PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 419 0F 2005

PEROS BINAFE
Appellant

V

MAI GORO
Respondent

Kimbe: Cannings J
2006: 7, 15 September

APPEAL

COURTS– District Court – absence of defendant in civil proceedings – duty to observe natural justice – effect of orders made in absence of party – District Courts Act, Section 143 – circumstances in which the District Court can proceed to hear and determine a complaint in the absence of the defendant.

The appellant and the respondent have had an ongoing dispute over a block of land. The appellant maintains that he bought the block in good faith from the respondent some years ago; the only problem being that title was not transferred to him. The respondent says he is the lawful owner as the State Lease is in his name. The respondent took the matter to the District Court under the Summary Ejectment Act and obtained an order of eviction against the appellant. This is an appeal against that decision of the District Court.

Held:

(1)	The District Court has a duty to accord natural justice to parties and to conduct its proceedings fairly, in accordance with Sections 37(11), 37(12) and 59 of the Constitution. 

(2)	Specifically the District Court must only proceed to hear and determine a civil complaint in the absence of the defendant once the preconditions in Section 143 of the District Courts Act are satisfied, including that the defendant has been given adequate notice of the hearing.

(3)	All of these principles were breached in the present case. An order was made against the appellant in his absence, without him being given notice of the hearing and without the presiding Magistrate adhering to Section 143.

(4)	There was a substantial miscarriage of justice and the appeal was allowed and orders made aimed at encouraging the parties to settle their dispute and return to the National Court within seven days with a draft consent order; failing which the National Court will proceed to make an appropriate order, at its discretion and without, necessarily, further recourse to the parties. 

(5)	Obiter dictum: Other areas in which the District Court apparently erred, but which were not the subject of appeal, were that: there was a bona fide dispute about title to the land and the District Court lacked jurisdiction, by virtue of Section 21(4) of the District Courts Act; the certificate of title was not produced, resulting in the Court making its decision without evidence; the reasons for decision were scanty and insufficient, resulting in the inference that the reasons were not good reasons; and the complaint had been struck out on two previous occasions, so the complaint was res judicata and an abuse of process. 

Cases cited

The following cases are cited in the judgment:

Papua New Guinea Harbours Board v Breni Kora (2005) N2834
Peter Abel v Hargy Oil Palms Ltd CIA No 376 of 2000, 08.06.06
Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894
Yomi Siwi v Lincy Mathew (2006) N3048

Abbreviations

The following abbreviations appear in the judgment:

CIA – Civil Appeal
DC – District Court decision
DCJ – Deputy Chief Justice
IHL – in hard labour
J – Justice
N – National Court judgment
No – number 

APPEAL

This was an appeal from a decision of the District Court ordering the vacation of property under the Summary Ejectment Act.

Counsel: 
O Oiveka, for the appellant
S Lupalrea, for the respondent

INTRODUCTION

1. CANNINGS J: This is an appeal against a decision of the District Court at Bialla, constituted by Mr J Pake, in which his Worship upheld a claim to evict the appellant from a block of land. 

BACKGROUND

2. The appellant, Peros Binafe, and the respondent, Mai Goro, have had a long running dispute over an oil palm block in the Bialla District of West New Britain Province. The block is known as Section 4, Block No 695, Milinch of Ulawin, Fourmil Talasea. It is in the Vilelo oil palm settlement. Its area is 6.785 hectares (about 17 acres). Improvements on the block include 720 mature oil palm trees. 

3. The appellant maintains that he purchased the block in good faith from the respondent some years ago; the only problem being that title was not transferred to him. The respondent says he is the lawful owner as the State Lease is in his name. The respondent took the matter to the District Court under the Summary Ejectment Act and on 21 July 2005 obtained an order of eviction, in DC No 367 of 2005, at Bialla, against the appellant. This is an appeal against that decision.

DISTRICT COURT PROCEEDINGS 

4. It has been difficult to work out what happened in the District Court as there is a paucity of records and an apparent multiplicity of proceedings. No reasons were given or judgment prepared for the decision under appeal, in DC No 367 of 2005, other than the following civil worksheet: 

Nature of complaint: summary ejectment

Relief complained: compensation

Complainant appears in person. Defendant does not appear.

Court: Found that the complainant is the legal owner of this block No 695, Vilelo, Section 4. And he has the current owner’s title to it. Defendant is illegally occupying the said block for the past years.

Court: enter judgment for the complainant.

Court order:

1	Defendant and his agents are hereby ordered to vacate the said block within 21 days as from today in default warrant to gain possession of the said block be issued – the members of the Police Force will effect it to gain possession and hand it over to the complainant.

2	In the event the defendant and his agents refuse to vacate or give up possession of the said block, warrant of IHL for a term of six months each for any person residing with the defendant be issued.

5. However, there are enough documents to show that the dispute between the appellant and the respondent had been in and out of the District Court for a long time. Most significantly on 12 July 2005 – nine days before the decision under appeal – an order was made by Magistrate Ms J Valvona in DC No 367 of 2005, at Kimbe. Her Worship’s order was:

Case struck out. 

6. On 1 December 2004 the respondent had filed a summons upon complaint, in DC No 605 of 2004, in relation to the same block of land against the appellant. It is not clear how that was resolved.

7. Before then, on 4 December 2003, in DC No 57 of 2003, Magistrate Mr C Koi, made the following order at Bialla, apparently in relation to the same block:

This is no decision that should come under the Summary Ejectment Act. This case does not involve clear right to title. Equitable rights could be involved. No action to recover can be maintained under the Summary Ejectment Act.

Case is struck out.
 
8. The upshot is that the subject matter of the complaint was resolved at least twice – by the case being struck out – before the order of 21 July 2005 was made.

APPEAL TO NATIONAL COURT

9. The notice of appeal states only one ground: 

The learned Magistrate erred in law and fact by not affording the appellant the opportunity to defend himself and to call evidence in his defence.

10. The appellant seeks the following order in substitution for the order of the District Court:

That the decision of the District Court be quashed and the matter remitted for retrial.

1	That the substantive matter instituted by the respondent in the District Court be dismissed.

2	Any other or further orders that the court deems fit.

11. It is surprising that the only ground of appeal relates to the appellant not being given an opportunity to be heard as an equally serious challenge to the District Court’s decision – that the case had already been stuck out twice – could easily have been made. I will look at that issue, but only after determining the ground of appeal.

MAJOR ISSUES

12. As there is only one ground of appeal, it becomes the first issue to be decided. Thus: 

•	Did the District Court err by not giving the respondent the opportunity to defend himself?

13. If that issue is resolved in favour of the appellant, I will have to consider the question of remedies, which means that the issues become: 

•	Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 230(2) of the District Courts Act.)

•	What remedies, if any, should be granted by the National Court? (The National Court’s remedial powers are prescribed by Section 230(1) of the District Courts Act.)

14. I will then consider a number of other issues arising from the depositions, in particular:

•	Did the District Court exceed its jurisdiction in some ways other than that set out in the notice of appeal?

APPELLANT’S SUBMISSIONS

15. Mr Oiveka argued that the District Court had a duty to hear the appellant – or at least give him the opportunity to be heard – before it ordered his eviction from the block. He was not present at the hearing that led to the order against him and there was nothing on the court’s record to show that he had been notified of the hearing. The District Court has a duty to record its proceedings and show that parties have been dealt with fairly. That duty was breached here.

RESPONDENT’S SUBMISSIONS

16. Mr Lupalrea submitted that his Worship had carefully considered the relevant law, satisfied himself that there was clear title and made the correct decision. The overriding consideration is whether justice was done; and here justice was done as the District Court simply upheld the respondent’s title.

FIRST ISSUE: DID THE DISTRICT COURT ERR BY NOT GIVING THE APPELLANT AN OPPORTUNITY TO BE HEARD?

17. The District Court hearing at Bialla that led to the order of 21 July 2005 was held in the absence of the appellant, ie ex parte. The circumstances in which the District Court may proceed ex parte to hear and determine a complaint are prescribed by Section 143 (where defendant does not appear) of the District Courts Act, which states:

Where, in the case of a complaint, the defendant does not appear at the place and at the time specified in the summons, or at the place and time to which the hearing was adjourned or postponed, as the case may be, if—

(a)	it appears to the Court on oath that—

(i)	the summons was duly served at least 72 hours before the time appointed in the summons for appearing; or

(ii)	an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise was duly complied with; and

(b)	no sufficient grounds are shown for an adjournment,

the Court may proceed ex parte to hear and determine the complaint or may adjourn the hearing to a future day.

18. Section 143 dictates that if a defendant does not turn up for a hearing, the presiding Magistrate should check three things before deciding that it is okay to hear the matter ex parte:

1	check the summons and the file for the place and time specified for the hearing;

2	check for evidence on oath that the summons was duly served at least 72 hours before the time appointed in the summons or that an order for substituted service has been complied with;

3	check that no sufficient grounds are shown for an adjournment.

19. Once all three matters are satisfied the Magistrate may at his or her discretion proceed to hear and determine the complaint ex parte. 

20. In the present case there is no indication that the Magistrate checked any of those things. 

21. First, the summons for DC No 367 of 2005 was not even on the file. If it was, it has not been included in the appeal book. I infer that the learned Magistrate may have been confused about whether he was dealing with DC No 367 of 2005 or DC No 357 of 2003 or DC No 605 of 2004. 

22. Secondly, there is no indication that the summons was served on the appellant or that he was in some other way notified of the hearing at Bialla on 21 July 2005; let alone evidence on oath or proof of compliance with an order for substituted service.

23. Thirdly, there is no indication that the presiding Magistrate considered whether sufficient grounds were shown for an adjournment.

24. I conclude that the preconditions set out in Section 143 were not complied with and that the District Court exceeded its jurisdiction by hearing and determining the complaint ex parte. 

25. Giving all parties to a court case proper notice of the hearing is a fundamental component of any court’s duty to observe natural justice or procedural fairness. Anybody joined as a party to a civil court case is at risk of having a decision made against them and has a constitutional right to be dealt with fairly in open court. In this case the appellant was at risk of being ejected from land on which he lived. And that is what actually happened: he was ejected, evicted, ordered to vacate – they all mean the same thing. If he did not leave, he would have been imprisoned. 

26. His rights to a fair and open hearing are conferred by Sections 37(11) and (12) (protection of the law) of the Constitution, which state:

(11)	A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12)	Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

27. Those are basic, human rights and they are enforceable under Section 57 of the Constitution. The duty of every court in the National Judicial System to accord natural justice to parties and to conduct its proceedings fairly is reinforced by Section 59 (principles of natural justice) of the Constitution, which states:

(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

28. All of these principles were breached in the present case. An order was made against the appellant in his absence, without him being given notice of the hearing and without the presiding Magistrate adhering to the provisions of the District Courts Act about ex parte hearings. I therefore uphold the ground of appeal.

SECOND ISSUE: HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE?

29. Yes. The District Court decision was made unfairly. It was not a minor error of procedure. It was a significant error resulting in injustice. It was a substantial miscarriage of justice.

THIRD ISSUE: WHAT REMEDIES, IF ANY, SHOULD BE GRANTED BY THE NATIONAL COURT?

30. Section 230 of the District Courts Act states:

(1)	On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a)	adjourn the hearing from time to time; and

(b)	mitigate or increase a penalty or fine; and

(c)	affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d)	remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e)	exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f)	make such further or other order as to costs or otherwise as the case requires.

(2)	An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

31. Given the history of this matter I propose to allow the appeal and invoke Sections 230(1)(c) and 230(1)(f). I will quash the District Court’s order of 21 July 2005 and make orders aimed at clarifying who owns and/or is entitled to possession of the land. 

32. It is important for all concerned that there be certainty about those issues. I think the only way certainty will be achieved is if one of the parties commences proceedings in the National Court seeking a declaration from the court. That can only be done in separate, fresh proceedings. Until that happens and a declaration is made, the best thing, I think, is for me to make interim orders that recognise the interests and welfare of each party.

FOURTH ISSUE: DID THE DISTRICT COURT EXCEED ITS JURISDICTION IN SOME WAYS OTHER THAN THAT SET OUT IN THE NOTICE OF APPEAL?

33. Though I have not had the benefit of full argument on other issues, it seems that the District Court’s decision of 21 July 2005 could have been quashed on a number of other grounds.

34. First, it appears that there was a bona fide dispute about title to the land and that the District Court lacked jurisdiction, by virtue of Section 21(4) of the District Courts Act. (Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894, National Court, Cannings J; Yomi Siwi v Lincy Mathew (2006) N3048, National Court, Cannings J.)

35. Secondly, the certificate of title was not produced to the District Court or, if it was produced, no record or copy was made of it, resulting in the Court making its decision without evidence, contrary to its duty to record its proceedings in sufficient detail to withstand scrutiny. Its records must be able to demonstrate that its decisions have been made judicially, in accordance with the principles of natural justice. Not on a whim or arbitrarily. (Peter Abel v Hargy Oil Palms Ltd CIA No 376 of 2000, 08.06.06, National Court, Cannings J.)

36. Thirdly, the reasons for decision were scanty and insufficient, resulting in the inference that the reasons were not good reasons. (Papua New Guinea Harbours Board v Breni Kora (2005) N2834, National Court, Injia DCJ.)

37. Fourthly, the respondent’s complaint had been struck out by the District Court on two previous occasions, and one of them was just nine days before the decision of 21 July 2005, in the same proceedings. The complaint was res judicata; and the re-agitation of the complaint at Bialla on 21 July 2005 was an abuse of process. 

COSTS

38. Normally the side that loses a case such as this will get an order from the court saying that they must pay the other side’s legal costs. This is a matter for the discretion of the court. In this case I will not make an order for costs until I have heard from both sides.

JUDGMENT

39. I will direct entry of judgment in the following terms:

1	The appeal is allowed. 

2	The order of the District Court at Bialla in DC No 367 of 2005 is quashed.
 
3	The rights of both parties to commence fresh proceedings, in the National Court, aimed at clarifying and finally resolving all issues about rights of ownership and possession of the land at Section 4, Block No 695, Vilelo, are preserved.

4	Both parties must now engage in meaningful, genuine and peaceful dialogue with a view to agreeing how to share the land as an interim arrangement until all issues about rights of ownership and possession of the land are finally resolved.

5	This matter shall return to court on 22 September 2006, when the parties shall notify the court whether an agreement in terms of (4) above has been reached; and 

(a)	if agreement has been reached, a draft consent order shall be presented to the court; and 

(b)	if agreement has not been reached, the court will proceed to make an appropriate order, at its discretion and without, necessarily, further recourse to the parties.

6	Until the matter returns to court in terms of (5) above, the respondent is entitled to occupy and use the block to the exclusion of the appellant.

Appeal allowed.
_______________________________________________________________________

Public Solicitor: Lawyers for the appellant
Lupalrea Lawyers: Lawyers for the respondent