Unreported National Court Decisions
N1406
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 472 OF 1995
BETWEEN
JOHN YAMBOLI - APPLICANT
AND
IN THE MATTER OF JOHN YAMBOLI
V
REGINA SAGU
AND
IN THE MATTER OF SECTION 60, 94, 94B, 94C & 96 OF DISTRICT COURTS ACT, 40
Mount Hagen
Akuram AJ
24 November 1995
PRACTICE AND PROCEDURE - Application for Judicial review - Application for leave - notice not served on Secretary for Justice.
CRIMINAL LAW - Practice and Procedure - Committal Proceedings - action against Magistrate personally for judicial acts - Section 255 District Courts Act, Ch 40, O. 16 R. 5 (2) NCR Ch. 38.
24 November 1995
AKURAM AJ:  This is an application for leave for an application for Judicial review.  The applicant by way of an originating summons filed and Notice of Motion filed on 6/11/95 seeking leave and if granted, to review the decision of Mrs. Regina Sagu who was the presiding magistrate in allowing an affidavit of the key witness in the case of The State v John Yamboli during the committal hearing and committing the applicant/defendant Contrary to section 94C (2) of the District Courts Act.
Counsel for the defendant in a written preliminary submission said that to be a party to a proceedings, one has to have an interest at stake.  In this matter his client has no interest that accrue to her personally as Regina Sagu at stake.  She is a judicial officer and thus it is submitted that for matters such as this which involves elements of public law, it is not in the interest of the community for judicial officers to be named personally.  The Rules of the National Court do allow actions to be proceeded otherwise, and it is not necessary to have judicial officers except where actions personally lie against the individual judicial officer.  Public Policy consideration do not permit the naming of judicial officers as parties as it is not intended to leave doors open for their integrity to be impunged upon and that no interest that accrue personally are at stake and thus it is not permissible.  He therefore submitted that a wrong person has been summoned to appear before the court by two different processes namely the originating summons and the Notice of Motion.  He referred to O. 16, R. 5 as the rules providing for a judicial review.  Order 16, Rule 5 (2) does not say that a judicial officer has to be named and that he has to be personally served.  It says that if the matter relates to a Court proceedings than a copy of the motion to be  served on the clerk or registrar of the court, and where it relates to any objection on the conduct or a judge is to be made, on the judge.
I totally agree with the arguments raised by the Counsel for the respondent, Regina Sagu.
However, the argument does not only rest here.  This is a matter that arose in the District Court proceedings and because District Court is a creature of statute, one must first see the relevant provisions in the District Courts Act, Ch 40 to see whether there are similar provisions to that of the National Court Rules.
Under Part X11 of the Act (Protection of Magistrates in the Execution of Their Office), and particularly Section 247 of the Act says that where a person is injured by an act done by a magistrate in a matter in which by an act done under an order made may maintain an action against the magistrate (s.247 (1)).  But such action is not maintainable for anything done under an order until after the order has been quashed or set aside under this Act, (s. 247 (2)).
Under section 255 (No action in District Court for Judicial Acts), no action is to be brought against a magistrate in a District Court for anything done by him in the execution of his office.
However, it is section 256 which is relevant here, and it reads:
“256.   Magistrate only liable in case of malice, etc.
In an action against a magistrate for an act done by him in the execution of his duty as such or in his capacity as such, it must be expressly alleged in the statement of claim or plaint that the act was done maliciously and without reasonable and probable cause, and if the allegations are denied and at the trial of the action the plaintiff fails to prove them, judgement shall be given for the defendant.”  (emphasis added).
This section implies that the magistrate may personally be sued if in the execution of his/her duties as such, he/she acted with malice or maliciously and without reasonable or probable cause.
In the present case, I do not think that the presiding magistrate acted maliciously and without probable cause.  All she was doing was assessing the evidence presented to her in the committal proceedings to decide whether there is sufficient evidence to commit the applicant and three others to stand trial at the National Court.  She does not decide the fate of the applicant as to his innocence or guilt.  She had no personal interest in the case except to assess the evidence.  As such she is a neutral person between the Police representing the State and the Applicant.  It is the Police or the State that is an interested party in the committal hearing and not the presiding magistrate.  Therefore if the applicant thinks or feels or is of the opinion that he is aggrieved by the decision to commit him to stand trial because the presiding magistrate has wrongly admitted certain evidence, he should have the State or Police as the respondent/defendant in this proceedings.  This is the same situation as in appeals against the decisions of magistrates in District Courts where magistrates are not served as Respondent’s in Appeals as the opposing party in the proceedings in which decision is, made are named as the respondents in the Appeal.
In the case of In The Matter of Philip Nagira v Besasparis and In The matter of Section 60, 94 (6) (b) and 94B of the District Courts Act (1986) PNGLR 199, although the presiding magistrate’s name was used, I distinguish that from the present case simply because this argument was never raised.  In fact this is the first time it is raised in naming the presiding magistrate as a party in any proceedings.
I am therefore of the view and also agree with the Counsel for respondent, Mr. Pius Kingal, that as a judicial officer and in matters such as this which involves elements of public law, it is not in the interest of the community for judicial officers to be named personally.  The Rules of National Court do allow actions to be proceeded otherwise (O. 16, R. 5 (2)) and it is not necessary to have judicial officer’s except where actions personally lie against the individual Judicial Officer.
I therefore make the following orders:
1.       That the State or Police be named as the respondent/defendant and the name “Mrs Regina Sagu” be deleted.
2.       Service is to be made to the Secretary for Justice.
3.       Costs be against the Applicant.
Lawyer for the Applicant: John Yamboli - in person
Lawyer for the Respondent: Legal Officer, NJSS