Danny v Maturap [2010] PGDC 60; DC2000 (18 August 2010)

DC2000

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 17/2010

MARGARET DANNY
Complainant

V

DANNY MATURAP
Defendant

MADANG: J KAUMI
2010:16th, 18th, June 2nd, 16th, 30th July 11th, 18th 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..

A Village Court presented its order to the District Court for its endorsement for the Imprisonment of a man who failed to comply with its order.

Held:
(1) 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. (Section 74 (1) (b)-Village Courts Act)

(2) 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

(3) The order of the Masemo V.Ct No.213467 dated 8/09/09 is unchallenged by the defendant by way of an appeal lodged within the time frame stipulated by Section 86 (1) of the Village Courts Act

(4).The requirements of Section 74 (1) (b) have not been complied with by the Masemo V.Ct in respect of this defendant.

(5).The order of Masemo V.Ct No.213467 dated 8/09/09 is upheld.

(6).The matter is referred back to the Masemo V.Ct to apply the provisions of Section 74 (1) (b). In other words Masemo V.Ct is required to conduct a second trial to determine whether Mr. Maturap has failed to pay the K233.00 without reasonable excuse and only after that proof has been given that it may order imprisonment.

Cases cited:
Mark; Re [1995] PNGLR 234

Legislations
Village Court Act 1989

Abbreviations:
The following abbreviations appear in the judgment:

PNGLR Papua New Guinea Law Reports
S Section
V.CT Village Court

Counsel
Complainant in Person
No appearance of Defendant

INTRODUCTION

1. These proceedings started by way of an Order for Imprisonment that was brought to me for endorsement made by the Masemo V.Ct on 8th September 2009 pursuant to section 75 (2) of the Village Courts Act.

BACKGROUND

2. The Masemo V.Ct entered an order, No 213467 against the defendant Danny Maturap on the 8/09/09 ordering him to pay Magaret Danny an amount of K133.00, the value of Margaret's property being K38.00 cash, K95.00 being the cost of her mobile phone, a total of K133.00 plus a court fine of K100.00 by the 31/09/09.

3. On the 4/05/10 the Masemo V.CT issued an order for imprisonment, No 92349, against the defendant for failing to pay the total amount of K233.00.The defendant appeared on a Warrant of arrest before me as the Magistrate in charge of the Village Court track on 16/06/10 for endorsement of this Order.

4. 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

RELEVANT FACTS

5. The only documents submitted to this court have been forthcoming from the Masemo V.Ct whilst the defendant has failed to file anything on his behalf as to why he has not paid up the amount of K233.00 or why the village court order for his imprisonment for four (4) months should not be endorsed. These documents filed by Masemo V.Ct are Village Court order No.213467 (Form 6) dated 8/09/09, Order for Imprisonment No.92349 (Form 8) dated 8/09/09 and Warrant of Arrest dated 28/05/10.

RELEVANT ISSUE

6. Should the Order for imprisonment pursuant to section 74 (1) (c) of the Village Court Act be endorsed?

Elements of s.74 (1) (b)

7. The District Court magistrate needs to be satisfied that the following mandatory provisions 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

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

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

(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 Village Courts Act. Section 68 of this Act allows a District Court Magistrate to endorse such an order in criminal procedures.

10. The general principle enunciated in this National Court case is 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.

ASSESSMENT OF EVIDENCE

11. Upon my consideration of the documents that have been filed in support of the order for imprisonment I make the following findings:

(i).The order of the Masemo V.Ct No.213467 dated 8/09/09 is unchallenged by the defendant by way of any appeal lodged within the timeframe stipulated by Section 86 (1) of the Village Courts Act

(ii).The requirements of Section 74 (1) (b) have not been complied with by the Masemo V.Ct in not allowing this defendant an opportunity to explain whether he had a reasonable excuse for not complying with the order.

DETERMINATION

12. The order of Masemo V.Ct No.213467 dated 8/09/09 is upheld.

13. The matter is referred back to the Masemo V.Ct to apply the provisions of Section 74 (1) (b). In other words Masemo V.Ct is required to conduct a second trial to determine whether Mr. Maturap has failed to pay the K233.00 without reasonable excuse and only after that proof has been given that it may order imprisonment.

Complainant in Person
No appearance of Defendant

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^[1] [1995] PNGLR 234