Laki v Jack [2010] PGDC 61; DC1091 (20 August 2010)

DC1091

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 14/2010

JAMES LAKI
Complainant

V

SEMA JACK
Defendant

MADANG: J KAUMI
2010:17th, 31st May 18th, 25th June 9th, 16th, 22nd July 6th,20th August

ENDORSEMENT

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

PRACTISE AND PROCEDURE- Village Courts cannot enforce any mediation orders made by a Community Policing Office of the Royal Papua New Guinea Constabulary.

PRACTISE AND PROCEDURE- Village Courts to keep records of all village court proceedings in prescribed form as mandated to by Section 84 (1)-Village Courts Act-Failure to comply with the mandatory requirement of Section 84 (1) will be to their peril.

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

Held:

(1) The applicable Standard of Proof is the civil standard in such endorsement proceedings involving appeals or endorsements.

(2) The correct position in law is that a Village Court cannot enforce any mediation orders made by a Community Policing Office.

(3) Whilst I note the two orders that were issued by Masemo V.Ct, I must say that orders are one thing and the actual village court proceedings are quite another and as long as Village Courts continue to fail complying with the mandatory requirements of Section 84 (1), it will continue to be to their peril.

(4) It is the mandatory requirement of Section 68 of the Village Court Act for a Village Court 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).

(8) Village Courts must ensure that the requirements of s.68 are complied with and only after being satisfied of this lack of reasonable excuse can it order imprisonment.

(5) The Preventive Order No.46455 and Order No.C213934 of the 3/10/08 by the Masemo V.Ct are quashed.

Cases cited:
Organic Law on National & Local Level Government Elections, Agiwa v Kaiulo [2003] N2345 (18/02/03)

Legislations
Constitution of PNG
Village Court Act 1989

Abbreviations:
The following abbreviations appear in the judgment:

J Justice

N National Court judgment
S Section

V Versus

V.CT Village Court

INTRODUCTION
1.Kaumi.M These proceedings started by way of an Order for Imprisonment, D31194, dated 10th May 2010 that was brought to me for endorsement by the Masemo V.Ct pursuant to section 75 (2) of the Village Courts Act which gives me the jurisdiction to deal with it.

BACKGROUND

2. This matter has its roots going back as far as 2002 over an affair the defendant had with one, Gais Bukon the husdand of Carol Guise. A dispute arose as a result between Sema and Carol which was solved at the Madang Police Station.

3. The matter giving rise to the current order for imprisonment was another alleged affair between the same persons that is supposed to have happened sometime between 2006 and 2007 and was finally mediated by a Mr Molong of the Community Policing Office at the Madang Police Station on 19/09/08. As a result of this mediation Mr Molong ordered the defendant to pay K500.00 as compensation to Carol Guise within 14 days.

VILLAGE COURT PROCEEDINGS

4. A village magistrate was present and issued a 'Preventive Order' to Sema. Mr Mathew Olian of Community Policing issued a 'Preventive Order' No.46455 on 3/10/08 ordering her not to go around with Gais Bukon or to have sex with him.

5. On 3/10/08 an order (Form 6) C.213934 was issued to Sema upon a complaint by Carol Guise that despite receiving a Preventive Order (Form 4) she continued to breach it and have sex with Gais Bukon. She was found guilty and ordered to pay K500.00 as compensation, K200.00 for breaching the Preventive Order and a court fine of K50.00. The time given to her to pay up was to start from 10/02/10 to 10/05/10.

6. On 10/05/10 an Order for imprisonment D31194 was issued for Sema's imprisonment for six (6) months by the Masemo V.Ct for breaching the Preventive Order and not paying the compensation order and court fine.

7. There are certain matters which I will later raise about these two orders I have alluded to above.

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.

COMPLAINANT'S SUBMISSIONS

7. The complainant filed two documents, an untitled document that has been sworn to by Mr Laki dated 10/02/10 and an Affidavit-sworn and filed on 6/07/10 by Mr. Laki.

Firstly, the complainant's sworn document of the 10/02/10 deposed to and I note at paragraph.1 that he on the 21/05/10 arrested Sema at around 4:00pm and had her placed in the Police cell for not complying with the orders issued on 3/10/08. The rest of this document covers the events leading up to her arrest on 21/05/10 for non compliance with the court orders.

Secondly, the complainant's affidavit sworn on the 6/07/10 is basically his response to the defendant's affidavit and it repeats what he deposed to in his 10/02/10 document and a brief history of the matter. It also deposes to matters that allegedly occurred from 2004 to 2007.

DEFENDANT'S SUBMISSIONS

8. The defendant filed an Affidavit sworn on 24/06/10.

In her affidavit she deposes to having an affair with Carol Guise's husband Gais Bukon in 2002 and that an ensuring dispute between Carol and herself was settled at the Police Station. Further she deposes to inter alia that in 2008 Carol told her to come to the Police Station where a mediation was conducted by a Mr Molong of the Community Policing Office regarding adulterous affairs allegedly between Gais Bukon and three women including Sema. The whole four of them were ordered by Mr Molong to pay K500.00 each as compensation to Carol.

RELEVANT ISSUE

3. After a closer scrutiny of these documents, the issue that arises is, whether or not a mediation conducted by a Community Policing Office of the Royal Papua New Guinea Constabulary is sanctioned by the Village Courts Act.

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:-

VILLAGE COURTS ACT 1989

Section 53. EXERCISE OF MEDIATORY JURISDICTION.

(1) The mediatory jurisdiction of a Village Court may be exercised by a single Village Magistrate.

Section 84. RECORDS.

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

PART V. – JURISDICTION.

Division 9.

Enforcement.

Section 60. INTERPRETATION.

In this Division, unless a contrary meaning appears, "officer-in-charge" means the officer-in-charge of the Correctional Institution, police lock-up or other place in which a person is detained for failure to obey an order of a Village Court for the payment of a fine.

ASSESSMENT OF EVIDENCE
11. It is necessary for me therefore to determine what the relevant law is and thereafter apply these principles to the facts of this matter. It is therefore necessary for me to determine which of their evidence is credible before making a finding of the relevant fact.

12. The following approach will be taken:

(i). I will address the standard of proof

(ii). The non-contentious facts will be laid out

(iii). Contentious material issues of fact

(iv). Application of issues of law to the findings and then make a determination.

(i).STANDARD OF PROOF

13. The standard of proof applicable in Village Court decisions that are before the District Court for:-

(a) as an appeal; or

(b) under review; or

(c) for endorsement of an order for imprisonment or execution

is on the balance of probabilities, the civil standard.

14. 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), 59 (1) and 38 (1) of the V.Ct Act and being a matter for endorsement under s.75 (2) and not s.68 (2) therefore it follows that the criminal standard is not applicable in such matters.

NON-CONTENTIOUS FACTS

17. The non- contentious facts are as follows that:-

(i).The matter was originally mediated by Mr.Molong of the Community Policing Office of the RPNGC in Madang on 19/09/08 and he ordered Sema to pay K500.00 as compensation within 14 days. A village magistrate was present.

(ii). A 'Preventive Order' No.46455 was issued on 3/10/08 to Sema.

(iii). An order (Form 6) C213934 dated 3/10/08 .

(iv). An Order for Imprisonment (Form 8) D31194 dated 10/ 05/10 regarding case No. 213934 was issued by Masemo V.Ct against Sema for her imprisonment for six (6) months.

(v). A warrant of arrest was issued for the arrest of Sema on 13/05/10 by the Masemo V.Ct for failing to comply with Order No.213934 and Preventive Order No. 46455.

(vi). Sema was arrested on this warrant of arrest on Friday 14/05/10.

18. There are some facts that emerge from that background:-

(a) That the Community Policing Office is a division of the Royal Papua New Guinea Constabulary;

(b) That both 'Preventive Order' No.46455 and An order (Form 6) C213934 were both issued on the 3/10/08 by the Masemo V.Ct.

CONTENTIOUS MATERIAL ISSUES OF FACT

19. There is one contentious material issue of fact and that is:-

(a) Was the mediation conducted by Mr. Molong of the Community Policing Office or by the Masemo V.Ct on 19/09/08?

20. I have perused all the said V.Ct's documents that were submitted to court and there is nothing in them suggestive of the mediation of the 19/09/08 being conducted by the Masemo V.Ct. There is a paucity of records in this instance.

21. A 'Preventive Order' No.464555 was issued fifteen (15) days later by a Mr. Olian of Community Policing to Sema on 3/10/08. I find that there was no Preventive Order issued at all on 19/09/08 by any V.Ct magistrate as the proceedings on that day were a Community Policing function and certainly not a Masemo V.Ct proceeding and the paucity of records bears out my finding.

APPLICATION OF ISSUES OF LAW TO THE FINDING OF FACT

I will now apply the issues of law to this finding.

22. The issues of law that arise in the present case therefore are:-

"whether a mediation conducted by a Community Policing Office of the Royal Papua New Guinea Constabulary is sanctioned by the Village Courts Act".

23. I have studied the Village Courts Act 1989 and have been unsuccessful in locating any provision in it which would empower a Village Court to sanction such mediation and enforce such orders of a Community Policing Office.

24. Therefore the correct position in law is that a Village Court cannot enforce any mediation orders made by a Community Policing Office.

25. It follows therefore that since the proceedings of the 19/09/08 were strictly a Community Policing function and not a Masemo village court matter, any order made by former could not be enforced in law by the latter.

26. Consequently, the Preventive Order of 3/10/08 and Order (Form 6) of 3/10/08 of the Masemo V.Ct which I find were made as a consequence of the Community Police order of 19/09/08 were made without legal basis and as a result of no effect.

27. There were no proceedings properly instituted before the Masemo V.Ct on the 3/10/08 pursuant to s.81 of the Village Courts Act between Carol Guise and Sema Jack.

28. In applying the issue of law to the findings of fact I note the comments of Kandakasi .J in Agiwa v Kaiulo ^[1]where he 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".

29. In the immediate matter, it was the Community Policing Office that mediated the problem between Sema and Carol Guise and not Masemo V.Ct and though the latter under normal circumstances does have the authority under the Village Courts Act to issue such 'Preventive Orders' and Form 6 orders (and it did issue such orders in this instance), the issuance was not in accordance with law and this Court is certainly not going to perfect this imperfection.

DETERMINATION

30. The Preventive Order No.46455 and Order No.C213934 of the 3/10/08 by the Masemo V.Ct are quashed.

REMARKS

31. There are certain matters that have come to light and though only collateral to the relevant issue effect the implementation of the provisions of the Village Court Act by Village Courts which I wish to highlight.

32. Firstly, the paucity of evidence in relation to all proceedings in this matter is indicative of the Masemo V.Ct's non-compliance with the mandatory requirements of Section 84 (1) of the Village Court Act that proceedings be recorded.

33.Whilst I note the two orders that were issued by Masemo V.Ct, I must say that orders are one thing and the actual village court proceedings quite another and as long as Village Courts continue to fail complying with the mandatory requirements of Section 84 (1), it will continue to be to their peril.

34. Secondly, is the mandatory requirement of Section 68 of the Village Court Act for a Village Court 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).

35. Village Courts must ensure that the requirements of s.68 are complied with and only after being satisfied of this lack of reasonable excuse can order imprisonment.

36. Both orders appear to have been hurriedly prepared and as a result are confusing.

Complainant in Person
Defendant in Person

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^[1] [2003] N2345 (18/02/03)