In the Matter of Kabia Maris; In the Matter of Nalilk Village Court [1994] PGNC 61; N1263 (8 August 1994)

N1263

PAPUA NEW GUINEA
(IN THE NATIONAL COURT OF JUSTICE
HOLDEN IN KAVIENG)

MP 269 of 1994

In the Matter of
KABIA MARIS

AND:

In the Matter of
NALIK VILLAGE COURT

Kavieng: Doherty, J
1994: 8th August

Village Court Act - Provisions re hearing are mandatory "Substantial Justice" and S 74(1)(c) require reduction in terms of imprisonment for payment or part payment of the judgement debt.

DECISION

DOHERTY, J.: The prison records show that there are two warrants of commitment in respect of Kabia Maris. The first is from a Village Court ordering him to be imprisoned for a period of 10 weeks. The Order is dated the 1st of May 1994 and it is signed and endorsed by a Magistrate of the District Court in Kavieng. The second warrant is a Warrant of Commitment for a period of one month in hard labour. It is signed and endorsed by the same Magistrate at the District at Kavieng and is dated the 17th of May 1994.

This second warrant is void and should never have been signed because it says that there was "nil" compensation ordered and "nil" fine ordered and the defendant has "failed without reasonable excuse to pay" and obey the said order and the court has ordered him to be imprisoned. How someone can be imprisoned for failing to pay nothing when they have been ordered to pay nothing and fined nothing is beyond my comprehension.

It is clear from the court the records of the Village Court that a summons was issued to the prisoner on the 3rd of May 1994. That is two days after the warrant of commitment was signed. It ordered him to appear on the 16th of May 1994 at 11 o'clock at Nalik Village court. The part on that summons in pidgin which states "tudei mi givim summons long en" is left blank thereby implying that the summons was never served. This to my mind bears out the statement by the prisoner that he only went to the Village Court once and did not go back to the Village Court a second time.

The hearing of the Village Court that he refers to is shown to have been held on the 28th of February 1994 between Taia, who was his grandmother, and him over a debt of K100. The Village Court recorded a consent order saying that they both agreed that he would pay this money. He said that he was told to pay in it in two instalments of K50. The Village Court Order says that he would pay Taia by the 7th of March 1994.

Something appears to have happened between the date of the order on the 28th of February 1994 and the 7th of March 1994, because there is a further summons saying that he ignored the Village Court Order dated the 2nd of March, that is several days before the original order was due to take effect. That ordered him to be imprisoned for one month and was endorsed by the Magistrate.

The provisions Village Court Act are very clear and there should be no doubt about them, they provide, at S 79 that "a Village Court shall not proceed in the absence of a party." There is an exception if a party is represented at the Village Court or that the Village Court is satisfied if a person is absenting himself deliberately from the Village Court area.

In the case before me, there is no record at all that the prisoner was ever served with the summons and the warrant for commitment was signed before the summons was even issued. So the exception provided under S 79(3) does not apply.

Further the provisions of S 61 of the Village Court Act clearly state that "a person who fails without reasonable excuse, proof of which is on him to obey an order of the Village Court is guilty of an offence". There is no record that there was any hearing to show why he had failed to pay the money, whether it was by reasonable excuse or otherwise.

The provisions of the Act clearly places on the Court an obligation to determine if there was a reasonable excuse for non payment and must be complied with. Failure to do so renders the order void. For these two reasons, I consider that the Village Court acted outside its jurisdiction and that the learned Magistrate was equally at fault in signing a Warrant of Commitment two days before the summons was even issued.

Further in the case before me, the record clearly shows that the prisoner had paid K80 of the K100 ordered and he informs me in court that he has paid some other money. I have no record of that.

The provisions of S 63 and S 64 of the Village Court Act provide that a person if is detained under an Order for non payment of a fine and the amount of the fine is paid then that prison term will be reduced in proportion to the amount paid. This was a debt (or so I understand the order) not a fine. But a Village Court is bound by S 58 to decide all matters in accordance with substantial justice and the principles enshrined in S 63 and 64 allowing for reduction in sentence for part payment of a fine should apply also to part payment of debts when assessing imprisonment under S 74(1)(c). This is clearly the intention of S 74(1)(c) because it provides the term of imprisonment is for each K10.00 or part of K10.00 unpaid (emphasis mine). Hence, if a person is detained for non payment of a fine and he pays part of it his term should be reduced proportionately. According to the records before me, he is here only for this particular debt.

I consider that he should now be discharged and I am empowered by virtue of the provisions of S 42(5) of the Constitution to so discharge him. I consider he is being held in breach of the jurisdiction of the Village Court Act. He has already paid part of the debt and he is entitled to be released proportionately. For these two reasons, I order his release forthwith.

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Applicant in Person