Joshua v David [2010] PGDC 10; DC942 (8 April 2010)

DC942

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE

V/CT 31/2009

JENSEN JOSHUA & 2 ORS
Appellant

V

SAULED DAVID & 2 ORS
Respondent

MADANG: J KAUMI

2010:18th 22nd January
2010:15th, 16th, 22nd, February
2010:2nd, 9th, 12th, 19th, 26th, 30th March
2010: 8th April

APPEAL

VILLAGE COURT ACT- Appeal to District Court from decision of Village Court- Constitutional rights are guaranteed and must be accorded–Principle of natural justice applicable-Principle of substantial miscarriage of justice discussed-Sections 37 (1) and 59’s mandates must be adhered to.

PRACTISE AND PROCEDURE-Strict application of the rules of evidence and of the acceptance of documents into evidence not applicable when a decision of Village Court under appeal or review.

PRACTISE AND PROCEDURE-Proper records of proceedings shall be kept by Village Court in the prescribed form.

Held:

(1) The matter is referred back to the Village Court under Section 92 (1) (c) for retrial with certain directions:-

a. V.Ct must allow parties to call evidence in the form of witnesses, documents etc in support of their causes;

b. V.Ct must keep a more descriptive record of the proceedings of the retrial i.e. not just functionary matters such as names, dates, and names of Coram and name of village court but more importantly, the actual proceedings of the retrial. The reasons for this being twofold:-

i. so an accurate record of all that transpires in the retrial is kept, leaving nothing to the imagination or for inference should an appeal of its decision be lodged; and

ii. in full compliance with the requirement of section 84 of the Village Court Act.

Cases cited:

The following cases are cited in the judgment:
Kisi v Nash [1974] PNGLR 4
Mraz v. The Queen [1955] HCA 59; (1955) 93 C. L. R 493,
Kumo v Killian [1976] PNGLR 149
Binafe v Goro [2006] CIA 419 OF 2005 (15/09/06)

Abbreviations:

The following abbreviations appear in the judgment:
CLR Commonwealth Law Report
DIST CT District Court
J Justice
N National Court judgment
No number
PARA Paragraph
PNG Papua New Guinea
PNGLR Papua New Guinea Law Reports
SECT Section
V Versus
V.CT ACT Village court Act
V.CT Village Court

APPEAL

This was an appeal against an order of a Village Court..

Representation:

Appellants in person

Respondents, in person

INTRODUCTION

1. Kaumi. J This is a judgment on an appeal against an Order issued by the Amele No.2 Village Court here in Madang.

2. At the outset I adopt as a matter of practice parts of the outline only of a judgment by Cannings J in Wali vs. Wali (2006) N 3051 (20th /04/06), This is for a want of a suitable precedent in our jurisdiction.

BACKGROUND

3. The appellants, Jensen Joshua, Saring Dob and Mrs. Natan are all normally resident at Bilbil village and the respondents Sauled David, Justin Timo and Tema Warabut are from Bahor village. The start of the dispute was over damage caused to a garden owned by the respondents allegedly by the three appellants.

VILLAGE COURT PROCEEDINGS

4. On 04th November 2009, both parties were present and the matter was mentioned before the Amele No 2 Village Court and adjourned for an inspection. On 11th November 2009 both parties were present and the Amele No 2 Village Court made the order against the defendants that is the subject of this appeal.

APPEAL TO DISTRICT COURT

5. On 18th November 2009 the appellant filed a notice of appeal, stating the following grounds:

a. Court failed to ascertain who actually damaged the property complained of;

b. Court did not allow the appellants to call their witnesses to give evidence so that their right to a fair trial was not accorded to them.

c. There was substantial miscarriage of justice.

6. The appellant seeks the following orders:

(1). The Amele No.2 Village Court Order No.C213763 dated 11th November 2009 be quashed.

(2). That mediation should be ordered to find out the root cause of the whole issue.

ISSUES

7. The issues are as follows:-

ISSUE ONE (1)

•Did the Village Court act in contravention of any Constitutional Law, Act or subordinate enactment applying to it by failing to allow the defendants to call their witnesses to give evidence on their behalf?

ISSUE TWO (2)

•Did the Village Court make a finding against the appellants against the weight of the evidence?

ISSUE THREE (3)

Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 92(1) of the Village Courts Act.)

ISSUE FOUR (4)

What remedies, if any, should be granted by the District Court? (The District Court’s remedial powers are prescribed by Section 92(1) of the Village Courts Act.)

SUBMISSIONS

8. The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this mandated by the operation of Sections 89 (5) and 59 (1) of the V.Ct Act. This court can therefore admit and consider documents which would otherwise be not admissible and I make these comments at this juncture as the some documents submitted by both appl and the Amele No 2 Village Court are of such a nature.

APPELLANT’S SUBMISSIONS

9. The appl’s submission was contained in two documents, an undated and handwritten affidavit in pidgin and a statement from a Jack Madi, Vice Chairman Law & Order filed on 15/03/10

10. Firstly, the undated affidavit covered the grounds of appeal and stated as follows:-.

(a).Since 1990 there was no problem with the Bilbil people making gardens until Tommy Riri resettled people from Usino and gave land to make gardens. After this the problem of stealing garden food increased and the blame was put on the Bilbil people and they were expected to pay for the theft;

(b). Amele No 2 V.Ct failed to properly assess the evidence and wrongly ordered the appellants to pay K200.00;

(c).That the peace officers did not properly investigate the issue because they were all wantoks with the respondents.

11. Secondly, the statement by Jack Madi was basically explaining how he had delivered a wrong document to the respondents on the 20/11/09 at 4:32 pm and apologizing for the late service of the said document after the appellants queried him about on the 12th March 2010.

RESPONDENT’S SUBMISSION

12. The resp’s submission was contained in two affidavits.

13. Firstly, this affidavit was dated the month of November 2009 unsigned by Sauled David but sworn nevertheless by a commissioner for oaths and filed on the 26/01/10 stated as follows:-

(a) that the appellants had breached a Madang District Court order and damaged gardens every year until this case before the Village Court;

(b) That in August 2009 yam seedlings were removed and planted as their own;

(c) That she reported the matter to Police but nothing was done because Jensen Joshua’s husband was a policeman belonging to the taskforce unit.

14. Secondly, an affidavit dated March 2010 and filed18/03/10 stated as follows:-

(a) That the Village Court Peace Officer witnessed the damaged gardens and the gardens made on top of this by the appellants;

(b) That since 1990 the appellants have damaged their gardens and failed a District Court order;

(c) That the Village Court did not fail to ask the Appellants for their witnesses.

15. Village court records

(a) V.Ct order No.

(b) Amele No 2 V.Ct register of November 2009 cases

(c)Letter by Amele No2 V.Ct Chairman, Mr. Oddo dated 17/03/10.

RELEVANT LEGISLATION

Constitution

Section 37. PROTECTION OF THE LAW.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

S. 59. PRINCIPLES OF NATURAL JUSTICE.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

Village Court Act

S. 59 EVIDENCE, ETC.

(1) Subject to Subsection (2), in any proceedings before it a Village Court shall not apply technical rules of evidence but shall admit and consider such information as is available.

(2) The powers and procedures of a Village Court shall be exercised in accordance with the principles of natural justice.

S. 84. RECORDS.

(1) As far as practical, a Village Court shall keep, or cause to be kept, a record of its proceedings in the prescribed form.

DELIBERATION OF ISSUES

FIRST ISSUE: • Did the Village Court act in contravention of any Constitutional Law, Act or subordinate enactment applying to it by failing to allow the defendants to call their witnesses to give evidence on their behalf?

16. In arriving at an answer to this issue it is important to consider the following Constitutional provisions in Sections 37 (1), and Sect 59 which provide as follows:

Section 37 PROTECTION OF THE LAW.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

Section 59 PRINCIPLES OF NATURAL JUSTICE.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

17. And furthermore I consider the provisions of the Village Court Act in Sect 79 (1), 81 (1), 59 and 84 (1)

S. 84 RECORDS.

(1) As far as practical, a Village Court shall keep, or cause to be kept, a record of its proceedings in the prescribed form.

18. The Amele No 2 V. Ct is established by the Village Court Act 1989 .And because it is a’ creature ‘of this statute the parameters of how it conducts its everyday business is governed by this enabling legislation i.e. its procedures, functions, powers and the scope of its jurisdiction etc.

19. The appellants stated in their submission that the Amele No 2 V. Ct had failed to allow them to call their witnesses in support of them. I accept their evidence on this issue for the following reasons:-

20. The records provided by Amele V. Ct is only a register of all cases it dealt with in the month of November 2009.There are no specific records of its deliberations on the 11/11/09 of the subject hearing. The paucity of records in this matter does not assist this court in its deliberations of this appeal. The statement by Mr. Oddo dated 17/03/10 goes someway towards confirming this ground of appeal when he stated that its decision of the 11/11/09 was made after the Peace Officer had conducted an inspection of the Respondents gardens. This is all very well but what I find lacking is any evidence of identification of the perpetrator or perpetrators of the damage either directly or circumstantially. I can find no evidence of this in the records provided to me by the Amele No 2 V.Ct. The appellants are entitled to the full protection of the law as guaranteed by section 37 of the Constitution irrespective of the forum they find themselves in, be it the National Court, District Court or the Village Court. And indeed the Amele V.Ct did not endear itself by not allowing the appellants to call their witnesses. Though there is some suggestion by the respondents that the appellants were allowed to call their witnesses, this assertion is not borne out as a result of the absence of records and Mr. Oddo’s 17/03/10 statement to the effect that the said order was made after the Peace Officer had inspected the gardens certainly did not help matters. Further to this it is a minimum requirement again guaranteed by the Constitution of this country at s.59 for courts to act fairly or in principle to be seen to acting fairly and the failure to accord this to the appellants in this light was a contravention of this right and as a result the said V.Ct acted beyond its jurisdiction.

21. The consequence of my acceptance of the appl’s evidence over that of the resp is that I find that the Amele No 2 V. Ct proceeded on the 11/11/09 in breach of both sect. 37 and Sect 59 of the Constitution. The Appls were not allowed to call their witnesses and the Constitution of this country by virtue of sect. 37 (1) guarantees the Appls protection of the law and the minimum requirement of s.59 was absent in their case and consequentially were denied this fundamental constitutional guarantee.

22. Though the Village Court Act section 59 (1) relaxes somewhat the application of the rigidity of the rules of evidence insofar as the admission of evidence is concerned, it is still subject to subsection (2) which is an application of section 59 of the Constitution of this country. The inclusion of subsection (2) is a guarantee against, amongst other things, the occurrence of ‘kangaroo courts’.

23. I answer this issue in the affirmative.

SECOND ISSUE: •Did the Village Court make a finding against the appellants against the weight of the evidence?

24. I find on the evidence provided to this court that the 11/11/09 decision was made on the evidence of the Peace Officer alone that had done an inspection after the fact. I find that there was no evidence provided by witnesses either directly or circumstantially on the crucial issue of identification. The paucity of records by the Amele No2 V.Ct of its proceedings on the 11/1109 did not help matters.

25. I therefore answer this issue in the affirmative.

THIRD ISSUE Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 92(1) of the Village Courts Act.)

26. This issue is properly addressed by having regarded firstly to s.92.2 of the V.Ct Act which states:

Section 92. DECISION ON APPEAL OR REVIEW.

(2) The decision shall be confirmed unless the Magistrate is satisfied that–

(a) the Village Court acted in contravention of any Constitutional Law, Act or subordinate enactment applying to it; or

(b) the Court was not properly constituted; or

(c) except as provided for by this Act, a party was not present; or

(d) a party was not given a reasonable opportunity to present his case personally or by a representative; or

(e) the Court exceeded its jurisdiction or its powers; or

(f) the Village Magistrates constituting the Court included a Village Magistrate who had a substantial interest in the subject matter of the proceedings such as to disqualify him from adjudicating on the matter, and there has been a substantial miscarriage of justice.

27. The courts in this country have discussed over the years the issue of what amounts to a miscarriage of justice.

28. Kelly. J in Kisi v Nash [1] stated that the meaning of "substantial miscarriage of justice" has generally been considered from the point of view of the accused person (see e.g. Mraz v. The Queen [2] and the authorities there referred to) and in relation to a provision cast in the form that the appellate court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred (cf. Supreme Court (full Court) Ordinance 1968, s.28 (2) which, however, refers only to" miscarriage of justice"). The test to be applied in the present instance is whether the magistrate properly directing himself on the law would have come to the same conclusion as to which he did come. In this case it could not be said that this would have been so, so that there has been a miscarriage of justice and in the circumstances I consider that it could be regarded as a substantial miscarriage of justice within the meaning of s.236 (2) in that here has been premature dismissal of information.

29. In Kumo v Killian [3] O’Leary AJ held that in applying those principles in relation whether there has been a miscarriage of justice, the court should consider all the circumstances of the case.

30. In the matter of Binafe v Goro [4] Cannings.J. held inter alia that the District Court has a duty to accord natural justice to parties and to conduct its proceedings fairly in accordance with Section 37 (11), 37(12) and 59 of the Constitution.

31. It becomes imperative therefore to consider whether circumstantially there has been a miscarriage of justice in the immediate matter.

32. This entails applying the test in this matter whether by reason of the course taken by the Amele No 2 V. Ct in not allowing the appellants to call their witnesses and the issuance of the order in the absence of evidence either directly or circumstantially on the issue of identification, they was not fairly accorded their right provided by s.37 (1) and s.59 of the Constitution. If this is the result on the appellant of the Amele No 2 V. Ct decision then there is a substantial miscarriage of justice because what the law provided for, the appellants were not accorded and that is not justice according to law.

33. The failure by the Amele No 2 V.Ct to allow the Appellants an opportunity to call witnesses and making of the order in the absence on an issue as crucial as that of identification ran contrary to the principles of natural justice as required by sect. 59 of the Constitution.

34. The affirmative answers to issues 1and 2 effectively provide the answer to this issue and for the reasons relied on in answering all the above issues.

35. I answer this issue in the affirmative.

FOURTH ISSUE: What remedies, if any, should be granted by the District Court? (The District Court’s remedial powers are prescribed by Section 92(1) of the Village Courts Act.)

Section 92 DECISIONS ON APPEAL OR REVIEW

(1) A Magistrate hearing an appeal against, or making a review of, a decision of a Village Court may-

(a) confirm the decision; or

(b) quash the decision; or

(c) Order that the matter be dealt with again by the Village Court and, if he thinks fit, give with the order a direction as to how any defect in the earlier proceedings may be overcome.

36. When I consider the manner and circumstances in which the subject trial was conducted, I consider it pertinent to have the matter dealt with again by the Amele No 2 V Ct, with of course certain directions to heal the defects that occurred in the said trial.

DETERMINATION

37. The decision of the Court on the Appeal:-

A. Matter referred back to Amele No 2 V Ct for retrial.

B. Amele No 2 V Ct must:-

(a)Allow both parties to call evidence in the form of witnesses, documents etc in support of their respective sides.

(b) Keep a more descriptive record of retrial proceedings i.e. not just functionary matters such as names of parties, dates, names of Coram and name of village court but more importantly, the actual proceedings.

The reasons for this being twofold:-

i. so an accurate record of all that transpires in the trial is kept, leaving nothing to the imagination or for inference should an appeal of its decision be lodged;

ii. in full compliance with section 84 of the Village Court Act.

Appellant in person
Respondent in person

_______________________

[1] [1974] PNGLR 4
[2] [1955] HCA 59; (1955) 93 C. L. R 493, at p. 514
[3] [1976] PNGLR 149
[4] [2006] CIA 419 OF 2005 (15/09/06)