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Larmatam v Kaia Works Ltd [2016] PGNC 346; N6566 (7 December 2016)

N6566

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 127 OF 2015

BETWEEN
PATRICIA ABABA LAMA LARMATAM
Appellant/Complainant

AND

KAIA WORKS LIMITED in its capacity as the Gon Hill Road works contractor

First Respondent

AND

PAUL NIME in his capacity as the
Chimbu Provincial Works Manger

Second Respondent

AND

JOE KUNDA NAUR in his capacity as the
Administrator of Chimbu Province

Third Respondent

Kundiawa: Liosi, AJ

2016: 30^th August & 7 December

DISTRICT COURT – Duty to state decisions and reasons for decision in Court record.

DISTRICT COURT – Is a Court of record and it must keep written records of its decision and reasons for decision – Constitution, s.155(1), s.160(2)&s.163(2).

DISTRICT COURT – Practice & Procedure – Failure by Magistrate to state reasons for decision – Substantial miscarriage of Justice – District Court decision quashed – Appeal allowed

Cases Cited
Anton Angra & Oimbo Security Services Ltd -v- Ina [1996] PNGLR 303
Godfrey Niggints -v- Tokam [1993] PNGLR 66
Henry Aisi -v- Malaita Hoala [1981] PNGLR 1999
Kelly Yawip -v- Police Commissioner [1993] PNGLR 93
Lee -v- Lee [1973] PNGLR 89
Pierson Joe Kamagip -v- Police Commissioner (1999) N1853

Counsel:
Mr. Yawip, for the Appellant
Mr. Tonge, for the Respondent

RULING

7^th December, 2016

1. LIOSI AJ: The appellant appeals against the decision of the Kundiawa District Court made on 9^th September, 2015 ordering the removal of her property known as Section 10 Allotment 22 Kundiawa and awarding costs against her.

2. There are three (3) grounds of Appeal.
The court erred when ordering the complainant to remove her property without ordering compensation for loss of her equitable interest pursuant to Section 53(2) of the Constitution.
The Court erred in fact by ordering immediate removal of her property without giving her a reasonable time to do so considering that the Gonhill Road works had already been completed successfully. Further the removal of her property would serve no purpose and that she has been living there for the last 44 years.
The Court should have ordered the parties to bear their own costs considering the nature of the case.

3. The brief facts are as follows. The complainant is the registered proprietor of Section 10 Allotment 22. As part of the road works the defendants engaged a surveyor to carry out survey of the road to ascertain if the complainant’s stone wall and other improvements are within allotment 22, section 10 property. The survey allegedly revealed that the complainant’s stone pitched wall, trade store and other structures encroached upon the road reserve that is for sealing under this project works. The complainant filed proceedings to evict the defendants under the Summary Ejectment Act.

4. On the 9^th September, 2015 the District Court handed down its decision. The decision of the court as appears on the magistrate’s worksheet is;
Ruling: Complaint not granted due to complaint has no basis
Complaint refused on Public Interest that road widened

5. The first notable factor about the decision is that it does not give any reasons for the decision. There does not appear to be any reasons given for the decision as there is nothing appearing on the notes. The above statement was all that was pronounced at the time of the decision. In my view this is not a judicial decision based on reasons. Magistrates must give reasons for their decisions. This proposition has been re-enforced in many decisions. See Anton Angra & Oimbo Security Services Ltd -v- Ina [1996] PNGLR 303, Henry Aisi -v- Malaita Hoala [1981] PNGLR 1999, Godfrey Niggints -v- Tokam [1993] PNGLR 66, Kelly Yawip v. Police Commissioner [1993] PNGLR 93, Pierson Joe Kamagip -v- Police Commissioner N1853. A decision of a court without reason is an unreasonable decision.

6. Similarly if no reasons are given by an administrative authority, the logical conclusion is that there were no good reasons at all for making the decision. Niggints -v- Tokam (supra). Failure to give reasons for our purposes by a District Court tantamounts to a substantial miscarriage of justice and a retrial ought to be ordered. Lee -v- Lee [1973] PNGLR 89.

7. Under Section 230 of the District Court Act, the National Court on Appeal is given various powers to deal with the matter upon hearing. Subsection (2) states an Appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

8. The authority cases cited above state that failure to give reasons amounts to a substantial miscarriage of justice. In such a situation a retrial ought to be ordered.

9. Whilst stating the above I note that failure to give reason for the decision herein was not raised as ground of appeal. I do not understand why as clearly there is no reasons for decision. That been the case, there clearly has been a substantial miscarriage of justice.

10. Given the above, I allow the appeal pursuant to Section 230(2) of the District Court Act chp. 40. What orders then should the Court make.

11. I note the Defendants contention that part of the complainant’s property may have encroached on the part of the road reserve that is for sealing. Further that the complainant’s cause of action under the Summary Ejectment Act is wrong in law. I also note the appellant’s second ground of appeal that events have overtaken the proceedings and that the outcome of this proceedings may serve no purpose as the road works has been successfully completed without affecting the complainant’s property.

12. Given the above I allow the appeal and quash the decision of the District Court made on 9^th September, 2015. In the circumstances it would serve no purpose remitting the matter back for rehearing.

Orders:
Appeal is allowed.
District Court Order of 9^th September 2015 is quashed.
K5, 000.00 surety fee is refunded to the complainant
Costs of the Appeal be in the cause.

Ruling accordingly,
_________________________________________________________
Public Solicitor : Lawyer for the Appellant
Tonge Lawyers : Lawyer for the Respondents