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Towarngar v Tokava [2019] PGNC 344; N7980 (11 July 2019)

N7980

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 76 0F 2017

BETWEEN:
NICHOLAS TOWARNGAR
Appellant

AND:
EROL TOKAVA
Respondent

Kokopo: Susame, AJ
2019: 11 July

DISTRICT COURT APPEAL - Appeal against judgment – grounds of appeal –whether there was reasonable cause of action - whether there was denial of a fair trial - Whether decision was based on proper assessment of evidence.

Cases Cited:

Bakeri Pen v The State (1997) SC514
Madeline Kiso v Angela Manumanua [1981] PNGLR 507

Counsel

Mrs. N Rainol, for the Appellant
Ms. J Marubu, for the Respondent

DECISION

11 July, 2019

1. SUSAME AJ: Appeal was heard on 11 July 2019. I delivered an ex tempore decision on that day and made an undertaking to publish a reasoned judgment. This is the judgment.
2. Appeal emanates from the decision of District Court Kerevat delivered on 8 June 2017. Appellant was ordered to pay sum of K8 000.00 on or by 31 December 2017 together with K16.00 cost. ^[1]

3. The judgment was entered against the appellant on a case respondent commenced seeking compensation. The complaint was that respondent runs a trade store business and bus service. It alleged that in 2013 appellant handed some sorcery implements to Eliuda Paraide to scatter at the door of respondent’s house. That allegedly caused the respondent and his wife falling ill and their business broke down. For that respondent claimed compensation of K8000.00

4. Notice of appeal ^[2] lists 5 grounds of appeal:

1. The Magistrate erred in not giving an opportunity for the appellant’s witnesses to be heard.
2. The Magistrate erred in hearing this proceeding as there was no cause of action.
3. The Magistrate erred in finding the defendant liable in causing the complainant ill health and loss of business
4. The Magistrate erred in not asking the complainant to produce medical reports of his ill health and loss of business.
5. The Magistrate erred when she ordered the defendant to compensate the complainant with K8000.00 which is excessive.
   

5. Grounds 1, 3, 4 & 5 challenges the manner in which proceeding was conducted, evidentiary aspect of the case and assessment of damages. Ground 2 challenges there was no reasonable cause of action for the case to have been heard by the District Court. First, I deal with ground 2.

Ground 2: Whether there was reasonable cause of action.

6. It is trite law that pleadings must disclose reasonable cause of action known in law. Otherwise, case will not survive and should discontinue.

7. Ms. Pulapula of the appellant argued there was no reasonable cause of action. This was on the premise that it is difficult to prove by evidence criminal act of sorcery pursuant to s 7 (a) (b) of the Sorcery Act 1971. Ms. Marubu of the respondent conceded there was no reasonable cause of action. This was because the Sorcery Act 1971 has been repealed. In other words there would have been a cause of action founded under the Sorcery Act had it not been repealed.

8. The Act is now repealed and no longer in operation. There is no other piece of legislation regulating customary beliefs in sorcery and sorcery practices which is unique in our Papua New Guinean traditional societies.

9. Does that mean a person cannot sue for damages or compensation in a very clear case where there is cogent evidence sorcery was the cause of the misfortune or loss?

10. It is a philosophical question. Initially I shared the same view as the counsels. I have since differed in my view. Customary law is part of our underlying law under schedule 2.1 of the Constitution. The Underlying Law Act 2000 and the Customs Recognition Act 1963 give effect to and recognize our customary practices.

11. The Underlying Law Act gives the legal basis upon which our customs may be considered by the courts in resolving issues in the development of our jurisprudence based on custom. So if a custom is breached an aggrieved person has the liberty to file a case in court based on custom to find some relief.

12. In a clear case where someone is caught in the act of performing sorcery causing injury, loss or demise of a person the person who suffered the injury or loss should be allowed to seek redress based on custom.

13. The complaint before the District Court was that respondent/complainant was operating a bus service and trade store business. He alleged in 2013 appellant/defendant used sorcery implements which were scattered at the door of his house resulting in him falling ill with his wife and crippling his business. In the tolai culture, use of witchcraft usually cause misfortune, sickness or ill health and cripple down businesses from thriving. Complainant claimed he had evidence to prove his case. Based on that he filed the case claiming compensation of K8000.00.

14 . In my view there was an action based on custom which the Magistrate had the jurisdiction to hear and decide the case.
14. The argument that no action for allegation of sorcery can be found because the Sorcery Act has been repealed must fail. For the reasons discussed Ground 2 of the appeal is dismissed.

Ground 1: Whether the appellant was denied a fair hearing.

15. For this ground it was argued appellant was denied the right to allow his witnesses to give evidence. This was in breach of s 9 of the Evidence Act.

16. Ms. Marubu made reference to s 63 of District Courts Act. She argued court was empowered by s 63 not to allow witnesses to give evidence because of their disobedience to comply with court’s directive for witnesses to vacate the room. Section 63 is more relevant in deciding the issue.

17. I had difficulty reading the hand written notes of the Presiding Magistrate. The hand written notes should have been typed for ease of reference. It appears from the court depositions in the appeal book filed on 11 July 2019 complainant/respondent gave evidence followed by a single witness. Defendant/appellant was the only one who gave evidence. His witnesses were available but because they were present in the court room they were refused to testify. Magistrate confirms that when she defends ground 1 of the appeal on page 10.

18. This raises an important question: Should witnesses be disallowed to testify if they are present in court during trial?

Law

63. ORDERING WITNESSES OUT OF COURT.

At any time during the hearing, a Court may if it thinks fit, and shall if required by a party, order that all witnesses, other than the complainant and the defendant and the witnesses under examination, go and remain outside and beyond the hearing of the Court until required to give evidence, except in so far as in particular cases and in special circumstances it sees fit to do otherwise.

19. The provision vests Magistrates’ power to order witnesses out of the court room prior to evidence being heard except in special circumstances. That power is of course discretionary. Even if the witnesses were present in the court room during trial they should not be automatically precluded from testifying. An impartial court must allow the parties every opportunity to make out their case by allowing all available witnesses to testify. Whether or not their evidence is credible or made up is a matter for the Magistrate or the Judge to weigh and assess at the end of the trial in totality of all evidence heard.

20. That is the law by judicial pronouncement in The Supreme Court in Bakeri Pen v The State (1997) SC514 adopted judgment of Kearney Dep. CJ in Madeline Kiso v Angela Manumanua [1981] PNGLR 507 stated and I quote:

“Second, we know of no rule of procedure or law that a witness for a party who is present in Court when witnesses give evidence cannot be prevented from giving evidence. The principles in fact are to the contrary.....We simply endorse what His Honour says at p. 509:

"Second, it may be that the magistrate refused to let the defendant testify because, as he said, "defendant was in court throughout the trial." I have seen many cases where magistrates have refused to hear witnesses for that reason; another common belief.

Again, that is not the law. An informant and a defendant have a right to be present at all times during the hearing of their case. Other witnesses should, in general, remain out of the hearing of the Court until they come in to give their evidence; see s 70 of the Act. A magistrate may permit a witness to remain in court and listen to other witnesses, before he testifies; but usually a magistrate would not allow him to remain. Suppose a magistrate orders all the witnesses present in the court to go outside the court, until they are called, but by some mischance one of them in fact remains in court? The law is very clear that even in such a case the magistrate cannot refuse to hear that witness’ evidence. See Moore v Lambeth County Court Registrar (2). Of course, it may be that the magistrate would not give much weight to the evidence of such a witness. It would be open to the prosecution to comment on the fact that he had heard the other witnesses. But as I say, no witness can be prevented from testifying simply because he "was in court throughout the trial"; and certainly a defendant, who has a right to be there in court all the time, cannot be so prevented."

21. The case before the Magistrate’s Court was an action based on custom. There was allegation of use of sorcery which caused the loss suffered by the respondent. Presiding Magistrate would have been assisted better in hearing all available witnesses in respect of customary sorcery practices of the tolai people notwithstanding that she was from the tolai community and that she was more familiar with such practices in the tolai society. Despite that she should have had an open mind in dealing with the case. It was within her power to direct the respondent to obtain medical evidence and other independent elders of the Taraiyu Tumbuan Society to verify the sorcery allegation and if it had some negative bearing on the respondent’s loss. The proceedings it seems quite apparent was conducted in haste.

22. The judicial discretion was arbitrarily exercised by the Presiding Magistrate when she refused defendant’s witnesses from testifying. In that regard defendant was denied a fair hearing hence that amounted to a substantial miscarriage of justice.

23. Accordingly, the ground 1 of appeal is sustained.

Grounds 3, 4 & 5

24. The above three grounds can be consolidated under one head as they challenge the evidentiary aspect of the case. That is whether the decision on liability and damage was supported by proper assessment of evidence.

25. Again I refer to the court depositions in the Appeal Book. The hand written record of evidence from witnesses are quite difficult to read. It would have helped immensely if they were typed for the purposes of this appeal.

26. It would have also helped if the presiding Magistrate provided well-reasoned judgment on liability and assessment of the award. This is what is stated on page 12 of the appeal book. “Ct. satisfied on balance of probability. Finding for the complainant. Court then proceeded to make an order for payment of K8000.00 compensation payable by 31 December 2017.”

27. Instead of producing a written judgment the Presiding Magistrate defends her decision and the grounds of appeal on page 8 of the appeal book. That is not a good reflection of her as a Magistrate. It has been stressed over and over in many judicial conferences and appeals the need for Magistrates to provide reasoned judgments to put them in good stead in the event of appeal being lodged against their decisions.

28. Sitting as the Appeal Court I don’t have the benefit of a written judgment from the Presiding Magistrate to identify where she may have fell into error in weighing the evidence. In any case I doubt very much there was any real weighing and assessment of evidence. It seems judgment was preconceived and entered in haste for the respondent.

29. And moving on to the award. I doubt very much there was any real assessment done. The sum of K8000.00 was the amount claimed as compensation.

30. The figure was just plucked out in haste from the complaint and judgment entered. K8000.00 claim was just a figure on the complaint. It does not mean the amount should be awarded automatically. Except for a liquidated claim such unliquidated claims are subject to further scrutiny of the court. Complainant must justify by evidence how and why he is claiming such an amount. Magistrate may have to refer to previous judgments of District Court or the National Court as a guide in making a final award.

31. I find that Magistrate committed a substantial error in entering judgment on liability without proper assessment and weighing of evidence. Not only that but also Magistrate made a substantial error in making the award without proper assessment.

32. Accordingly, this ground of appeal is also sustained.

33. Conclusion reached is that:

(a) Appeal is upheld
(b) Judgment and order of the District Court is quashed.
(c) I order that parties to bear their own cost.

_________________________________________________________________
Natphil & Associates: Lawyer for the Appellant
Marubu Lawyers : Lawyer for the Respondent

^[1] Document 04 is the order of District Court Kerevat.
^[2] Notice of appeal