Sagasog v Ariku [2010] PGDC 2; DC952 (1 February 2010)

DC952

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE

V/CT 33/2009

JOB SOGASOG
Appellant

V

KAUMA ARIKU
Respondent

MADANG: J KAUMI
2010: 12th, 18th, 22nd JANUARY and 1st FEBRUARY

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 79 (1) 81 (1)’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 further deliberation using the provisions of Divisions 4, 5 or 6 as the long standing issue of the location of the land in issue is still unresolved.

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:
APPL Appellant
CLR....... Commonwealth Law Reports
DIST CT District Court
J Justice
N National Court judgment
No number
PARA Paragraph
PNG Papua New Guinea
PNGLR Papua New Guinea Law Reports
RESP Respondent
SECT Section
V Versus
V.CT ACT Village court Act
V.CT Village Court

APPEAL

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

Representation:
Appellant in person
Respondent, in person

INTRODUCTION

1. Kaumi. J This is a judgment on an appeal against a Preventive Order issued by the Wagi 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 appellant, Job Sogasog and the respondent, are brothers in law (the resp being married to the appl’s sister). The start of the dispute was over a piece of land that the resp had allegedly purchased in the mid seventies that originally belonged to the appl’s clan. This is a long drawn out matter that has stretched over a long period of time.

VILLAGE COURT PROCEEDINGS

4. On 04th November 2009, the Wagi Village Court issued a ‘Preventive Order’ ordering the Appellant and his family not to enter a piece of land situated between Wagaldeb Creek and Meiro River. Furthermore that they were not to make gardens or plant anything on this piece of land. Thirdly, that they were required to attend a mediation on the dispute starting on the same to the 04/04/10. On this date, Village Magistrate, Mr. Nitu Aniat presided over this matter and issued the ‘order’.

APPEAL TO DISTRICT COURT

5. On 13 November 2009 the appellant filed a notice of appeal, stating the following grounds:

Court contravened an Act applied to in;

Court was not properly constituted;

Court exceeded its jurisdiction;

There was substantial miscarriage of justice.

6. The appellant seeks the following orders:

(1). The Wagi Village Court Preventive Order No. 57347 dated 4th November 2009 be quashed.

(2). The Customary Land Office should conduct a full investigation to clarify/specify the name and portion of the land before issuing the preventive order to the parties, as deem necessary.

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 proceeding in the absence of the appellant?

ISSUE TWO (2)

• 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 THREE (3)

Was the Village Court properly constituted?

ISSUE FOUR (4)

Did the Village Court exceed its jurisdiction?

ISSUE FIVE (5)

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 documents submitted by both appl and resp are of such a nature.

9. The relevant legislation is:-

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.

APPELLANT’S SUBMISSIONS

10. The appl’s submission was contained in two documents, an undated affidavit and an affidavit which was not dated but was part of a submission filed on 06/01/10.

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

(a). Kauma Ariku is not a customary Land owner but a settler in Furau Village, Madang.

(b). Wagi V.Ct failed to issue Hearing Notice to the parties for this case.

(c). Preventive order No 57347, dated 4/11/09 was made without hearing between the parties as per Dist Ct Order No V.Ct. failed to comply with the Dist Ct Order No V. Ct 28 of 2008, dated 15/12/08.

(d). Wagi V Ct failed to comply with the Dist Ct Order No V. Ct .28 of 2008, dated 15/12/08.

(e). Wagi V.Ct took a long period of months to sit and hear the matters as the Dist order dated 15/12/08, caused the rightful customary land owners frustration and hardship for gardening and other purposes.

(f). Kauma Ariku is from Bougainville marries to Malot Ariku and claims ownership over the whole customary land of his wife’s family which is unlawful and against the traditional customary land rights of the Med Tribe.

12. Secondly, the affidavit contained in the submission filed on 06/01/10, contains the history of this matter from 2005 to November 2009.It also contains documents that document the dispute between the parties stretching back to the early 1990s.It outline events relating to the dispute between the parties in 2005, 2007 and 2008 in the District Court. Particularly to what transpired thru 2009 prior to the 04/11/09, ‘order’ especially to what the resp allegedly did during this time. All these annexures reveal the acrimonious relationship between the parties and though informative are only relevant as to the nature of their relationship but do not assist as to what transpired on the 04/11/09 at the Wagi V Ct. In a nutshell the only relevant matter contained is at paragraphs 2, 3, 4 and 5 which state that the appl was not at the Wagi V.Ct proceeding of the 04/11/09 nor was he informed of the proceedings.

RESPONDENT’S SUBMISSION

13. The resp’s submission was contained in an affidavit filed in support of a Notice of motion.

14. This notice of motion was basically an application to dismiss the Notice of Appeal on the grounds that:-

(a) it did not contain the date when it was filed,

(b) at para 3 of his affidavit in support of this notice of motion filed on the 08/12/09 the resp stated that both he and the Appl were both invited to attend the Wagi V Ct hearing on 28/10/09 but that the appl wrote on the 23/10/09 to the said V.Ct advising of his unavailability due to Supreme Ct commitment in Lae on the 26adn 27/10/09. So the matter was rescheduled for the 04/11/09 and that on this day the appl was not present when the ‘order’ was issued.

(c) Furthermore, at para 4 that the order of 4/11/09 restrained both parties.

(d) At Para 2 and 6 the resp argued that the appl’s notice of appeal was defamatory in nature and warranted compensation to be paid to him.

15. I decided to treat the resp’s Notice of Motion as part and parcel of his response to the appl’s submissions on appeal and not as a separate matter as that is what it is in essence.

DELIBERATION OF ISSUES

FIRST ISSUE: • Did the Village Court act in contravention of any Constitutional Law, Act or subordinate enactment applying to it by proceeding in the absence of the appellant?

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:

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.

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

S. 79. PRESENCE OF PARTIES.

(1) Subject to Subsections (2) and (3), a Village Court shall not proceed in the absence of a party.

S. 81. SUMMONING PARTIES AND WITNESSES.

(1) In any proceedings under Division 3, 4 or 9, a Village Court may order any person who is, or in its opinion may be, a party to appear before it at a time and place specified in the order

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 Wagi 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. Complaints and summons are normally issued by the District Court starting the process in it. In the V. Ct it is by way of an order in pursuance of Sect. 81 (1) of the Act. Furthermore, Sect. 79(1) of the Act provides in mandatory terms that the V. Ct must not proceed in the absence of a party. I make reference to these two sections as their provisions are pertinent to the issue at hand.

20. The appellant stated in his submission that the Wagi V. Ct had failed to issue Hearing Notices to him about the hearing on 4/11/09. This means that he was not summoned to Court in accordance with Sect 81 (1) i.e an order ordering him to appear was not served on him. I accept his evidence on this issue for the following reasons:-

21. The paucity of records is indicative of the Wagi V. Ct’s non-compliance with the mandatory requirement of Sect 84 (1) of the Act, that proceedings of the V. Ct be recorded. From what has been provided to this Court, there is only the Preventive Order No.57347 dated 4/11/09, a Dist Ct order, V. Ct 28 of 2008, a preventive order dated 28/12/2008 by Mathew Olian of Community Policing, an unsigned letter from the Appl to the Wagi V. Ct chairman stating his unavailability on 28/11/09 and an undated letter from Wagi V. Ct to the Appl requesting him to come to court on 28/11/09 for a hearing. The Wagi V.Ct has not provided any such records during the course of the hearing of this appeal though it had ample time and opportunity to do so.

22. There is nothing provided to me suggestive of what, if any proceedings were conducted on4/11/09, i.e. who were the presiding magistrates, which parties appeared and what evidence may have been adduced. There is nothing provided to this court to show that the appl was informed of the hearing on 4/11/09 and furthermore the resp concedes in his submission that the appl was not present.

23. The consequence of my acceptance of the appl’s evidence over that of the resp is that I find that the Wagi V. Ct proceeded on the 4/11/09 in breach of both sect. 79 (1) and Sect. 81 (1) of the Act. The Appl was not served a Hearing Notice of these proceedings and therefore had no way of knowing about it. The Constitution of this country by virtue of sect. 37 (1) guarantees the Appl protection of the law and sections 79 (1) and 81 (1) of the Act afford him this right, but he was denied this fundamental constitutional guarantee.

24. I answer this issue in the affirmative.

25. Further more it is evident from the ‘order’ that it was made applicable only to the Appl and his family and not to the resp and this was not in compliance to the Dist Ct Order No V.Ct 28/of 2008 dated 15/12/08. Another matter raised by the Appl was that the resp was a Bougainvillean and a settler but I dismiss this ground due to its irrelevancy.

SECOND ISSUE: HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE (This is a prerequisite to allowing the appeal under s.92 (2) of the Village Cts Act).

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

S.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 Wagi V. Ct in the issuance of the order in the absence of any participation by the appellant, he was not fairly accorded his right provided by s.79 (1) and s.81 (1) of the V. Ct Act and s 37(1) of the Constitution. If this is the result on the appellant of the Wagi V. Ct decision then there is a substantial miscarriage of justice because what the law provided for, the appellant was not accorded and that is not justice according to law.

33. The Appl was not given an opportunity by the Wagi V. Ct (when it was statutorily incumbent upon it do so by the operation of-sect 81(1)), to appear by way of the regulated notice and present his case and this ran contrary to the principles of natural justice as required by sect. 59 of the Constitution.

34. I answer this issue in the affirmative.

THIRD ISSUE Was the Village Court properly constituted?

Sect 7 (1) of the V.Ct states:-

(1) Subject to Section 8, a Village Court shall be constituted by an odd number (not being less than three) of Village Magistrates

Section 8.One village Magistrate to constitute Village Court

Notwithstanding Section 7 and 17 (3) where custom provides for a system of chiefs or chieftainship, the Minister may, in respect of a specified Village Court, by notice in the National Gazette, declare that a Village Magistrate sitting alone shall constitute that Village Court.

35. To address this issue, it is necessary to see what the empowering legislation provides and in this instance, the V. Ct Act at sect 7 (1) mandates for the constitution of a V. Court; that there must be no less than three magistrates sitting in any V. Ct sitting. Section 8 provides an exception to this rule, and in accordance of it I have not been provided with a National Gazettal notice giving effect to this exception in the immediate matter.

36. In this matter given the paucity of records, the only record of what happened on the 4/11/09 is the preventive order 57347 that shows this Village Magistrate Mr. Nitu Aniat was the only one who issued the said order. In the absence of any other evidence I can only conclude that there were no other magistrates presiding with him on the matter, (if there were any proceedings at all for that matter) and issued such an order. This was is in direct contravention of s.7 (1) and such a breach was fatal, rendering it unlawful or illegal.

37. I answer this issue in the negative.

FOURTH ISSUE: Did the Wagi V.Ct exceed its jurisdiction?

38. The affirmative answers to issues 1and 2 and the negative answer to the third issue effectively provide the answer to this issue and I answer it in the affirmative and for the reasons relied on in answering all the above issues.

FIFTH 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.
  

39. In consideration of all the circumstances of this matter that have been deliberated on I consider that the issue of the location of the land in issue unresolved and any resolution of it would be best dealt with at the village where all persons who might have an interest in it reside and so I order that the matter be dealt with by the Wagi V.Ct again.

REMARKS

40. In the course of dealing with this appeal I have become conscious of the fact that this current legal spat between the parties is only the latest battle in a long acrimonious wrangle that has spanned two decades and therefore I believe that for a fair resolution of it there is a need for the Wagi V.Ct to use the provisions of Divisions 4, 5 or 6 of the V.Ct Act, as the main stakeholders in it are all villagers and the concerned piece of land is situated within the area the Wagi V.Ct has jurisdiction over and application of custom and mediation will be of vital importance.

JUDGMENT

41. My judgment is as follows:

1. The matter is referred back to the Wagi Village Court.
   

Matter referred back to Village Court.
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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)