Yanimba Village Court v Nakur [2010] PGDC 58; DC2002 (2 August 2010)

DC2002

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 9 & 10/2010

YANIMBA VILLAGE COURT
Complainant

V

PETER NAKUR & TEDDY EVULEL
Defendants

MADANG: J KAUMI
2010:20th April, 19th May, 2nd 18th June, 16th 30th July, 2nd August

ENDORSEMENT

VILLAGE COURT ACT- Endorsement of Village Court Order for imprisonment by District Court, Part V-Jurisdiction, Division 9-Sections 74 (1) (b) and 75 (2) (3) Provisions for second hearing are mandatory-Sections 75 (2)(3) and 74 (1) (b)'s mandates must be adhered to.

PRACTISE AND PROCEDURE-Incumbent upon District Court magistrates to enquire into all relevant Village Court proceedings before endorsing an order for imprisonment..

PRACTISE AND PROCEDURE-District Court Magistrate can institute Review proceedings on his/her own motion-Part V-Jurisdiction, Division 9, Section 75 (4), Division 11, Sections 87, 89 (4), 90,92 (1) (2) and 93.

PRACTISE AND PROCEDURE-Sorcery related offences to be dealt with under the Sorcery Act.

A Village Court issued Orders for imprisonment against two defendants who failed to comply with its orders and applied to the District Court for its endorsement of those Orders..

Held:
(1). Basasu/Yanimba Village Courts acted beyond their jurisdiction provided for by the provisions of the Village Courts Act 1989 in not according the defendants a second hearing.

(2) A Village Court must conduct a hearing to determine from a defendant whether or not he/she has a reasonable excuse for not complying with its order (in other words a second hearing).

(3) It is incumbent on District Court magistrates to scrutinize all relevant Village Court proceedings leading up to the issuance of the order for imprisonment and not merely endorse such an order as a matter of course

(4)The applicable Standard of Proof is the civil standard in such endorsement proceedings involving civil judgments.

(5) The belief in sorcery is only a belief and only that, it is not a fact. Acting Public Prosecutor v Uname Aumane & 3 Ors [1980] PNGLR 510

(6). When persons suspected of killing another with the use of sorcery are found liable by a Village Court on the strength of dreams etc of witnesses, certainly they are not accorded full protection of the law as they are entitled to. In other words they must be dealt with under the Sorcery Act which was enacted to provide a forum for such allegations and the Constitutional mandates of natural justice must be accorded to them.

(7) The decisions of the Basasu/Yanimba Village Court of the 7/04/10 are quashed and the defendants are discharged of the Orders No 214682 and No.2146823.

Cases cited:
Acting Public Prosecutor v Uname Aumane & 3 Ors [1980] PNGLR 510
Ruk and Constitution on S 42.5 [1991] PNGLR 105
Re Theresia Maip [1991] PNGLR 80
Re Kaka Kuk [1991] PNGLR 105
Re Kabia Maris and Nalik Village Court [1994] PNGLR 314
Mark, Re [1995] PNGLR 234
State v Aiaka Karavea & Anor (1983) N452 (M)
The State v Jude Gena & 4ors (24/09/04) N2649
State v Jackson [2006] N3237 (24 October 2006)
Thomas v the State [2007] SC 867 (28/08/07)

Reference
Collins English Dictionary 551 HarperCollins Publishers Westerhill Road, Bishopbriggs, Glasgow C64 2QT Great Britain

Legislations

Constitution of PNG
Village Court Act 1989
Sorcery Act 1971
Customs Recognition Act

Abbreviations:
The following abbreviations appear in the judgment:

J Justice
N National Court judgment
No number
PNGLR Papua New Guinea Law Reports
S Section
V Versus
V.CT ACT Village court Act
V.CT Village Court

Counsel
Mr. Olian for the Complainant
The Defendants in Person

INTRODUCTION

1.These proceedings started by way of an Order for Imprisonment that was brought to Court for endorsement by the Yanimba V.Ct on 14th April 2010 pursuant to section 74 (c) of the Village Courts Act which gives this Court the jurisdiction to deal with the matter.

VILLAGE COURT PROCEEDINGS

2. On 7th April 2010 a mediation session was conducted at the Community Policing Office here at the Madang Town Police Station by the Basasu and Yanimba Village Courts and the Community Policing Officers to mediate a dispute between the defendants, Peter Nakur and Teddy Evulel and the family members of the late Henry Sabub regarding the circumstances surrounding his death and allegations of sorcery against the defendants.

3. On the same day the defendants were ordered to pay compensation in the following manner:-

(i).Both defendants to pay K1000.00 each;

(ii).One pig each;

(iii).One manar each;

(iv).Trade store goods and garden food,

that the both defendants were to pay all the above by the 12th April 2010.

4. On 14th April 2010 the Yanimba Village Court issued an Order for Imprisonment No.50268 and No.50269 for the imprisonment of both defendants and as a consequence is before me for endorsement pursuant to Section 74(c) of the Village Court Act.

BACKGROUND

5.In due consideration of the application for endorsement of the Yanimba Village Court's Order for Imprisonment I have asked both parties to file submissions which they have done and I scheduled the matter to today for ruling.

6. It is important to note the matters raised in their respective submissions as this is a sensitive matter involving allegations of sorcery leading to death and as such needs to be thoroughly dealt with so the position in law is understood and upheld whilst at the same time giving proper consideration to the matters raised by the relatives of the deceased.

7. Firstly in relation to the complainants the following was submitted:-

(i).A document stating in chronological order the alleged movements of defendant, Teddy Evulel from 4/02/10 to 13/02/10; it details the giving of bananas and betel nut by the defendant to the deceased and the latter's refusal to accept them, conversations between them and conversation and laughter between the defendants under Nakur's house at Medebur village whilst looking in the direction of the house of the deceased's family.

(ii).A letter by Peter Agabis Nalul dated 25/02/10 to the chairman of the Basasu Village Court stating, inter alia, again the conversation between the defendants under Nakur's house on 13/02/10, the corpse of Henry Sabub opening its eyes and a strong smell arising when the defendant, Evulel went into view the body, some things mentioned by a person called Gawe after the death on 18/02/10, allegations of the defendants being part of a network of sorcerers who kill people and that the defendants combined to kill the deceased by means of sorcery or as it is commonly known,sanguma.

(iii).A document titled, "Affidavit bilong late Mr. Henry Sabub-Agabis dated 10/05/10. It contains, inter alia, a statement about disputes between the family of the deceased and Nakur over land and answers he gave in response to questioning by Police and previous allegations of sorcery against him, comments by Evulel and Gawe and again the conversation between the defendants under Nakur's house on 13/02/10 and lastly dreams dreamt by daughters of the deceased after his death.

(iv). A document headed "Statement of Affidavit #2" by Peter Nalul Agabis filed on 16/06/10.This document was in response to documents filed by the defendants. This document mainly outlined the proceedings of this Court and seeking a finality of the proceedings.

(8).The defendants submitted the following:-

(i).An affidavit in defense by defendant, Nakur dated 18/05/10 and in it he essentially denies the allegations and asks for proof of what was alleged against him and makes mention of the conversation he had with defendant Teddy Evulel on the 13/02/10 and explains that the reason for their conversation was a land dispute that Evulel had come to settle and his position as a village law and order committee member.

(ii).Another affidavit in defense filed by Nakur on 22/06/10 which is in English and Pidgin. The English contents are basically a repetition of what he deposed to in his affidavit dated 18/05/10.The Pidgin contents are a translation of the English version, it also covers the failed attempts to mediate the matter by the Basasu Village Court due to non appearance by Police to appear and his intention to clear his name and threats by members of the deceased's family.

(iii).An affidavit by defendant Teddy Saul Evulel filed on 27th May 2010 in which he denies the allegations and explains the reason for meeting Nakur on 13/02/10.

RELEVANT ISSUE

7. The District Court magistrate needs to be satisfied that the following mandatory provisions Section 74 (1) (b)of the Village Courts Act have been complied with have been complied with and I highlight this provision by posing the following questions:-

(i).Has the defendant been allowed the opportunity to explain whether he has a reasonable excuse for non-compliance? If yes, then the next question should be addressed. If no, then the order is void as it has been made arbitrarily and is harsh and oppressive and repugnant to the general principles of humanity and so a District Magistrate should not endorse it.

(ii).Has the Village Court received proof that the defendant has failed to pay an order for compensation, damage or to repay a debt without reasonable excuse? If yes, then the District Court magistrate may endorse the Order for Imprisonment. If no, then the District Court magistrate should not endorse the order for imprisonment and initiate a review under Division 11 of the Village Courts Act 1989 on his own motion. (Village Courts Act section 75(4)).

RELEVANT LAW

8. There are certain pieces of legislations that are relevant to the resolution of the issue and must be considered and are as follows:-

THE VILLAGE COURT

Section 74. ORDER TO PAY COMPENSATION ETC.

(1) Where–

(a) Under Section 45 a Village Court orders a person–

(i) to pay compensation; or

(ii) to pay damages; or

(iii) to repay a debt; and

(b) the person fails, without reasonable excuse (proof of which is on him), to obey the order,

the Village Court may–

(c) Subject to Subsection (2), order the person to serve a term of imprisonment not exceeding one week–

(i) for each K10.00 or part of K10.00 unpaid; or

(ii) where the sum is ordered to be paid otherwise than in money–for each K10.00 or part of K10.00 of the value of the sum not rendered; and

(d) subject to Subsection (3) and Section 75, make an order for execution against the goods and chattels of the person liable to make the payment of the amount due.

(2) A term of imprisonment imposed under Subsection (1) (c) shall not exceed six months.

(3) An order for execution shall be in the prescribed form.

(4) Imprisonment imposed under this section does not operate as a satisfaction or discharge of the amount due on an order and, notwithstanding such imprisonment, a Village Court may make an order for execution against the goods and chattels of the person so imprisoned.

Section 75. ENDORSEMENT OF ORDER OF EXECUTION.

(1) Subject to Section 76, an order for execution under this Act is of no force or effect unless the order is endorsed by a District Court Magistrate.

(2) The Village Court that made the order for execution shall immediately cause the order to be presented to a District Court Magistrate for endorsement under Subsection (1).

(3) The District Court Magistrate to whom the order is presented for endorsement under this section shall endorse the order without delay, unless he has reason to believe that the Village Court–

(a) acted without jurisdiction; or

(b) acted in excess of its powers.

(4) If the District Court Magistrate believes that the Village Court may have–

(a) acted without jurisdiction; or

(b) acted in excess of its powers,

he shall exercise the power of review provided by Division 11

Section 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.

(2) A person charged with an offence before a Village Court is presumed innocent until proved guilty.

PREVIOUS CASES

9. There have been previous cases that have dealt with similar issues in this area of law and they are as follows:-

(a) In Mark, Re [1] the National Court held that:-

(i). Section 74 (1) of the V. Cts Act requires the proof that a person has failed to pay an order for compensation without reasonable excuse and it is only after that proof has been given that the Village Court may order imprisonment. In this case there had been no hearing to determine whether payment had been made and on the same that the period of 6 weeks allowed for payment expired, a warrant was issued for the applicant's imprisonment.

(ii). In the case of a civil claim, an order for imprisonment must be endorsed by a District Court Magistrate in accordance with s.75 (1) of the V.Cts Act. Section 68 of the Act allows a District Local Magistrate to endorse such an order in criminal procedures.

(iii). An Order for imprisonment when made arbitrary will be declared to be harsh and oppressive and repugnant to the general principles of humanity. Cases cited Re: Theresia Maip [2] and Re: Kaka Ruk [3]

(b) In the matter of Re: Kabia Maris and Nalik Village Court [4] the National Court held that:-

(i). Further the provisions of s.61 of the V.Cts Act 1989 clearly state that, "a person who fails, without reasonable excuse (proof of which is on him) to obey an order of a V.Ct for payment of a fine is guilty of an offence." There is no record that there was any hearing to give the prisoner an opportunity to show why he had failed to pay the money, whether it was by reasonable excuse or otherwise.

(ii). But a V.Ct is bound by s.58 to decide all matters in accordance with substantial justice, and the

(iii). I consider he was held in breach of the jurisdiction of the V.Ct Act. He has already paid part of the debt, and he is entitled to be released proportionately, I order his release forthwith.

10. The general principles enunciated in these National Court cases are that it is incumbent upon firstly, a V.Ct to conduct a hearing to determine from a defendant whether or not he/she has a reasonable excuse for not complying with its order (in other words a second hearing) and secondly, a District Court magistrate must carefully scrutinize all events leading up to the issuance of the order for imprisonment instead of merely endorsing such an order as a matter of course.

DETERMINATION OF ISSUES

(i). Have the defendants been allowed the opportunity to explain whether they have a reasonable excuse for non-compliance? If yes, then the next question should be addressed. If no, then the order is void as it has been made arbitrarily and is harsh and oppressive and repugnant to the general principles of humanity and so a District Magistrate should not endorse it.

11. In Mark, Re [5] the National Court held that:-

(i). Section 74 (1) of the V. Cts Act requires the proof that a person has failed to pay an order for compensation without reasonable excuse and it is only after that proof has been given that the Village Court may order imprisonment.

12. It is my humble view that s.74 (1) (b) make it incumbent upon District Court magistrates that before the endorsement of any such Orders for imprisonment are occasioned, he/she must enquire and investigate all events leading up to the issuance of the said order. What this entails is for a District Court magistrate not to endorse such an order for imprisonment merely as a matter of course just because a Village Court has the power under section 74 (1) (c)of the Village Court Act 1989 to make such orders, NO, the magistrate is required under Section 74 (1) (b) of the Village Court Act1989 to enquire further into the matter as a failure to do so would not only be contrary to the law but worse still could be perceived to be treatment of the matter in an "arbitrary manner" or a "cavalier manner" or simply "rubber stamping".

13. In this case I find that there has been no hearing to determine whether or not payment had been made after the seven (7) days allowed for payment expired and if not whether or not the defendants had a reasonable excuse for their failure instead a warrant was issued for the defendants' imprisonment. Indeed as a result of a paucity of records detailing the pre requisite second hearing after the expiry of the seven days on the 14/04/10, I asked Mr. Olian the chairman of the Yanimba Village Court on the 18/06/10 in Court if the pre requisite second hearing was conducted prior to the issuance of the Order for Imprisonment for the defendants on the 14/04/10 to which he responded in the negative.

14. It was mandatory upon the Yanimba Village Court to conduct a hearing of such a nature. (Village Courts Act s.74 (1) (b) and it failed miserably to do this. Going by the National Court in Mark, Re [6] this order for imprisonment was made arbitrarily and therefore harsh, oppressive and repugnant to the general principles of humanity.

15. I answer Question (i) in the negative. I find then the order is void as it has been made arbitrarily and is harsh and oppressive and repugnant to the general principles of humanity and so I do not endorse the Orders for the imprisonment of Peter Nakur and Teddy Evulel and though I am not required to do so but nevertheless for completeness sake I will answer the other question.

(ii).Has the Village Court received proof that the defendant has failed to pay an order for compensation, damage or to repay a debt without reasonable excuse? If yes, then the District Court magistrate may endorse the Order for Imprisonment. If no, then the District Court magistrate should not endorse the order for imprisonment and initiate a review under Division 11 of the Village Courts Act 1989 on his own motion. (Village Courts Act section 75(4)).

16. I answer Question (ii) in the negative on the basis of the reasons giving rise to my answer in the negative to Question (1) and now I initiate a review on my own motion of the matter pursuant to Division 11 of the Village Courts Act.

REVIEW

17. The prevailing circumstances of this matter make it imperative that I review the whole matter.

18. As I indicated in paragraph 6 of my ruling, this matter arose as a result of allegations of sorcery leading to a death and therefore it is necessary to consider what the law says about the underlying cause of this matter, sorcery.

19. In reviewing the matter I pose the following questions:-

(i).What is sorcery?

(ii). What does the law say about sorcery?

(iii). Application of the facts of the law.

(iv). Determination

(i). What is sorcery?

20. The Collins English Dictionary [7] defines 'sorcery' as witchcraft or magic.

(ii). What does the law say about sorcery?

21. The Sorcery Act 1971 was enacted to prevent and punish evil practices of sorcery and other similar evil practices, and for other purposes relating to such practices. Section 1 of this Act defines sorcery.

22. The Preamble of this Act declares that there is a widespread belief throughout the country that there is such a thing as sorcery and that sorcerers have extraordinary powers that can be used sometimes for good purposes but more often for bad ones, and because of this belief many evil things can be done and many people are frightened or do things that otherwise they might not do.

23. Under the Interpretation clause of this Act an act of sorcery is expressed as unless a contrary intention appears as meaning any act (including a traditional ceremony or ritual) that is intended to bring, or that purports to be able or to be adapted to bring, powers of sorcery into action, or to make them possible or carry them into effect. Furthermore, that "forbidden sorcery" means sorcery other than innocent sorcery.

24. It is also important to note Section 5 of this Act that provides that though this Act recognized the existence and influence of sorcery it did not acknowledge and accept this existence and influence in any factual sense. This position was judicially recognized and accepted in State v Aiaka Karavea & Anor [8] and The State v Jude Gena & 4ors [9] 25. In State v Jackson [10] Kandakasi.J J stated the following in relation to sorcery whilst discussing sorcery related killings:-

"The only thing that makes sorcery related killings special is the belief in sorcery. However, sorcery is neither a fact that can easily and readily be proven or refuted. It is a matter of what one wants to believe and not. The Sorcery Act provides for the way in which people suspected of sorcery should be dealt with...Sorcery is a belief based on custom The Constitution in Sch. 2.1 (2) dictates that we should retain only those customs that a not inconsistent with a written law and are not repugnant to the general principles of humanity..."

(Emphasis mine)

26. Custom is described by the Constitution under Schedule 1.2 as "custom" means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial;

27. However Schedule. 2.2 of the Constitution provides that the recognition accorded to custom under Schedule 2.1 of the Constitution is not accorded to any custom that is inconsistent with a Constitutional Law or a statute, or that is repugnant to the general principle of humanity.

28. The Customs Recognition Act gives a definition in identical fashion to the one given by the Constitution to custom in that custom is recognized and enforced except where its recognition and enforcement would result in the opinion of the court, in injustice or would not be in the public interest.

29. So in other words, the customs of the indigenous inhabitants of this country must be applied subject to the Constitution and other qualifications prescribed in Schedule 2 particularly Schedule 2.1.(2) and (3) and the qualifying provisions under the Customs Recognition Act.

30. In Thomas v the State [11] the Supreme Court whilst discussing the decision in Acting Public Prosecutor v Uname Aumane & 3 Ors [12] stated inter alia that it acknowledged that, sorcery is only a belief and not fact and that the person accused or suspected of engaging in sorcery has a right to be dealt with according to law under the Sorcery Act and is thus entitled to a full protection of the law.

31. In Ruk and Constitution on S 42.5 [13] Woods J held that whilst the power of the village courts are to be exercised having regard to customs, they must also be exercised in accordance with the principles of natural justice.

(iii) Application of the facts to the law

32. The evidence the Joint Mediation Coram of Basasu/Yanimba Village Courts and the Community Policing Unit relied on in arriving at their decision against the defendants can be summarized as follows:-

(a) Alleged actions of Teddy Evulel and the deceased shortly before the death of the latter.

(b) An alleged conversation between the defendants on the 13/02/10

(c). The opening of the eyes of the corpse of Henry Sabub when the defendant Teddy Evulel entered into the room in which the corpse was placed

(d) Dreams by the daughters of the deceased.

(e) A lengthy bath the deceased had taken in river in his village some months before his death.

33. It is established in law that sorcery is only a belief based on custom and is not a fact and our Constitution at Schedule 2.1. (2) clearly mandates that only those customs which are not in consistent with written law and are not repugnant to the general principles of humanity are to be retained and applied.( See Acting Public Prosecutor v Uname Aumane) [14]

34. Customs that rely on dreams, suspicious behavior by both the deceased and suspect as a basis to brand someone a sorcerer or worst still as being responsible for someone's death go against the spirit of Schedule 2.1.(2) of the Constitution if for the following reasons:-

(a). The belief in sorcery is only a belief and only that, it is not a fact;

(b). When persons suspected of killing another with the use of sorcery are found liable by a Village Court on the strength of dreams etc of witnesses, certainly they are not accorded full protection of the law as they are entitled to. In other words they must be dealt with under the Sorcery Act which was enacted to provide a forum for allegations of such a nature and the Constitutional mandates of natural justice accorded

DETERMINATION

35. The orders of the Basasu/Yanimba Village Court of 07th April 2010 against the defendants are quashed.

Yanimba Village Court for the Complainants
The Defendants in person.

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[1] [1995] PNGLR 234

[2] [1991] PNGLR 80

[3] [1991] PNGLR 105

[4] [1994] PNGLR 314

[5] Supra Note 1

[6] Supra Note 1

[7] Page 551 HarperCollins Publishers Westerhill Road, Bishopbriggs, Glasgow G64 2QT Great Britain

[8] (1983) N452 (M)

[9] (24/09/04) N2649

[10] [2006] N3237 (24 October 2006)

[11] [2007] SC 867 (28/08/07)

[12] [1980] PNGLR 510

[13] [1991] PNGLR 105

[14] Supra Note 12