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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 104 OF 2015
BETWEEN:
IALAU SORO
IAPARAIDE JACOB
PILAKE NIAL
Appellants
AND:
LIVIA PAULUS
Respondent
Kokopo: Anis AJ
2016: 5 & 10 August
APPEAL - District Courts Act Chapter No. 40 - Appeal against convictions and sentences of the appellants - appellants imprisoned for breaching an ex-parte court order - appellants denied being served with the ex-parte order - appellants questioned the mode of proceedings under the District Courts Act Chapter No. 40 and allege various want of compliances therein - appellants questioned exercise of the court's powers under section 171(1)(b) of the District Courts Act Chapter No. 40 - appeal allowed
PRACTICE AND PROCEDURE - section 41(1) of the District Courts Act discussed
PRACTICE AND PROCEDURE - section 171(1)(b) of the District Courts Act discussed
PRACTICE AND PROCEDURE - section 230(1) & (2) of the District Courts Act discussed
Facts
The appellants appealed against their convictions and sentences. The trial Magistrate found the appellants guilty of breaching an ex-parte order from a civil proceeding. The appellants say they did not know and were not served with the ex-parte order at the time. They also question the manner of proceedings before the District Court and the exercise of power by the trial Magistrate in convicting and sentencing them.
Held
(1) The appeal was allowed.
(2) The respondent filed a summons under section 41(1) of the District Courts Act Chapter No. 40 and used that as an interlocutory process or a mode, to enforce breach of a court order, under an existing proceeding.
(3) The trial Magistrate erred when he allowed the summons filed under section 41(1) to be heard under the existing proceeding that is CV 94 of 2015.
(4) The trial Magistrate did not have actual evidence before him that the appellants were duly served with the ex-parte order yet he proceeded and dealt with the matter as if they had been served.
(5) A magistrate may exercise his powers under section 171(1)(b) of the District Courts Act Chapter No. 40 and send someone to prison for breaching a court order but only after the following mandatory pre-conditions are met:
(i) the court order concern must not relate to an order for payment of a fine, money or costs; and
(ii) the court order concern must order doing of an act and directs that if the defendant neglects or refuses to do the act, he or she shall be imprisoned; and
(iii) the court finds that the defendant has neglected or refused to do the act.
(6) The trial Magistrate erred when he convicted and imprisoned the appellants when pre-conditions (ii) and (iii) were not met.
(7) The appellants' conduct in registering their complaint with the lands office was not restrained or prevented by the ex-parte order. In other words, the appellants never breached the terms of the ex-parte order in the first place.
(8) Section 230(2) of the District Courts Act Chapter No. 40 does not say that the National Court can only exercise its power where there has been a substantial miscarriage of justice after it upholds one or more of the grounds of appeal.
(9) The Court was satisfied that there was substantial miscarriage of justice in the matter.
Case cited:
Vere Kilao v. Bernard Tiau (2007) N5000
William Maihua (Snr) v. Megdalene Nambakwen (2012) SC 1185
Yumi Siwi v. Lincy Mathew (2006) N3048
Counsel:
Mr J Gesling, for the Appellant
Ms Ainiu, for the Respondent
DECISION
10th August 2016
1. ANIS AJ: The appellants appeal against a decision of Magistrate George Kerker (the trial Magistrate) made at the Kokopo District Court. It was made on 4 August 2015. In short, the District Court found the appellants guilty of breaching an earlier ex-parte court order dated 1 July 2015 (the ex-parte order). The Court sentenced appellants Ialau Soro and Pilake Nial (the two appellants) to three (3) months imprisonment. The two appellants served their prison terms. As for the third appellant Iaparaide Jacob (the third appellant), she was not present at the time of conviction and sentence, and a warrant of arrest was issued on her. The appellants' counsel informed the Court on 5 August 2016, that the third appellant was later released on her own recognisance awaiting the outcome of the appeal herein.
APPEALED DECISION
2. There is no formal minute of the court order, taken out on the trial Magistrate's decision. But a summary of that is contained at paragraphs 14, 15 and 16 of the decision. It states and I read:
14) So having considered the action of the three defendants, the Court is convinced on the balance of probability that their action had breached the order specified in the ex-parte order and were seen to be liable under section 171(b) of the District Court Act (Chapter 40).
15) Because of the fact that IaParaide Jacob didn't appear in Court that day, I therefore issued a warrant of arrest against her while for the other two defendants (Ialau Soro & Pilake Nail) I then sentenced them to 3 months in/hard/labour.
16) I therefore made order that a) Defendants (Ialau Soro and Pilake Nail) each and severally sentence to 3 months IHL.
3. The ex-parte order that was found to have been breached by the appellants is located at page 15 of the Appeal Book. It reads:
GROUNDS OF APPEAL
4. In the Notice of Appeal, the appellants rely on five (5) grounds. I set them out herein:
(a) The learned Magistrate erred in law and in fact when he failed to read the charge and facts to us for us to plead to and defend the charge as the proceedings were quasi-criminal in nature.
(b) The learned Magistrate erred in law when he failed to administer allocatus and instead went directly to sentence us.
(c) He learned Magistrate erred in law when he relied on and presided over information laid under Section 171(1) (b) District Courts Act which information was clearly defective.
(d) The learned Magistrate erred in law when he failed to enter or record a conviction against us but instead went directly to sentence us.
(e) The learned Magistrate erred in law and in fact when he sentenced us to 3 months imprisonment when there is no evidence that the original orders were served on us given the fact that we were only third parties to the original ex-parte restraining orders.
ISSUES
5. I set out the issues herein:
(i) Did the Court follow due process required under the SUMMONS TO A PERSON UPON INFORMATION when it convicted and sentenced the appellants (grounds a, b and d)?
(ii) Was the Court correct in exercising its powers under section 171(1)(b) of the District Courts Act Chapter No. 40 (District Courts Act) (ground c)?
(iii) Where the appellants served with the ex-parte order (ground e)?
(iv) Did the appellants breach the ex-parte order (grounds a, b, c, d & e)?
MODE OF PROCEEDING
6. At the start of the hearing, I queried with both counsel the mode of proceeding before the District Court. I informed both counsel that there appears to be no complaint, summons or motion filed to explain how the ex-parte order was obtained on 1 July 2015. I note that both counsel were unable to assist on that.
7. My second query was in relation to the summons and information filed by the respondent on 29 July 2015. I asked both counsel to explain how it was possible for the respondent to file fresh summons and information over an existing proceeding that is CV No. 94 of 2015 and seek orders against the appellants who were not parties to the original claim. I made that query after I noted that the ex-parte order and the later summons and information filed, all had the same court file reference that is CV 94 of 2015. I asked counsel whether the correct process should have been to file a motion or otherwise separate proceedings. Counsel for the respondent submitted that the proper process should have been by way of motion instead of filing another summons and information over an existing proceeding. It seems certain that the respondent had filed a Summons to a person upon Information on 29 July 2015 over an existing proceeding, and that based on the said later summons, the trial Magistrate heard and granted the relief sought therein.
8. I note that I pointed out to both counsel that if that was what had transpired then it was similar like filing a new writ of summons and statement of claim over an existing proceeding, and proceeding to seek new relief against new sets of defendants. Obviously that type of practise would not be allowed anywhere in the National Court. I can also say the same for the District Courts.
9. There appear to be clear fundamental errors noted in the mode of commencement of proceedings against the appellants at the District Court.
DISTRICT COURT SUMMONS
10. I will examine the summons that was filed by the respondent on 29 July 2015. What type of summons is it? It is titled SUMMONS TO A PERSON UPON INFORMATION (the 2nd summons). I note that it was signed by a Magistrate. As it is and in my opinion, the 2nd summons was issued under section 41(1) of the District Courts Act.
11. Section 41(1) reads:
41. Summons issued by Magistrate.
(1) Where an information is laid before a Magistrate that a person, whether within the limits of the jurisdiction of the Magistrate
or not, is guilty of, or is suspected of, having committed an offence in the country, the Magistrate may issue his summons.
12. When the 2nd summons was listed in Court on the 4th of August 2015, the two appellants appeared whilst the third appellant was absent. The trial Magistrate conducted a hearing on 4
August 2015 and found the appellants guilty of breaching the ex-parte order. The trial Magistrate sentenced the two appellants to
serve three (3) months imprisonment each with hard labour. As for third appellant, the trial Magistrate issued a warrant of arrest
for her to be arrested and be brought back to the Court. I note that in issuing the warrant of arrest on the third appellant, the
trial Magistrate had exercised his powers under section 125(b) of the District Courts Act. Section 125(b) states and I read:
125. Absence of defendant.
If, at the time and place appointed by a summons for hearing and determining an information of a simple offence, or an indictable offence triable summarily the defendant does not appear when called, and proof is made to the Court on oath, or in accordance with Section 47, of due service of the summons on the defendant a reasonable time before the time appointed for his appearance, the Court may—
(b) in the case of an information of a simple offence or an indictable offence triable summarily—on oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a Court to answer to the information and to be further dealt with according to law.
13. The third appellant was later released on her own recognisance.
SECTION 171(1) (b)
14. The trial Magistrate had exercised his powers under section 171(1) (b) of the District Courts Act when he convicted and sentenced the two appellants to three (3) months imprisonment. This is evident in the trial Magistrate's decision. Section 171(1) (b) states and I read:
171. WARRANT OF COMMITMENT IN OTHER CASES.
(1) Where–
...
(b) a Court orders the doing of an act other than the payment of a fine or sum of money or costs and directs that, in case of the defendant’s neglect or refusal to do the act, he shall be imprisoned, and the defendant neglects or refuses to do the act,
the Court or a Magistrate may issue a warrant of commitment for the imprisonment of the defendant for such time as the conviction directs.
(Underlining is mine)
15. During the appeal hearing, counsel for the respondent argued that the Magistrate had correctly applied his powers when he sentenced
the two appellants to prison. Counsel submitted that section 171(1) (b) gives express power to a magistrate to imprison a person
for breaching a court order. Counsel submitted that the Court had found the two appellants guilty of breaching a court order and
has sentenced them to prison accordingly. Counsel for the appellants on the other hand submitted that the trial Magistrate erred
because he could have imposed a lesser fine or considered other options under the circumstances.
16. I have considered section 171(1) (b). In my opinion, firstly, a magistrate has the power and can imprison a person for breaching a court order. So I accept the respondent's submission on point. However, there are mandatory pre-conditions stated in subsection (1) (b) of section 171 which, in my opinion, must be satisfied first before a magistrate can exercise his power therein and imprison a defendant. I have underlined them above in my judgment when reciting section 171 of the District Courts Act. For clarity, I will list these mandatory pre-conditions herein:
(i) the court order concern must not relate to an order for payment of a fine, money or costs; and
(ii) the court order concern must order doing of an act and directs that if the defendant neglects or refuses to do the act, he or she shall be imprisoned; and
(iii) the court finds that the defendant has neglected or refused to do the act.
17. All these pre-conditions, in my opinion, must be met before a magistrate can exercise his powers under section 171(1) (b) of the
District Courts Act.
18. In the present case, except for pre-condition (i), I note that the ex-pare order did not direct the appellants to do or refrain
from doing an act. The trial Magistrate had ruled that the appellants were captured by term four (4) of the ex-parte order. That
may be so but section 171(1)(b) is express and it refers to "defendant" and not a defendant's "associates" or "agents" or "immediate
relatives" as stated under term four (4) of the ex-parte order. Secondly, the ex-parte order does not expressly state that if the
appellants fail to comply, they shall be imprisoned. This is also a mandatory pre-conditional requirement under section 171(1)(b)
which must be satisfied before a magistrate can exercise his powers under the said section of the District Courts Act. These pre-conditions were missing in the ex-parte order yet the trial Magistrate it seems proceeded to exercise his power therein.
19. It clearly seems that there was no basis for the trial Magistrate concerned to invoke or exercise his powers under section 171(1) (b) of the District Courts Act. I will discuss the absence of pre-condition (iii) below under the sub-heading "Was the ex-parte order breached?"
SERVICE OF EX-PARTE ORDER
20. The appellants allege that they were never personally served or served at all, with the ex-parte order. I turn to the Appeal Book. I cannot see any evidence filed therein which shows that the respondent had served the appellants each with sealed copies of the ex-parte order. I note the three (3) proofs of service forms at pages 17, 18 and 19 of the Appeal Book. However, I note that they relate to service of the 2nd summons upon the appellants and not the ex-parte order.
21. The next place to check would be in the trial Magistrate's decision. The relevant part is line 2, paragraph 9 at page 3. It states and I read:
"What made me as a Magistrate to see that it was breach of the ex-parte order was that the defendants received copies of their ex-parte order very soon after the 01st of July 2015."
(Underlining is mine)
22. I ask myself this: How did the trial Magistrate arrive at that conclusion? Where is the evidence to support that finding by the trial Magistrate? I note that the only evidence relied upon by the Court was the respondent's affidavit. That is located at page 14 of the Appeal Book. There is no mention of service of the ex-parte order upon the appellants there. The respondent obviously had the burden then to establish these to the Court. The trial Magistrate, based on his decision on point, appeared to have been satisfied that the ex-parte order had been served on the appellants. This Court, however, cannot say the same. One may think that perhaps the evidence was adduced in Court during the actual hearing. In my opinion, if that was the case then it should have been sufficiently addressed or captured in the trial Magistrate's decision. Without that, the only reasonable conclusion I can draw particularly noting from the fact that there is no evidence disclosed in the Appeal Book that supports the trial Magistrate's finding, is that, there was no evidence of service of the ex-parte order on the appellants before the trial Magistrate at that time, and therefore he failed to take that into account in his decision.
23. There seems to be clear indication here that the trial Magistrate passed judgment on the appellants without actual evidence that they were served with the ex-parte order. Consequently, there seems to be no basis for making the finding where the District Court said and I read the defendants received copies of their ex-parte order very soon after the 01st of July 2015.
WAS THE EX-PARTE ORDER BREACHED?
24. I have looked at the Appeal Book and the question that keeps coming back to my mind is this: Where is the breach of the ex-parte order by the appellants? I look at the reason given by the respondent in her affidavit. The so-called breach is also covered in the trial Magistrate's decision. The trial Magistrate said at paragraph 10 of his decision and I read Now by their going to the lands office and registering a dispute on the 21st of July 2015 in itself was viewed by the court to be a breach of the ex-parte order. As it is, the breach of the ex-parte order, according to the trial Magistrate, was that the appellants had gone ahead to register their dispute with the lands office over the land in question. The trial Magistrate said in doing so, that amounted to breach of the ex-parte order. I find this, with respect, misconceived. Let me recite the main terms of the ex-pare order herein because it is relevant for this discussion:
25. I ask myself this: Which of the three (3) orders above stop or prevent the appellants from registering a complaint with the land's office over the land in question or from requesting a meditation? The three (3) orders did not prevent the appellants from doing what they had done. I think this is a crucial point, which was, with respect, missed by the trial Magistrate. Secondly and again with respect, I disagree with the Court's finding on point where it said at paragraph 10 of its decision and I read:
The court is further of the view that if the land in issue belongs to them then they (defendants) should have registered a dispute well before the ex-parte order was made.
26. The said ruling, again with respect, tends to suggest that it is okay for someone to stop another person from exercising his or her legal rights over land. Of course, the law is clear. It would be unconstitutional to stop someone from exercising his or her rights over land whether it be customary rights or rights derived under statute law from the various land legislations in this jurisdiction.
27. In the present case, the ex-parte order did not restrain or prevent the appellants from registering their complaint or interest with the lands office for mediation.
FINDING
28. I note that the National Court's power to hear appeals from District Courts is derived under Part XI of the District Courts Act. Secondly, appeals from District Courts to National Courts shall be heard as re-hearings. This is despite the fact that there is no express provision in the District Courts Act which expressly says that [See case Yumi Siwi v. Lincy Mathew (2006) N3048].
29. For this appeal, I find that the respondent herein obtained the ex-parte order on 1 July 2015. The ex-parte order contained names of person other than the appellants. I will assume that the ex-parte order was properly obtained. In doing so, I have assumed that the respondent had filed a complaint and summons and had applied by way of notice of motion, to obtain the ex-parte order. There is of course no documents produced in the Appeal Book to support that but this Court accepts these as facts firstly given the existence of the ex-parte order. Secondly, I make the assumption because the ex-parte order is not the subject of the appeal herein.
30. I find that following from the above, the respondent filed the 2nd summons that is SUMMONS TO A PERSON UPON INFORMATION in her existing court proceeding at the District Court, that is, CV No. 94 of 2015. In the 2nd summons, the respondent had asked the Court to exercise its powers under section 171(1) (b) of the District Courts Act and imprison the appellants for breaching the ex-parte order. I find that the correct mode should have been for the respondent to simply file a notice of motion in the existing proceeding. Instead, the respondent filed the 2nd summons which, according to the District Courts Act, was filed pursuant to section 41(1). In doing so, the respondent had committed, in my opinion, serious flaws because:
31. I find that the trial Magistrate committed the following errors when he dealt with the 2nd summons:
32. Even if I assume that the 2nd summons was properly before the trial Magistrate at that time, I would still find that he erred in his decision because:
FINDING - GROUNDS OF APPEAL
33. I dismiss grounds (a), (b) and (d) of the appeal. These grounds are related. I have already explained above in my judgment that the respondent had erroneously filed the 2nd summons under section 41(1) of the District Courts Act, which is a separate provision for commencing a new proceeding. Since I have already found the mode of enforcement by the respondent wrong, it is futile, in my opinion, to go back and look at the said mode, that is, proceeding commenced under section 41(1) and consider whether its procedure therein have been met by the respondent. The three (3) grounds address these, which is why I have dismissed them.
34. I uphold ground (c) of the appeal. The trial Magistrate erred procedurally as I have stated at paragraph 30 and 31 above in my judgment. The trial Magistrate also erred in law as I have stated in paragraph 32 above in my judgment.
35. I uphold ground (e) of the appeal. I refer to my findings of the same at paragraphs 20 to 23 and 32 above in my judgment. In summary, I found no evidence of service of the ex-parte order on the appellants before the trial Magistrate proceeded to and dealt with the 2nd second summons.
COURT'S POWER ON APPEAL
36. I refer to section 230 of the District Courts Act. It states and I read:
230. Power of National Court on appeal.
(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.
37. I will use my powers accordingly [See cases: Vere Kilao v. Bernard Tiau (2007) N5000; William Maihua (Snr) v. Megdalene Nambakwen (2012) SC 1185].
38. But before I do so, I draw my attention to subsection (2). The said subsection makes no mention of the grounds of appeal that an appellant rely on when appealing. The subsection, in my opinion, is express and broad in terms of how far a National Court judge can look before exercising his or her powers to an appeal, that is, beyond the grounds of appeal it seems. In conclusion, my reading and understanding of section 230(2) of the District Courts Act is that regardless of a National Court's findings concerning the grounds of appeal, the ultimate test is this: If it appears to the National Court that there has been a substantial miscarriage of justice, the National Court must allow the appeal. So I ask myself this: Is it also possible for example for a National Court to dismiss all the grounds of appeal in a matter but still uphold the appeal if it finds that there has been a substantial miscarriage of justice done to the case by the District Court? In my opinion, section 230(2) permits that. The provision, in my opinion, does not make an exception that the Court can only exercise its power under subsection (2) after it upholds one or two of the grounds of appeal. One example I can think of is if an appellant actually has good grounds of appeal but he or she fails to convert them into valid grounds of appeal. In such a case, the National Court can dismiss the grounds of appeal but it must still, in my opinion, reserve its right and ask itself the ultimate question as set out under section 230(2) of the District Courts Act before deciding what it should do.
39. I turn back to the present appeal. There is no doubt in my mind that the appellants have suffered substantial miscarriage of justice. This is based on my findings in relation to the grounds of appeal that have been upheld. I note that two (2) of the appellants have had to serve their full three (3) months prison terms whilst appealing the trial Magistrate's decision.
40. I will exercise my powers under section 230(1) (c) of the District Courts Act and quash the District Court's decision made on 4 August 2015.
41. I will also exercise my powers under section 230(1) (f) of the District Courts Act and dismiss the entire proceeding before the District Court. I do so after finding substantial miscarriage of justice being done to the appellants herein. The appellants as this Court has found were firstly never served with the ex-parte order. Secondly, a wrong proceeding was commenced against them under section 41(1) of the District Courts Act under an existing matter. Despite that, trial Magistrate proceeded to and dealt with the 2nd summons. And without fully complying with the pre-conditions stipulated under subsection (1)(b) of section 171, the trial Magistrate proceeded to and convicted two of the appellants. But the big injustice it seems or on top of all that, is that the action of the appellants that was said to have breached the ex-parte order was actually an act which was not restrained or disallowed by the ex-parte order. In other words, the appellants never breached the ex-parte order in the first place. The second reason why I have decided to exercise my powers under section 230(1) (f) and dismiss the District Court proceedings is because (as I have found and explained above in my judgment) there are too many substantive defects noticed in the documents filed in the District Court. As it is, no one knows where the original summons, complaint and application documents are being kept. In the meantime, there is this 2nd summons which was filed over the original proceeding. If the Court was to refer the matter back then the immediate question one would ask is "Refer the matter back to what?"
SUMMARY
42. In regard to the first issue Did the Court follow due process required under the SUMMONS TO A PERSON UPON INFORMATION when it convicted and sentenced the appellants my answer is "the issue became inapplicable under the circumstances or findings of the Court." In regard to the second issue Was the Court correct in exercising its powers under section 171(1)(b) of the District Courts Act Chapter No. 40 my answer is "no". In regard to the third issue Where the Appellants served with the ex-parte order, my answer is "no". And in regard to the final issue Did the appellants breach the ex-parte order, my answer is "no".
COSTS
43. Costs of course is discretionary.
44. Costs shall follow the event.
45. I will also order the respondent to pay the appellants' costs of the District Court proceedings.
ORDER
I make the following orders:
(1) The appeal is allowed.
(2) The order of the Kokopo District Court dated 4 August 2015 is quashed.
(3) The entire proceedings concerning this matter before the District Court is dismissed.
(4) The respondent shall pay the appellants' costs of this appeal and their costs in relation to the District Court proceeding, which shall be assessed on a party/party basis and taxed if not agreed upon.
(5) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.
Orders accordingly,
________________________________________________________________
Promised Inheritances Consultancy Legal Services : Lawyers for the Appellants
Office of Public Solicitor : Lawyers for the Respondents
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