DC6003
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
In the Matter of Appeal from Orders of Piribu Kikita Village Court
VCA No. 81 of 2020

Between:

AYALI WILAPA
First Appellant

ANDIKI MALINGI
Second Appellant

And:

ALUPI ANDAYA AND PETER HETAYA AS BENEFICIARIES OF LATE ANDAWI MULUNGU
First Respondent

And
HULI DINAKO, MANGOBE MARA, TAYANDA MARABE, IAN ARINAKO, HARALU ELAPE as VILLAGE COURT OFFICIALS OF PIRIPU KIKITA URBAN VILLAGE COURT of TARI TOWN
 
Tari: Komia (M)
25th March 2021, 29th March 2021, and 03rd May 2021

VILLAGE COURT APPEAL – jurisdiction of village courts – application of principles of natural justice in village courts – rights of parties to be heard – rights of parties to know reasons for decisions – whether village court hearings require strict compliance of law of evidence – in circumstance where parties allege assailant to be the cause of death, village courts have to be vigilant in assessing evidence – mere hear say is not practicable and applicable in such setting where deceased demises after seven years from the date of assault – principle of natural justice requires death claims of such nature to be properly tested .

VILLAGE COURT APPEAL – village court cannot make orders contrary to their finding – miscarriage of justice results when an order is made contrary to the courts finding – if evidence is yearning, court must dismiss the claim – village courts are statutory courts, and as such, it must be consistent with the statute in dealing with claims that go before it.

PRACTICE AND PROCEDURE – an appeal can be heard by way of rehearing – lack of evidence amounts to a baseless claim – claims must be properly tested in full hearing – where hearing conducted, and evidence is lacking, court must dismiss claim – district court has power to uphold the appeal.

Held:

1.	In any civil claim before any courts, a complainant or plaintiff have the burden to prove that the balance of probabilities favor their claim, and if claimants have failed to adduce evidence in supporting their claims, it is always safe for the courts to dismiss the claim.

2.	A custom that compels a defendant to pay certain amount of compensation in fear of retaliation and payback is a custom that is repugnant to the principles of humanity, and it is the courts duty not to allow decisions based on such customs to be enforced.

3.	Whilst the village court is not under strict obligation to comply with the strict rules of evidence when hearing cases, in instances where claims concerned deaths of a person as a result of an assault that occurred some years back, principles of natural justice dictates that the village courts must be vigilant when accepting evidence to deal with matters, and the principles of natural justice dictates that, if the evidence is yearning, the courts must never make an order to the contrary that will circumvent justice.

4.	A custom that demands village courts to make orders pursuant to foreseeable threats and intimidation from the complainant’s family to the defendant’s family thereby forcing the village courts to make an order to mitigate the threats is a custom that is repugnant to the general principles of humanity and as such, such customs shall not be given effect to.

5.	It is incumbent on every court to expose cultures and customs that are repugnant to the general principles of humanity and such exposure must be made to remind litigants that customs that uphold threat and intimidation to obtain decision to their favor is a customs that must never be imposed in any form of courts or tribunals.

Papua New Guinea cases cited

Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357 (4 July 2014). 

Premdas v The State [1979] PGSC 20; [1979] PNGLR 329
Okuk and State v. Fallscheer [1980] PGSC 13; [1980] PNGLR 274 (3 October 1980)
 
Tindiwi for and on behalf of Members of the Suspended Enga Provincial Government v Nilkare, Minister for Provincial Affairs, and The State [1984] PGSC 18; 1984 PNGLR 191 (27 July 1984)  
Busu v Post and Telecommunication Corporation [1993] PGNC 55; PNGLR 321 (3 March 1993)
Lee & Song Timber (PNG) Co Ltd v Nathaniel Burua [2003] PGNC 100; N2404 (21 July 2003)
Siki v Siki [2021] PGDC 13; DC5060 (2 February 2021)

Overseas Cases

General Electric Co. Ltd v. Price Commission [1975] 1 C.R.  

Legislations

Village Courts Act 1989
Frauds and Limitations Act 1988

Counsels:

First Appellant:		in person
Second Appellant:	in person	
First Respondents:	in person
Second Respondents:	no appearances

INTRODUCTION

1.	The appellants are aggrieved by the decision of the Piribu Kikita Village Court (hereinafter referred to as ‘village court’) dated 18th August 2020. The appeal was formulated on following grounds. They are;

i.	The village court acted in contravention of any Constitutional Law, Act or subordinate enactment that applied to the matter before it.

ii.	The first appellant was not present at the time of the hearing, and a decision was made in his absence.

iii.	The first appellant was never given an opportunity to present his case.

iv.	The village court exceeded its jurisdiction 

BRIEF FACTS 

2.	The respondent filed a summons in the village court in 2020 (the month and day is not stated) against the first appellant claiming compensation for the demise of one Late Andale Mulungu. The claim was made pursuant to the Huli custom, which is the common custom found in and around the Hela Province, which the appellants and the respondents hail from. In order to understand the basis of this appeal, it is proper for this court to consider the facts that gave rise to the village court proceeding. The facts of the village court matter is as follows:

2.1	The late Andale Mulungu was a reserve constable attached with the Tari Police Station Command. Around the beginning of September 2012, there was a big tribal fighting between two clans living along the Piribu Baibali road, where the house of the open member for Tari Pori is located.

2.2	Tari Police Station command received a distress call from the open member, and stationed certain police personals and police reservists to provide security and man the inside and outside the parameters of the member’s house.

2.3	The first appellant was also a private security that guarded the member’s house, and at the time the police personals were providing security, he was with them.

2.4	It is alleged that, on 12th September 2012, at around 10 pm the first appellant assaulted late Mulungu, and threw him down onto the ground which had some stones and rocks on it, thereby knocking him unconscious.

2.5	Late Mulungu was taken to Tari hospital where he was admitted, and treated for the injuries he sustained from the assault and discharged after four days.

2.6	The respondents allege that, the deceased had been constantly going to Tari Hospital seeking medical assistance, and in all these time leading to the time of his demise, he (the deceased) had complained that he had sustained internal injuries which had caused severe complications resulting to his deteriorating health.

2.7	Late Mulungu passed away on or around 2019, and around the year 2020 (last year) the respondents instituted a complaint with the Piripu Kikita Urban Village Court seeking compensation for the death of late Mulungu.

2.8	The complaint was heard by the village court on 18th August 2020, by the second respondents. The village court made the following orders which I quote in exact wording as it is written;

“statement or complane long as olsem taim Linabini na Papuali i bin pait na Mr. Andale Mulungu i bin work sikurity long house bilong James Marape yu Mr. Andawi I bin pusim igo na em i pundan antap long stone na em i kisim bargarap na em I no gat report housik na kisim midisin tasol em i nogat report yet em i dai so you bai kilim 15 pela pik na K2,000.00 moni…………………………………………………………………………………………………………………………………………………………………….
ORDER, Oda Kot i luksave olsem pait I bin kamap tasol em i bin pusim em i go na em yet bin pundaun antap long ston, na tu kot I no bin lukim medical ripot to prove tasol family i mix ap long tupela sait wantaim long Homan a long Papuali so kot ino laikim trouble bihain na mekim dission. Yu bai kilim 7pela pik pik (1) K1, 000.00 (2) 800 (3) 600 (4) 500.00 (5) 300 (6) 300 (7) 200. K1000.00 cash moni. 

Peim aut bipo long date 18 September 2020

Signed off by Huli Tinako 

2.9	The above statement of order made by the village court official according to my knowledge and interpretation is as follows; 

“the statement of complaint is that the deceased Andale Mulungu was working as a guard at James Marape’s house, and you Mr. Andawi went and asked him for the key, and when he refused to give you the key, you pushed him and he then fell on a stone. Court takes notice that there is no proper medical to prove that the deceased died from injuries that he sustained as a result of the assault, but because the complainant and the deceased relatives are living within the locality of Tari town in Homa and Piripu, the village court undertstands the threat and payback issues associated with such matters, and does  not want any arguments or fights to escalate as a result of this issue, and therefore, for the benefit of the people and community, we make an order that the defendant is to pay as compensation for the death of late Mulungu, a total of seven (7) pigs worth K1, 000.00, K800.00, K600.00, K500.00, K300.00, K300.00, K200.00 and K1, 000.00 in cash to be paid by or before 18th September 2020.”  

3.	The appellant strenuously opposes to the order and mentions that he was not the one that assaulted the deceased and that it is a lie, and the allegation is false. He rather shifts the blame to the Mobile Squad personals and other police personals that were there outside the gate of the member's house.

4.	Further to that, he states that the deceased was assaulted by other police men who were outside the gate when the deceased walked in drunk towards the gate, as he had been causing nuisance all night destroying market and shouting towards the member’s house.

5.	Given the contention on the facts between parties, it is only proper to consider the evidence surrounding the facts of the case and to draw and cogent and safe conclusion of the evidence.

EVIDENCE

6.	The first appellant gave evidence under oath, whilst the second appellant gave unsworn oral evidence. The appellants evidence are summed up as follows;

		First Appellant’s evidence 

7.	He was within the premises and heard some loud noise and commotion outside the gate.

8.	When he went out of the gate, he saw the police personals beating the deceased. He doesn’t know the names of those police personals, and was later taken down to Tari Police Station and locked up. He was released the next day, and he went and saw the deceased when he was released from the holding cells of Tari Police Station.

9.	The first appellant later took late Mulungu to Tari hospital and they then returned home to Baibali together. He was not the person who assaulted the deceased and he should not be responsible for the death of the deceased.

Second Appellant’s evidence

10.	The second appellant is the uncle of the first appellant.

11.	At the time of the hearing of the complaint in the village court, he stated that, it would only be proper for the first appellant to pay certain amount of pig as compensation in order to quell the situation and settle all the issues.

12.	He was present at the hearing and the time when the orders were made by the village court. He gave evidence under oath, and stated that his uncle was not present at the time when the decision was handed down.

Respondent’s evidence

13.	He is the uncle of the late deceased and he instituted the claim on behalf of himself and the family of the deceased for compensation of the deceased, because he was the deceased uncle and a clan leader which the deceased hails from. 

14.	Respondent relies on the statement made by different police personals whose names are Sergeant Katowale, Sergeant Papole, Constable Tony Wangeyu, Constable Paul, Reserve Constable’s Jack Iripu, Payale Pawa, and Yaluko Tumbiako.  

15.	When the court inquired, it was evident that all the police personals were not present at the site when the incident occurred. The only police personal that witnessed the story is one reserve constable, Jack Iripu, who gave his evidence under oath that the appellant did in fact assault the deceased and threw him onto the stone. He was then unconscious and in a critical condition, so he called Sergeant Katowale, and they came and picked up the injured person (now deceased) and took him to the hospital. I will conclude that the first appellant did assault the deceased, as the story of Jack Iribu corroborates the story of the respondents.

16.	The respondent further states that the deceased had been receiving constant medical treatment from Tari Hospital, until the time of his demise in 2018. The respondent also relies on a photocopy of a hand written note which was photocopied alongside a clinic card record or history. Nevertheless, the clinic card copy does not indicate clearly the type of illness, and the medication administered. It is very sketchy.

17.	The appellant assaulted the late reserve constable in 2012, and the reserve constable passed away in 2019, and in 2020, the respondent instituted the claim in the village court, which was decided on 18th August 2020, and the appellant was aggrieved and appealed the decision.

ISSUE

18.	The issue before this court is whether the Appeal must be upheld or not? But before I arrive at the focal issue, there are two pertinent questions that this court must fully answer in order to arrive at a safe conclusion whether this appeal can be upheld or not. These questions are;

i.	Whether the village court exceeded its jurisdiction or powers to deal with compensation regarding death?
ii.	Whether the village court did not give the appellant an opportunity present his case thereby erring in making decision without hearing the first appellant?

19.	I will deal with the above issues before arriving at the decision of, whether the appeal should be allowed, or quashed. I now deal with the first question.

	Whether the village court exceeded its jurisdiction or powers to deal with compensation regarding deaths?

20.	The village courts derive their jurisdiction and functions from the Village Courts Act 1989 (hereinafter referred to as the “Act”). Village Courts establishment, suspension and abolishment are done in accordance with Division 1 which covers ss. 4, 5 and 6 of the Act. 

21.	Part V of the Act gives the jurisdiction of the village courts. This Part of the Act covers a wide range of matters. The provisions that relate to the civil jurisdiction of the village courts and particularly with matters concerning claims arising from death of a person under customary laws are ss. 36, 45, and 46 of the Act. 

22.	Section 36 of the Act states;

36.	General jurisdiction.
Subject to this Act, a Village Court has jurisdiction in the area for which it is established—
(a)	in relation to any dispute where—
(i)	the dispute arose within its area; or
(ii)	the subject matter of the dispute is within its area; or
(iii)	all of the parties to the dispute are normally resident within its area; or
(iv)	some of the parties to the dispute are normally resident within its area and the others consent to the jurisdiction; and
(b)	in criminal matters as specified in Division 3; and
(c)	in civil matters as specified in Division 4.

23.	The village courts derive their general jurisdiction from the above provision. This provision gives powers to the village courts to determine disputes and issues regarding matters that are within its locality. The locality of the place in which the village courts would deal with are areas that are identified and designated by the minister and established through gazette by the Minister for Justice and Attorney General, and in dealing with matters within the gazette localities, they are required to apply the local custom in that area, and such local custom must not be inconsistent with or repugnant to the general principles of humanity, and the statutory laws.

24.	The village courts have jurisdiction to deal with disputes within the locality which has been established through the gazettal notice. 

25.	Whilst the village courts have jurisdictional powers to deal with issues of contention and disputes within its confined locality, another important aspect about the jurisdiction of the village courts is set out under Division 4 of the Act that narrows down and precisely allocates the jurisdictional domain of the village court regarding civil jurisdiction. Division 4 especially ss. 43, 45, and 46  as follows: 

Division 4.—Civil Jurisdiction.
43.	Disputes in respect of land.
A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to—
(a)	its ownership by custom; or
(b)	the right by custom to its use,
may, on the application of a party to the dispute, make an order—
(c)	authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and
(d)	where appropriate, prohibiting the use or occupation of the land referred to in Paragraph (c) except in accordance with an order referred to in that paragraph; and
(e)	restraining the other party to the dispute from interfering with the authorized use or occupation,
or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court.

………………………………………………………………………………………………………………………………………….
45.	Orders for compensation, damages and debt.
Subject to Section 46 and to Part VI, a Village Court may make an order for—
(a)	the payment of compensation or damages; or
(b)	the repayment of a debt,

to an amount not exceeding, in cash or in value, the sum of K2,000.00.

46.	Bride price etc.
In matters relating to—
(a)	bride price; or
(b)	the custody of children; or
(c)	death,
a Village Court may award such amount in compensation or damages as to the Village Court seems just.

26.	For the purposes of this appeal, I will narrow down the discussion to ss. 45 and 46 of the Act. S.45 gives powers to the village courts to make orders for the payment of compensation or damages; or the repayment of a debt. But it is important to also note that, this provision is subject to s.46 of the Act, hence; it is important to also consider s.46 of the Act.

27.	The heading of Section 46 starts by stating, Bride price etc, and the provision itself states that the In matters relating to bride price, custody of children; or death, a Village Court may award such amount in compensation or damages as to how the Village Court seems just. This means that there is no jurisdictional benchmark in terms of the monetary value that a village court can order. 

28.	I say this because, after carefully studying the Act, I noticed that, whilst section 45 gives powers for the village court to decide on issues concerning debts and damages to be below the ceiling of K 2, 000.00, the village can make orders in terms of monetary value that can either be below K2, 000.00, at K2, 000.00 or over that for issues of compensation for actions arising out of the bride price, custody of children and death (of a person/persons).

29.	Although the above is the case, I am also minded to consider s. 48 of the Act which basically limits the jurisdiction of the village court in dealing with civil jurisdiction. S.46 therefore states;

48.	Limits of Civil Jurisdiction.
	Subject to Section 43, a Village Court has no jurisdiction under Division 4 in relation to a matter involving the ownership of land.

30.	So essentially, s. 43 of the Act clearly does not hamper the village courts from making orders arising from claims instituted as a result of the death of a person, and upon which the claim arises customarily to be adjudicated in accordance with the custom which is found in that village courts adjudication. In this appeal, the village court dealt with the issue of compensation claim arising out of death of a person.

31.	Another important point that is worth considering is regarding the application of the relevant custom in the village courts. 

32.	‘In ensuring that custom is applied, it is imposing on the village courts to ensure that in order to apply custom, the village courts must prove that it is existent and is applicable to the circumstance and issues arising in the village courts. In addition to the application of custom, the village court must ensure that the custom is a recognized custom, and it’s enforcement would not, in the opinion of the court, result in injustice or would not be in the public interest; or, in a case affecting the welfare of a child under the age of 16 years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child. Finally, it is also important for the village courts to ensure that it has satisfied itself, considering the circumstances that are before it, adopt the best system of customary law and practice, and if need be make necessary modifications in arriving at that decision, and such adoption and modifications of the customs leading to its applicability must satisfactorily do justice as the case before it requires.’

33.	This court therefore finds that the village court did have the jurisdiction to deal with the matter that was before it, and as such, I will not uphold this ground of appeal.
Whether the village court did not give the appellant an opportunity present his case thereby erring in making decision without hearing the first appellant?

34.	This question deals predominantly with the principle of law about ones right to be heard, and is widely known as the principle of natural justice. This principle entails the binding responsibility on every administrative, quasi-judicial, tribunal and courts to ensure that every party who are affected or seen to be affected must be given adequate opportunity to be heard before a determination or decision was made.  

35.	It is settled law in our jurisdiction that, a person whose right or interested is affected, or may seem to be affected by a decision making body, has a right to be heard. It is a principle fully entrenched and forms a fundamental basis of our jurisprudence. One of the leading authorities in our jurisdiction is the case of Premdas v The State [1979] PGSC 20; [1979] PNGLR 329, and many other authorities that followed on from there such as Okuk and State v. Fallscheer [1980] PGSC 13; [1980] PNGLR 274 (3 October 1980), Tindiwi for and on behalf of Members of the Suspended Enga Provincial Government v Nilkare, Minister for Provincial Affairs, and The State [1984] PGSC 18; 1984 PNGLR 191 (27 July 1984)  Busu v Post and Telecommunication Corporation [1993] PGNC 55; PNGLR 321 (3 March 1993) and many other recent leading cases, such as Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357 (4 July 2014). 

36.	With respect to recent decision’s in the District Courts regarding principles of natural justice, the case of Siki v Siki [2021] PGDC 13; DC5060 (2 February 2021) is a case on point. In Siki (supra), the appellant in one of his grounds of appeal raised the issue of the village court failing to accord him the principles of natural justice. He claimed in his appeal that he was not present during the hearing and was also not present during the time the decision was made. I went on to decide that, it is incumbent on the courts to ensure that parties are given adequate and ample opportunity to present their case, as discussed in the Premdas case, and evidence established that he was given every chance to.defend himself against the claim and there was no point in raising that issue as he was present during all the hearing and decision date.

37.	From evidence adduced before this court, the first appellant mentioned that he was never present at the time when the final hearing was conducted and the decision made. He submits that it was his uncle that was present during the village court hearing and had made submissions that his uncle (second appellant) had assumed his authority, and made submissions before the village court on his behalf (as his representative) to make peace and at least pay some form of compensation for the ill feelings brought about by the death of late Andale Mulungu. He further argues that, the second defendant’s submission subsumed the initial argument and defence he raised, and he was never heard, and this has amounted to substantial injustice.

38.	Every courts and decision making bodies are bound by the principle of natural justice. The right to be heard is a principle that encompasses two circumstances. One instance is for a party to be given an opportunity to present his case in his own defense, and for the decision making body to consider before arriving at the decision. The second instance is where the courts are under a duty to give a reason for the decisions it has arrived at.

39.	In the case of Okuk and State v Fallscheer (supra), Kapi J. (as he the n was) in his ratio decidendi discussed the principles of natural justice and cited Lord Reid’s words in Malloch v. Aberdeen Corporation stated:

“The right of a man to be heard in his own defence is the most elementary protection of all and, where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right.

40.	In the case of Lee & Song Timber (PNG) Co Ltd v Nathaniel Burua [2003] PGNC 100; N2404 (21 July 2003) Kandakasi J in his ruling stated:

“The need to provide good reasons for any decision maker for a decision he or she make is an important part of the principles of natural justice. For a failure to give reasons has the potential to form the foundation for a suggestion or suspicion that the decision is without good reason. Lord Denning in General Electric Co. Ltd v. Price Commission [1975] 1 C.R. 1 at 12 made that in clear terms.

If it (the decision maker) gives no reason in a case when it may reasonably be expected to do so, the Courts may infer that it had no good reason for reaching its conclusion and act accordingly.”  

41.	The above principles were significantly considered and penned down by our legislators in s.79 of the Act which states in mandatory terms that the village courts shall not proceed to hear any case in the absence of a party. But then, s. 80 of the Act allows for a party to be represented in the village court, and that representative must be another person apart from being a lawyer. 

42.	So the pertinent question before arriving at my finding is; did the second appellant adequately represent the first appellant, thereby conforming to s.80 of the Village Courts Act 1989, and if so, was he adequately represented by the second appellant, so as to qualify that he was accorded the principles of natural justice? What does this court make of the second appellant representing the first appellant in this instance?

43.	The answer to the above question lies in construing the first appellant’s evidence and submission before this court. The first appellant stated in the course of his submission that he had never authorized the second appellant to speak on behalf of him or represent him.  From what the court gathered when the second appellant stated, was that at the time the summons were served, the complaint or village court summons mentioned the first appellant and second appellant as the co-defendants.

44.	From my inquiry, I am of the view that the first appellant was heard, as it was his uncle who is the second appellant who was heard, and the decisions were made in their presence. Even if the first appellant was not present at the time of the decision, it does not negate the decision because the second appellant received the decision on behalf of the appellant. Being a representative of the first appellant is one thing, but having the authority to be his representative is another important aspect, and I am of the view that, being the first appellant’s uncle, and having the status as a leader in the first appellant’s family, he did represent his uncle.

45.	The other important reason I find that the second appellant had the authority is because, in Huli custom, when a person is ordered to pay certain amount of compensation, it is the father and the mothers clan that come to contribute to the compensation and as such, the mothers clan’s responsibility is given to the uncle, and as such, he was the right person to represent the first appellant. I have also assessed that, he was indeed a representative of the first appellant.

46.	Even if he was not represented, from the submissions he made, he was there to present his case when the matter was heard. It was only during the decision and some other time that he was not present.

	
	OTHER MATTERS FOR CONSIDERATION

47.	The village court officials mentioned to court that, they had obtained evidence from both the appellants and the respondents, and had assessed the evidence. They also mentioned that although there was no proper medical report, there was overwhelming evidence from the deceased relative that the deceased, after being admitted to the hospital and been discharged, had all along been complaining that his health was failing due to the injuries sustained from the injuries he sustained as a result of the appellant’s assault.

48.	Despite the importance of adducing evidence in court, the village court proceeding is quite unique from other courts, as there is no strict requirement for parties to produce evidence according the strict rules of evidence, but rather the village courts can proceed to make decisions after hearing oral testimonies and evidence. 

49.	Whilst it makes it imperative on the village court not to adhere to the strict compliance of the rules of evidence, it is important that the parties be heard fairly and openly during the village court hearing. A closer look at s.59 of the Act makes it a mandatory requirement that the arguments of all the parties at the village court must be heard fairly. S. 59 of the Act states;

			59.		Evidence, etc.
(1)	Subject to Subsection (2), in any proceedings before it a Village Court shall not apply technical rules of evidence but shall admit and consider such information as is available.

(2)	The powers and procedures of a Village Court shall be exercised in accordance with the principles of natural justice.

(3)	Without limiting Subsection (2), a Village Court must do all of the following:
			(a)	act fairly and impartially; and
			(b)	give all parties an equal opportunity to be heard; and
		(c)	give all parties an opportunity to present their case, including
			the calling of witnesses; and
		(d)	explain the reasons for the decisions made by the Village
				Court.

50.	The provision that catches my attention is ss. 59(2) of the Act which gives prominence again to the principles of natural justice as I have already discussed to above. In any given situation, the village court must give due consideration to the evidence and arguments raised by the parties, and that is a responsibility, and role that the village court officials must never shy away from.

51.	The first appellant argues in his submission that during one of the hearings, he argued that the village court never gave serious and due consideration to his argument about the lack of medical evidence in order to hold him liable for the death of the deceased. He submits that the village courts rather overlooked the importance of a proper and detailed medical report to confirm that late Mulungu had died as a result of the injuires he sustained from the alleged beating or assault.

52.	The village court in handing down its decision stated in no unclear terms that, although there was no proper medical evidence to prove that the death of late Mulungu was consequent to the assault, they considered the dangers posed on the appellants and their family, in terms of retaliation and pay back, and also considering the fact that the families of the appellants and the families of the deceased and respondent were living together both at Homa and Piripu, they (village court officials) decided that it was proper to compensate the relatives of the deceased with seven (7) live pigs and K1, 000.00.

53.	What startles me is the decision in which the village court arrived at after it made a finding that the first appellant was not responsible for the death of late Mulungu. In my observation, I find that there was in fact an incident that occurred, and the deceased was assaulted by the first appellant in 2012. 

54.	The logic would be that, whilst there may have been an assault, the respondents have a huge hurdle to prove on the balance of probabilities the connection of late Mulungu’s death in 2019 to the incident in 2012. Even at the time this court made inquiries with the respondent as to the medical reports that they obtained right after the death of the respondents, the respondent simply replied that the doctors, nurses and general health workers and clerks at Tari Hospital were not helpful in producing those medical reports.

55.	If the doctors and health workers could not provide those medical reports, then I am sure the deceased himself, at the time of his demise, could have had in his possession, those copies or the original clinic cards, x-ray reports, or some form of medical report with him, which to my mind would have been readily accessed by the respondents and the other relatives of the deceased. I am surprised that the village court did not seriously consider these arguments during the course of the hearing. 

56.	This leads the court to another important aspect of law, with respect to claims and suits against a person or a corporation. It is trite law that, every person whether corporate or individual have a time space of six (6) years to institute legal proceedings against a person for compensation and damages, if the cause of action arises from contract or tort.

57.	There is no provision within the Village Court Acts 1989 relating to the time limitations in dealing with matters under contract or tort, or matters of such equivalent nature. Where the law is silent, it is only proper to categorize the claim to see if the claim in the village court, which is subject of this appeal falls under the category of either contract, or tort. This is a claim that the respondents claimed compensation for the death of late Mulungu, and as such, it fall within the category of tort.

58.	 I am fortified in my opinion that, whether it is a claim in the village courts, district courts or the national courts, a claim for tort has time limitation under the Statute of Frauds and Limitations Act which runs for six years. This claim at the village court was a claim based on the law of tort. It is therefore proper to consider the time when the actual assault occurred, and up to the time, when the claim was filed. In considering this, I note that the first appellant assaulted late Mulungu in 2012, and late Mulungu demised in 2019. In considering this, if the defendants are to say that the death is a result of the assault, the cause of action will have arose in 2012, which is almost eight years after the proceeding in the village court was instituted in 2020. I am therefore of the view that the claim is time barred, and cannot be sustained in law.
59.	In addition to the above point, it must also be critical too note that, whilst the village courts are not strict with the formalities of procedural aspects of a court proceeding, it must make its decision in conformity with the laws of Papua New Guinea. In saying this, I refer to s.2B(2) of the Act which states that;

2B – Village Court Principle
………..
(2)	A decision of a Village Court made in accordance with custom is of no force and effect to the extent that —
				(a)	it is inconsistent with a law of Papua New Guinea; or
		(b)	it’s application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations established by the Constitution; or
		(c)	it’s application and enforcement would be contrary to the basic rights guaranteed by Division III.3 (Basic Rights) of the Constitution.

60.	So, the essential question this court now asks is; If the custom of Hela allows for a claim to be brought into court even after the expiration of the six (6) year timeframe made mandatory by the Frauds and Limitations Act, can that custom and decision pertaining to that custom be allowed to stand? To my mind, it would be unlawful and improper if such custom is to be given effect to, and as such, it must do justice accordingly by disallowing such decisions to stand.

61.	Of course the village courts are not bound to strictly adhere to the strict requirements of adducing evidence, once a party raises an argument which is substantive and warrants serious considerations, such arguments cannot be lightly shunned by mere excuses of payback and retaliation, so as to burden the appellant to pay compensation of seven (7) pigs, and K1, 000.00. That is simply absurd and unreasonable. What the village courts implied in their decision is this;

“we find that the appellant’s alleged assault is not the cause of late Mulungu’s death, but because we fear that there are threats and instances of payback, we will consider that he is liable and he should pay a compensation of seven (7) pigs and K 1, 000.00”

62.	That to my mind is not a good reasoning, and is not upholding the principles of natural justice. Principles of natural justice demands fairness in considering the arguments and statements made by parties such as the first appellant before it. This is a grave miscarriage of justice, and as such, it is not encouraging for this court to uphold such decisions.

63.	On that same point, I am also finding it difficult to reason out why it would take seven years for the respondent to continuously grumble without laying a complaint at the village court for compensation straight after he was discharged from the hospital? Neither did the respondent issue a complaint from either the village court or the district court for the alleged assault? Why wait after seven years? and adding to that, after the demise of late Mulungu, is it safe to hold the first appellant accountable? That to my mind is not proper, sound and logical in both law and equity. Neither is it sound in Huli’s customary law.

64.	From my knowledge and understanding of the Huli culture which the deceased, respondent and the appellants all hail from; once a person is assaulted or a wrong is done to a person, it is often an instantaneous reaction for the aggrieved person to summon the assailant to the public to explain why he assaulted or inflicted injuries on him, and the leaders then deliberate and order for compensation to be paid to the victim if the assailant is found to be offending party.

65.	This is not the case here. There is not an iota of evidence to connect the death of late Mulungu to the first appellant because of the assault. The incident is isolated from the death. Even the evidence established is contentious and is open to critical evaluation and determination, and whilst those critical aspects are yearning, it is dangerous for the village courts to decide as it did.

66.	Having said that, I am also of the view that, even if the village court would have done was to award compensation to the deceased relatives for the assault or pain inflicted on the deceased, it would be improper as the deceased is no longer alive to claim compensation. It would have been a different story if the deceased had instituted the complaint when he was still alive, and if that was so, it would have been for the village court to decide then and there. Until then, it is unsafe for the court to uphold the decision of the village court. There is a grave miscarriage of justice, and therefore, the court must uphold the appeal and in doing so, I will make the following orders:

THE COURT HEREBY ORDERS:

1.	This Appeal is upheld, and the decision of Piripu Kikita Village Court Order No. 741106 ordering the appellant to pay seven (7) pigs and K 1, 000.00 is quashed.

2.	The claim for compensation of the deceased, late Mulungu is time barred and is therefore dismissed pursuant to S.16(1) of thee Frauds and Limitations Act.

3.	Parties shall bear their own costs of the appeal.

4.	Time is Abridged.

BY THE COURT	
His Worship Mr. Edward A. Komia