State v Mambei [1999] PGDC 28; DC448 (2 August 1999)

DC448

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 81, 82, 83, & 84 OF 1998

BETWEEN

State
Complainant

V

Simon Atomo Mambei
First Defendant

Melchior Sapaki
Second Defendant

In The Matter of an Application by Ingas Mambei under Sections 59 (1) (B) and 59 (1) (D)
of District Courts Act Chapter 40.

RULING

Practice and Procedure - Legal representations in District Courts - District Courts Act Chapter 40 - Section 59 - Discussed.

Practice and Procedure – Trainee Lawyer at Legal Training Institute – Right to appear under section 59 (1) (b) of District Courts Act - Must strictly comply with statutory provisions of section 59 (1) (b) - Failure will result in disqualification.

Practice and Procedure - legal representations - Trainee lawyer at Legal Training Institute - no right to appear in District Courts under section 59 (1) (cl) of District Courts Act Chapter 40.

Practice and Procedure - legal representations - no rights to appear in District Courts as next friend or friend of the Court under Section 59 of District Courts Act Chapter 40.

Cases referred to:
Kiau Nigints V Moki Rumints [1990] PNGLR 123.

Statute:
District Courts Act Chapter 40, sections, 59 (1) (a), 59 (1) (b), 59 (1) (c), 59 (1) (d), 59 (1) (e) and 3 (3).

2nd August, 1999

KORONAJ, PM: The prosecution objected to Mr Ignas Mambei appearing for defendants, Simon Atomo Mambei and Melchior Sapaki, who are facing Committal hearing relating to their alleged misappropriation of State monies totalling K316,751.48 toea.

Counsel
Constable John Bidau for Prosecution.
Ignas Mambei for defendants.

FACTS

The applicant, Ignas Mambei, is a Trainee Lawyer at the Legal Training Institute in Port Moresby. He was going to appear for the defendants who are Charged under section 383A (1) (a) of Criminal Code Act Chapter 262 with two counts each for misappropriating State monies totalling K316,751.48 toea. Prior to the Court putting these Charges to the defendants, Constable Bidau for the Prosecution, objected to the applicant's appearance in this Court on behalf of the defendants. He's objections are as follows:

1. Applicant has no practising Certificate to appear before this Court; and

2. If not, he has not produced a Certificate from the Dean of Law Faculty of UPNG, authorising him to act for the defendants, in appearing for the defendants, in these Cases.

The applicant countered by submitting that as they were on the move from the old Legal Training Institute at Gordons, to the new premises at the Institute of Public Administration at Waigani, he could not get a written Certificate from the Director of Legal Training Institute to produce to this Court. He further submitted that he was given verbal approval to appear and produce his identification Card before this Court.

He further submitted that the defendants deserve legal representation under section 37 of the Constitution and that his appearance was to assist the Court and to cut out unnecessary expenses being faced and that would be faced by the defendants which had created hardship for them.

I then made a ruling against his appearance saying Legal Training Institute Trainee Lawyers who wish to appear, in a particular case, before District Courts, should be Certified in writing by the Director of Legal Training Institute to do so and that verbal approvals and production of Identification Cards are not intended by the statutory provisions of section 59 (1) (b) of the District Courts Act Chapter 40 and that it is a Mandatory provision and I have no discretion to waive strict compliance and refused to allow him to appear on behalf of the defendants.

Mr Mambei then made an application under section 59 (1) (d) of the District Courts Act, Chapter 40, asking him to use a discretion available to me there, to allow him to appear before this Court, on behalf of the defendants. I adjourned to 9am 3rd August, 1999 for a decision.

Then at around 11.45 am, the applicant, through the Clerk of Court, handed in a handwritten application or note, who now wishes to appear in Court as next friend as he says he didn't realise that he was to travel this afternoon to Wewak to Catch the 8.45 am flight to Port Moresby and that the original adjournment to tomorrow (3/8/99) would upset his travel plans. I agreed and set the decision on his application to this afternoon, anytime before 4.06 pm or as soon as I finished my handwritten reasons for decision.

ISSUE:

1. Whether the applicant has fully complied with the Provisions of section 59 (1) (b) in order to appear in this Court on behalf of the defendants.

2. If not, is he qualified to appear in this Court, on behalf of the defendants, under the Provisions of section 59 (1) (d), (1) (c) and (1) (e) of District Courts Act Chapter 40.

THE LAW

Now to fully appreciate these issues, I need to quote the relevant parts of section 59 of District Courts Act Chapter 40 and it reads:

Section 59 - Legal Representation.

A Complainant or a defendant may be represented for the purposes of a proceeding by

(a) a lawyer; or

(b) a person admitted as a trainee to the Legal Training Institute to represent a party to the proceeding; or

(c) subject to sub - section (3), a Candidate for the Degree of Bachelor of Laws at the University of Papua New Guinea who is Certified by the Dean of the Faculty of Law after consultation with a magistrate nominated by the Magistrate's Association to act as a legal representative; or

(d) any other person authorised by law; or

(e) any other person by leave of Court.

Section 59 (1) (a) is clear, It only allows qualified lawyers, who have current practising Certificates, unlimited access to appear before District Court, on behalf of a Complainant or a defendant, as the Case maybe, in any proceedings,

Section 59 (1) (b) allows Trainee Lawyers such as the applicant, of the Legal Training Institute, to appear on behalf of a Complainant or a defendant, in proceedings before District Courts but they must be Certified in writing, by the Director of the Legal Training Institute to appear for a particular Case and they should produce this certificate when they appear in Court. This statutory requirement cannot be waive by this Court, as it would be acting without jurisdiction if it did so.

Section 59 (1) (c) allows students studying law at the University of Papua New Guinea to appear in District Courts, to represent a particular Complainant or defendant but they must first be Certified to do so, in writing, by the Dean of the Faculty of Law and must produce this Certificate to the Court when they appear and their appearances are also subject to section 59 (1) (3) (a) and (b) which I do not wish to discuss here as it is irrelevant to the issues before this Court,

Section 59 (1) (d) allows any other person authorised by law to appear in District Courts to prosecute or defend Cases. I take this to include persons like Complainants or defendants who are authorised by the District Courts Act to lay and prosecute Complaints or defend them, by their own persons without legal or other representations. Police officers of their prosecution sections who are trained to prosecute informations before District Courts. Labour Officers who under the Industrial Relations Act or other labour laws which enables them to lay and prosecute complaints or information before District Courts. Fisheries officers who, under the Fisheries Act, and appear before District Courts to prosecute persons for breaches of the Fisheries Act. Customs officers who are required by the customs Act to appear before District Courts to prosecute for breaches of it's provisions. These are some examples of persons authorised by law to appear before District Courts under section 59 (1) (d) and there are others like Council officers who prosecute before District Courts for breaches of Council rules or taxation officers and many more.

Section 59 (1) (e) allows ordinary citizens, who are not covered under the provisions of the preceding sections referred to above, such as Kiaps, Doctors, Teachers or even Priests, in remote parts of the country, where proper legal aid Services are not available, and who may be familiar with Court practices and procedures, to appear in District Courts to assist illiterate Complainants or defendants put or defend their Cases before these Courts. I think it also allows for persons such as Village or Clan leaders or elders to appear in District Courts, on behalf of their villages or clans, to put their Case or ask questions of another regarding Customary Matters. I think it would also allow employees of Companies whose jobs are debt Collectors to, appear in District Courts, and receive judgements on behalf of their employers. All these classes of persons referred to above would use the provisions of section 59 (1) (e) to apply for leave to appear before District Courts and not those referred to in section 59 (1) (a), (1) (b), (1) (c) or (1) (d) of District Courts Act Chapter 40.

CONCLUSION:

Based on the above reasoning, it would clearly be seen that the applicant can only be allowed to appear before this Court under the provisions of section 59 (1) (b) if he meets all it’s statutory requirements. He cannot use the other provisions of Section 59 to appear in this Court. As he has not got a written Certification from the Director of legal Training Institute to appear for the defendants in this Committal hearing he was not allowed to do so. Verbal Certification or allowance by the Director of legal Training Institute or the production of applications identification do not meet the statutory requirements of section 59 (1) (b) and this Court has no discretion or even jurisdiction to waive this mandatory requirement of this section. See KIAU NIGINTS V MOKI RUMINTS [1990] PNGLR 123.

His application to appear in this Court as next friend is not proper in that he has failed to gain proper appearance under section 59 (1) (b) and appearing as next friend or friend of the Court are not provided for under section 59 of District Courts Act Chapter 40 and therefore his application cannot be considered by this Court and is refused.

Appearances as a friend or friend of the Court, usually requested by qualified lawyers in the National Court, cannot also be allowed in District Courts as section 59 of the District Courts Act has clearly set out which persons should appear before District Courts in any proceedings before them and appearing as a next friend or friend of the Court are not provided for under this section.

District Courts usually follows procedures and practices of National Court if the District Courts Act is silent on them or does not provide for any of them but in terms of legal representations or appearances before District Courts, section 59 has adequately covered it and therefore there is no need to follow the practices of the National Court.

Section 39 (3) of District Courts Act provides for appearances as next friend but that is only in relation to appearances for and on behalf of infants and persons over the ages of sixteen years and under the age of 21 years and has no application to the applicant's application.

FORMAL ORDERS:

I now make the following orders:

1. Applicant is barred from appearing before this Court, on behalf of Simon A Tomo Mambei and Melchior Sapaki, under the provisions of section 59 (1) (b) of District Courts Act until he can produce a Certificate in writing by the Director of Legal Training Institute showing this Court that he is appearing for the defendants in these committal proceedings; and

2. Applicant cannot appear in this Court under the provisions of section 59 (1) (d) of District Courts Act because he does not fit into the definition or class of other persons authorised by law; and

3. Applicant cannot appear in this Court as next friend of friend of the Court as there are no provisions for these types of appearances or legal representations under section 59 of District Courts Act Chapter 40.

Police Prosecution: Complainant
Ignas Mambei: Defendant