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In Re Mondo [1989] PGNC 35; N707(M) (10 May 1989)

N707(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF YONGO MONDO

AND IN THE MATTER OF CONSTITUTION SECTION 42 (5)

Mount Hagen: Woods J
3 May 1989, 10 May 1989

CONSTITUTION - unlawful detention from Village Court - Application under Constitution S.42 (5).

WOODS J: The applicant has come before me on a complaint that she is being unlawfully or unreasonably detained in Baisu Corrective Institution. She is held on a warrant issued for 84 weeks imprisonment by virtue of an order of the Village Court at Dage Mitna in the Chimbu Province and endorsed by the Local Court at Kundiawa on 16th November 1988. The warrant refers to failing to obey a Village Court Order to pay compensation of K840 thereby contravening Section 31 of the Village Courts Act.

From a perusal of the Village Court papers it appears that this matter arose from a complaint that in 1984 the Applicant had left her husband and returned to her own village and the complainant was the husband who was seeking a return of the brideprice or some equivalent for the loss of his wife. The village court assessed the amount of compensation to be paid by the Applicant wife at K840.00. Apparently this compensation order was made in around 1985 but the Order for Imprisonment was not made until November 1988.

Whilst the Village Courts have power under S.31 of the Village Courts Act to order imprisonment for failure to obey an order for the payment of compensation, damages or a fine, such imprisonment must be read subject to the Constitution Section 42 (1). This section clearly states that no person shall be deprived of his liberty except and in the following 8 exceptions the ones relevant to court process would be S.42 (1) (b) or (c) or (d).

An order for repayment of brideprice definitely can not be related to S.42 (1) (b) an offence of which she has been found guilty nor to S.42 (1) (d) relating to the commission as of an offence. And neither can it come within Section 42 (1) (c) as the brideprice obligation cannot be seen as an obligation imposed by law. It may be argued that it is an obligation imposed by customary law but in so far as it is an obligation of custom it must be seen as analogous to a contractual obligation and contractual obligations are specifically excluded by S.42 (1) (c).

Brideprice and any repayment thereof is a civil obligation and in no way can be regarded as a criminal offence or involving criminal obligations or sanctions. Otherwise we would be sanctioning imprisonment for civil debts. And further such imprisonments for Civil debts would be a power of those courts in the Country which were supposed to be dealing with minor problems in the village situation where customary solutions were to be considered. No other court least of all the National Court can order imprisonment to enforce payment of a civil debt or judgment.

The higher courts are getting enough criticism as it is that imprisonment even for serious offences is not an appropriate punishment in P.N.G. and we should be looking at ways of dealing with offenders more in tune with traditional social structures and demands and obligations and yet we find the village courts using such non- traditional punishment as gaol to enforce civil debts.

I find that the Order for Imprisonment is clearly contrary to the Constitution. Of course this is not saying that the Village Courts Act Section 31 is invalid, merely that orders under that Section for imprisonment for obligations analogous to civil debts or contractual obligations are void.

The National Court has power under Constitution Section 42 to enquire at any time into the detention of persons held in custody. I find that this case is an appropriate case for me to investigate.

I declare the Order for Imprisonment of Yongo Mondo is unlawful. I order that Yongo Mondo be released from custody forthwith.