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Re Ereman and the Constitution Section 42(5) [1993] PGNC 40; N1132 (5 January 1993)

N1132

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 7 OF 1993

IN THE MATTER OF NAUNE EREMAN

AND

IN THE MATTER OF THE CONSTITUTION SECTION 42(5)

RABAUL: DOHERTY J.
5 JANUARY 1993

Applicant in person

A Court must be satisfied a person had means to comply with an order for maintenance before ordering imprisonment in his absence - S.4 Maintenance Orders Enforcement Act may offend S.37(5) Constitution.

The detainee was ordered to be imprisoned for twelve months in his absence for failing to pay maintenance. There was no evidence of his means or ability to pay and the order of the Court ordering payment of arrears forthwith was contained in a Warrant of Committment to imprisonment.

HELD:

1. The provisions of S.4 and 66 Maintenance Order Enforcement Act Ch.379 must be read in conjunction with S.5 of the Act and imprisonment cannot be ordered without proof of means and ability to pay.
   
2. The concept of imprisonment being ordered in the absence of a defendant may offend against the right to be present at trial in S.37(5) Constitution.
   

DECISION

The Applicant Naune Ereman has applied to this Court for leave to appeal against the decision of the Madang District Court made on the 2 June 1992 and against the decision.

He was committed to a term of 12 months in hard labour at Kerevat Corrective Institution for failing to comply with an order of the District Court in Madang to pay arrears of maintenance.

The Warrant of Committment and the Court records in Madang District Court show that there was a hearing on the 2 June 1992 following an application to commit the defendant (Naune Ereman) to prison pursuant to S.4 of the Maintenance Order Enforcement Act Ch.379 because he had failed to comply with a maintenance order. A certificate of arrears showed that K3938.00 was due under the maintenance order and that he had not made any payment since the 19 July 1985.

The court records states that there was no appearance by the defendant before the court but the court was satisfied that the application had been served upon him on the 18 May 1992 at Rabaul. There is a handwritten notation "POS filed 20/5/92" which may mean "Proof of Service filed 20/5/92."

The court then went on to read the affidavit of the complainant (Anne Kiwar) who the appellant concedes was his former wife.

Her affidavit states that she is a mother of 2 children, that an order was made that Ereman pay maintenance of K22.00 per fortnight for the two children and herself commencing on 27/4/84 registered in Madang District Court and that he has not complied with that order since July 1985 and arrears amounting to K3938.00 were then due, a total of 179 fortnights.

There is no affidavit of service on the court record other than the notation referred to above and the appellant states before me that he did not receive the application for the Madang Court until July. He was then resident in Rabaul and saw the Clerk of Court in Rabaul and asked him to convey this information to the Madang Court. This is also an unsworn evidence and unsupported by documentation.

The Madang Court sat on the 2 June 1992 and ordered that the appellant be committed to imprisonment for a period of 12 months unless the sum of maintenance arrears K3938.00 is paid forthwith and "thereafter to continue making payments in the sum ordered previously."

There was no order to this effect made out and served on him, instead a warrant of commitment was made out dated the 2 June 1992 showing the court was held at Madang and states that the defendant "failed to comply with the order of the District Court at Madang dated the 2 June 1992 to pay K3938.00 forthwith and thereafter to continue maintenance payment ordered previously" and ordered that the appellant be "imprisonment for a period of 12 months unless the order is complied with in full." Another date is shown on the warrant on viz 25 August 1992 and the appellant said that he was arrested in August and has been in prison until a Visiting Justice visit in December 1992.

The powers of the District Court to imprison a person for failing to pay maintenance are provided in S.4 of the Maintenance Order Enforcement Act Chapter 379.

These provide that a complainant may make an application to the court that a male person has disobeyed or failed to comply with the maintenance order and as a result a sum of money is in arrears under the order the court may order that the defendant be committed to prison for a period not exceeding 12 months. The Section is subject to S.66 of the Act which provides that where a defendant does not appear and there is proof that he has been summonsed then the courts may either issue a warrant for the arrest of the defendant or may proceed to hear and determine the complaint or application in his absence. It may not proceed if it is not satisfied that the summons was duly served or the defendant cannot be found after a diligent search.

Hence on the face of it a court can proceed in the absence of the defendant and make an order to commit him to prison for failing to pay arrears of maintenance but it may also issue a Warrant of Arrest.

However S.4 and S.66 must be read subject to the provisions of S.5. These provide that a court shall not commit the defendant to prison unless it is satisfied that the defendant had the means and ability to comply with the order and has had such means and abilities since the order was made and could have, by reasonable effort, have had that means and ability or there is some other reason present why he should not be imprisoned. Further a person should not be committed to prison if he has already been committed to prison for failure to comply with the maintenance order (unless the defendant's means and abilities to pay changed since he was committed to prison for non payment).

So while it may look on the face of it that a person can be committed to prison just for failing to pay his maintenance and conforming with the maintenance order the court must be satisfied that, in fact, he had the means to pay and from his own violation he made a decision not to pay.

In the case before me the affidavit before the Learned Magistrate (the contents of which I have recorded) does not say anything about the defendant's means to pay, does not explain if he was working, had a business or give some other indication which would enable a court to access a defendant's ability to pay or not.

For this reason I consider that the Learned Magistrate had erred in making the order he did in the absence of the defendant.

Further I have reservation whether S.4 of the Maintenance Orders Enforcement Act like S.195 of the District Court Act, might contravene the provisions of S.37(5) of the Constitution. Both these provisions provide for custodial penalties for non compliance with civil orders made in District Courts and for such custodial sentences to be imposed in the absence of the defendant where there is proof of non compliance and ability to comply.

Section 37(5) of the Constitution provides that a trial may not take place in the absence of a defendant except in certain stated circumstances. The provisions of the Maintenance Order Enforcement Act and a District Court Act enforcing orders by imprisonment are sometimes referred to as "quasi-criminal", and were passed before the provisions of S.37(5) Constitution were introduced. The concept of protection of the law in S.37(5) involves a right to be heard at a trial of a person, as does the concept of natural justice. An order for arrest would be more appropriate. Whether these provisions do comply with the Constitution is a matter solely within the jurisdiction of the Supreme Court to determine (S.18 Constitution).

I am satisfied on the evidence before me but there was no sufficient proof before the District Court in Madang to enable it to access whether the defendant had means and ability to pay. Accordingly I set aside that decision and remit the matter for rehearing in full. The defendant before me has said that he was informed that his former wife had remarried and the new husband had adopted the children so he did not pay anymore. This may be grounds for seeking of variation on the maintenance of the wife, it is not grounds for ceasing to pay nor does it alleviate him from the duty to provide for his children. He should comply with the maintenance order and as he has consented that the amount of the order be deducted directly from his salary I order by consent that the amount of K22.00 per fortnight be deducted from his salary by the Department of East New Britain and remitted to the Collector of Maintenance at Madang District Court. The defendant is to be given one month notice of hearing by the Clerk of Court in Madang.

Applicant in person.