Unreported National Court Decisions
N1858
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MP 495 OF 1996
BETWEEN: WILLIAM RUMBIA
APPLICANT
AND: THE STATE
RESPONDENT
Waigani
Sevua J
4 November 1996
6 May 1999
VILLAGE COURT – Practice and Procedure – Proceedings conducted without defendant – Defendant not ordered to appear – Orders made in his absence – Order for imprisonment made without defendant being present – Whether inquiry by National Court appropriate – Whether imprisonment constitutional or lawful – Constitution, ss. 37(1), 42(5) & 59 and Village Court Act, ss. 45, 74, 79(1), 81(1) & 84(1). 
Where the applicant was not summoned or ordered to appear before the Gerehu Village Court and the Village Court proceeded to deal with a complaint without the applicant being present, and was ordered to serve six (6) months imprisonment for failure to comply with an order to pay compensation.
HELD
1.       In conducting the proceedings without the applicant’s knowledge and presence on 1st May and 24th July, 1996; the Gerehu Village Court proceeded contrary to s.79(1) of the Village Court Act, therefore in breach of the principles of natural justice, s.59 Constitution, and in breach of the applicant’s right, s.37(1) & (4) Constitution.  The proceedings were thus illegal and unconstitutional.
2.       The inquiry by the National Court is appropriate in the circumstances.
3.       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.
Counsel
D. Keta for Applicant
M. 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 Gerehu Village Court without his knowledge and without being summoned or ordered to appear.  I construed the applicant’s complaint to mean that he 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 there are references 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 either 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 the Gerehu Village Court proceedings and the imposition of the six months imprisonment term.  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 and the Court is not aware if an appeal was made to the District Court.
However, the matter first came before me on 26th 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 being 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 said, I was satisfied that he was unlawfully imprisoned.  I have therefore treated this application as a complaint of unlawful and unreasonable detention in prison, which is not an unusual procedure.  That then disposes of any doubt as to the nature of this application.  It is neither an appeal nor a review, but a complaint under the Constitution and the Court exercised its powers under Constitution s.42(5).
I now deal with the merits of this application.  From copies of the orders of the Gerehu Village Court, the Court is able to ascertain the following facts.
There appeared to have been a complaint by one Esther Kindo for (sic) “damages for life”, and that complaint is contained in order number A13049.  It is not known when the 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 order no. A13049 and was ordered to serve six months imprisonment with hard labour.
It is obvious that the Clerk of Court of Gerehu Village Court lodged that complaint, however, the order to appear was not served on the applicant.  The substance of the complaint I have alluded to can be ascertained only from 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 was subsequently arrested and imprisoned.
The applicant has raised two very fundamental constitutional and legal 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.  Paragraphs 3, 4 and 5 of his affidavit sworn on 11th November, 1996, alluded to the fact that he was not served with a summons or order 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; because he had no knowledge of the complaint by Esther Kindo.
Section 79(1) of the Village Court Act (the Act) provides in mandatory term that the Village Court must not proceed in the absence of a party.  The original process of the Village Court is by way of an order in pursuance of s.81(1) of the Act, rather than 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.81(1) of the Act.  Since the applicant was not served with the order to appear on 1st May, 1996; he had no knowledge of the Village Court proceedings.  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 that 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.  It’s proceedings were therefore unconstitutional.
Given the factual circumstances of the case, I hold that the Gerehu Village Court order for imprisonment on 24th July, 1996; was both unlawful and unconstitutional.  It therefore follows that the subsequent incarceration was also unlawful and unconstitutional.  A Village Court is a creature of statute.  Its procedures, functions, powers and jurisdiction are provided by the statute that establishes it.  Accordingly, a Village Court must operate within the jurisdiction granted in the Act.  Any breach or non-compliance with that Act must therefore be unlawful or illegal.
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 1st May, 1996, Order A17616 of 24th July, 1996, Order for Imprisonment No. 57284 of 24th July, 1996 and warrant of commitment issued on 7th August, 1996.  There is nothing to suggest how the proceedings on 1st May and 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, therefore I can conclude that no records of proceedings exist and the proceedings were not recorded as required by law.
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 criminal nature of this provision, it would seem that proper procedures be followed in dealing with a person who has 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 circumstances, 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 quash 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.
I order costs against the respondent to be taxed if not agreed upon. I further order that the applicant’s cash bail in the sum of k500 be refunded.
Lawyer for Applicant: Keta Lawyers
Lawyer for Respondent: Acting Solicitor General