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Alina v Ben [2020] PGNC 354; N8588 (16 October 2020)

N8588

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 55 OF 2019

BETWEEN:
EDWARD ALINA
Appellant

AND:
DIANA BEN
Respondent

Waigani: Miviri J
2020: 10^th September, 16^th October

PRACTISE & PROCEEDURE – Judicial Review & appeals – notice of motion – Order 12 Rule 1 NCR – General relief – deposition from District Court Lacking – Directions to secure – Basis of – Evidence insufficient – Relief not granted –delay in appeal – inordinate – prejudicial effects outweigh – justice of case – warranting inherent exercise of Section 155 (4) Constitution – Orders at first instance set aside – cost in the cause.

Counsel:

E. Tanda, for Appellant

J. Unua, for Respondents

RULING

16^th October, 2020

1. MIVIRI, J: This is the ruling on a notice of motion pursuant to Order 12 Rule 1 of the National Court Rules dated the 14^th May 2020 by the appellant seeking a bench warrant against the Port Moresby District Court Magistrate Laura Wawin Kuvi and the court clerk complaining that they be dealt with according to Law for failing to adhere to the orders of this court.
   
2. And the basis of the pray is Order 12.—Judgement and Orders Division 1.—General relief of the National Court Rules which is in the following terms:
   

1. “The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.”

3. Appellant contends that he has filed appeal against the decision of the District Court presided by the said Magistrate which cannot be heard because the decision subject against of the appeal is not before the court. An appeal book has not been filed because of this fact. No explanation has been forth coming from her and the District Court. Given he seeks that it is proper following failure of the order to produce by this court to have a warrant of arrest to bring her worship and the clerk before the court to be dealt with according to law. There is deliberate failure not to adhere so they must be dealt with accordingly.
   
4. The subject orders made by this court on the 24^th September 2020 and entered 3^rd October 20 are:-
   
   1. Magistrate Laura Kuvi of the Port Moresby District Court who caused the decision of the 3^rd July 2019 in the Complaint No. FC 41 of 2017 Diana Ben v Edward Alina directs the clerk of the same court to produce and serve on all the parties and the National Court at Waigani true copies of the complete court depositions within seven days of service of the orders.
      
   2. In the alternative for the principle clerk to affect the same also within seven days.
      
   3. Failure to appear before the National court to be dealt with according to law.
      
5. They were served on the principle clerk 23^rd October 2020 which are deposed to by the affidavit of Lawyer Emmanuel Tanda. At the writing of this Judgement that decision is not before the court, nor is there an explanation as to whether or not it is forthcoming and if so when. It means there is uncertainty as to when the appeal will be heard. There is no appeal without the decision appealed against.
   
6. The affidavit of service of the order attached as annexure “A & B” deposes service on Registry Clerk Willie Mepaudeu at 10.0’clock for the Magistrate Laura Wawin Kuvi Port Moresby District Court and the latter for the clerk of court. In both instances it is not personal service and so would not qualify as basis to impose the next process in law for the production of the former and latter. Both can argue that they were not served so do not know what was required of them by the orders. To apply for a bench warrant on the basis of this evidence will not sustain as the evidence is insufficient to invoke. Given that it is matter between the courts it is rare and considered extreme for one court to summon or even get a bench warrant against another. This is because of the integrity of the courts and judicial officers be it Magistrates or Judges. The rule of law is bestowed upon the shoulders of each judicial officer and it would be very rare and extreme to get a bench warrant or enforcement order against. The relationship is not on the same footing as courts with Police and the like. Given these considerations the balance has not been tilted that order pursuant to Order 12 Rule 1 of the Rules be invoked here against the magistrate and clerk.
   
7. The resultant act is that the appeal is prolonged at the prejudice inconvenience of the appellant. And this is because the decision has consequences in law that are grave to the subject. His liberty is on the balance for non-payment of the moneys ordered at first instance. The other side is that money for the sustenance of the subject of the proceeding the child is affected. The subject of the Notice of appeal is following 3^rd July 2019 where the Port Moresby District Court presided by Magistrate Laura Kuvi dismissed the appellant’s /defendant’s application to set aside an ex parte order dated the 04^th September 2017 with costs. And in that order, it was further ordered that the complainant’s application to commit the defendant to imprisonment was adjourned to the 22^nd July 2019. The appellant was ordered ex parte to pay to the Respondent K300 for maintenance and for the daughter one Sylvia Alina K400 also for the same fortnightly.
   
8. That is a total sum of K700 to be paid by the appellant for the maintenance of the daughter and wife. And it is made on the basis that he has not discharged his obligations as a father to maintain both. But what is glaring at the outset is that the orders are ex parte, he has not been heard to culminate. It is a serious issue of the right to be heard in one’s own defence and would be contrary to section 59 of the Constitution. And is even more serious because failure will mean an application to commit to prison at the discretion of the respondent.
   
9. It is therefore important that when the challenge is mounted in the Notice of Appeal filed the 9^th July 2019 coupled with the Entry of Appeal of the same date and time with recognizance of appeal also dated the same it ought to dawn on the District Court to provide its decision which is now appealed against. Because that court like the National Court is of record and any failure as here leaves a lot against the judicial officer and draws badly on the court.
   
10. Here is an appeal matter that has been challenged as of the 9^th July 2019 of a decision of the district Court of the 3^rd July 2015 concerning the maintenance of the mother and her child to the sum of K700 ordered ex parte with the possibility that upon failure application would be made for the imprisonment of the appellant pursuant upon failure to pay. Five years now since that order originated it has not been protected by the District Court by furnishing its decision so that the challenge to it is seen out in the process of an appeal. Resort to orders for Judicial Officers Magistrates to write and produce their decisions that are appealed against should never happen. The integrity of the courts and the rule of law must be maintained. That is subsumed when an order is applied for against a judicial officer in the lower judiciary. The rule of the law must be maintained, decisions that are made must be protected and through the appeal process protected.
    
11. Parties interests in the decision must be also protected. Here injustice must not be allowed to eat against an appellant who has voiced valid points of law the right to be heard in a decision that will affect him in the end and is now affecting him because he will pay K700 adhering to it. Should the appellant be made to wait out a decision that he has challenged but not forthcoming despite getting this court to make an order for its production. This is five years since that decision of the 3^rd July 2015. It is now four years since the 9^th July 2019 when the appeal was first filed against the ex parte orders made of the 4^th September 2017.
    
12. The possibility of obtaining transcript is remote. It is not there nor has it being provided to the court in the appeal book filed. The magistrate has failed in his duty to provide the reasons for the decision and there are no good reasons for the decision resulting. Because it is upon it that the appeal is prepared by the appellant and the determination of the court will follow from it. In Haro v State [2019] PGSC 96; SC1841 (30 August 2019) adopting and following earlier decisions of Amet v Yama [2010] PGSC 46; SC1064 (9 July 2010) and Coconut Products Ltd v Markham Farming Co Ltd [2018] PGSC 60; SC1717 (10 October 2018), there is not even an oral transcription of the decision or judgment at first instance produced in this case. There is no other material upon which the issues of the proceedings of the first instance can be derived nor worked out even by this court hearing an appeal.
    
13. It leaves no room except to dispense justice in accordance with section 155 (4) of the Constitution as it is necessary given the circumstances which come to the top set out above. Heed is taken of Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981) because there is discretionary jurisdiction derived and ought to enhance the dispensation that there is a right to appeal according to law. Simply it cannot be exercised without regard to law by the evidence here. Here is proceeding instituted out of claim to child maintenance under the Lukautim Pikinini Act. Diligent prosecution of an appeal including time taken are relevant consideration in the determination of as here Kakaraya v Somare [2004] PGSC 11; SC762 (1 October 2004). And coupled with all set out above leaves no room for the upkeep of the order at first instance. It was ex parte and has been demonstrated to cause injustice. It has not been defended by it production from the Court at first instance even by orders to the Magistrate to produce with the Clerk.
    
14. The aggregate totality is that the prejudicial effects of the order sustaining and remaining do not outweigh the exercise of section 155 (4) of the Constitution. Hence therefore the orders at first instance are varied and set aside forthwith. The matter will be heard inter parties de nova as to the determination of the issue as to paternity and resultant orders if any emanating from that determination.
    
15. The orders of the court are therefore:
    
    • (i) The application for warrant of arrest for the Magistrate Laura Wawin Kuvi and the Clerk of the Port Moresby District Court is refused.
    • (ii) By section 155 (4) of the Constitution the initial orders for maintenance under the Lukautim Pikinini Act against the appellant is varied and set aside forthwith.
      
    • (iii) Instead it is hereby ordered that the matter as instituted between the parties be heard de nova as to the issue of Paternity and any resulting orders if any following.
      
    • (iv) Costs will follow the event.
      

Orders Accordingly.

__________________________________________________________________

Toll Lawyers: Lawyer for the Plaintiff /Applicant

Office of the Public Solicitor: Lawyer for the Defendant