N709(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF KOPA KAIPIA

AND IN THE MATTER OF CONSTITUTION SECTION 42 (5)

Mount Hagen: Woods J
3 May 1989, 10 May 1989

CONSTITUTION - unlawful detention from Village Court - Application under Constitution S.42 (5).

WOODS J: The applicant has come before me on a complaint that he is being unlawfully or unreasonably detained in Baisu Corrective Institution. He is held on a warrant issued for 40 weeks imprisonment by virtue of an order of the Village Court of Bupibaut in the Baiyer area of Western Highlands and endorsed by the Local Court at Baiyer on 14th December, 1988. The warrant refers to failing to obey a Village Court Order to pay compensation of K400.

From a perusal of the Village Court papers it appears that this matter arose from a complaint that the complainant had looked after the applicant’s daughter for 15 years and maintained her for those years and now she has left him and went to get married and he wanted compensation. This therefore is a claim for support and maintenance similar to a brideprice payment, the complainant saying now that the girl has gone and got married he is entitled to the brideprice or such compensation from the real father.
It is quite clear therefore that this claim is a civil claim according to custom. It is not a claim or award of compensation following commission of any offence set out in the law or any wrongdoing. Therefore it is not a matter for which a person can be deprived of one’s liberty as allowed in the Constitution Section 42.

Constitution Section 42 (i) clearly sets out the circumstances under which a person can be deprived of ones liberty and failure to pay a civil debt or obligation is not one of the circumstances so listed. Whilst the Village Courts have power under Section 31 of the Village Courts Act to order imprisonment for failure to obey an order for the payment of compensation, damages or a fine, such imprisonment must be read subject to the Constitution. Section 42 (i), (b) and (c) clearly refers to failure to comply with orders of a court but such is always related to offences of which a person has been found guilty or to secure obligations imposed by law, but not contractual obligations. The compensation awarded here is clearly analogous to contractual obligation. The constitution does not and could not permit imprisonment for civil debts or judgments such being clearly not reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind. And I here refer to my comments in the matter of Yongo Mondo a judgement given this day.

I declare the Order for Imprisonment of Kopa Kaipia is unlawful. I order that Kopa Kaipia be released from custody forthwith.