N2389

PAPUA NEW GUINEA

[In the National Court of Justice]

APP. CIA 304 OF 2001

BETWEEN:

KOPORE MUNAREWE
Appellant

AND:

STEVEN KOWINGERE
Respondent

Lae: Kirriwom, J
2003: 15th May

INFERIOR COURTS – Civil Complaint – Admission of Liability – Failure by Presiding Magistrate to keep notes or records of proceedings – Notice of Intention to Defend complaint filed – Failure by Presiding Magistrate to ascertain defendant unequivocally admits liability – Magistrates reasons for decision provided post-appeal in defence of judgement – Reasons unsupported or verified by any record – Miscarriage of justice – Appeal allowed – Retrial ordered.

Cases Cited:

Benson Bareto v. Donatus Kilimito [1990] PNGLR 125
Balu M. Mau’u v Pare [1973] PNGLR 64 Frost SPJ
Gaigo Kakore v. Alan John Sing & Gaigo Kakore v. John Paul Nasai [1975] PNGLR 104

Counsel:
Mr Ousi for the Appellant
Respondent in Person

15th May 2003 

KIRRIWOM, J:

1.	On the 3rd of December 2001 the appellant was ordered to pay K9,000.00 to the respondent (complainant) being balance of the monies (purchase price of a motor vehicle owing to the complainant under an oral agreement). The respondent who owned a 15 seater bus sold the vehicle to the appellant in June 1999 (02/06/99) for K10,000.00. The appellant paid K1,000.00 and took the vehicle away undertaking to pay the balance over a period of time.

2.	Two years lapsed and the balance remained unsettled and the complainant commenced proceedings for the recovery of the balance on 29th November 2001. A Notice of Intention to Defend was filed on 3rd December 2001 which was also the date of hearing of this complaint. According to the presiding magistrate the appellant was asked to admit or deny the complaint after it was read out to him and he admitted. Once he admitted the complaint the presiding magistrate did nothing further except to adjudge the appellant liable although he did notice on the file that the appellant had filed a Notice of Intention to Defend the matter probably on the same day before the hearing. In his two-paged reasons for judgement noticeably written in defence after the appeal had been lodged, the learned magistrate states:

‘In this case although the defendant filed a Notice of Intention to Defend, he did not say nor give any statement which would indicate that he wish (sic) to defend the action so I could adjourn to allow him time to prepare his defence. The court record speaks for itself. If the defendant had said something or given a statement, it could have been recorded and/or placed on file. He just admitted liability so I entered the judgement.’ (Emphasis is mine)

3.	The only thing that the court record speaks of as typed appears on page 10 of the Appeal Book and it reads:

‘MAGISTRATES HANDWRITTEN NOTES ON 03/12/01 AT 9AM.

Order: 

That default judgement for the complainant in the sum of K9,000.00 plus costs and interest to be paid forthwith.

Signed

P. POLOH
Magistrate

This is all there is in the magistrate’s worksheet that the learned magistrate referred to as the court record. But the reasons for decision notably provided after this appeal was lodged clearly tells a lot more that the court record does not show except for the learned magistrate who alone knows what transpired before him, and what was said and not said.

4.	In his grounds of appeal the appellant contends, firstly, that the learned magistrate failed to consider the appellant’s statement or evidence in his defence and secondly, the court did not give him any chance to defend himself.

5.	In the absence of any notes taken of the proceedings apart from recording the verdict, it is not easy to tell what exactly happened in the court below. While the learned magistrate asserts that the court records speaks for itself and that the defendant made no statement after admitting the complaint, the court record does not show that the complaint was read out to the defendant and what his reply was and whether anything else was said. But there was more that happened that is not recorded except what is recorded in the learned magistrate’s reasons for decision.

6.	I therefore do not wish to treat unrecorded assertions without caution not because I disbelieve the learned magistrate but I cannot accept his word without there being any supportive materials or records to show or prove his assertions. The law has been stated in Benson Bareto v. Donatus Kilimito [1990] PNGLR 125 where the court held: "In the absence of notes of the sentencing magistrate sufficiently adequate for the Appeal Court to conduct a full and proper appeal, the appeal should be allowed and a retrial before another magistrate of the District Court ordered."

7.	Although this case was in relation to a criminal or serious traffic conviction appeal, counsel for the Appellant submitted that the principle was applicable in a civil case as well. I agree with the counsel for appellant that the principle is applicable in both criminal and civil jurisdictions, after all it relates to proper exercise of appellate jurisdiction on review of a lower court decision. If the notes are not properly kept or if no notes are kept at all, there can be no justice done because there is no way that the appellate court can adjudicate without knowing what exactly happened in the court below.

8.	On the same token, I shudder to imagine what happens in the District Court where unrepresented litigants appear in their own causes, some of whom simply can hardly utter a word to express their denial or admission or to explain themselves, if magistrates take the position as learned magistrate in this case took where he proceeded to adjudge the defendant liable without enquiring to find out if he had any defence or any reasons for not honouring his part of the bargain particularly when he noted that there was a Notice of Intention to Defend filed. Magistrates must not proceed hastily to pronouncing judgement or verdict without first enquiring with the defendant if he really understood what he meant by admitting a complaint or pleading guilty to a charge. In this case given that there was a Notice of Intention to Defend filed, it behoved the magistrate to enquire with the defendant if he had any reason for filing the Notice of Intention to Defend in the light of his admission to the liability. It does no harm for the learned magistrate to simply enquire. After all he is an impartial arbiter who is there to ensure that justice is done according to law. In Balu M Mau’u v. Pare [1973] PNGLR 64 Frost SPJ when discussing whether an admission by an unrepresented defendant is unequivocal or equivocal said at p.70:

"Thus this is a case in which the magistrate ought not to have accepted the words spoken as a plea of guilty. This is not the first occasion upon which this Court has found it necessary to point out that magistrates should be very slow to accept any plea containing words of apparent qualification as a plea of guilty, particularly where the charge is a serious one, as in this case, where the penalty upon conviction on summary proceedings was imprisonment for one year."

9.	In criminal cases the Supreme Court decision in Gaigo Kakore v. Alan John Sing and Gaigo Kakore v. John Paul Nasai [1975] PNGLR 104 makes it mandatorily plain that when the defendant pleads guilty to a charge, the magistrate enters a provisional plea of guilty and makes further enquiries before entering a conviction on the record. I see no reason for this principle not applying in civil cases like this one.

10.	It seems clear to me from reading the learned magistrate’s reasons for decision that he proceeded to adjudge the appellant liable without giving him an opportunity to explain his action in having filed a Notice of Intention to Defend if he was not denying the complaint. If he made this enquiry the appellant would have been prompted to give his reasons for him to then decide whether the appellant had any defence or not. The learned magistrate dealt with this case too hastily and without even keeping records or adequate notes of the proceedings. Consequently the learned magistrate erred.

11.	In the circumstances I find that there has been a miscarriage of justice and I uphold this appeal. And I remit this case back to the District Court for retrial before another magistrate. I order each party to bear his own cost of this appeal.

Lawyers for the Appellant	:	Warner Shand Lawyers
Respondent in Person