Village Court has the power under sections 61 and 74 of the Village Court Act 1989 to make such orders, NO, the magistrate is required to enquire further into the matter as a failure to do so would not only be contrary to the law but worse still could be perceived to be treatment of the matter in an "arbitrary manner" or a "cavalier manner" or simply "rubber stamping". 

(1).Has the defendant been allowed the opportunity to explain whether he has a reasonable excuse for non-compliance?

25. The Amele V.Ct issued an order for imprisonment of Malot however it did not fulfill the requirements of s.74 (2) by not allowing Malot the opportunity to explain the reasons for his non compliance with order no. V.Ct C102747.My conclusion here is borne out by the paucity of any records provided by the Amele No 2 Village Court pertaining to any hearing it may have conducted pursuant to section 74 (1).What I find astounding about this matter is that though the order V Ct C102747 was made on 16/03/05 and coupled with the fact that Malot was making repayments over the intervening period of time right up to29/10/09 never on any occasion did the Amele No 2 Village Court conduct a hearing to ascertain whether or not Malot had a reasonable excuse for his partial non-compliance with the said order. It was mandatory upon the Amele No 2 Village Court to conduct a hearing of such a nature. (Village Courts Act s.74 (2) and it failed miserably to do this. Going by the National Court in Mark, Re this order for imprisonment was made arbitrarily and therefore harsh, oppressive and repugnant to the general principles of humanity.

26. The Amele No 2 Village Court was mandated by section 58 of the Village Courts Act to decide all matters in accordance with "substantial justice "and its failure to at least consider the part payment of K2800.00 by the 29/10/09 and impose a term of imprisonment proportionate to this amount instead of imposing the full possible term was in direct contravention of this mandate and consequently it acted beyond its jurisdiction.

27.Part 1 and at Chapter 2 of the Magistrates Manual of Papua New Guinea (10) states that an exception is the Village Court jurisdiction where case law is seldom referred to. If custom does not apply, the court is required to decide all matters before it in accordance with "substantial justice", (Village Courts Act s.58).That it is helpful to think of "substantial justice" as the justice of the decision itself-the outcome. While, "natural justice" relates to the process or procedure leading to the decision.

28. Examples of this principle of "substantial justice" are discussed in the following cases:-

(a) In the matter of the Organic Law on National & Local Level Government Elections, Agiwa v Kaiulo (11) Kandakasi.J J held that, "No law or reasonable tribunal should ever contemplate perfecting that which is imperfect from the outset merely because one having the authority to do the act has perfected it notwithstanding the events leading to it. The courts are there to do substantial justice. If substantially, there has been no proper conduct of an election, then there can not be a declaration and if a declaration has been secured, it should not be allowed to stand.

(b) In Application of Tomba Emba; Re an Order dated 5/11/85 (12), Los J held that "I find no difficulty in upholding the argument. Section 50(1) and 69 ensure that the proceedings before a District Land Court is not burdened with technical rules but consider all matters before it "in accordance "with substantial justice"."…That is, as it appears that a limited number of members of the Komia Clan are determined to frustrate the efforts of the elders seeking a settlement, the orders could not have been aimed at achieving a substantial justice as required under the Land Dispute Settlement Act.

(c) Re the Village Courts Act 1974; Re WW (An infant) presently in Custody (13) J. Pratt stated that "Under the Village Courts Act there is no appeal to the National Court or beyond, nor may any prerogative writ lie against action taken by a Village Court magistrate (sections 48, 49 and 56-Amended).An appeal may be lodged with a Local Court or a District Court magistrate, and such magistrate may on their own initiative initiate a review. That before any order for imprisonment may take effect, it must be endorsed by a Local Court or District Court magistrate(37).I have no doubt whatsoever that in many instances such endorsements are made as a matter of course-rubber stamping.

(d) Bank of South Pacific Ltd v Public Curator (14) Kandakasi.J held that "This was in keeping with the principle that the Courts are there to do substantial justice and should any rule of practice step in the way of that, the Court does have power in O.1 r 7 to dispense with them (See PNGBC v Jeff Tole (15) (Unreported Judgment of the Supreme Court delivered 27/09/02) SC694 for an example of an authority on point".

29. I answer Question (1) in the negative. I find then the order is void as it has been made arbitrarily and is harsh and oppressive and repugnant to the general principles of humanity and so I do not endorse this Order for the imprisonment of Malot and though I am not required to do so but nevertheless for completeness sake I will answer the other question.

(2).Has the Village Court received proof that the defendant has failed to pay an order for compensation, damage or to repay a debt without reasonable excuse?

30. I answer Question (2) in the negative on the basis of the reasons giving rise to my answer in the negative to Question (1) and now I initiate a review on my own motion of the matter pursuant to Division 11 of the Village Courts Act.

REVIEW

31. The prevailing circumstances of this matter make it imperative that I review the whole matter and in deciding to adopt this course I bear in mind the mandate of s.158 of the Constitution of PNG.

32. The Magistrates Manual of PNG (16) states that Magistrates sit mainly in the provincial District Courts which are part of Papua New Guinea’s National Judicial System as provided for by the Constitution of the independent state: s 155. Further that the District Court is established by its own statute under the authority given to Parliament by s 172(1) of the Constitution. Other courts and inquiries usually presided over by Magistrates include the Local Land Court, the Provincial Land Court, the Children’s Court and Coroner’s hearings. 

33. That the Constitution vests "the judicial authority of the people" in the National Judicial System and requires that "in interpreting the law, the court shall give paramount consideration to the dispensation of justice": s 158. 

34. There are a lot of National Court cases which have applied the mandate of s.158 and some examples of them are:-

(a) Wassey v Aigilo (17), this case involved a motion by the defendant to strike out proceedings for the alleged non compliance of s.5 of the Claims By and Against the State Act. Cannings.J held that inter alia that Section 5 must be interpreted and applied in a way that promotes the dispensation of justice. Where proceedings against the State have been on foot for a considerable time, the benefit of any reasonable doubt as to compliance with the Claims By and Against the State Act should be given to the plaintiff. The motion to dismiss the proceedings was accordingly refused.

(b) State v Yali (18) In this case Cannings.J held inter alia held that the court is free to depart from the literal meaning of the words used in a legislative provision, if giving effect to the literal meaning would result in an absurdity, or lead to a result unintended by the legislature, or run counter to the dispensation of justice.

(c) Raima; The State (19) Brown J held inter alia that the "dispensation of justice" enables a court to take account of reasons for non attendance of a witness in considering exercise of a discretion to admit evidence from the witness through affidavit. Further, that the constitutional imperative to dispense justice to all persons required the court to take account of the need to develop means of dealing with the prevailing situation of threats to witnesses. Reception of the evidence subject to the safeguard considered by the court met the constitutional imperative and contributed to the development of the underlying law.

(d) In the Supreme Court matter of Somare, Re (20) Greville Smith J stated that in interpreting the law the courts are required to give paramount consideration to the dispensation of justice, Constitution s.158(2).That the Constitution recognizes that justice and the law are not necessarily coextensive.

35.The facts of the matter are already well stated but for the purposes of this review I restate them as follows, that the complainant, Mahande Sakel, in pursuance of an agreement, had prior to 16/03/05 paid K4, 000.00 into the bank account of the defendant, Malot Nami for the latter to cut timber for him. By the 16/03/05 Malot still hadn’t performed his part by cutting the timbers for the complainant in compliance with their agreement and so the complainant sued him in the Amele No2 V.Ct for repayment of his money and received an order in his favor on this date.. By the 28/10/09 Malot had repaid Sakel an amount of K2, 800.00.On 24th February 2010 a warrant of arrest was issued for Malot to be brought to Court and be dealt with according to law for failing to comply with the Amele No 2 V.Ct order No’s 102747.However the story does not end here and this what transpired later:-

(i) On the 5/03/10 both Malot and the Peace Officer of the Amele No.2 Village Court appeared in court and the matter was further adjourned to allow for the Chairman of the said Village Court to appear on the 8/03/10.

(ii) On the 8/03/10 both parties appeared in court and Malot was asked if he was aware of the reason for his appearance in court, to which he answered that he was aware and that he had bank documents concerning a joint account he had with his late wife and that he had been advised by the same that he could access the money in this account at the end of this month, March. The court directed Malot to file a submission outlining what he had told the court including those documents he referred to from the bank by Wednesday 10/03/10 and to serve copy on the said Village Court and the matter was adjourned to 12/03/10.

(iii) On 12/03/10 the matter was adjourned to 16/03/10 for decision. The documents filed by Malot comprised of Westpac Bank deposit receipts pertaining to his payments into the account of Mr. Sakel totaling K2, 800, his letters to the BSP Madang and his late wife’s Death Certificate and a letter to this Court outlining the reason for the delay of payment.

(iv) On 16/03/10 the court issued further directions to Malot to obtain a bank statement of the said joint account and adjourned the matter to the 23/03/10.

(v) On 23/03/10 the Court noted from the said bank statement that it stated a balance of only K420.06 and further noted that Malot had lead the court to believe previously that the money in this joint account would be sufficient to offset what he owed, K1, 200.However the Court going by the basis of his past efforts in actual part payments and his continued desire to fully repay allowed him one last adjournment to make good his desire and adjourned to the 6/04/10.

(vi) On 6/04/10 Malot appeared in court and informed it that he was waiting for a court order to make the final payment so Court directed Senior Constable David Bell to accompany Malot to BSP Madang and witness the final payment and thereafter to escort Malot back to Court with the receipt of such payment. At 3:00pm Malot was escorted to Court with Mr. Sakel and receipt of the final repayment of K1, 200.It must be noted here that my calculation of how much Malot owed was based on provided actual Westpac Bank deposit slips of deposits he made into the account of Sakel.

36. This Court has appeared to have bent over backwards to accommodate the peculiar situation Malot found himself in and but the court in doing so was nevertheless giving effect to the mandate of s158 of the Constitution. And in this instance I am indebted to Cannings.J for his comments in State v Yali (21), "The Court is free to depart from the literal meaning of the words used in a legislative provision, if giving effect to the literal meaning would result in an absurdity, or lead to a result unintended by the legislature or run counter to the dispensation of justice". In the immediate matter if the Court was to endorse the order for imprisonment as provided for by s.75 (2) merely as a matter of course without due consideration of what had transpired, not only would it lead to an absurdity where though Malot had repaid over half of what he owed and he would still be imprisoned for a full permissible term of 6 months with no consideration for his part payments but also such endorsement would fly in the face of Malot’s fervent desire to fully recompense Sakel and most certainly run counter to the dispensation of justice.

37. I discharge Malot Nami of the Amele No 2 Village Court order no. C102747 on the above basis.

Complainant in Person
Defendant in Person.

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(1) [1995] PNGLR 234
(2) [1991] PNGLR 80
(3) [1991] PNGLR 105
(4) [1994] PNGLR 314
(5) [1985] PNGLR 31 (28/02/85)
(6) [1978] PNGLR 173
(7) [1980] PNGLR 326 (10/10/80)
(8) [1965] Qd.R 338
(9) Paragraph 18.5 Hill ER & Powles.G.Magistrates Manual of Papua New Guinea, Law Book Co (2001) Sydney NSW 2009
(10) Paragraph 18.5 supra note 9
(11) [2203] N2345 (18/02/03)
(12) [1985] N549 (5/11/85)
(13) [1980] N267
(14) [2003] N2320 (20/01/03)
(15) [2002] SC694 (27/07/02)
(16)Supra Note 9
(17) [2005] N2876 (12/08/05)
(18) [2005] N2932 (16/11/05)
(19) [1993] PNGLR 230 (20/04/93)
(20) [1981] PNGLR 265 (3/08/81)
(21) Supra Note 18