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Asivo v Kaskas [2016] PGNC 5; N6165 (15 January 2016)

N6165

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 15 OF 2015

STEVEN ASIVO
Appellant

V

JOSEPH KASKAS
Respondent

Madang: Cannings J
2015: 17 June
2016: 15 January

APPEALS – appeal to National Court against order of imprisonment imposed by District Court in civil proceedings – whether sufficient evidence to support grounds of appeal.

The appellant appealed to the National Court against an order of the District Court made in civil proceedings. The order was that he, within seven days, pay K1, 000.00 (in settlement of a judgment debt of a Village Court) to the respondent and a fine of K200.00, in default of which he would be imprisoned for one month. The appellant appealed on five grounds: (a) and (b) failure to take into account that he had not been served with the Village Court summons; (c) breach of natural justice by the Village Court; (d) and (e) lack of evidence that he received any money from the respondent.

Held:

(1) Grounds (a) and (b) were dismissed as there was no evidence that the District Court failed to take into account the contention that the appellant had not been served with the Village Court summons.

(2) Ground (c) was dismissed as there was no evidence that the District Court failed to take into account the contention that the Village Court proceedings had been conducted unfairly.

(3) Grounds (d) and (e) were dismissed as there was no evidence that the District Court failed to take into account the contention that appellant had not received any money from the respondent.

(4) The appeal was dismissed.

(5) The appellant has a further seven days to make the payments ordered by the District Court, failing which, consistently with the order of the District Court, he shall be imprisoned for one month.

Cases cited

No cases are cited in the judgment.

APPEAL

This was an appeal against an order of the District Court made in civil proceedings that a defendant pay a sum of money within a certain time, failing which he shall be imprisoned.

Counsel

S Asivo, the appellant, in person
J Kaskas, the respondent, in person

15 January, 2016

1. CANNINGS J: Steven Asivo appeals against an order of Madang District Court made on 5 March 2015 in civil proceedings, described as VCT 43 of 2015, by her Worship Senior Provincial Magistrate Ms R Johnson. Those proceedings were instituted by the respondent Joseph Kaskas to enforce an order of Masemo Village Court of 29 July 2014 that the appellant pay a debt of K1, 000.00 to him.

2. The District Court order was that the appellant, within seven days, pay K1, 000.00 (in settlement of the Village Court judgment debt) to the respondent and a fine of K200.00, in default of which he would be imprisoned for one month at Beon Correctional Institution.

GROUNDS OF APPEAL

3. The appellant appeals on five grounds: (a) and (b) failure to take into account that he had not been served with the Village Court summons; (c) breach of natural justice by the Village Court; (d) and (e) lack of evidence that he received any money from the respondent.

DETERMINATION

4. I am not persuaded that any of these grounds should be upheld. Grounds (a) and (b) are dismissed as there is insufficient evidence before the National Court that the District Court failed to take into account the contention that the appellant had not been served with the Village Court summons.

5. Ground (c) is dismissed as there is insufficient evidence before the National Court that the District Court failed to take into account the contention that the Village Court proceedings had been conducted unfairly, in the absence of the appellant, without being given notice of the hearing.

6. Grounds (d) and (e) are dismissed as there is insufficient evidence before the National Court that the District Court failed to take into account the contention that appellant did not receive any money from the respondent.

7. Though no reasons for the decision of the District Court have been provided, there is sufficient evidence in the District Court depositions to show that both parties appeared before the trial magistrate and explained their respective positions on a range of issues and that her Worship placed those positions fairly in the record of the District Court. It is reasonably to be inferred that the above issues were amongst those canvassed before her Worship. Her Worship appears from the record of the District Court to have weighed the competing positions of the parties and to have arrived at a decision that was fairly open to her on the available evidence. I am not persuaded that there was any miscarriage of justice, let alone a substantial miscarriage of justice for the purposes of Section 230(2) of the District Courts Act, which I would need to be satisfied had occurred if I were considering upholding the appeal.

8. In his submissions the appellant raised a number of other matters, including a complaint about how her Worship conducted the proceedings. Those matters are not relevant to the grounds of appeal and I will not address them.

9. All grounds of appeal are dismissed. There has been no miscarriage of justice. The appeal will be dismissed and the District Court order will be affirmed and qualified by further orders to clarify its practical implementation.

10. Before pronouncing the order of the National Court, I remark on the terms of the District Court order: it did not to state the jurisdictional basis of the order that, in default of payment of the judgment debt, the appellant would be imprisoned. Presumably the District Court made the order under Section 192 (imprisonment of defendants in civil cases) of the District Courts Act. However, it is desirable to make an express statement of the jurisdiction being exercised and I suggest in future that this be done.

ORDER

(1) The appeal is dismissed.

(2) The stay order of 13 March 2015 is dissolved.

(3) The order of Madang District Court in VCT 43 of 2015 of 5 March 2015 is affirmed subject to its being substituted by order (4) below.

(4) The appellant shall, within one week after the date of this order of the National Court, pay K1, 000.00 to the respondent and pay the District Court fine of K200.00, in default of which he shall be imprisoned for one month at Beon Correctional Institution.

(5) The recognisance in the form of a surety of K2, 000.00 entered into by the appellant on 12 March 2015 shall forthwith be refunded to him in full, upon presentation of a receipt to the relevant authority.

(6) These proceedings shall be further heard on 29 January 2016 at 9.00 am to check compliance with these orders.

(7) The parties will bear their own costs.

Judgment accordingly,

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