Papua New Guinea Law Reports - 1986
[1986] PNGLR 193
N557(M)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WAYAI OBAWI
V
THOMAS TALU AND AYUPE HIKAWE,
LEGIGIA MERIA, MAKARA PARIAP AND PIRARI ELAPE
Waigani
Los J
4 March 1986
5 September 1986
INFERIOR COURTS - Local Courts - Practice and procedure - Technical rules of non-suit and verdict by direction not applicable - Discretion to stop case - Procedural guidelines - Local Courts Act (Ch No 41), ss 9, 34.
On appeal from the decision of a Local Court magistrate, dismissing a complaint for alleged trespass to the person,
Held
(1)      In proceedings brought by way of complaint in the Local Court the technical rules of non-suit and verdict by direction are not applicable or appropriate.
(2)      In such proceedings the local court magistrate is obliged to comply with all the procedural requirements of the Local Courts Act (Ch No 41), s 34, subject to the discretion conferred by s 34(d) to stop a matter at the end of the evidence of the complainant, which discretion should be exercised with flexibility.
(3)      The following procedural guidelines should be adopted:
(a)      At the close of the complainant’s case questions of law (such as no evidence of an element or elements necessary to found an order) may be raised and argued without the defendant being required to elect whether or not he will go into evidence;
(b)      At the close of the complainant’s case questions of fact (such as the unsatisfactory nature or weakness of evidence) may be raised, but if unsuccessful, the defendant should not be entitled to call evidence;
(c)      Questions of fact should be determined only after all the evidence has been given.
Tate v Johnson (1953) 53 SR (NSW) 492; 70 WN (NSW) 302, considered.
Cases Cited
Sopi Sakigu v Tinohin Uriab (Unreported, judgment No N383(M) of Woods J, dated 4 August 1982).
State, The v Roka Pep (No 2) [1983] PNGLR 287.
Tate v Johnson (1953) 53 SR (NSW) 492; 70 WN (NSW) 302.
Wapoi Warave v Lahari Evera [1980] PNGLR 427.
Appeal
This was an appeal from the dismissal of a complaint made before the Local Court and alleging trespass to the person.
Counsel
S S Sitapai, for appellant.
D A Umba, for respondents.
Cur adv vult
5 September 1986
LOS J: This matter has come before me by way of an appeal from a decision of the Local Court at Port Moresby where, on 23 December 1985, the learned trial magistrate dismissed a complaint in favour of the respondents. The notice of appeal lists two grounds of appeal.
(1)      The magistrate misdirected herself in law and fact after ruling that the appellant/complainant has proven his case after defence’s nonsuit submission and then dismissed the complaint after the defence offered no evidence. (sic)
(2)      There was substantial miscarriage of justice. (sic)
The records of the proceedings are not very clear and the lawyers’ (both appeared before the Local Court) attempt to explain has not made anything clearer.
The appellant and the respondents are from the Tari area of the Southern Highlands Province. The appellant told the Local Court that he was surrounded by the respondents at Koki and they used threatening words against him that is to say, “if one of us dies or our relative dies you (complainant) shall get the dead body to your village and shall pay compensation for the death”. It was claimed that such a threat in Tari custom was harmful and such as constituted trespass to the complainant.
FIRST GROUND
This ground requires me to follow what transpired in the Local Court. As far as I can make out, this is what had happened: Counsel made a submission covering cause of action as well as a submission which appeared to be a reply to a no case submission. Then after considering the submissions, the learned magistrate found in favour of the appellant. The order of the court was for four separate amounts against four respondents, K300, K200, K300, and K200, a total of K1,000. But upon defence counsel’s submissions that the Local Courts Act (Ch No 41) required that both parties must be heard before the court could make a decision, the court set aside its decision in order to hear the evidence from the defendants. When the decision had been set aside, defence counsel announced that the defendants were not calling evidence. The magistrate’s notes say the counsel “elected not to call evidence but applied for verdict by direction”. After hearing defence counsel’s submissions the court dismissed the complaint. The complainant’s counsel was not called upon to make any submissions.
Mr Sitapai for the appellant argues that he should have been allowed to make submissions. Mr Umba for the respondents says because the complainant’s counsel had refused to make submissions he (Umba) applied for a verdict by dire ction. It is apparent that there was confusion. At the hearing of the appeal, Mr Sitapai said there was confusion because there had been no direction whether non-suit procedures applied before the Local Court. A Local Court is created by statute and its procedure must be confined to what is provided under the statute, see Wapoi Warave v Lahari Evera [1980] PNGLR 427. The rules relating to practice and procedure are provided under s 34 of the Local Courts Act, which is as follows:
“34.    Practice and Procedure in Civil Cases
The following procedure shall be observed by Local Courts in all civil cases:
(a)      the action shall be heard in open court; and
(b)      no action shall be heard unless both the complainant and the defendant are present, except where the court considers that in the interests of justice it should be heard in the absence of a defendant who has been summoned under s 23(1) to attend, and fails so to attend; and
(c)      the complaint shall be read out and explained to the defendant in a language which, in the opinion of the court, he understands, and the court, in the case of a proceeding referred to in s 14, shall explain to him that he is entitled to have the matter dealt with by a District Court and is not obliged to make any defence before the Local Court, and shall ask him whether he elects to be heard before a District Court; and
(d)      if the defendant does not admit the complaint, the court shall first hear the evidence of the complainant followed by his witnesses and may then proceed to hear the evidence of the defendant followed by his witnesses; and
(e)      after each party to the action has given evidence, the opposite party is entitled to cross-examine him and his witnesses; and
(f)      a Magistrate, or an Assistant Magistrate through a Magistrate may ask a question at any stage of the proceedings and the Court may recall and question a party or a witness at any stage; and
(g)      after hearing all the evidence, the Court shall consider its verdict, which shall be pronounced in open court.”
In my view “shall” in the introductory part of the section together with the conjunction “and” joining each clause create an obligation on the magistrate to comply with all the clauses. But clause (d) has two parts: first, if the defendant does not admit the complaint, “the court shall first hear the evidence of the complainant”, secondly, the court “may then proceed to hear the evidence of the defendant ...”. In my view in the first part the court has no discretion, whereas in the second part the court has a discretion because of the word “may”. Therefore and subject to what I have to say later, a local court magistrate does not have to sit through to the end in order to hear both sides before making a decision.
As the court has a discretion it may stop a case before it at the end of the plaintiff’s case. The question here would be under what kind of circumstances could the court exercise its discretion not to continue with the case before it. Could the court follow the kind of procedure followed in a no case submission. The principles of no case submission in the civil proceedings are not as clear as in the criminal proceedings. References to the difficulties have been made in various National Court and the Supreme Court cases. For example, a reference is made in The State v Roka Pep (No 2) [1983] PNGLR 287 and Woods J’s decision in Sopi Sakigu v Tinohin Uriab (Unreported, judgment No N383(M) of Woods J, dated 4 August 1982). These cases refer to an article by Glass J. The “Insufficiency of Evidence to Raise a Case to Answer” (1981) 55 ALJ 842 at 842:
“In trials of common law claims before a judge and jury the defendant has two courses open to him when the plaintiff leads evidence which in his view is insufficient in point of law. He may move for a non-suit or for a verdict by direction. If he moves for a non-suit, the plaintiff must elect whether to argue the application or not. If he declines, the application is not entertained. If the plaintiff argues the application and loses, he may commence fresh proceedings for the same cause of action. If the non-suit application is argued and the defendant loses, he may adduce evidence. If, on the other hand, the plaintiff refuses to argue the application, the defendant has to elect whether to call evidence or move for a verdict by direction. If he chooses to apply for a directed verdict and fails, the jury decides the claim on the plaintiff’s evidence. The judge has no discretion to dispense with the election and entertain the motion.”
Woods J’s view in Sopi Sakigu’s case is that the procedure does not apply before the District Court. His Honour’s view is based upon the construction of s 147 of the District Courts Act. He says the court is obliged to hear both sides before making a decision. It came to my notice that one of the cases cited in the article by Glass J favours Woods J’s view but for different reasons. The case is Tate v Johnson (1953) 70 WN (NSW) 302 at 304-305:
“In the Supreme Court also there is a rule of law by which a plaintiff cannot be non-suited against his will, so that by refusing to argue an application for a non-suit he can compel the defendant to elect whether he will call any evidence, or alternatively, to ask for a verdict for the defendant at the close of all the evidence. We are far from satisfied that these sections import into proceedings before magistrates all the more technical rules applicable in the trial of nisi prius actions in the Supreme Court. Magistrates’ courts are courts of summary jurisdiction, to be administered with the minimum of technicality consistent with the sound administration of justice, and the whole of the procedure of the Supreme Court in its common law jurisdiction is not made applicable in magistrates’ courts. The rule which gives to a plaintiff the right to refuse to be non-suited in an action at law in the Supreme Court can have no application to proceedings before a magistrate, since there can be no judgment of non-suit in such courts.”
Despite the discretion, I do not think a strict technical rule should be applied in a case before the Local Court. The bulk of the simple claims come before the local courts and they include many claims arising from the local customs. I am of the view that a cause of action based upon custom may not be clear until both parties have produced evidence. In this respect, a local court should not as a matter of law be prevented from hearing the evidence from the defendant. On the other hand the court should not as a matter of law be required to hear the defendant’s evidence when it is abundantly clear that the complainant has no hope of success in his or her claim. That there is no place for a strict application of the technical rules in my view is echoed in s 9 of the Local Courts Act:
“A Local Court shall sit at such times and places within the area in and for what the court was established as are necessary for the convenient and speedy despatch of the business of the Court.”
With the provision of s 9 of the Local Courts Act in mind I think that a somewhat flexible procedure expressed in Tate’s case (at 305) should be adopted as guidelines for civil proceedings before the local courts:
“If, at the close of the informant’s case in proceedings of a civil nature, such as those under the Landlord and Tenant Act, the defendant thinks that there is no evidence of one or more of the elements necessary to be proved by the informant before an order can be made in his favour, there is no reason why he should not ask the magistrate to rule that there is no such evidence and to dismiss the information on that ground, without thereby incurring the penalty of being precluded from going into evidence if the magistrate should rule against his submission of law. Any other question of law may be raised in the same manner. We think, however, that the phrase ‘no case to answer’ is not one suitable for use, and the defendant should take each point of law explicitly and submit it for the magistrate’s consideration. If he fails, he may then go into evidence. If, on the other hand, a defendant submits at the close of the informant’s case that, although there is some evidence of all the necessary elements required to be proved before the order sought can be made, such evidence is so weak or so unsatisfactory that it should not be accepted, then this is an argument on an issue of fact, and a defendant should not be allowed to argue such a question of fact and, if defeated, then claim to be entitled to call evidence. Questions of fact should be decided only after all the evidence has been given. It is only questions of law which may be raised and argued at the close of the informant’s case without the defendant being subjected to the necessity of electing whether or not he will go into evidence.”
I note that the National Court Rules, O 10, r 14, provides a simple procedure for judgment by direction. Subrule 3 allows a defendant to apply for leave of the court to call evidence where he fails to obtain judgment by direction after the conclusion of the plaintiff’s case. It seems to me this relates mainly to the question of law but this procedure could be useful in relation to the facts before the local court. That is, if the defendant decides to argue the question of facts at the end of the plaintiff’s case and he loses, he could call evidence with leave of the court.
The learned magistrate gave the reasons for dismissing the case as:
(1)      “That there was not enough evidence to support the claim.
(2)      There was no corroborated evidence for the threats of assault and the words used by the fifth defendant which are the reasons for the claim.
(3)      Not enough evidence at all to show the suffering loss and damage by the defendants towards the complainant.
(4)      The evidence of the custom of the Tari which is the most important evidence was not well presented to the court to support the claim.
(5)      No precedent cases presented to court to clear courts mind.”
With respect the only evidence before the court was the evidence called by the plaintiff. At the end of the plaintiff’s case the magistrate relying on the same evidence made orders against the defendants. She could not suddenly change or make orders against the plaintiff without any good reasons. The first question she should decide is whether the defendants have committed any actionable wrong. Only then the learned magistrate should analyse the evidence to determine whether on the balance of probabilities the claim has been proved. Lastly the magistrate should then determine whether there were any damages or injuries suffered.
The error in analysis of the evidence and the confusion in the procedures adopted by the court in my view has caused a serious miscarriage of justice. I therefore uphold the appeal and remit the matter to the Local Court for rehearing.
Appeal allowed
Lawyer for appellant: Public Solicitor.
Lawyer for respondents: K Y Kara.