[1999] PNGLR 145

PAPUA NEW GUINEA

[national court of justice]

WILLIAM RUMBIA

V

THE STATE

waigani: sevua j
4 November 1996; and 6 May 1999

Village Court – Practice and Procedure – Proceedings conducted without defendant – Defendant not summoned or ordered or informed – Orders made in his absence – Sentenced to imprisonment without being charged – Whether proceedings before the National Court appropriate – Whether imprisonment constitutional or lawful – Constitution, ss 42(f), 37(4) (22) 9(c) and Village Courts Act, ss 38(1), (2) & (3) & 30 

Facts

The applicant was not ordered or summoned to appear before the Gerehu Urban Village Court and the Village Court proceed to deal with a Section 30 offence without the applicant being charged, and was convicted and sentenced to six (6) months imprisonment.

Held

1.	Section 79(1) of the Village Courts Act provides in mandatory term that the Village Court must not proceed in the absence of a party. The originality process before the Village Court is by way of an order in pursuance of s 81 (1) of the Act, rather then the usual complaint and summons issued in the Local and District Courts. Even then, the applicant maintained that he was not summoned to Court so that would mean, an order commanding him to appear was not served on him. I accept his evidence that he was not served with a summons or order to appear on 1st May 1996.

2.	Accordingly, the Village Court had, proceeded in breach of both s 79(1) and s 8(1) of the Act. Since the applicant was not served with the order to appear on 1st May 1996; he had no knowledge that the Village Court was to deal with him. He was entitled to the protection of the law pursuant to s 37(1) Constitution. Section 79(1) and 81(1) of the Village Courts Act gives him that protection, however, he was denied constitutional right.

3.	Furthermore, the applicant was not given an opportunity to appear and present his case. This is a direct violation of the principles of natural justice. The Gerehu Village Court proceeded in breach of the rule of natural justice as required by s 59 Constitution.

4.	The orders of the Gerehu Village Court made on 1st May and 24th July, 1996; are quashed and the order for the release of the applicant from custody is confirmed.

Papua New Guinea cases cited

In the Matter of John Manga of Ibura Village (1993) Unnumbered and Unreported.
SCR No. 1A of 1991 Re Motor Traffic Act [1982] PNGLR 122.

Counsel

D Keta, for applicant.
Titus, for respondent.

6 May 1999

Sevua j. The applicant appeared before me on 30th August 1996 in pursuance of orders I issued at Waigani on 26th August 1996, following receipt of a written complaint that he was imprisoned for 6 months by the Village Court without his knowledge and without being summoned. I construed that complaint to mean the applicant was being unlawfully detained.

Since the applicant’s release from custody on 30th August 1996, the Court has noted that some arguments have been raised as to whether this matter is an appeal or a review. Documents before the Court reveal that those are reference to an appeal and a review. The Court needs to clarify this unfortunate situation as the Court considers that there has been some misunderstanding by both parties without another party being at fault.

It appears that on 14th August 1996, the applicant lodged a complaint to a visiting Justice at Bomana. The essence of that complaint was that the applicant had no knowledge of Village Court proceedings and the Order of the six months imprisonment. On 18th August 1996; the applicant wrote to Doherty, J and referred to a bail application pending appeal. In both letters, the applicant referred to an appeal to the District Court. The Court record does not show what Doherty, J did. However, the matter first came before me on 28th August 1996 and was adjourned to 30th August 1996, on which date, I ordered the release of the applicant from custody. It should be noted from the outset that the applicant did not have the benefit of legal advice at that stage. 

As the complaint to the Court, as far as I was concerned, raised the issue of the applicant been incarcerated unlawfully, I treated it as a complaint of unlawful and unreasonable detention at Bomana CIS and exercised my powers under Constitution s 42(5). From what the applicant says, I was satisfied that he was unlawfully imprisoned. I have therefore treated this application as a complaint of unlawful and unreasonable detention in prison. That this disposes of any doubt as to the nature of this application.

From copies of the orders of the Gerehu Village Court, I am able to ascertain the following facts.

There appeared to have been a complaint by one Esther Kindo for (sic) "damages for life", however that complaint is not contained in the usual complaint form, but an order number A13049. It is not known when a complaint was made by Esther Kindo, however, it is evident that on 1st May, 1996; the date of hearing specified in that order, the following order was made:

"Court ordered William Rumbia to pay (sic) damages compensation K1, 000.00 to Esther Kindo ... payment period 01/05/96 – 01/06/96". 

It seems from a subsequent order number A17616 that the applicant failed to comply with Court order no. A13049 and was sentenced to imprisonment with hard labour for six months. It is obvious that the Clerk of Court of Gerehu Urban Village Court lodged that complaint, however, the complaint is not contained in the usual complaint form. The substance of the complaint I have alluded to can be worked out only from the order no. A17616 which bears the hearing date as 24th July, 1996.

On 7th August 1996, the Port Moresby Local Court endorsed the Village Court order of 24th July 1996 and issued a warrant of commitment for six months.

The applicant has raised two very fundamental constitutional issues. Firstly, he said he was not summoned to appear before the Village Court on 1st May 1996; when the original order to pay compensation was made. Secondly, he said he was not summoned to appear before the Village Court on 24th July 1996 when he was sentenced to imprisonment for six months.

Paragraph 3, 4 and 5 of the applicant’s affidavit sworn on 11th November, 1996, alluded to the fact that he was not served with a summons to appear before the Village Court on 1st May, 1996 when the order for compensation was made. He said he was surprised when served with the court order. Then on 24th July 1996, he was served with the order for imprisonment, arrested and taken to Bomana prison.

Order No. A13049 seems to suggest that the applicant was present on 1st May 1996, however, he has stated in his affidavit that he was not served with a summons or order to appear on that date. The respondent has not refuted or disputed this although; it had the opportunity to do so. No affidavit has been sworn by any of the officials of Gerehu Village Court therefore I accept the applicant’s evidence that he was not present on 1st May 1996.

Section 79(1) of the Village Courts Act provides in mandatory term that the Village Court must not proceed in the absence of a party. The originality process before the Village Court is by way of an order in pursuance of s 81 (1) of the Act, rather then the usual complaint and summons issued in the Local and District Courts. Even then, the applicant maintained that he was not summoned to Court so that would mean, an order commanding him to appear was not served on him. I accept his evidence that he was not served with a summons or order to appear on 1st May 1996.

Accordingly, the Village Court had, proceeded in breach of both s 79 (1) and s 8 (1) of the Act. Since the applicant was not served with the order to appear on 1st May 1996; he had no knowledge that the Village Court was to deal with him. He was entitled to the protection of the law in pursuance of s 37(1) Constitution. Section 79(1) and 81(1) of the Act gives him that protection, however, he was denied constitutional right.

Furthermore, the applicant was not given an opportunity to appear and present his case. This is a direct violation of the principles of natural justice. The Gerehu Village Court proceeded in breach of the rule of natural justice as required by s 59 Constitution.

Given the factual circumstances of the case, I hold that the Gerehu Village Court order for imprisonment on 24 July 1996 was both unlawful and unconstitutional. It therefore follows that the subsequent incarceration was also unlawful and unconstitutional. A Village Court is a creative of a statute. Its procedures, functions, powers and jurisdictions are provided by the statute that establishes its existence. Accordingly, a Village Court must operate within the jurisdiction granted in that village legislation. Any breach or non-compliance with that Act must therefore be unlawful.

It is a mandatory requirement under s 84(1) of the Act that the proceedings of the Village Court be recorded.

The only records before me are Order A13049 of 1 May 1996, Order A17616 of 24 July 1996, Order for Imprisonment No. 57284 of 24 July 1996 and warrant of commitment issued on 7th August 1996. There is nothing to suggest how the proceedings on 24th July 1996 proceeded, who appeared and what evidence was adduced. Again the respondent had had more than ample time to file affidavits and produce actual court records pertaining to the Village Court proceedings of those dates. However, it has not done so and I can conclude that no records of proceedings exist.

The Village Court jurisdiction to order imprisonment for failure to comply with an order for compensation made under s.45 is found in s.74 and the maximum term of imprisonment is six (6) months. The applicant was imprisoned for 6 months. In view of the crucial nature of this provision, it would seem that proper procedures be followed in dealing with a person who had failed to abide by a s 45 order. It seems that s 74 raises constitutional issues, however since counsel have not addressed that in their submissions, I will not canvass it, suffice it to say that, in dealing with the liberty of the subject, a Village Court must be cautious that constitutional rights of the subjects are not violated.

Finally, in respect of the applicant’s initial complaint to this Court, I consider that the complaint amount to one that alleges unreasonable and unlawful detention as adverted to at the outset. It is my view that my initial order for the applicant to be brought to Court on 30th August, 1996 pursuant to s 42(5) Constitution was appropriate in the exercise of the Constitutional and inherent powers of this Court.

I am of the view therefore that the inquiry I have conducted into this complaint is appropriate in the circumstances.

For these reasons, I revoke the Gerehu Village Court orders made on 1st May and 24th July 1996 and confirm my original order for the applicant’s release from custody.

In passing, I note that the applicant has made a claim for damages in this matter. I consider that a claim for damages is not appropriate in this application and therefore the applicant will have to consider appropriate causes of action that may be available to him.

Lawyer for applicant: Keta Lawyers.
Lawyer for respondent: A/Solicitor General.