Nayu v Nabenduo [1981] PGNC 15; N291 (19 March 1981)

Unreported National Court Decisions

N291

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(APP. NO. 198 OF 1980)
KOWI NAYU OF TUKUP VILLAGE
LUN KOMP OF TUMIA VILLAGE; AND
WESA IPSA OF PINZ VILLAGE
(APPELLANTS)
VERSUS
THOMAS NABENDUO OF POLICE, MENDI
(RESPONDENT)

Mendi

Narokobi AJ
19 March 1981

NAROKOBI AJ:

INTRODUCTION

These three appellants were convicted and sentenced under Inter-Group Fighting Act in Mendi on 4th March, 1980. Each appellant was sentenced to be imprisoned with hard labour for two years. Their appeal is against conviction and sentence.

CIRCUMSTANCES OF THE APPELLANTS’ ARREST

The appellants were arrested on 6th February, 1980 and were left in custody in Mendi. They were suspected of being in an unlawful assembly. At the time of their arrest, the area in which they were said to have been involved in an unlawful assembly was not declared a fighting zone. It was not until 12th of February, 1980, that the Inter-Group Peace Committee met in Mendi and made a declaration under s.3 of the Inter-Group Fighting Act 1977 (No. 43 of 1977).

DECISION AND REASONS FOR DECISION

The appellants rely on three grounds of appeal. The first ground was that the area in which the appellants were said to have been involved in a fight was not declared under s.3 of the Act. Besides, the argument is that there is no evidence to suggest they were in an unlawful assembly, and even if they were, in an area declared, which they were not, then defence of self-defence was not considered by the magistrate.

The second ground was that either there was no unlawful assembly or that such assembly as there might have been, was lawful as the allocutus of the appellants indicate. The result is that a plea of guilty was wrongly entered.

The third ground of appeal attacks the sentence of 2 years as being outwardly and obviously excessive, in all the circumstances of the case.

The appeal is not opposed and I uphold the appeal and order that the State compensate each appellant a sum of K1,000.

My reasons for ordering the State to pay each appellant a good sum of money are quite straightforward. I copy the following notes from my note book:

The “appellants’ liberties have been curtailed. They have not been making gardens for their families. They have not been supporting their families”.

The appellants would have spent some 405 days in custody, as they were arrested on the 6th of February 1980 and convicted and sentenced on 4th March 1980, and will only now, see liberty, on March 19th, 1981.

“The Inter-Group Fighting Act 1977, is a special law designed to quell tribal fights”, - through imposition of severe penalties (see s.1). “Now, if the State wrongly uses” or invokes “that law, as it has wrongly done so in the present case, the citizens must be redressed”. “The State”, and all the institutions of the State, I might add, “exist on a fine balance of relations among citizens and between citizens and between the citizens collectively and the State. In my view, where the State, through its agents and officers, without regard”, or I might add, with careless disregard, “to its laws, violates the rights of its citizens, the State must be quick to redress its citizens. Failure to do so will lead to loss of respect for the law. Citizens will cease to see the courts of law as forums whereby they are fairly tried according to law and good conscience.”

The appellants as I mentioned were arrested 6 days before the Committee made a declaration under s.3 of the Act. The Act itself therefore has no force or effect until the day s.3 declaration was made. The District Court Magistrate himself sat in the committee which made the declaration. Thus he was well aware of the time the Act came into force. Nevertheless, he sat to hear the cases under the Inter-Group Fighting Act.

“In my view, that declaration cannot have retrospective effect. The appellants were arrested on grounds that were not declared to be subject to the operation of this Act. The Act could not have operated to include them. The Act does not begin to run over an area until a declaration is made.”

“Administrators and enforcers of this Act should not lose sight of the special nature of this law. Though it is a general law, applicable to all races and provinces (see s.3(5)), it emerges from a peculiar tribal warfare in certain highland provinces. That is one (special) feature of this legislation. The other very unique feature of this Act is that the Act does not run over an area unless and until the declaration is made”.

“Where a declaration is not made, other laws must operate. There are ample other laws that the State could invoke. There is the Summary Offences Act. There is the Criminal Code Act and there are others”.

Although one thousand kina for an appellant sounds a lot of money, it is in truth not much compared with the loss of liberty for some 405 days. Dividing K1,000 by 405 days works out to about K2.50 per day. I am confident that even under a subsistence economy, the amount of support each appellant is able to send to his family would be valued on a daily rate to a value within that figure. But wrongful deprivation of liberty cannot be measured in money terms.

Solicitor for the Appellants: Arnold Amet, A/Public Solicitor

Counsel: P. Kopunye

Solicitor for the Respondent: L. Gavara-Nanu, A/Public Prosecutor

Counsel: F. Damen