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Be'o v Ufui [1982] PGNC 37; [1982] PNGLR 255; N343(M) (15 April 1982)

N343(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JASO BE’O

V

KESUA UFUI

Waigani
Kidu CJ

13 April 1982
15 April 1982

INFERIOR COURTS - Local Court - Jurisdiction - Neither party present - No jurisdiction - Local Courts Act 1963, s. 34(b).

A local court has no jurisdiction to hear and determine a matter in the absence of both the complainant and the defendant.

Appeal

This was an appeal against an order, made by a local court magistrate, in the absence of both the complainant and the respondent.

Counsel

D. Koeget, for the appellant (defendant).

15 April 1982

KIDU CJ: On Tuesday 13th April, 1982, I allowed the appeal and rescinded the order of the Port Moresby Local Court dated 24th February, 1981. This order reads as follows:

"Ex-parte Order: I order defendant to pay K130.00 in cash in their absence and such payment the amount of K130.00 to be paid within four (4) months."

The respondent took out a complaint against the appellant on 21st January, 1981, in the Port Moresby Local Court. In that complaint the respondent asked the court to order the appellant to repay to him the sum of K130 that he spent on her (the appellant). The complaint reads, inter alia, as follows:

"That you were living with the complainant as husband and wife since February 1980 at June Valley. However you have now left the complainant intending to marry another man.

The complainant therefore prays the court to enforce you to repay him one hundred and thirty kina (K130) that he spent on your behalf."

On 24th February, 1981, the matter came before the court. The record reads, inter alia, as follows:

"Parties called. No appearances. Summons properly served. Ex-parte order: I order defendant to pay K130 in cash in their absence and such payment to the complainant of K130 to be made within from four (4) months."

The reason why I allowed the appeal and rescinded the Port Moresby Local Court’s order is apparent from the record of that court—neither the complainant (respondent) nor the defendant (appellant) was present when that court made its order.

A local court is both a Court of Law and a Court of Justice. It cannot make any decision in the absence of both the complainant and the defendant. A court can, in certain cases, make orders either in the absence of a complainant or a defendant. It cannot make any order in the absence of both parties.

In fact s. 34(b) of the Local Courts Act 1963 provides, inter alia, as follows:

"34. The following procedures shall be observed by Local Courts in all civil cases:

...

(b) No action shall be heard unless both the complainant and the defendant are present, unless where the Court considers that in the interest of Justice it should be heard in the absence of a defendant who has been summoned under Subsection (1) of this Act to attend, and fails to do so." (Emphasis mine)

Section 34(b) does not allow a magistrate to hear a case in the absence of both parties. It only makes an exception where a defendant, after being served with a summons informing him or her "of the nature of the complaint and the time and place fixed for the hearing" (s. 23 (1)(c) of the Local Courts Act), fails to attend. This exception contains one important criteria—the hearing can take place in the absence of the defendant if it is in the interest of justice.

There is no record of the magistrate considering this important aspect in this case.

Decision of the Port Moresby Local Court dated 18th February, 1981 rescinded.

_________________________________

Solicitor for appellant: Public Solicitor.