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Iatinata v Toiwat [1994] PGNC 75; N1204 (17 February 1994)

N1204

PAPUA NEW GUINEA
[In The National Court of Justice]

APP. 72 of 1993

MARKO IATINATA

V

DENISON TOIWAT & PENINGTON VALAUN

Rabaul: Doherty, J
17th February 1994

The Contempt provisions of S 277 District Court Act Ch. 40 are limited to the matters therein - the provisions of S 192(1)(e) must be proved before a person can be imprisoned and even then there is a discretion that must be exercised.

CASES CITED:
The following case is cited in this judgement:
Yap v Tan & B & T Engineering Pty Ltd & Others [1987] PNGLR 227

Mr Ousi for the Appellant
Both Respondents in person

DECISION

DOHERTY, J.: The Appellant:-

(1) appeals against a decision of a District Court at Rabaul ordering her to be imprisoned for 2 months from the 20th October 1993; and

(2) makes an application for leave to appeal out of time against the original order made on 5th December 1991 that she pay K7,000.00 to the respondents.

The Warrant within the Court papers shows that the Appellant was ordered to be imprisoned for 2 months for "contempt of a Court Order". The contempt provisions of the District Court Act are contained in S 277 of the District Court Act which provides that a person who has interrupted a Court or conducted himself without respect or obstructs the Court or disobeys an Order made under S 63 of District Court Act Ch 40 can be fined a maximum of K200.00.

The only provision of S 277 that could apply to the instant case is S 277(1)(d) (that a person can be fined for contempt is failing to obey S 63 of the District Court Act). The penalty is a fine of up to K200.00; not a term of imprisonment.

It appears to me that the learned Magistrate intended to make an Order under S 192(1)(e) of the District Court Act Ch 40 which provides for imprisonment of fraudulent debtors. However, that provision is a discretionary one, the Court can make an Order of imprisonment only after it has found certain facts and then only if it decides it is appropriate.

There must be a proof of either refusal to pay coupled with an ability to pay and the means to pay, or a person is about to leave the country without paying his debt or he is about to go somewhere else in the country with the intention of avoiding his debts or he has neglected or refused to comply with the Order to deliver goods or has not paid the value of the goods. The provisions apply only then if there has not been distress, (that is there has not been an attempt to recover the money ordered by taking the person's goods.)

It is only if one of these things is clearly present, can the District Court then make a decision whether it should send the person to prison or it should not send the person to prison.

I consider that once the District Court has made findings of fact applicable to S 192 it must then consider the situation of the person standing before it before deciding to exercise its discretion.

At the present case the woman that was sent to prison was 70 years of age and there were other ways of getting the judgment money rather than sending her t prison. The Respondents told the Court that income was earned from crops which were being collected by her sons and the evidence in the hearing also showed that K3,000.00 was offered to the Respondents and they refused to take it.

The learned Magistrate found that on an earlier occasion in or about 1985, the Respondents were offered K4,000.00 and they refused to take that as well. I am not sure from the deposition exactly what time she offered the K4,000.00.

From the facts of this case it is clear that the two Respondents are insisting on the whole K7,000.00. The realities of life are such that it is not easy for people to collect K7,000.00 all at one time and I think if they are a little less greedy and a little more realistic they might have been paid in instalments. If they had accepted the K4,000.00 that they had been offered in the first place, they might have been closer to getting their money.

On the face of the Court record it was clear that the Appellant, although she did not give evidence in the hearing under the Warrant, i.e. the Summons to Debtors, had given evidence in an earlier Court and she challenged the fact that the trees the Respondents said they planted as boys were bearing fruit. There was evidence adduced by both parties.

I am concerned as to how the amount of K7,000.00 was assessed. The documentary evidence that went before the lower Court and the Land Court showed a valuation of these threes, some of them at K3,424.00 and other trees were valued at K6,700.00 but clearly the two Respondents were not the only people that planted these trees, the Appellant planted some of the trees. The Respondents also collected the fruit of some of those trees over a period of years.

I have to agree with Mr. Ousi, I am not clear at all how these proceedings came to be in the District Court. The Local Land Court has the power under S 44, Land Dispute Settlement Act Ch. 45. The proper procedures should have been to go back and use the provisions of the Land Dispute Settlement Act to enforce the Order that apparently was made in December 1984. I say, apparently made, because there is no record nor copy of any Order made by the Local Land Court. It is not clear exactly how much compensation for the trees that were planted was ordered. As the learned Magistrate in the District Court said, "there is no Court record in the Court Registry". The original Order of the Land Court seems to have been lost. The learned Magistrate had said "I have nothing to assess on quantum" and then went on to say "I will enforce a Court Order of K7,000.00 which was made on the 12th December 1984", although the only written evidence we have such a decision was a letter from the Department of East New Britain saying that there was an Order made on or about the 12th December 1984 but it does not state what the terms of the Order was.

As I have noted there is also an assessment attached to the letter. It looks as if it is signed by three mediators and refers to K3,424.00 but their status is not stated.

The Counsel for the Appellant says she did not speak pidgin, she did not speak English, she was an old woman and she did not understand what was happening and that is why the Court record shows that she did not speak.

I consider that there were other avenues open to the learned Magistrate other than sending an old woman to prison, and I think that this was not a reasonable exercise of the discretion vested in him, particularly when the two Respondents were offered money at various times and refused to take it.

Papua New Guinea, has one of the highest prison rates of any country in Southeast Asia and there seems to me no point in sending 70 year old grandmothers there because they cannot pay their debts when there are other means of enforcement and therefore I uphold the first leg of this appeal.

However, the fact remains that there is a binding Order in the District Court ordering the Appellant to pay the Respondent K7,000.00 and an Order of a Court is binding on the parties to it even they think it is wrong, and even if they are not happy with it. This is been clearly stated in the ruling of Hinchliffe, J in the case of Yap -v- Tan and B & T Engineering Pty Ltd and Others [1987] PNGLR 227 at 231.

"It is the plain and unqualified obligation of every person against or in respect of, whom an Order is made by a Court of competent jurisdiction to obey it unless and until that Order is discharged". ..."it extends even to cases where the person affected by an Order believes it to be irregular or even void."

I think there were arguments that would have been available to the Appellant on an appeal. The original Order that was heard was apparently made in 1984, the Order seeking to enforce it in the District Court was made in December 1991 were both parties were represented by Lawyers. At the end of the decision, the learned Magistrate quite properly said the "Defendant is at liberty to appeal his order, she has one month to lodge the appeal or instruct a Lawyer to do that on her behalf".

It is therefore over nine years since this original order has been on foot, I consider she had notice by reminders to pay and she apparently acquiesced in the original Orders by offering to pay first k4,000.00, and after 1991, K3,000.00. I consider by both acquiescing and waiting this length of time it would defeat justice to allow her to appeal almost ten years later.

I uphold the first leg of the appeal and I do not enforce the imprisonment Order but I am not prepared to allow leave to appeal at this time. That order, of course, can be appealed also. I think both of the Respondents should face reality and accept instalments instead of insisting on K7,000.00 all at once.

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Lawyer for the Appellant: Warner Shand
Lawyer for the Respondents: Respondents appeared in person