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Iatinata v Toiwat and Valaun [1994] PNGLR 568 (17 February 1994)

PNG Law Reports 1994

[1994] PNGLR 568 - Marko Iatinata v Denison Toiwat and Penington Valaun 

[1994] PNGLR 568

N1204

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MARKO IATINATA

V

DENISON TOIWAT AND PENINGTON VALAUN

Rabaul

Doherty J

17 February 1994

INFERIOR COURTS - District Court - Powers of committal for contempt for non-payment of judgment debt.

CONTEMPT - Judgment debtor - Disobedience of court order - Remedy under the District Courts Act Ch 40.

Facts

The appellant was a judgment debtor who had made various attempts to part pay the debt. The District Court magistrate ordered her to be imprisoned for contempt of the court order because of her failure to pay the judgment debt. She appealed.

Held

1.       The contempt provisions of s 277 District Courts Act are limited to the matters therein, and the penalty is a fine of up to K200, not a term of imprisonment.

2.       Section 192(1)(e) of the Act provides for imprisonment of a fraudulent debtor. However, that provision is discretionary, and the Court can only make an order of imprisonment after it has found certain facts, and then only if it decides that that remedy is appropriate.

Cases Cited

Yap v Tan [1987] PNGLR 227.

Hadkinson v Hadkinson [1952] 2 All ER 567; [1952] P 285; [1952] 2 TLR 416.

Counsel

P Ousi, for the appellant.

Both respondents in person.

17 February 1994

DOHERTY J: The appellant:

1.       appeals against a decision of a District Court at Rabaul ordering her to be imprisoned for two months from 20 October 1993; and

2.       makes an application for leave to appeal out of time against the original order, made on 5 December 1991, that she pay K7,000 to the respondents.

The warrant within the court papers shows that the appellant was ordered to be imprisoned for two months for “contempt of a Court Order”. The contempt provisions of the District Courts Act Ch 40 are contained in s 277. This provides that a person who has interrupted a court or conducted himself without respect or obstructs the court or disobeys an order made under s 63 of the Act can be fined a maximum of K200.

The only provision of s 277 that could apply to the instant case is s 277(1)(d), that a person can be fined for contempt for failing to obey s 63 of the Act. The penalty is a fine of up to K200, not a term of imprisonment.

It appears to me that the learned magistrate intended to make an order under s 192(1)(e) of the District Courts Act, which provides for imprisonment of fraudulent debtors. However, that provision is a discretionary one. The Court can make an order of imprisonment only after it has found certain facts, and then only if it decides it is appropriate.

There must be a proof of refusal to pay, coupled with an ability to pay and the means to pay; or a person is about to leave the country without paying his debt; or he is about to go somewhere else in the country with the intention of avoiding his debts; or he has neglected or refused to comply with the order to deliver goods or has not paid the value of the goods. The provisions apply only then if there has not been distress (that is, there has not been an attempt to recover the money ordered by taking the person’s goods).

Only if one of these things is clearly present, can the District Court then make a decision whether it should send the person to prison or it should not send the person to prison.

I consider that once the District Court has made findings of fact applicable to s 192, it must then consider the situation of the person standing before it before deciding to exercise its discretion.

In the present case, the woman who was sent to prison was 70 years of age, and there were other ways of getting the judgment money rather than sending her to prison. The respondents told the Court that income was earned from crops which were being collected by her sons. The evidence in the hearing also showed that K3,000 was offered to the respondents, and they refused to take it.

The learned magistrate found that on an earlier occasion, in or about 1985, the respondents were offered K4,000, and they refused to take that as well. I am not sure from the deposition exactly what time she offered the K4,000.

From the facts of this case, it is clear that the two respondents are insisting on the whole K7,000. The realities of life are such that it is not easy for people to collect K7,000 all at one time. I think if they are a little less greedy and a little more realistic, they might have been paid in instalments. If they had accepted the K4,000 that they had been offered in the first place, they might have been closer to getting their money.

On the face of the court record, it was clear that, although she did not give evidence in the hearing under the warrant, i.e. the summons to debtors, the appellant had given evidence in an earlier court hearing and she challenged the fact that the trees the respondents said they planted as boys were bearing fruit. There was evidence adduced by both parties.

I am concerned as to how the amount of K7,000 was assessed. The documentary evidence that went before the lower court and the Land Court showed a valuation of these trees, some of them at K3,424 and other trees at K6,700, but clearly the two respondents were not the only people who planted these trees. The appellant planted some of the trees. The respondents also collected the fruit of some of those trees over a period of years.

I have to agree with Mr Ousi, for the appellant, I am not clear at all how these proceedings came to be in the District Court. The Local Land Court has the power under s 44 Land Disputes Settlement Act Ch 45. The proper procedures should have been to go back and use the provisions of the Land Disputes Settlement Act to enforce the order that apparently was made in December 1984. I say apparently made, because there is no record or copy of any order made by the Local Land Court on this case. It is not clear exactly how much compensation for the trees that were planted was ordered. As the learned magistrate in the District Court said. “There is no Court record in the Court Registry”. The original order of the Land Court seems to have been lost. The learned magistrate said, “I have nothing to assess on quantum” and then went on to say, “I will enforce a Court Order of K7,000 which was made on 12 December 1984”, although the only written evidence we have of such a decision is a letter from the Department of East New Britain saying that there was an order made on or about 12 December 1984. It does not state what the terms of the order was.

As I have noted, there is also an assessment attached to the letter. It looks as if it is signed by three mediators and refers to K3,424, but their status is not stated.

The counsel for the appellant says she does not speak pidgin, she does not speak English, she is an old woman and she does not understand what is happening, and that is why the court record shows that she did not speak.

I consider that there were avenues open to the learned magistrate other than sending an old woman to prison, and I think that this was not a reasonable exercise of the discretion vested in him, particularly when the two respondents were offered money at various times and refused to take it.

Papua New Guinea has one of the highest prison rates of any country in Southeast Asia, and there seems to me no point in sending 70-year-old grandmothers there because they cannot pay their debts when there are other means of enforcement. Therefore, I uphold the first leg of this appeal.

However, the fact remains that there is a binding order in the District Court ordering the appellant to pay the respondent K7,000. An order of a court is binding on the parties to it, even when they think it is wrong, and even if they are not happy with it. This has been clearly stated in the ruling of Hinchliffe J in the case of Yap v Tan [1987] PNGLR 227. He agreed at 231 with the view of Romer LJ in Hadkinson v Hadkinson [1952] 2 All ER 567 at 569:

“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged ... it extends even to cases where the person affected by an order believes it to be irregular or even void.”

I think there were arguments that would have been available to the appellant on an appeal. The original order that was heard was apparently made in 1984. The order seeking to enforce it in the District Court was made in December 1991, where both parties were represented by lawyers. At the end of the decision, the learned magistrate quite properly said the “defendant is at liberty to appeal this order. She has one month to lodge the appeal or instruct a lawyer to do that on her behalf”.

It is, therefore, over nine years since this original order has been on foot. I consider she had notice by reminders to pay, and she apparently acquiesced in the original orders by offering to pay, first, K4,000 and, after 1991, K3,000. I consider by both acquiescing and waiting this length of time, it would defeat justice to allow her to appeal almost ten years later.

I uphold the first leg of the appeal, and I do not enforce the imprisonment order, but I am not prepared to allow leave to appeal at this time. That order, of course, can be appealed also. I think both of the respondents should face reality and accept instalments instead of insisting on K7,000 all at once.

Lawyer for the appellant: Warner Shand.

The respondents appeared in person.