Akai v Sanguwa [2010] PGDC 54; DC1088 (2 July 2010)

DC1088

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 6/2010

DION AKAI
Appellant

V

JOSEPHINE SANGUWA
Respondent

MADANG: J KAUMI

2010:14th April
2010:12th, 27th, May

2010: 11th, 25th June
2010:2nd July

APPEAL

VILLAGE COURT ACT- Appeal to District Court from decision of Village Court- Village Court to apply any relevant custom-Principle of substantial justice applicable-–Principle of substantial miscarriage of justice discussed- Constitutional rights are guaranteed and must be accorded 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.

A man appealed against a Village Court Settlement order ordering him to pay K1000.00 compensation to a person he had lived with in a de facto relationship for close to two years.

Held:

(1). 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.

(2). The intention of the Village Courts Act is that a Village Court shall apply any relevant custom as determined in accordance with Sections 2, 3 and 7 of the Customs (Recognition) Act Ch.19. (Mark, Re [1995] PNGLR 234)

(3) .If custom does not apply, the court is required to decide all matters before it in accordance with "substantial justice", (Village Courts Act s.58).That it is helpful to think of "substantial justice" as the justice of the decision itself-the outcome. ( Part 1 and at Chapter 2 of the Magistrates Manual of Papua New Guinea)

(4). The primary function of a Village Court is to ensure peace and harmony in the area for which it is established by mediating in, and endeavoring to obtain just and amicable settlements of disputes. (Section 52 Village Courts Act)

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

(6). This entails applying the test in this matter whether by reason of the course taken by the Yanimba Village Court in the awarding of the compensatory award in the absence of the application of any custom or in the absence of custom, substantive justice the Appellant was not accorded his rights as provided for by Sections 57 and 58 of the Village Court Act and Section 37(1) of the Constitution. If this is the result on the appellant of the Yanimba Village Court's 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.

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

(i). Matter referred back to Yanimba Village Court for the issue of compensation to be decided.

(ii). Yanimba Village Court must:-

(a). Ensure that custom is applied in its deliberations of the amount of compensation to award and allow both parties to call evidence in the form of witnesses on the custom applicable in their respective areas;

(b). and in the event of disagreement on applicability of any custom, ensure substantial justice is applied in the resolution of this issue.

Cases cited:

The following cases are cited in the judgment:
Kisi v Nash [1974] PNGLR 4
Kumo v Killian [1976] PNGLR 149

Re the Village Courts Act 1974, Re WW (An infant) presently in custody [1980] N267
Application of Tomba Emba; Re an Order dated 5/11/85 made by The Mendi District Land Court in its Appellant Jurisdiction [1985] N549 (5/11/85)
Mark, Re [1995] PNGLR 234
PNGBC v Jeff Tole [2002] SC 694 (29/09/02)
Bank of South Pacific Ltd v Public Curator [2003] N2320 (20/01/03)
Organic Law on National & Local Level Government Elections, Agiwa v Kaiulo [2003] N2345 (18/02/03)
Wali v Wali [2006] N3051 (20/04/06)
Binafe v Goro [2006] CIA 419 OF 2005 (15/09/06)

Overseas Cases
Mraz v. The Queen [1955] HCA 59; (1955) 93 C. L. R 493,

Reference
Magistrates Manual for Papua New Guinea Hill ER & Powles.G.Magistrates Manual of Papua New Guinea, Law Book Co (2001) Sydney NSW 2009

Legislations

Constitution of PNG
Village Court Act 1989

Abbreviations:

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 a Settlement order of a Village Court.

Representation:

Appellants in person

Respondents, in person

INTRODUCTION

1. Kaumi. J This is a judgment on an appeal against a Settlement Order No A98408 issued by the Yanimba 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 ^[1], this is for a want of a suitable precedent in our jurisdiction.

BACKGROUND

3.The appellant, Dion Akai was normally resident at Ulifun Island and so was the respondent, Josephine Sanguwa until a dispute arose between them in March this year. They had lived together in a de facto relationship from 2008 to 2009. The matter giving rise to these proceedings was visit by the Appellant to Raikos.

VILLAGE COURT PROCEEDINGS

4.On 15th March 2010, both parties were present and the matter was mediated at the Community Policing Office in Madang Town before the Yanimba Village Court by Village Court magistrate Mr. Mathew Olian and presence of Police, as a result of a complaint laid by the Respondent. The Respondent's complaint was that the Appellant had married and used her for two years and then he left her. On the same day a settlement was agreed upon that the Appellant would compensate the Respondent in the following manner:-

(i).The Appellant must compensate the Respondent in the sum of K1000.00;

(ii).The Appellant must perform customary rites to release the Respondent from him;

(iii).The Appellant must do (i) and (ii) within one (1) month.

These Settlement Orders are the subject of this Appeal.

APPEAL TO DISTRICT COURT

5.On 25th March 2010 the appellant filed a notice of appeal, stating the following grounds:

a. The Village Court never allowed him the opportunity to give evidence to defend himself;

b. The amount of compensation he was ordered to pay was excessive as he was just a villager.

SUBMISSIONS

6. 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 in other Courts and I make these comments at this juncture as the some documents submitted by the parties are of such a nature.

APPELLANT'S SUBMISSIONS

7. The appellant filed two documents, a handwritten and undated document titled 'Appeal case for court order' and a typed document titled 'Statement of Affidavit'-sworn and filed on 4/06/10.

RESPONDENT'S SUBMISSION

8. The respondent filed an undated typed and sworn affidavit.

9. The Yanimba Village Court filed a sworn affidavit by Mr Olian dated 24/05/10.

RELEVANT ISSUES

10. The relevant issues are as follows:-

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 Appellant the opportunity to give evidence on his behalf?

SECOND ISSUE: •Did the Village Court exceed its jurisdiction in making the order for the payment of compensation in the amount of K1000.00 against the Appellant?

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

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.)

RELEVANT LAW

11. There are certain provisions of the Village Courts Act that are relevant to the issue at hand.

12. Firstly, a Village Court is obliged by Section 57 (1) of the Village Court Act Ch. in all matters before it to apply any relevant custom as determined in accordance with Section 2, 3 and 7 of the Customs (Recognition) Act 1963.

13.Justice Doherty in the National Court matter of Mark, Re ^[2] stated that the intention of the Village Court Act is that a Village Court considers custom and referred in particular to Section 57 (1) which provides as follows:-

57. APPLICATION OF CUSTOM.

(1) Subject to Subsections (2) and (3), in all matters before it a Village Court shall apply any relevant custom as determined in accordance with Sections 2, 3 and 7 of the Customs (Recognition) Act 1963.

14.Secondly, Section 58 mandates inter alia that a Village Court shall decide all matters before it in accordance with substantial justice as follows:-

58. GENERAL LAW.

(1) In exercising its jurisdiction under this Division, a Village Court is not bound by any Law (other than the Constitution and this Act) that is not expressly applied to it, but shall, subject to Subsection (2) and Section 57, decide all matters before it in accordance with substantial justice.

15. Thirdly, Section 52 under Division 6 provides for the primary function of Village Courts in its mediatory jurisdiction as follows:-

52. PRIMARY FUNCTION OF VILLAGE COURTS.

The primary function of a Village Court is to ensure peace and harmony in the area for which it is established by mediating in, and endeavouring to obtain just and amicable settlements of disputes.

16. Fourthly, Section 57 (1) provides for the application of custom.

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.

45. ORDERS FOR COMPENSATION, DAMAGES AND DEBT.

Subject to Section 46 and to Part VI, a Village Court may make an order for–

(a) the payment of compensation or damages; or

(b) the repayment of a debt,

to an amount not exceeding, in cash or in value, the sum of K1,000.00.

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 Appellant the opportunity to give evidence on his behalf?

17. I find on the basis of the statements contained in paragraphs 4 & 5 of the Appellant's typed document titled 'Statement of Affidavit'- sworn on 4/06/10, paragraph 4 of the respondent's undated affidavit and Mr. Olian's affidavit sworn on 24/05/10 that the Appellant was allowed the opportunity to give evidence on his behalf and consequently that the Yanimba Village Court did not act in contravention of any Constitutional Law, Act or subordinate enactment. Further I find on the basis of the matters deposed to in these said documents that the Appellant's intention was to compensate the Respondent and the only issue was how much.

SECOND ISSUE: •Was the amount of K1000.00 ordered as compensation by the Village Court against the Appellant excessive and therefore exceeding its jurisdiction?

18. This issue can be brought into perspective by posing two questions:-

(i).Was the order for compensation made in accordance with custom? If the answer is Yes, then the Village Court did not exceed its jurisdiction. If the answer is No, the next question should be answered.

(ii). Was the order for compensation made in accordance with substantial justice? If the answer is Yes, then the Village Court did not exceed its jurisdiction. If the answer is No, the compensation order is void.

19. In relation to Question (i), I note that the Appellant comes from Ulifun Island in the Madang Province and the Respondent from Sungriwa village in the East Sepik Province and therefore there would be two customs applicable in relation to the type of compensation awardable in such circumstances in this matter.

20. The intention of the Village Courts Act is that a Village Court shall apply any relevant custom as determined in accordance with Sections 2, 3 and 7 of the Customs (Recognition) Act Ch.19.

21. The Respondent brought this action which was mediated in the Yanimba Village Court claiming compensation from the Appellant for having spent her money looking after him and his relatives whilst they were co-habiting for close to two years.

22.There is no evidence provided to this Court nor is there any suggestion or can any inference drawn of what or if any custom being followed and used by the said Village Court in the award of K1000.00 as compensation and the order for the Appellant to perform customary rites to release the Respondent. Did Yanimba Village Court apply the Sungriwa custom of ESP or did it apply Ulifun custom, I am not assisted by the paucity of evidence on this pertinent factor and yet the said Village Court was obliged by Section 57 to apply the relevant custom as determined in accordance with Sections 2, 3 and 7 of the Customs (Recognition) Act 1963.

23. I therefore answer Question (i) in the negative (No) and will answer the next question.

24. In relation to Question (ii), and bearing in mind that in answering Question (i) I found that no custom was applied in the awarding of K1000.00 as compensation, I note that Section 58 (1) of the Village Courts Act provides that a Village Court in exercising it's jurisdiction under this Division is not bound by any Law (other the Constitution and this Act) that is not expressly applied to it, but shall, subject to Subsection (2) and Section 57, decide all matters before it in accordance with substantial justice.

25. Part 1 and at Chapter 2 of the Magistrates Manual of Papua New Guinea ^[3] states that an exception is the Village Court jurisdiction where case law is seldom referred to. If custom does not apply, the court is required to decide all matters before it in accordance with "substantial justice", (Village Courts Act s.58).That it is helpful to think of "substantial justice" as the justice of the decision itself-the outcome. While, "natural justice" relates to the process or procedure leading to the decision.

26. Examples of this principle of "substantial justice" are discussed in the following cases:-

(a) In the matter of the Organic Law on National & Local Level Government Elections, Agiwa v Kaiulo ^[4] Kandakasi.J J held that, "No law or reasonable tribunal should ever contemplate perfecting that which is imperfect from the outset merely because one having the authority to do the act has perfected it notwithstanding the events leading to it. The courts are there to do substantial justice. If substantially, there has been no proper conduct of an election, then there can not be a declaration and if a declaration has been secured, it should not be allowed to stand.

(b) In Application of Tomba Emba; Re an Order dated 5/11/85 ^[5], Los J held that "I find no difficulty in upholding the argument. Section 50(1) and 69 ensure that the proceedings before a District Land Court is not burdened with technical rules but consider all matters before it "in accordance "with substantial justice"."...That is, as it appears that a limited number of members of the Komia Clan are determined to frustrate the efforts of the elders seeking a settlement, the orders could not have been aimed at achieving a substantial justice as required under the Land Dispute Settlement Act.

(c) Re the Village Courts Act 1974; Re WW (An infant) presently in Custody ^[6] J. Pratt stated that "Under the Village Courts Act there is no appeal to the National Court or beyond, nor may any prerogative writ lie against action taken by a Village Court magistrate (sections 48, 49 and 56-Amended).An appeal may be lodged with a Local Court or a District Court magistrate, and such magistrate may on their own initiative initiate a review. That before any order for imprisonment may take effect, it must be endorsed by a Local Court or District Court magistrate(37).I have no doubt whatsoever that in many instances such endorsements are made as a matter of course-rubber stamping.

(d) Bank of South Pacific Ltd v Public Curator ^[7] Kandakasi.J held that "This was in keeping with the principle that the Courts are there to do substantial justice and should any rule of practice step in the way of that, the Court does have power in O.1 r 7 to dispense with them (See PNGBC v Jeff Tole ^[8] (Unreported Judgment of the Supreme Court delivered 27/09/02) SC694 for an example of an authority on point".

27. What is clear from the evidence provided by the Appellant and not refuted by the Respondent is that after the former went to visit his father at Raikos she dismantled his house and removed all the housing materials and cooking utensils in it to her people at Sagalau. The removed items were of some monetary value and therefore the dictates of Section 58 made it incumbent upon the Yanimba Village Court to enquire into the value of these items when it was contemplating the amount of compensation to award.

28. What is not clear is how this figure of K1000.00 was arrived at. Section 45 of the Village Courts Act allows a Village Court to make compensatory awards up to K1000.00 on the same token Section 52 makes it incumbent on a Village Court in performing its primary function to ensure peace and harmony by mediating in, and endeavouring to obtain just and amicable settlements of disputes.

29. In this matter obviously, the compensatory order made by the Yanimba Village Court was not according to the Appellant, just and amicable.
The Yanimba Village Court has not provided its reasons justifying its compensation award.

30. I answer Question (ii) in the negative and find that the compensatory award is void.

31. I answer the second issue in the affirmative (Yes) in view of the answers to Questions (i) & (ii) and that the Yanimba Village Court exceeded its jurisdiction.

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.)

32. This issue is properly addressed by having regarded firstly to s.92.2 of the 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.

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

34. Kelly. J in Kisi v Nash ^[9] 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 ^[10] 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.

35. In Kumo v Killian ^[11] 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.

36. In the matter of Binafe v Goro ^[12] 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.

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

38. This entails applying the test in this matter whether by reason of the course taken by the Yanimba Village Court in the awarding of the compensatory award in the absence of the application of any custom or in the absence of custom, substantive justice the Appellant was not accorded his rights as provided for by Sections 57 and 58 of the Village Court Act and Section 37(1) of the Constitution. If this is the result on the appellant of the Yanimba Village Court's 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.

39. In view of the above and the answers given to Issue Two I answer Issue Three (3) in the Affirmative (Yes).

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.)

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.
  

40. In consideration of all the circumstances of this matter that have been deliberated on I consider that the issue of the amount of compensation to be awarded unresolved and therefore consider that an order made pursuant to Section 92 (2) and (3) would be appropriate and so I order that this issue be dealt with by the Yanimba Village Courtt again.

DETERMINATION

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

(i). Matter referred back to Yanimba Village Court for the issue of compensation to be decided.

(ii). Yanimba Village Court must:-

(a). Ensure that custom is applied in its deliberations of the amount of compensation to award and allow both parties to call evidence in the form of witnesses on the custom applicable in their respective areas on this issue;

(b). and in the event of disagreement on applicability of any custom, ensure substantial justice is applied in the resolution of this issue.

Appellant in person
Respondent in person

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^[1] [2006] N3051 (20/04/06)

^[2] [1995] PNGLR 234

^[3] Magistrates Manual for Papua New Guinea Hill ER & Powles.G.Magistrates Manual of Papua New Guinea, Law Book Co (2001) Sydney NSW 2009

^[4] [2003] N2345 (18/02/03)

^[5] [1985] N549 (5/11/85)

^[6] [1980] N267

^[7] [2003] N2320 (20/01/03)

^[8] [2002] SC 694 (29/09/02)

^[9] [1974] PNGLR 4

^[10] [1955] HCA 59; (1955) 93 C. L. R 493

^[11] [1976] PNGLR 149

^[12] [2006] CIA 419 OF 2005 (15/09/06)