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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 126 OF 2010
ALBERT INAVE
v
NEWMAN TAPOKO
Lae: Batari, J
2011 :23 May
: 2 June
APPEAL –Inferior Courts - District Court – Complaint – Hearing of - Right of parties to be heard on complaint or defence – Fair trial - Natural Justice – Minimum requirement of – Defendant not heard in defence – Denial of natural justice when defendant denied right to state his defence
PRACTICE AND PROCEDURE – Reasons for decision – Duty of decision - maker to give reasons – No reasons given – Effect of - Whether failure to give reasons amounts to denial of natural justice
PRACTICE AND PROCEDURE – Orders for default judgment – Means assessment – Right to be heard on means when deciding to impose time limit to pay or a condition for compliance – Denial of natural justice when defendant not accorded right to heard on means to pay
PRACTICE AND PROCEDURE - Orders for arrest in default of compliance – Validity of order – Minute of court order without warrant of arrest or summons not valid for lawful arrest
Case Cited:
Ombudsman Commission v Peter Yama (2004) SC747
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Niggints v Tokam [1993] PNGLR 66
Winmarang v Ericho and Anor (2006) N3040
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Counsel:
Ms R. Yayabu, for the Appellant
Respondent in Person
2 June, 2011
1. BATARI J: The complainant in the District Court (now the respondent) sued for K3,000.00 plus costs and 8% interest for purported verbal agreement over sale of vehicle. On 5th November, 2009 his Worship, Bon Amos ordered default judgment against the defendant (now the appellant) in the sum of K4,172.30. The appellant successfully applied to set aside the default orders and the matter was listed for hearing on 29th July, 2010 before his Worship, Pious Tapil. The trial magistrate at the end of the hearing ordered:
"(1) His Worship erred in Law and practice in failing to hear my application dated 7/7/2010 and filed 8/7/2010 to set aside the ex parte order of the 5th of November 2009 and proceeded to enter judgment in favour of the complainant.
(2) His worship erred in Law and practice by failing to allow the defendant to defend himself properly by not allowing his witnesses to give evidence.
(3) The District Court erred in Law and on the facts in holding that the defendant owed the complainant K3,000.00 when in fact the defendant owed K1500.00 only to complainant and the said amount was paid by the defendant to the complainant already by installments.
(4) His worship erred in Law in making an order for enforcement of the order where there no such application before the court.
(5) Such other of further grounds that may become evident from the court depositions prior to the hearing of the appeal".
3. Grounds 1 and 5 were abandoned at the time of hearing of the appeal. The remaining grounds are paraphrased into topical issues as set out in the body of this judgment.
The Appellant was not given the opportunity to give evidence in his defence
4. This issue captures the second ground of appeal. It raises the fundamental issue of a fair trial. The appellant complains that, the magistrate did not allow him or his witnesses to give or call evidence in his defence. This assertion is not contested by the respondent on appeal. Newman Tapako (the respondent) in fact conceded that both he and the appellant were present in court and after he gave his evidence, the magistrate proceeded to hand down the decision with consequential orders in his favour.
5. There is evidence that point to the hearing being contested but with only one party being heard on the complaint. The minutes of the court proceedings which appear on pages 25 and 26 of the Appeal Book show that the complainant gave evidence and was cross-examined on his evidence as follows:
"Newman Tapako of Laiagam, Wabag resides at Kamkumung. Mitupela Albert istap long Lae City na mi save long em for over 30 years. Mi gat 3 pela bus long Lae. Long 2007 mi baim wanpela Land Cruiser na mi stap long ronim bus. Albert nau em kam na tok em gat interest long wanpela bus. Sampela months bus ino ron so mipela pulim igo long haus blong Albert. Mi makim K3,000.00 na emi no payim. Mi save askim em tasol emi no givim. Long 2010 nau emi summons long em. After nau em givim mi K1,500.00 givim i. Nogat man ken salim kar long K1,500.00 because olgeta samting emi stap.
X Exam
Q. Tru yiu tok bai K1500
A. Nogat
Q. Yiu save long engine em bagarp
A. Nogat
Q. Yiu yet mechanic
A. Yes mi yet mechanic
Q Yiu save kisim ol samting long em
A. True"
6. This brief evidence by the Complainant appeared to be the only and complete record of the trial evidence. It was immediately followed by the court orders I have set out above. There is no indication that the Appellant gave evidence or given the opportunity to response to the complainant's evidence. The minutes of the proceedings does not indicate if the defendant was explained the complaint and asked to respond to it. All indications point to the Magistrate proceeding to make Orders after hearing only from the Complainant. With respect, the trial Magistrate committed grave errors of law and procedure when his Worship:
(a) Failed to hear from the appellant in his defence.
(b) Made default orders for non-payment within a given time.
(c) Gave no reasons for his decision.
Failure to Hear and Determine a Complaint
7. It is a fundamental legal requirement that in all proceedings before a Court of competent jurisdiction, the Court must hear from the parties present, evidence on the complaint and the defence. The appellant's complaint is that there has been an infringement of the principle "audi alteram partem" or the right to be heard or make representations. This right, enshrined in the principles of natural justice is expressly provided for under s. 59 of the Constitution. It is a well recognized principle of law applied in numerous decisions of both this Court and the Supreme Court that, a person whose rights or interests are likely to be affected in proceedings against him before the court or tribunals and other quasi-judicial bodies, is entitled to be heard in his defence prior to any decision or judgment being made.
8. In proceedings before the District Courts on civil cases, this protection is also guaranteed under Part VIII of the District Court Act. This Part sets out the procedure in connection with complaints. Section 139 of the Act governs proceedings where facts are admitted. The court is required to put to the defendant, the substance of the complaint and ask if he has any cause to show why an order should not be made against him. Under Sub-section (2) the Court can only make an order against the defendant if:
(i) There is evidence on the complaint,
(ii) The defendant admits the truth of the complaint,
(iii) The defendant does not show sufficient cause why an order should not be made against him.
9. Where the facts are not admitted, the court must proceed to hear and decide the case under s. 141 and s. 146 of the Act. Section 141 states;
"41.When facts not admitted.
If the defendant does not admit the truth of the complaint, the Court shall proceed—
(a) to hear the complainant and such witnesses as are examined on his behalf, and such other evidence as is adduced in support of the complaint; and
(b) to hear the defendant and such witnesses as are examined on his behalf, and such other evidence as is adduced in his defence; and
(c) to hear such witnesses as the complainant examines in reply, if any evidence has been given on behalf of the defendant."
10. Section 146 states:
"146. Court to decide case.
The Court, having heard what each party has to say and the evidence adduced by each, shall consider and determine the whole matter, and shall make an order against the defendant or dismiss the complaint, or make an order against the complainant or dismiss the set-off, as the case requires."
11. Section 142 is also relevant. It relates to conduct of proceedings in respect of examination and cross-examination of witnesses and the right of addressing the Court in reply on the hearing of a complaint before the District Court. It provides for the practice in the District Court to be in accordance, as nearly as practicable, with the practice of the National Court on the trial of an action at law.
12. These provisions clearly set out the minimum requirement for impartial trial of cases before the District Courts. They enforce the requirement for natural justice and the right of every citizen or person to be accorded his or her protection of the law under s. 37 (1) of the Constitution. That protection necessarily requires the defendant to be heard in his own defence whether in a criminal trial or a civil suit proceeding.
13. The right to be given the opportunity to be heard is within the contemplation of the right to be heard. Under s.146 of the Act, there can be no consideration and determination of the whole matter, unless the court had first heard what each party has to say on the evidence adduced. This procedure applies in inter-partes hearings where the facts are disputed and both parties are present. A party may of course elect not to give evidence as of right. In that case, the magistrate must record the election and proceed to make a decision on the evidence before the Court.
14. In this case, the trial magistrate had proceeded to make orders as if all the evidence had been adduced before him. It is also apparent from the minutes of the proceedings that the facts were not admitted as to the nature of the agreement as well as the amount. This disagreement is apparent on the cross-examination of the respondent by the appellant.
15. Having put his case to the respondent, the law requires that the appellant be heard in his defence. An election must therefore be given to him and it is up to him to decide whether or not to give or call evidence. It is not for the magistrate, as it did happen in this case, to make an election for parties appearing before the court. As a result of what the court below did, the opportunity was lost to the appellant to respond to the complaint and there is no reason why that is so.
16. In summary, the appellant has been deprived of a right to be heard and to adduce evidence in his defence. The course taken by the magistrate precluded any examination in chief and cross examination of the appellant's case. That error was created by the failure on the part of the magistrate to appreciate and follow proper practice and procedures to secure a fair trial. The only solution is to start from square one again and remit the complaint for hearing before the District Court. Hence, I will uphold the appeal.
Whether Default Orders and Orders for arrests are proper and justified in Civil Cases
17. The trial Magistrate ordered the defendant to pay the complainant K1,600.00 in full by 31st August, 2010 and "In default police are empowered to make arrests." The first part of this order imposing a time limit to pay a sum of money is made contrary to and in excess of the powers of the Court
to make such orders under s. 165 of the Act. Section 165 provides:
"165. Time for payment or payment by installments.
(1) Where, by a conviction or order, a fine or sum of money or costs is or are ordered to be paid, the Court may do all or any of the following things:—
(a) allow time for the payment; and
(b) direct the payment to be made by instalments; and
(c) direct that the person liable to pay is at liberty to give security for the payment.
(2) Where a fine or sum of money or costs is or are directed to be paid by instalments, the instalments shall be paid to the Clerk or to such other person as the Court orders and, if default is made in the payment of an instalment, the same proceedings may be taken to recover the amount then remaining due as if an order for payment by instalments had not been made."
18. The term "may" in Sub-section (1) makes it discretionary on the magistrate to consider allowing time for the payment or order payment by installments or order that the person liable to pay give security for the payment. The exercise of that discretion necessarily involves an obligation on the court to enquire into the means and ability of the person liable to pay and to hear from that persons before one of those options in s. 165 (1) is ordered. This discretion which applies in payment of a fine following conviction or an order for payment of a sum of money must be exercised in compliance with the principles of natural justice. The person adjudged to pay a fine or a sum of money must be accorded the right to be heard before a decision or judgment is reached. Failure to do so will result in a denial of that right, and consequently, an unfair and oppressive order.
19. In this case, there is no evidence before the court to support the order for compliance within a certain time frame. There was nothing before the court to show that the appellant has the means and earnings to pay the sum ordered. The court did not hear from the appellant and did not have before it, evidence of the means and ability of the defendant to pay a lump sum within the time ordered.
20. Hence, the exercise of court discretion was improper and unreasonable. This error resulted from a failure to accord the appellant the right to be heard.
21. The second part of the order namely, "In default police are empowered to make arrests" has no legal basis. It is oppressive and draconian. With respect, this has sadly been the unwarranted and unjustifiable trend from a number of District Court cases coming before this Court on appeals. Warrants of arrests or orders for imprisonments are readily and hastily made outside the procedure for enforcement of District Court decisions in criminal and civil cases as spelt out under PART 1X – ENFORCEMENT OF DECISIONS of the District Court Act.
22. Sections 160 and 161 provide for recording of the conviction or an order against the defendant to be signed by the Magistrate constituting the court. The signed minute or memorandum is prima facie evidence of the court conviction or order. It serves no other purpose and has no other effect than a confirmation of a conviction or order. That document or the record of the conviction or order does not have the effect of a warrant of arrest, warrant of commitment or warrant of execution. Section 160 (2) and (3) makes this abundantly clear:
"160. Minute of decision to be made.
(1) Where a Court convicts or makes an order against a defendant, a minute or memorandum of the conviction or order shall be made and signed by the Magistrate constituting the Court.
(2) A minute referred to in Subsection (1) does not form part of the warrant of commitment or of execution.
(3) A document purporting to be a copy of the minute or memorandum signed by the Clerk is prima facie evidence for all purposes of the making of the conviction or order."
(underling added)
23. So, police cannot lawfully arrest a defendant by mere production of the minute of a Court Order as ordered by the magistrate in this case. The Act envisages legitimate and fair processes to be followed for alleged breaches of orders, directions or summons by the court. A warrant of arrest may be readily issued for the arrest and detention of a person suspected of or charged with a criminal offence. The process for issuance and execution of warrants of arrests are set out in Division 5 – Warrants of Arrest of PART IV – COMMENCEMENT OF PROCEEDINGS of the District Court Act. That exercise of power does not extend to defendants in civil complaints.
24. Orders for arrest or imprisonment are permitted under Sections 167, 168, 169 and 170, in relation to criminal convictions and defaults in payment of fines. Section 171 applies to issuance of Warrants of commitments where the court orders imprisonment only or the doing of an act other than the payment of a fine or sum of money and the defendant refuses or neglects to do the act. The court or magistrate in either of those two situations is empowered to issue a warrant of commitment for imprisonment.
25. There is nothing in these provisions or under Division 5 – Warrants of Arrest which authorizes immediate arrest or imprisonment of defendants defaulting in payment of the sum ordered in a civil complaint. Orders for enforcement of a Court Order for payment of a sum of money or a judgment debt can only be pursued by way of Warrant of Execution under Sections 173, 174, or chose in action under s. 175 and under the procedures for attachment of debts in Division 4 of PART 1X – ENFORCEMENT OF DECISIONS. Arrest and imprisonment of civil debt defaulters are of course available to the court for enforcement of compliance but usually as the last resort and pursuant to set procedures under the District Court Act.
26. In this case, the Order empowering the police to arrest a defendant for failure to pay a civil debt within a given time is incongruous, unconstitutional and exceeded the powers of the Magistrate under the District Court Act.
Duty of Decision-makers to give reasons for Decision
27. The trial Magistrate in this case gave no reason for his decision. He gave no reason as to why he only heard the complaint's version and how he was satisfied the case was proven when clearly the appellant had contested the adjudged amount in cross-examination of the respondent and the basis on which the appellant was ordered to pay the sum of money ordered with one month.
28. It is the duty of a public official to give reasons as part of according natural justice to those affected by the official's decisions. If no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction. This is settled by the Supreme Court in Ombudsman Commission v Peter Yama (2004) SC747, Injia DCJ, Sakora J, Sawong J. (See also, Mision Asiki v Manasupe Zurenuoc (2005) SC797, Jalina J, Cannings J, Manuhu J; Niggints v Tokam [1993] PNGLR 66, Amet J; Winmarang v Ericho and Anor (2006) N3040, Cannings J.)
29. In the most recent case of Sir Arnold Amet v Peter Charles Yama (2010) SC1064 (Salika DCJ, Batari J, Davani J) the Supreme Court in relation to an appeal or review before the National Court where the trial judge undertook to publish reasons but did not do so held that:
30. This principle extends and applies to appeals or reviews coming before the National Court from District Courts. In this case, I am satisfied the magistrate had no good reason for the decision made. I am also satisfied, that the appellant was as a result denied natural justice.
31. The appeal is upheld. The Orders of the District Court is set aside. The case is remitted to the District Court to be tried before
another magistrate.
___________________________________________________________
Public Solicitor: Lawyer for the Appellant
Lawyer for the Respondent: In Person
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