Waif v Lebo [2010] PGDC 64; DC2009 (25 August 2010)

DC2009

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 15/2010

SAKAL WAIF
Appellant

V

LEHUM LEBO
Respondent

MADANG: J KAUMI
2010:21st, 25th June 2nd, 16th, 30th July 11th, 25th August

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 37 (1)

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.

A man appealed against an order of a Village Court which was in fact an enforcement of an order made by village committees.

Held:
(1).The powers of a village court to mediate a dispute within its jurisdiction are provided for under Division 6 of the Village Courts Act and specifically at Section 53 (1). This provision is exclusive in nature in stipulating that only Village Magistrates may exercise this mediatory jurisdiction. This is to the exclusion of any others such as village elders, ward councilors or village committees for that matter.

(2). Indeed the absence of any mention of this latter group of people I have referred to by Section 53 (1) means any purported exercise of a mediatory role in disputes in a village by them must strictly be by their own means and certainly not under this provision.

(3).Corollary, any orders that they make as a result of such proceedings cannot be enforced by a Village Court. On the same token Village Courts cannot purport to enforce such orders when clearly it does not have the authority under the Village Courts Act to do so.

(4). In consideration of all the circumstances of this matter that have been deliberated on I consider that the only way justice can be done in this matter is to quash Settlement order A 9901 and order C 104847 of the Amele No1 Village Court and that I do.

(5).The appeal is upheld.

(6).The Respondent still has the option of instituting proceedings pursuant to Section 81 of the Village Courts Act to seek redress and he may do so whenever he wishes to.

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:
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 an order of a Village Court..

Representation:
Appellants in person
Respondents, in person

INTRODUCTION

1. Kaumi. J This is a judgment on an appeal against an Order issued by the Amele No.1 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, Sakal Waif of Ogg village and the respondent Lihum Lebo from Molsihu village. The cause of the dispute was the killing of the respondent's pig by the appellant for allegedly ruining the latter's garden.

VILLAGE COURT PROCEEDINGS

4.On 06th July 2009, both parties were present and the matter was mediated by the Amele No 1 Village Court magistrate and an agreement was reached that the Appellant would pay compensation of K800.00 to Lehum for killing his pig. A Settlement order A 99001 was issued in March 2010 ordering the Appellant to pay the K800.00 as compensation for the pig to the Respondent within one (1) month ending on 31/03/10. On 5th May 2010 Amele No.1 Village Court issued Order No.C104847 ordering the Appellant to pay the compensation of K800.00 for the pig within one (1) month again starting on 5/05/10 and ending on 5/06/10 and it is that order that is the subject of this appeal.

APPEAL TO DISTRICT COURT

5. On 2nd June 2010 the appellant filed a notice of appeal, stating the following grounds:

a. He was not present at the time of hearing when the decision was made;

b. That the magistrate was a relative of the respondent/complainant.

RELEVANT ISSUES

6. 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 issuing Settlement Order A.99001 and Order C.104847 against the Appellant?

SECOND ISSUE: Did the Village Court exceed its jurisdiction in making the order for the payment of compensation in the amount of K800.00 against the Appellant?

THIRD ISSUE: 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

7. There are certain provisions of the Village Courts Act that are pertinent to the resolution of the issues at hand and I mention them below.

Division 6.

Mediatory Jurisdiction.

Section 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.

Section 53. EXERCISE OF MEDIATORY JURISDICTION.

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

(2). In all matters before it relating to a dispute, a Village Court–

(a) shall, before exercising its jurisdiction under Division 3 or 4, attempt to reach a settlement by mediation; and

(b) may, if it thinks that by doing so a just and amicable settlement may be reached, adjourn any proceedings in which it is exercising jurisdiction under those Divisions.

Section 54. SETTLEMENTS.

Where a dispute is settled in accordance with this Division, the terms of the settlement shall be–

(a) recorded in the prescribed form; and

(b) treated and enforced as an order of the Village Court as between the parties to the settlement and persons claiming through them.

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 is 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 some of the documents submitted by both parties are of such a nature.

APPELLANT'S SUBMISSION

9. The appellant's submission was contained in one document, an affidavit filed on the 15/07/10 in pidgin.

10. This affidavit confirmed that there was a mediation conducted in 2009 involving committees over the dispute concerning the killing of the pig because as he says for ruining his garden.

11. He states therein that none of the Amele No.1 Village Court officials were present and that the mediation was not registered with the Amele No.1 Village Court and that the committee who inspected his garden was not present during the mediation and that he was n't given an opportunity to say anything in his defence.

12. He confirms receiving the two subsequent orders from the Amele No 1 V.Ct but states that he wasn't served a summons to appear.

RESPONDENT'S SUBMISSION

13. The resp's submission was contained in an affidavit in pidgin dated 22/07/10 stated firstly, how his pig had left its pen walked into the Appellant's area and how he had traced it to there and later acting on certain information he received located the place where the pig was slaughtered and butchered.

14. Secondly, he states that the village committees, Kulal Ibaul and Koppi Talal mediated the matter and the result of the mediation was that the Appellant was told to pay K800.00 for the pig.

15. Thirdly, he confirms that the subsequent Village Court orders were made when the Appellant failed to pay the K800.00.

16. Mr.Makai Makul the Chairman of the Amele No.1 Village Court filed his affidavit dated 27/07/10 stating that village magistrate Mr.Taul Aulem was present when the dispute was mediated on the 6/07/09 and that both parties agreed that the Appellant should pay K800.00 as compensation for the pig and that he had failed to pay up resulting in the two said orders being issued by the Amele No.1 Village Court.

DELIBERATION OF ISSUES

FIRST ISSUE: Did the Village Court act in contravention of any Constitutional Law, Act or subordinate enactment applying to it by issuing Settlement Order A.99001 and Order C.104847 against the Appellant?

17. The powers of a village court to mediate a dispute within its jurisdiction are provided for under Division 6 of the Village Courts Act and specifically at Section 53 (1). This provision is exclusive in nature in stipulating that only Village Magistrates may exercise this mediatory jurisdiction. This is to the exclusion of any others such as village elders, ward councilors or village committees for that matter. Indeed the absence of any mention of this latter group of people I have referred to by Section 53 (1) means any purported exercise of a mediatory role in disputes in a village by them must strictly be by their own means and certainly not under this provision. Corollary, any orders that they make as a result of such proceedings cannot be enforced by a Village Court. On the same token Village Courts cannot purport to enforce such orders when clearly it does not have the basis in law to do so.

18. This mediation was conducted in the village by village committees, Kulal Ibaul and Koppi Talal. Both parties confirm that the mediation of 6/07/09 did not involve a village magistrate. I accept this version of events given by the parties as they were there and not that of Makai Makul as he was not there at the material time.

19. If this was the state of affairs on 6/07/09 then going by Section 53 (1) of the Village Court Act, the Amele No1 Village Court had no call getting involved with the matter.

20. In the immediate matter I find that the Amele No.1 Village Court acted ultra vires its powers and thereby contravening the Village Courts Act when it issued settlement order A 99001 and order C 104847

SECOND ISSUE: Did the Village Court exceed its jurisdiction in making the order for the payment of compensation in the amount of K800.00 against the Appellant?

21. I find as well for the reasons given in answer to the first issue that the Amele No.1 Village court exceeded its jurisdiction.

THIRD ISSUE: 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)

22. I adopt the pertinent parts of my judgment in the village court appeal matter of Sogasog v Ariku V.Ct ^[2] where I discussed cases in this country that have considered what amounts to 'substantial miscarriage of justice', at paragraphs 28 to 30.( . Kisi v Nash ^[3], Mraz v. The Queen ^[4], Kumo v Killian ^[5] and Binafe v Goro ^[6]

23. From the principles enunciated in these National Court cases it becomes imperative therefore to consider whether circumstantially there has been a miscarriage of justice in the immediate matter.

24. This entails applying the test in this matter whether by reason of the course taken by the Amele No.1 V. Ct in the issuance of these orders in the absence of any legal basis to do so the appellant, he was not fairly accorded his right guaranteed by s 37 (1) of the Constitution. If this is the result on the appellant of the Amele No.1 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.

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.)

25. Section 92 of the Village Courts Act provides as follows:-

Section 92 DECISIONS ON APPEAL OR REVIEW

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.

DETERMINATION

26. In consideration of all the circumstances of this matter that have been deliberated on I consider that the only way justice can be done in this matter is to quash Settlement order A 9901 and order C 104847 of the Amele No1 Village Court and that I do.

27. The appeal is upheld.

REMARKS

28. The Respondent still has the option of instituting proceedings pursuant to Section 81 of the Village Courts Act to seek redress and he may do so whenever he wishes to.

Appellant in Person
Defendant in Person

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

^[2] 33/2009 (1/02/10)

^[3] [1974] PNGLR 4

^[4] [1955] HCA 59; (1955) 93 C. L. R 493

^[5] [1976] PNGLR 149

^[6] [2006] CIA 419 OF 2005 (15/09/06)