[1999] PNGLR 472

PAPUA NEW GUINEA

[national court of justice]

In re Application by Aiten Maniho

v

Luther Wenge; and

Micah Pitpit (Chief Magistrate)

lae: injia j
20 November 1998; 2 July 1999

practice and procedure - Mode of commencement of proceedings - Declaratory order in the nature of mandamus sought - To compel District Court Magistrate to deliver judgment - Proceedings commenced by Originating Summons under Order 4 rule 3 of the National Court Rules inappropriate - Application for judicial review under Order 16 of the National Court Rules (or under s 155(2)(b) of the Constitution) appropriate.

Facts

The applicant sought orders against the two respondents by originating summons pursuant to Order 4 Rule 3 of the National Court Rules. Then by notice of motion the applicant sought the same orders as sought in the originating summons. In his affidavit filed 21 September 1998, the applicant deposed that on 31 January 1992 the applicant filed a complaint against one Henry Turadawai in the District Court at Alotau, Milne Bay Province. The first respondent, who was then a Grade 5 Magistrate, heard the case and deferred judgment to 20 June 1992. To date he has yet to deliver judgment despite repeated requests by the applicant to do so. The Court file was last known to be with the first respondent as at 19 September 1995, by which time he was serving as an acting judge of the National Court. The first respondent is no longer a Grade 5 magistrate and acting judge, having his acting judgeship term expired, having resigned from the magistracy and having contested and won the 1997 general elections. The second respondent is simply joined as the principal in charge of the magistracy.

Held

1.	The correct procedure to be adopted when seeking orders compelling a public official to perform his statutory duty should be by way of seeking an order in the nature of mandamus. The correct procedure is prescribed by Order 16 of the National Court Rules, which is by way of an application for judicial review. 

2.	Alternatively, a party aggrieved by a magistrate’s refusal or failure to deliver judgment could invoke the inherent power of review of this Court vested by s 155(2)(b) of the Constitution but the present application is not founded under s 155(2)(b).

3.	Consequently, proceedings are struck out as having been withdrawn by the plaintiff and furthermore, the plaintiff is granted leave to file fresh proceedings under Order 16 of the National Court Rules.

Counsel

P Ousi, for the applicant.
No appearance for the respondents.

2 July 1999

Injia j. By originating summons filed pursuant to Order 4 Rule 3 of the National Court Rules, 1983, the applicant sought orders against the two respondents, as follows:-

1.	Orders that Luther Wenge the then Presiding Magistrate in Complaint No. 13 of 1992 - Aiten Maniho v Henry Turadawai of Ulabo Timber Company locate and deliver the Court file in the said matter to the second respondent within thirty (30) days of this Order.

2.	An Order that the first and second respondent hand down the decision in the above case within sixty (60) days of this Order.

By notice of motion the applicant sought the same orders as sought in the originating summons. In his affidavit filed on 21 September 1998, the applicant deposed to the following facts. On 31 January 1992, the applicant filed a complaint against one Henry Turadawai in the District Court at Alotau, Milne Bay Province. The first respondent, who was then a Grade 5 Magistrate, heard the case and deferred judgment to 20 June 1992. To date he has yet to deliver judgment despite repeated requests by the applicant to do so. The Court file was last known to be with the first respondent as at 19 September 1995, by which time he was serving as an Acting Judge of the National Court. The first respondent is no longer a Grade 5 magistrate and acting judge, having his acting judgeship term expired, having resigned from the magistracy and having contested and won the 1997 general elections. The second respondent is simply joined as the principal in charge of the magistracy.

At the hearing of this motion, I pointed out that the correct procedure to be adopted when seeking orders compelling a public official to perform his statutory duty should be by way of seeking an order in the nature of mandamus. The correct procedure is prescribed by Order 16 of the National Court Rules, which is by way of an application for judicial review. Order 16 rule 1(1) says "An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of application for judicial review in accordance with this order." It was clear to me that the orders sought by the applicant were in the nature of a mandamus.

In the alternative, a party aggrieved by a magistrate’s refusal or failure to deliver judgment could invoke the inherent power of review of this Court vested by s 155(2)(b) of the Constitution but the present application is not founded under s 155(2)(b).

Mr Ousi who appeared for the applicant accepted my view and withdrew the proceedings. As a result I made the following orders:

1.	Proceedings are struck out as having been withdrawn by the plaintiff.

2.	The plaintiff is granted leave to file fresh proceedings under Order 16 of the National Court Rules (Judicial Review).

Lawyer for plaintiff: Warner Shand.