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Yamboli v Sagu [1995] PGNC 44; N1406 (24 November 1995)

Unreported National Court Decisions

N1406

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 472 OF 1995
BETWEEN
JOHN YAMBOLI - APPLICANT
AND
IN THE MATTER OF JOHN YAMBOLI
V
REGINA SAGU
AND
IN THE MATTER OF SECTION 60, 94, 94B, 94C & 96 OF DISTRICT COURTS ACT, 40

Mount Hagen

Akuram AJ
24 November 1995

PRACTICE AND PROCEDURE - Application for Judicial review - Application for leave - notice not served on Secretary for Justice.

CRIMINAL LAW - Practice and Procedure - Committal Proceedings - action against Magistrate personally for judicial acts - Section 255 District Courts Act, Ch 40, O. 16 R. 5 (2) NCR Ch. 38.

24 November 1995

AKURAM AJ: This is an aption for leav leave for an application for Judicial review. Theicant by way of an orig originating summons filed and Notice of Motion filed on 6/11/95 seeleave and if granted, to review the decision of Mrs. Reginaegina Sagu who was the presiding magistrate in allowing an affidavit of the key witness in the case of The State v John Yamboli during the committal hearing and committing the applicant/defendant Contrary to section 94C (2) of the District Courts Act.

Counsel for the defendant in a written preliminary submission said that to be a party to a proceedings, one has to have an interest at stake. In this matter his clien noas no interest that accrue to her personally as Regina Sagu at stake. She is a judicial offind tand thus it is submitted that for matters such as this involves elements of public law, it is not in the interesterest of the community for judicial officers to be named personally. Ruleshe National CourtCourtCourt do allow actions to be proceeded otherwise, and it is not necessary to have judicial officers excepte actions personally lie against the individual judicial officer. Public Policy consiconsideration do not permit the naming of judicial officers as parties as it is not intended to leave doors open for their integrity to be impunged upon and that no interhat accrue personally are at stake and thus it is not permipermissible. He therefore submitted a wt a wrong person has been summoned to appear before the court by two different processes namely the originating summons and the Notice of Motion. He red to , R. 5 as the ruhe rules providing for a judicial revi review. 16, Rule 5 (2) does not snot say that a judicial officer h be named and that he has to be personally served. It says that if ttter rela relateslates to a Court proceedings than a copy o motion to be served rved on the cle regr registrar of the court, and where it relates to any objection on the conduct or a jud to be made, on the judge.

I totally agree with the arguments raised by the Counsel for the respondent, Regina Sagu.

However, the argument does not only rest here. This is a mathat arose in e in the District Court proceedings and because District Court is a creature of statute, one must first see the relevant provisions in the District Courts Act, Ch 40 to see whethere are similar provisions tons to that of the National Court Rules.

Under Part X11 of the Act (Protection of Magistrates in the Execution of Their Office), and particularly Section 247 of the Act says that where a person is injured by an act done by a magistrate in a matter in which by an act done under an order made may maintain an action against the magistrate (s.247 (1)). But such action is not maintainable for anything done under an order until after the order has been quashed or set aside under this Act, (s. 247 (2)).

Under section 255 (No action in District Court for Judicial Acts), no action is to be brought against a magistrate in a District Court for anything done by him in the execution of his office.

However, it is section 256 which is relevant here, and it reads:

“256. &#160istrate only liable inle in case of malice, etc.

In an action against a magistrate for an act done by him in the execution of his duty as such or in his capacity as such, it must be expy alleged in the statement ment of claim or plaint that the act was done maliciously and without reasonable and probable cause, and if the allegations are denied and at the trial of the action the plaintiff fails to prove them, judgement shall be given for the defendant.” (emphasied).

This shis section implies that the magistrate may personally be sued if in the execution of his/her duties as such, he/she acted with malice or maliciously and without reasonable or probable cause.

In the present case, I do not think that the presiding magistrate acted maliciously and without probable cause. All she was doing was singssing the evidence presented to her in the committal proceedings to decide whether there is sufficient evidence to commit thlicant and three others to stand trial at the National Court. Ses not decide thee the fahe fate of the applicant as to his innocence or guilt. She had no persinterest inst in the case except to assess the evidence. As suc is a neutral peretweretween the Police representesenting the State and the Applicant. It is thice or the State tate that is an interested party in the coal hearing and not the presiding magistrate. Thereforrefore if the aanticant thinks or feels or is of the opinion that he is aged by the decision to commicommit him to stand trial because the presiding magistrate has wrongly admitted certain evidence, he shoule the State or Police as thas the respondent/defendant in this proceedings. This is the same sion as i as in appeals against the decisions of magistrates in District Courts where magistrates are not served as Respondent’s in Appeals as the opposing in the proceedings in which decision is, made are named ased as the respondents in the Appeal.

In the case of In The Matter of Philip Nagira v Besasparis and In The matter of Section 60, 94 (6) (b) and 94B of the District Courts Act (1986) PNGLR 199, although the presiding magistrate’s name was used, I distinguish that from the present case simply because this argument was never raised. In fact thithe first time time it is raised in naming the presiding magistrate as a party in any proceedings.

I am therefore of the view and also agree with the Counsel for respondent, Mr. Pius Kingal, that as a judicial officer and in matters such as this which involves elements of public law, it is not in the interest of the community for judicial officers to be named personally. Thes of National Court do t do allow actions to be proceeded otherwise (O. 16, R. 5 (2)) and it is not necessary to have judicial officer’s except where actions personally lie against the individual Judicial Officer.

I therefore make the following orders:

1. ـ҈ T60; That that the State or Police be named as the respondent/defendant and the name “Mrs Regina Sagu” be deleted.

2. ; Servicemibe e the Secretacretary fory for Jusr Justice.

3. ҈& C60; Costs bsts be against the Applicant.

Lawyer forAppli Johnoli -erson

Lawyer for the Rthe Responespondent:dent: Lega Legal Offl Officer, NJSS