Anonga v Mainland Holdings Ltd [2001] PGNC 55; N2149 (25 May 2001)

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Inferior Courts – Appeals – Decision – Reasons for decision - No Reasons for Decision. – Substantial miscarriage of justice – Appeal allowed – Decision quashed – Re-Trial ordered.

INJIA, J.: This is an appeal against the decision of the District Court held at Lae on 5/08/99 in which the Court entered judgment for the respondent for K10,000.00 plus costs and interest. The amount was for loss of PMV fee earnings in the period the respondent’s PMV bus was undergoing repairs as a result of damage caused by the negligent driving of a truck by the first appellant, an employee of the second appellant. The judgment was entered after hearing only the respondent’s case, the Magistrate having refused an application by the appellant’s counsel for adjournment of the hearing to locate the first appellant for instructions to defend the claim. At the hearing, the appellant’s counsel was unable to cross-examine the respondent’s witnesses because she had no instructions from the first appellant.

Both parties had entered into pleadings in which the defendant denied the claim and in the alternative, pleaded contributory negligence. At the hearing on 4/8/99, the only evidence before the Court was from the respondent and these were in the form of two affidavits, namely the affidavit of the respondent sworn on 18/5/99 and filed on 19/5/99; and the affidavit of Rodney Era sworn on 23/7/99 and filed on 23/7/99. Based on these two affidavits, the respondent applied for judgment. The Magistrate then adjourned the matter to 5/8/99 for decision. On 5/8/99, the Court handed down its decision. The decision as per the Magistrate’s worksheet reads:

"That Judgment be entered for the Complainant in the sum of K10.000.00 plus costs and interests. Payment to be paid forthwith".

On 11/8/99 the appellants appealed the decision by filing a Notice of Appeal. On 16/8/99, the Registrar wrote to the Clerk of Court advising that an appeal had been filed and requested that he forward to the "Court depositions (all typed up) and also the Magistrate’s reasons for decision" (my underlining). The request for reasons for decision I would imagine was prompted by the absence of any reasons for the decision/judgment/order made on 5/8/99 and or absence of any record of any such reasons being given. The request was made to the Clerk of Court so that he could invoke S.225 of the District Court Act (Ch. No.40) which provides:

*"1.*	Where no reasons were given by the Court for the making of the conviction, order or adjudication, the Clerk of Court the decision of which is appealed against, immediately after the notice of appeal is lodged with him, shall notify the Magistrate who constituted the Court by which the conviction, order or adjudication was made, of the notice of appeal.
2.	Immediately after being notified of a notice of appeal under Subsection (1), the Magistrate shall forward to the Registrar of the National Court a written report setting out the reasons for the making of the conviction, order or adjudication".

There is however no record to show if the Clerk of Court notified the Magistrate concerned as required by S.225(1) but I would imagine that the Clerk of Court would have notified the Magistrate concerned soon after receiving the letter from the Registrar.

*(a)*	*He denied the Appellants, especially the Second Appellant natural justice in not allowing them to cross-examine the Respondent.*

*(b)*	*There was no or sufficient evidence of ownership of the vehicle to conclude the Complainant was the owner.*
*(c)*	*There was no or sufficient evidence of the Complainant’s earnings or expenses to rule that the Complainant has suffered any loss.*

*(d)*	*There was no proof of evidence to substantiate the total loss of K10,000.00 for it to be awarded to the Complainant.*
*(e)*	*There was a substantial miscarriage of justice.*
*(f)*	*Such other grounds that may arise from the reasons for the decision.*

Both counsels have made detailed written submissions in respect of the merits or otherwise of these grounds of appeal. However, I do not think it is necessary to consider these submissions because there is another more fundamental reason why this appeal should be allowed. And that has to do with the Magistrate’s failure to make proper determinations of fact and law on the questions of liability and quantum of damages and his failure to give reasons for the decision, order or adjudication he made. Although this subject is not raised in the grounds of appeal and addressed by the parties, it is a matter which is entirely within the inherent discretion of this Court to consider in order to determine the fate of the appeal.

In the affidavit evidence placed before the District Court, the respondent and his witness blamed the first appellant’s negligent driving for the accident. The respondent then calculated what he perceived to be his anticipated daily PMV takings for 5 months and 6 days. He arrived at K14,460.00. But because the Grade 5 Magistrate only had jurisdiction to deal with claims of up to K10,000.00, the respondent decided to claim only K10,000.00.

There is no record to show the Magistrate made a proper determination on the question of liability in negligence. The Magistrate also did not make any independent assessment on quantum of damages. As a result, when I am called upon to review this decision, I have no way of knowing how and why the Magistrate reached the decision he did. How can an appellate Court assess where the Magistrate erred when it does not have any reasons at all for the decision he makes.

As an appellate Court, I can make the necessary determination on the issues of both liability and quantum of damages if there is sufficient evidence before me. But the evidence before me, in particular, the evidence on quantum of damages, is vague and scarce. Therefore, I am unable to perform that function.

It is well-settled principle that a judge or Magistrate must give reasons for his decision. The giving of reasons for decision is a fundamental requirement of a fair hearing in the judicial-decision making process. It is inconceivable that a District Court making a substantial determination, decision, order or adjudication as to liability and quantum of damages in a civil case cannot be supported by any reasons. When the National Court has strictly required quasi-judicial tribunals and administrative bodies or authorities to give reasons for their decisions, the same goes without saying for judicial tribunals or Courts: see Godfrey Niggints v. Tokam [1993] PNGLR 66; Kelly Yawip v. Police Commissioner [1993] PNGLR 93; Pierson Joe Kamagip v. Police Commissioner N1853 (1999). A decision of a Court without reasons is an unreasonable one: Acting Public Prosecutor v. Unama Aumane [1980] PNGLR 510 at 539. Similarly, if no reasons are given by an administrative authority, then the logical conclusion is that there were no good reasons at all for making the decision: Niggints v. Tokam supra, at 71 – 72. Failure to give reasons by a Court, or a District Court for our purposes, is a substantial miscarriage of justice and a re-trial ought to be ordered: see Lee v. Lee [1973] PNGLR 89; Bougainville Copper Limited v. Mathew Liu [1978] PNGLR 221; Anton Angra & Another v. Tonny Ina [1996] PNGLR 303.

For these reasons, I allow the appeal, quash the decision of the District Court made on 5/8/99 and order that the matter be referred back to the District Court to be retried, inter partes. The appellants shall have his costs of the appeal paid by the respondent.
______________________________________________________________________
Lawyer for the appellant : Warner Shand Lawyers
Lawyer for the respondent : Public Solicitor

National Court of Papua New Guinea

Anonga v Mainland Holdings Ltd [2001] PGNC 55; N2149 (25 May 2001)