Rumbia v The State [1999] PGNC 31; N1858 (6 May 1999)

Unreported National Court Decisions

N1858

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 495 OF 1996
BETWEEN: WILLIAM RUMBIA
APPLICANT
AND: THE STATE
RESPONDENT

Waigani

Sevua J
4 November 1996
6 May 1999

VILLAGE COURT – Practice and Procedure – Proceedings conducted without defendant – Defendant not ordered to appear – Orders made in his absence – Order for imprisonment made without defendant being present – Whether inquiry by National Court appropriate – Whether imprisonment constitutional or lawful – Constitution, ss. 37(1), 42(5) & 59 and Village Court Act, ss. 45, 74, 79(1), 81(1) & 84(1).

Where the applicant was not summoned or ordered to appear before the Gerehu Village Court and the Village Court proceeded to deal with a complaint without the applicant being present, and was ordered to serve six (6) months imprisonment for failure to comply with an order to pay compensation.

HELD

1. &ـ I60; In cond conducting the proceedings without the applicant’s knowledge and presence on 1^st May24 July, 1996; the Gerehu Village Court proceeded contrary to s.79(1) of the Vthe Villagillage Court Act, therefore in breach of the principles of natural justice, s.59 Constitution, and in breach of the applicant’s right, s.37(1) & (4) Constitution. The proceedings were thus illegal and unconstitutional.

2. &#T60; nqe iy birthe ationational Court is appropriate in the circumstances.

3. The orders of the G rehuagillage Court on 1sttp> July, 1996; are are quashquashed aned and thed the orde order for the release of the applicant from custody is confirmed.

unsel/p> t

M

M. Tit. Titus for Respondent

6 May, 1999

SEVUA J: The applicant appeareore more me on 30th August, 1996 in pursuance of orders I issued at Waigani on 26^th August, 1996, following receipt oritten complaint that he was imprisoned for 6 months by the Gerehu Village Court without hiut his knowledge and without being summoned or ordered to appear. I rued the applicant’#8217;s complaint to mean that he was being unlawfully detained.

Since the applicant’s release from custody on 30^th August, 1996, the Court has noted that some arguments have been raised as to whether this matter is an appeal or a review. ents before the Court reve reveal that there are references to an appeal and a review. The Courds to clarify this this unfortunate situation as the Court considers that there has been sosunderstanding by both part parties without either party being at fault.

It appears that on 14^th August, 1996; the applicant lodged a complaint to a Visiting Justice at Bomana. Tsence of that complaint wint was that the applicant had no knowledge of the Gerehu Village Court proceedings and the imposition of the six months imprisonment term. On 18^th Au 1996; the applicant wrote rote to Doherty, J and referred to a bail application pending appeal. In letters, the applicantrcantrred to an appeal to the District Court. The Court record does not show what Doherty,erty, J did and the Court is not aware if peal was made to the District Court.

However, the mahe matter first came before me on 26^th August, 1996, and was aded to 30^th AugusAugust, 1996, on which date, I ordered the release of the applicant from custody. It should be noted the oute outset that the applicant did not have the benefit of legal advice at that stage.

As the complaint to the Cour far as I was concerned, raised the issue of the applicant being incarcerated unlawfully, Ily, I treated it as a complaint of unlawful and unreasonable detention at Bomana CIS and exercised my powers under Constitution s.42(5). From what the applicant said, I was satisfied that he was unlawfully imprisoned. I have thre treated this ahis application as a complaint of unlawfulunreasonable detention in prison, which is not an unusual procedure. That then disposisposes of any doubt as to the nature of tpplication. It is neis neither an apnoal nor a review, but a complaint under the Constitution and the Court exercised its powerer Constitution s.42(5).

I now deal with the merits rits of this application. From copies of rders of thof the Gerehu Village Court, the Court is able to ascertain the following facts.

There appeared to have been a complaint by one Esther Kindo fic) “damages for life”, and that complaint is c is contained in order number A13049. It is not known when the complaint was made by Esther Kindo, however, it is evident that on 1^st May, 1996; the date of hearing specified in that orthe following order was made:

“Court ordered William Rumbia to pay (sic) damagdamages compensation K1, 000.00 to Esther Kindo....................payment period 01/05/96 – 01/06/96”.

It seems from a subsequent order number A17616 that the applicant failed to comply with order no. A13049 and was ordered to serve six months imprisonment with hard labour.

It is obvious that the Clerk of Court of Gerehu Village Court lodged that complaint, however, the order to appear was not served on the applicant. Thstance of the complaint aint I have alluded to can be ascertained only from order no. A17616 which bears the hearing date as 24^th July, 1996.

On 7^th August, 1996, the Port Moresby Local Court endorsed the Village Court order of 24^th July, 1996; and issued a warrant of commitment for six months. The applicant wbsequently ntly arrested and imprisoned.

The applicant has raised two very fundamental constitutional and legal issues.&#Firstly, he said he was not summoned to appear before the Village Court on 1^st Mup> May, 1996; when the original order to pay compensation was made. Secondly, he said he was not summoned to appear before the Village Court on 24^th July, 1996; when he was sentenced to imprisonment for six months. raphs 3, 4 and 5 of his afis affidavit sworn on 11^{thsp> May, 1996; when the orde order for compensation was made. He he was surprised when shen served with the court order. Then osup>th} July, 1ly, 1996, he was served with the order for imprisonment, arrested and taken to Bomana prison.

Oro. A1seems to suggest gest that the applicant was present on 1^st May, 1996; however, ver, he has stated in his affidavit that he was not served with a summons or order to appear on that date. The respondent has not re uted or disputed this although, it had the opportunity to do so. No affidavit has been sworn by any of the officials of Gerehu Village Court therefore I t the applicant’s evidence that he was not present onnt on 1^st May, 1996; because he had no knowledge of the complai Esther Kindo.

SectiSection 79(1) of the Village Court Act (the Act) provides in mandatory term that the Village Court must not proceed in the absence of a party. The original process e Vile Village Court is by way of an order in pursuance of s.81(1) of the Act, rather than the usual complaint and summons issued in the Local and District Courts.

Even then, the applicaintained that he was not snot summoned to Court so that would mean, an order commanding him to appear was not served on him. Ipt his evidence that he w he was not served with a summons or order to appear on 1^st May, 1996. Accordingly, thlage had, had, proceeded in breach of both s.79(1) and s.81(1) of the Act. Since thee the applicantnoas not served with the oro appear on 1^st May, 1996; he had no knowledge of the Village Court proceedings.ings. He ntitled to the protectftectf the law in pursuance of s.37(1) Constitution. SectiSection 79(1) a(1) of1) of the Act gives him that protection, however, he enied that constitutional right.

Furthermore, the aphe applicant was not given an opportunity to appear and present his case.& This is a direct violationation of the principles of natural justice. The Gerehu Village Courteeroceeded in breach of the rule of natural justice as required by s.59 Constitution. It’ceedings were thee therefore unconstitutional.

Givenfactual circumstances of the case, I hold that the Gerehu Vehu Village Court order for imprisonment on 24^th July, 1996; wah unlawful and unconstitutiitutional. It therefore follows thatsthe subsequent incarceration was also unlawful and unconstitutional. A Village Court is a creaoure of statute. Its proceduresctions, powe powers and jurisdiction are provided by tatute that establishes it.& it. According Village Court murt must operate within the jurisdiction granted in the Act. Any brea non-compl with thth that Ahat Act must therefore be unlawful or illegal.

It is a mandatory requirement under s.84(1) of the Act the proceedings of the Village Court be recorded. The only recordore me are are Order rder A13049 of 1^st May, 1996, Order A17616 of 24^th July, 1996, Order for Imprisonment No. 57284 of 24^th July, 1996 and warrant of commitmssued on 7^th Aug> August, 1996. There is nothing to st howt how the proceedings on 1^st May and 24^th July, 1996 proceeded, who appeared and what evidence was adduced.

Again the respondent had had more than ample timeile affidavits and produce duce actual court records pertaining to the Village Court proceedings of those dates. However, it ha done so, tho, therefore I can conclude that no records of proceedings exist and the proceedings were not recorded as required b.

The Village Court jurisdiction to order imprisonment for failure to comply with anth an order for compensation made under s.45 is found in s.74, and the maximum term of imprisonment is six (6) months. The applicantimprisoned foed for 6 months. Iw of the criminal nature ture of this provision, it would seem that proper procedures be followed in dealing with a person as fato abide by a s.45 order. It sehat s.7t s.74 raises ises constitutional issues, howevhowever since counsel have not addressed that in their submissions, I will not canvass it, suffice it to say that, in dealing with the liberty of the subject, a Village Court must be cautious that constitutional rights of the subjects are not violated.

Finally, in respect of the applicant’s initial complaint to this Court, I consider that the complaint amount to one that alleges unreasonable and unlawful detention as adverted to at the outset. It is my view that my initial order for the applicant to be brought to Court on 30^th August, 1996 pursuant to s.42(5) Constitution was appropriate in the circumstances, in the exercise of the Constitutional anerent powers of this Court.ourt. I am of the view therefore that the inquiry I have conducted into this complaint is appropriate in the circumstances.

For these reasons, I quash the Gerehu Village Court orders made on 1^st May and 24^{up> July, 1996, and confirmnfirm my original order for the applicant’s release from custody.}

In passing, I note that the applicant has made a claim for damages in this matter. I der that a claim for damr damages is not appropriate in this application and therefore the applicant will have to consider appropriate causes of action that may be available to him.

I ocosts against the respondenondent to be taxed if not agreed upon. I further order that the applicant’s cash bail in the sum of k500 be refunded.

Lawyer for Applicant: Keta Lawyers

Lawyer for Respondent: Acting Solicitor General