Lembo v Pule [2021] PGDC 159; DC7015 (16 November 2021)

DC7015

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

CIVIL JURISDICTION

CV NO. 67 OF 2021

Between:

ALBERT LEMBO

Complainant

And:

REX PULE – Tari Pori Village Court Officer

First Defendant

And:

JOHN KAPU – Hela Village Court Officer

Second Defendant

Tari: His Worship Mr. E. Komia

16^th November 2021

EMPLOYMENT LAW – village court magistrate purported termination – no evidence of termination, suspension or revocation of appointment – administrative process of appointment under Village Courts (Amendment) Act 2014 – process not complete – remedy for termination is improper – administrative process to be completed by the administrative body.

PRACTICE AND PROCEDURE – where the complainant seeks any other orders – interest of justice favors granting of other orders – s.22 of District Courts Act invoked to grant other orders where the interest of justice requires so.

Held:

1. Where a complainants claim lacks evidence proving neither termination, nor suspension, the claim should be dismissed and reverted back to the lawful authority concerned to complete the administrative process.
   
2. A complainant should not be driven from the judgement seat, but where the interest of justice so requires the court to award any other remedies apart from the ones claimed, the court shall exercise its discretion in making orders where justice so requires.
   

Papua New Guinea cases cited

Nil

Legislations

District Courts Act

Village Courts (Amendment Act) 2014

Counsels:

Complainant: in person

Defendant: in person

INTRODUCTION

1. The complainant claims that he was unnecessarily removed as a village court magistrate by the defendants. He claims that he was terminated as a magistrate of Piribu Kikida village courts in his summons and complaint.
   

BRIEF FACTS

2. The complainant was appointed as a village court magistrate in 2002, and presided over village court matters in the Piribu Kikita Village Court.
   
3. In 2014, the complainant found out that his name was not listed on the gazettal notice that contained the names of the village court magistrates appointed for Hela Province.
   
4. However, the complainants name was amongst the Village Court Information and Active Officials, which was printed on 24^th January 2019, around 15:13pm.
   
5. The Village Court Information and Active Officials listed the complainants name, and his account number. It further stated that the complainant was not on payroll, and a new magistrate.
   
6. The complainant is not performing his magisterial duties, and claims that the defendants have removed him from the system as a village court magistrate.
   

EVIDENCE

7. The complainant gave evidence with some supporting affidavit, which were more or less repitious. The only evidence this court is pressed to observe is the letter with the heading ‘VILLAGE COURT INFORMATION AND ACTIVE OFFICIALS’ which has the print date of 24^th January 2021, at 15:31 pm.
   
8. This letter contains very vital information of Piribu Village Court for Kikida 2, Piribu area in Tari Urban LLG. There are eleven names listed as village court magistrates, and one of it is the complainants name.
   
9. The list confirms the complainant as a new magistrate, who is not on payroll. It also mentions his appointment date to be 25^th May 2015, with the gazettal number G.472 and the gazettal date as 27^th July 2015.
   
10. The defendants have not shown any evidence to the contrary to dispute the complainants appointment or confirm the complainants termination. They have not even filed an affidavit.
    

ISSUE

11. The issue before this court is whether there was any termination and if so, was the purported termination of the complainant as claimed by the defendants proper.
    

DISCUSSION

12. The appointment and termination of village court magistrates, clerks/secretaries, and officials are stipulated under the Village Courts (Amendment) Act 2014. A village court magistrate may serve for a term of three years^[1] and may be reappointed after his performance has been reviewed by the Director of the Village Court Secretariat^[2].
    
13. Before a person is appointed as a magistrate of the village courts, there are recommendations made and those who are recommended are then screened and then formally appointed. This is set out under ss. (16), (16A) and (16B) of the Village Courts (Amendment) Act 2014.
    
14. Now, regarding this case, the complainant was appointed as a magistrate in 2015, and his term of service was for three years, which saw his term expire in 2018.
    
15. The evidence shows that, his appointment was made in 2015, he was still on the record of the Village Court Secretariat as an active magistrate. Whether a review was carried out for his reappointment, or whether his appointment was revoked is not in evidence before this court, for this court to be properly guided in its decision. This review should have been made in July 2018, after his three year appointment term was about to end.
    
16. All this court is faced with is to decide whether the complainant was unlawfully terminated as a village court magistrate. I am of the view that, it is a matter for the Village Court Secretariat to decide. There is no evidence before this court to show the revocation of the appointment of the complainant, neither is there any evidence to show that the complainants performance has been reviewed by the chairman or the deputy chairman of Piribu Kikida village court.
    
17. Whilst the review has not been conducted yet, and there is no evidence to show the revocation or suspension of the complainants appointment as a village court magistrate, the safest thing for this court to do is to allow the village court secretariat to complete its formal appointment, review, extension, and revocation process. Whilst that process is yet to be completed, the courts must not be seen to interject and take over those roles and processes within the village courts administration.
    
18. Another consideration is the jurisdiction. Does this court have the jurisdiction to deal with the appointment, suspension, and revocation of a village court magistrate? The Act stipulates that the it is either the Director who acts upon recommendations, and the Minister for Justice that has the wider prerogative to revoke or reappoint village court magistrates.
    
19. This means that the decision taken by the Director or the Minister falls within the ambit of an administrative decision and such decision would be reviwed only in the Natioal Court by way of a Judicial Review application. In this instance, there has been no decision made as yet.
    
20. I have not been fully convinced that the complainant has been terminated. I am also not enlightened on his current status save for the fact that he was denied access in attending certain courses offered by the defendants.
    
21. The complainant to my mind is coming to this court prematurely without properly ascertaining with the relevant authority or administrative body, which in this case is the Department of Justice and Attorney General, and the Director Village Courts within the department, and of course the Hela Provincial Administrations, Village Court Division. I must say that, this does not leverage the defendants from playing dumb on the complainants lack of understanding of the appointment and revocations procedures enshrined by the law. They have a duty to ensure that the complainant is enlighted on his status rather than turning a blind eye to his concerns.
    
22. It is therefore proper for me to dismiss the application and make other orders pursuant to his prayers in the substantive remedy seeking the courts power in making any other orders. This is allowed under s.22 of the District Courts Act which states as follows:
    

22. General ancillary jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

23. This gives this court the power to make orders if in the interest of justice would do justice, as would be in the national court. It is therefore important that I will need to make such orders in the interest of justice.
    
24. I will therefore Order that;
    
    1. The complainants claim for unlawful termination is dismissed, as there is no evidence pertaining to the termination, revocation or suspension of the complainant.
       
    2. The first and second defendant shall cause a review of the complainants performance between the period of 2015 and 2018, and such review shall be made and given to the Director of the Village Court Secretariat in the Department of Justice, within thirty days from the date of this order for the Director to decide on the revocation or extension of the term of the complainant as a village court magistrate to Piribu Kikida village court.
       
    3. The first and second defendant shall calculate and ensure that the complainant is paid for the three years of his term beginning 2015, and ending 2018, and such claculations shall be made and paid to the complainant by or before the 30^th of November 2021.
       
    4. Cost is awarded to the complainant at K200 which is ordered to be paid by the first and second defendant on equal portions by or before 30^th November 2021.
       
    5. Time is Abridged.
       

By the Court.

Magistrate E. Komia

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^[1] s.17A of Village Courts (Amendment) Act 2014
^[2] S.19A of Village Courts (Amendment) Act 2014