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Telakul v Wakias [2017] PGNC 73; N6688 (20 April 2017)

N6688


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CIA No. 72 OF 2013


BETWEEN:


PHILIP TELAKUL
Appellant


AND:


MITCHEL WAKIAS
Respondent


Kokopo: Anis AJ
2017: 21 March & 20 April


DISTRICT COURT APPEAL – Division 3 PART VIII of the District Courts Act Chapter No. 40 - default summons proceedings - Division 1 PART VIII - court's general power - exercise of power by the Court under Division 1 and Division 3 distinguished


Facts


The appellant appealed against a District Court decision made on 4 July 2013. The District Court, amongst others, awarded K7,000 against him. In the District Court, the respondent had claimed that the parties had entered into an oral agreement, that is, for the appellant to hire the respondent's vehicle for a period of 60 days at a fixed rate of K400 per day. The respondent had alleged that the appellant owed him K7,000 under the agreement. The appellant did not deny the agreement but had disputed the sum claimed. The hearing at the District Court proceeded by way of default summons filed under Division 3 Part VIII of the District Courts Act Chapter No. 40.


Held


  1. The trial magistrate exercised his powers under Division 3 Part VIII of the District Courts Act Chapter No. 40 when he conducted the hearing.
  2. Section 156 of the District Courts Act gives the Court the power to hear default summonses exclusively under Division 3 Part VIII, that is, without regard to any other provisions of the District Courts Act except section 21.
  3. The use of the word "may" in section 158(2)(a) of the District Courts Act makes it discretionary for a magistrate to decide how he or she intends to hear a matter that is filed under Division 3 Part VIII of the said Act.
  4. A magistrate exercising his or her power under Division 3 Part VIII of the District Courts Act may, but is not obliged, to conduct a hearing following the processes that are set out under Division 1 Part VIII of the said Act.
  5. There was nothing wrong with the manner and conduct of the hearing.
  6. Both parties were notified of the hearing date; they were given fair opportunities to prepare and file their evidence and finally they were both allowed to present their cases in Court on 4 July 2013.
  7. There was no evidence adduced by the appellant to support his allegations of the events, which he said happened during and after the hearing on 4 July 2013.
  8. None of the grounds of appeal was upheld.

Case cited:


The National Airlines Commission Trading as Air Niugini v. Senior Lau (1997) N1538
The State v. The Senior Stipendiary Magistrate of the NCDC Court at Port Moresby Ex-parte The Acting Public Prosecutor [1976] PNGLR 344
Wason Pty Ltd v. Degemba [1990] PNGLR 476


Counsel:
Mr R. Asa, for the Appellant
No appearance for or by the Respondent


JUDGMENT


20th April, 2017


1. ANIS AJ: The appeal proceeded ex-parte on 21 March 2017. This was after the Court was satisfied that the appellant had duly notified the respondent of the hearing date. I recall granting leave to the appellant to proceed. Counsel tendered the Amended Appeal Book filed on 20 March 2017 (hereinafter referred to as AB) and made oral submissions.


2. After the hearing and upon request, I ordered the appellant to file his written submission before or by 28 March 2017. I also ordered that the Court would reserve its decision thereafter to a date to be advised.


3. This is my ruling.


FACTS


4. The respondent in the District Court sued the appellant to recover a debt of K7,000. He claimed that he had entered into an oral contract (hereinafter referred to as the agreement) with the appellant in 2011 and 2012. Based on the agreement, the respondent said he leased his vehicle to the appellant at a fixed rate of K400 per day for two (2) months or 60 days. He said the appellant owed him in outstanding hire-car charges which, after settling some, totalled K7,000. The appellant did not deny the existence of the agreement. But the appellant denied that he owed the respondent the K7,000.


5. On 4 July 2013, the trial magistrate ruled in favour of the respondent and, amongst other orders, ordered the appellant to pay the respondent K7,000. The trial magistrate gave a brief written decision. The decision is located at page 14 of the AB.


6. The appellant is aggrieved and appeals to this Court.


APPEAL GROUNDS


7. The appellant cites eight (8) grounds of appeal in his Notice of Appeal. Let me set them out herein:


(i) When he did not give due consideration to [the] nature of the case before him in that, the debt of K7,000 the subject of the Default Summons was disputed by the appellant and that it was not a simple debt per se. It required careful consideration of the issues and evidence;

(ii) The Appellant had repaid the full K14,000 and did not owe the respondent any further amount as shown by his written and verbal statement to the court;

(iii) When there were obvious errors and inconsistencies in the summons and the receipts relating to the calculation of the amount claimed as admitted by the respondent in court during the hearing as such it required a proper hearing on the evidence;

(iv) That the receipts were recently manufactured. These receipts had not been given to the appellant at the time the payments were made on each of the occasions and only given to the magistrate outside of court in breach of the appellant’s right to fair hearing;

(v) The total amount of the alleged receipts was K10,000. This would have meant that the amount owing was K4,000 and not K7,000 as stated in the summons. This showed that there was merit in the appellant disputing the claim as such it required a hearing on the evidence;

(vi) Given the inconsistencies the Learned Magistrate erred in law in not conducting a trial and for sworn affidavits or evidence to be given under oath to determine the truth and veracity and credibility of each of the parties and the witnesses;

(vii) There was no credible or sworn evidence by the respondent with affidavit in support or any of his witnesses demonstrating that the debt of K7,000 was still owing given that the civil debt was in dispute and there were inconsistencies in the amounts stated in the summons, receipts and the respondent’s statement (letter) to court and also given the respondents own admission of errors on summons and receipts, the court erred in law in proceedings to make the orders without trial on evidence;

(viii) The Learned Magistrate erred in law in not according the appellant neutral justice but [by] not allowing him [to] defend and put forward his case and told not to talk and sit down during the hearing on the 4th July 2013 and the court went ahead and made the orders.


8. I think I can easily deal now with ground (iv) of the appeal. I note that I had informed counsel during the hearing that the ground raises very serious allegations that may be difficult to prove. When I now look at the AB, I cannot see any evidence that substantiates the claim that the respondent had manufactured the receipts or that the respondent had given the receipts to the trial magistrate "outside of court". The allegation is made based on alleged facts after the hearing on 4 July 2013, which is a new allege set of facts. This obviously means that the appellant should have but has failed to adduce fresh evidence with leave of this Court that may substantiate and prove the allegation. I therefore fail to see how the appellant can sustain and successfully argue this ground of appeal. That aside, I also note that the trial magistrate did actually refer to the receipts in question in his brief written decision. I refer to paragraph 6 of the trial magistrate's decision where he said and I read, On the contrary, Mitchel Wakias filed a letter with photocopy of receipts attached to the letter indicating a total of K10,000 being paid for the hire of his vehicle. To summarise, I firstly find evidence in the AB, which actually disproves this ground of appeal. I also find, as a matter of fact, no evidence disclosed by the appellant to establish this ground of appeal.


9. I dismiss ground (iv) of the appellant's appeal.


ISSUE


10. I note a contentious point raised by the appellant at the hearing of this appeal, which I think is the main issue. The appellant said the trial magistrate on 4 July 2013 should have but had failed to refer the matter to for a proper hearing. The appellant said after the trial magistrate had noted the contentious pleadings and conflicting evidence from the parties, he should have ordered and conducted a "proper hearing" instead of proceeding on to deal with the matter in the manner as he had done.


11. So the question therefore is this: Can the trial magistrate conduct a hearing of the matter in the manner as he had done? If not, what was or should have been the correct process?


MODE OF PROCEEDING


12. The proceeding in the District Court commenced by way of default summons. That is, filed under Division 3 Part VIII of the District Courts Act Chapter No. 40 (hereinafter referred to as the DCA). Division 3 sets the mode of proceeding namely default summons and its processes or application. The mode is suitable for debt recovery or liquidated claims (section 156 of the DCA). I do not find any error and it seems that the respondent had quite correctly filed proceeding under the said mode (section 156 & 157 of the DCA) in the first place given that his claim was for a liquidated amount. I note that the appellant's concerns in this appeal only relate to what should have happened afterwards, that is, after the filing of the default summons proceeding. The appellant is not concerned with nor does he challenge the mode chosen by the respondent to commence the District Court proceeding.


13. It is vital, in my opinion, that I firstly refer to and discuss section 156. Section 156 is under Division 3 Part VIII of the DCA. It reads:


Notwithstanding anything in this Act, other than Section 21, on complaint made in respect of a debt or other liquidated demand in money payable by the defendant the Magistrate or Clerk before whom the complaint is made shall, instead of issuing a summons to the defendant in the ordinary form, if so required by the person making the complaint, and subject to this Division, issue a summons to the defendant under this Division.


(Underlining is mine)


14. Section 156 is explicit. It says proceedings (i.e., default summonses) commenced under Division 3 are not bound by any other provisions of the DCA except section 21 and the provisions within Division 3, that is, sections 156, 157, 158 and 159 of the DCA.


15. I must be reminded that District Courts are creatures of statute and as such have only those powers that are vested in them by statute (case: The State v. The Senior Stipendiary Magistrate of the NCDC Court at Port Moresby Ex-parte The Acting Public Prosecutor [1976] PNGLR 344).


APPEAL HEARING


16. The default summons first returned before the trial Court on 1 July 2013. Both parties appeared on that day. Evidence of their appearances is recorded in the trial magistrate's hand-written note at page 17 of the AB. The trial magistrate adjourned the matter to 3 July 2013. On 3 July 2013, both parties appeared in Court. Evidence of their appearances is recorded by the trial magistrate's hand-written note at page 18 of the AB. The trial magistrate had also noted therein that the appellant did not file a notice of intention to defend. The trial magistrate adjourned the matter to 4 July 2013 for hearing. On 4 July 2013, both parties appeared in person. The trial magistrate's hand-written note for that day confirmed the parties' appearances, that is, at page 16 of the AB. The hearing proceeded and the Court reached its decision.


17. The fact that the appellant did not file a notice of intention to defend is worth noting at the start. Section 158(1), if read together with section 157(4), states that if a defendant fails to give notice of intention to defend within 48 hours of the return date of the default summons, he or she shall not be allowed at the hearing of the complaint to make a defence to the claim except by permission of the Court. In other words, a defendant faced with this type of situation (i.e., who has failed to file a notice of intention to defend) shall lose his or her primary right to defend in the matter. And without that right, he or she shall be disallowed to appear in Court. Consequently, a default summons in that type of situation, may proceed ex-parte as of right and the Court is entitled to make a final decision. Section 157(4) states that in such a situation, a complainant does not have to attend Court to prove his or her claim and judgment can be entered in his or her favour.


18. Now if a defendant who has not filed his or her notice of intention to defend still wishes to be heard, what can he or she do? Section 158(1) of the DCA states that a defendant can appear in Court and seek the Court's permission to be heard. Now obviously that may have to be done by way of an application whether orally or in writing. The Court's power to grant such permission is discretionary (section 158).


19. The trial magistrate herein did not write anything down in the Court file on 1 July 2013, 3 July 2013 and 4 July 2013, to say whether he had granted permission to the appellant to appear on those three (3) occasions. However, I am satisfied the trial magistrate did grant permission to the appellant to appear and defend himself in Court. The trial magistrate has addressed that at paragraphs 3 and 4 of his decision. I quote the part where he said, "In this case, the Court did allow the defendant to make a defense although there was no notice of intention to defend filed for and on his behalf." I am therefore satisfied that the qualified requirement under section 158(1) of the DCA where a defendant who has not filed his notice of intention to defend but may be granted permission by the Court to appear and defend the matter, has been met.


20. Well, where does that finding lead me?


21. I note that section 158(2)(a) of the DCA says that if the Court grants permission to a defendant to be heard under section 158(1), the hearing of the complaint "may" be adjourned to another time. Because of the use of the word "may" therein, the Court's power in this regard and in my opinion, is discretionary. This means that the Court can also hear the matter if it chooses to do so. I must remind myself again that the purpose for filing proceedings under Division 3 Part VIII of the DCA is to efficiently or summarily (quickly) hear, determine and dispose-off debt recovery or liquidated claims. In my opinion, in the same way like a case where a defendant has failed to appear or where the Court has rejected a defendant's permission to be heard, the Court can proceed to deal with the matter like a normal hearing either on the return date of the default summons or on a later date fixed by the Court. The said discretion, in my opinion, may extend to the Court adopting or following the process that is set-out under Division 1.—General PART VIII.—PROCEEDINGS IN CONNEXION WITH COMPLAINTS of the DCA in appropriate circumstances. The general provision therein in my opinion may be applicable because a default summons that is commenced under Division 3 is a proceeding, which is IN CONNEXION WITH COMPLAINTS. And of course because Division 1 is a general provision under Part VIII, it is generally available to a trial magistrate to invoke or apply in appropriate circumstances (See case: Wason Pty Ltd v. Degemba [1990] PNGLR 476).


22. So what do the facts say in the present case? Was the hearing a hearing of the default summons, that is, a hearing under Division 3 Part VIII of the DCA? I would answer "yes" to the later question. There is file notation by the trial magistrate when he first set on the matter on 1 July 2013. He then adjourns the default summons to 3 July 2013. On 3 July 2013, there is file notation by the trial magistrate where he sets the default summons down for hearing on 4 July 2013. On 4 July 2013, the trial magistrate conducts a hearing. The trial magistrate is permitted to do that under section 158(2) of the DCA. Section 158(2) reads:


(2) If permission to defend is given under Subsection (1), the hearing of the complaint—

(a) may be adjourned to some other day to be fixed by the Court—

(i) if the complainant or his legal representative desires; or

(ii) if the Court thinks fit; and

(b) shall be adjourned if the complainant or his legal representative is not present and the Clerk shall give written notice of the adjournment without delay to the complainant by post or otherwise.


(Underlining is mine)


23. It seems obvious that the trial magistrate had adjourned the matter on two (2) occasions after he had permitted the appellant to be heard. That is, in my opinion, in line with his power under section 158(2)(a). After the second mention of the matter on 3 July 2013, he sets the matter down for hearing on 4 July 2013. He is entitled to do so pursuant to section 158(2)(a)(ii) of the DCA. I am therefore satisfied and find that the default summons hearing of 4 July 2013 was duly set down and heard by the trial magistrate.


24. However, I note that the appellant argues that the trial magistrate should have but had failed to, after noting the defence and evidence of a possible contest refer the matter to for a proper hearing. By proper hearing, the appellant says the trial magistrate should have allowed for pleadings to continue; for the parties to file affidavits before the matter was set down for hearing; for the parties to be examined and cross-examined in Court. My first view is that it is possible and the trial magistrate can order these, as submitted by the appellant, under section 158(2) of the DCA. The trial magistrate, as I have pointed out above in my judgment, has a discretion and he may in a proceeding that is filed under Division 3 Part VIII, apply the steps that are set out under Division 1 Part VIII. However, in the present case, the trial magistrate had proceeded under Division 3 Part VIII and he conducted the hearing. It seems obvious that the trial magistrate on 3 July 2013 had exercised his power under section 158(2)(a)(ii) of the DCA when he set the matter down for hearing on 4 July 2013. Section 158(2)(a)(ii) reads and I quote, "If permission to defend is given under Subsection (1), the hearing of the complaint may be adjourned to some other day to be fixed by the Court if the Court thinks fit." And this: The trial magistrate was entitled to deal with the default summons exclusively pursuant to section 156 of the DCA. He was also entitled to apply the processes that are provided for under Division 3 Part VIII of the DCA. Let me conclude by stating that the trial magistrate first permitted the appellant to be heard in the matter despite the fact that the appellant did not file his notice of intention to defend. Secondly, he set the matter down for trial under the provisions of Division 3 Part VIII of the DCA. Thirdly, he conducted a hearing and reached a decision.


25. I find nothing wrong or illegal about the actions of the trial magistrate in setting down and hearing the default summons in the manner as he had done. I also find no provision under Division 3 Part VIII of the DCA that makes it mandatory for a trial magistrate to refer a matter that is filed under the said division, to Division 1 Part VIII of the DCA for whatever reasons. I find that the trial magistrate herein had acted within his exclusive powers under Division 3 Part VIII of the DCA when he proceeded to hear the matter. I also do not find evidence in the AB, which shows that the trial magistrate had failed to conduct a hearing following due process.


26. Before I move on, I note that counsel, during the hearing, referred me to the case of The National Airlines Commission Trading as Air Niugini v. Senior Lau (1997) N1538. I have had the benefit of perusing the case. I, however, do not find it relevant for various reasons. Firstly, the facts are different in that in that case, the appeal was based on a default judgment that was obtained ex-parte based on a normal complaint filed at the District Court. It is not like an appeal hearing that arose from a District Court proceeding commenced by default summons like in the present case. Secondly, the District Court in that case had dealt with the complaint under section 143 of the DCA, which is under Division 1 Part VIII of the DCA. The District Court in the present case dealt with the matter under Division 3 Part VIII of the DCA.


DISPUTED FACTS/ CONFUSION


27. Let me set out paragraph 6 of the trial magistrate's decision. It reads:


6. On the contrary, Mitchel Wakias filed a letter with photocopy of receipts attached to the letter indicating a total of K10,000.00 being paid for the hire of his vehicle. And the balance of K14,000.00 was due and outstanding. But the Complainant only claimed K7,000.00. And I assumed that K7,000.00 from the K14,000.00 was paid up.


28. The appellant challenges the reasoning of the trial magistrate. He says the decision is confusing and contrary to the pleadings and evidence of the parties. I have quoted above the critical part of the trial magistrate's decision. I must confess that I myself also had difficulties trying to understand the trial magistrate's said decision during the appeal hearing. But I have now considered the respondent's undated letter (page 20 of the AB), the receipts (page 22 of the AB) and I have also considered the appellant's statement which he had prepared and filed at the District Court (page 19 of the AB). Those were the evidence the parties had relied on before the trial magistrate.


29. Also relevant for this purpose, in my opinion, is the complaint. I am of course referring to the respondent's complaint, which is attached to the default summons (at page 29 of the AB). Paragraphs two (2), three (3) and four (4) of the complaint read:


Is indebted to the complainant in the sum of K7,000.00 from the balance of K14,000.00 being for car rental fee of a Toyota fifth element that you hired for 60 days and only paid 25 days while 35 days has not been paid. [paragraph 2]


You had a verbal agreement with the complainant and he gave you a special rate of K400.00 per day and you the defendant to pay instalment payment while using the vehicle but you failed to do so. [paragraph 3]


Since that the defendant has not pay any form of payment out from the total amount owed, the Complainant now prays the Honourable Court for a default judgment to be made against the defendant to fully pay the K7,000.00 plus 8% interest and cost of the proceeding. [paragraph 4]


30. I also find the trial magistrate's hand-written notes taken down on the 1st, 3rd and 4th of July 2013 relevant (pages 16, 17 and 18 of the AB).


31. Let me now rule on the appellant's main argument. He says the decision is wrong because the pleadings and evidence give conflicting facts and accounts of what was outstanding. I reject the submission. Let me explain. The pleading says that the respondent had only claimed K7,000 from an outstanding debt of K14,000. The K14,000 represents the 35 days, that is, if we multiply K400 by 35 days. The balance of payment for the 25 days was not an issue because the respondent had produced receipts in evidence to confirm the total payment of K10,000 for the said 25 days. For whatever reason, the respondent had only claimed K7,000 and not K14,000, for the 35 days. This is also reflected in the trial magistrate's decision (paragraph 6 of the decision). And because the respondent did not explain why he had only sought K7,000, the trial magistrate had assumed in his decision that the other K7,000 may have be settled (paragraph 6 of the decision). That is something which neither the trial magistrate nor I shall ever know. But I note that the said undetermined fact is not relevant. What is however relevant which this Court has ascertained, as did the trial magistrate then, is the fact that the respondent had only claimed K7,000, which was subsequently awarded by the trial magistrate. Secondly, the K7,000 was derived out of the 35 days hire and not from the 25 days hire. That said, I therefore find no serious ambiguities in the respondent's pleading, the evidence and the trial magistrate's decision.


FINDINGS ON THE GROUNDS OF APPEAL


32. With my findings as set out above in my judgment, let me now address the grounds of appeal.


33. In regard to ground (i), When he did not give due consideration to [the] nature of the case before him in that, the debt of K7,000 the subject of the Default Summons was disputed by the appellant and that it was not a simple debt per se. It required careful consideration of the issues and evidence, I would dismiss it. I have found above in my judgment that the trial magistrate had duly exercised his powers under Division 3 Part VIII of the DCA when he heard the matter on 4 July 2013. The trial magistrate had conducted the hearing on that day. The trial magistrate was entitled to do so. I also note that I have ruled above that there is no provision under Division 3 Part VIII of the DCA, which would have obliged the trial magistrate to invoke the provisions under Division 1 Part VIII of the DCA. The trial magistrate had before him exclusive power under section 156 of the DCA to hear the matter without regard to any other provisions of the DCA apart from section 21. The parties had produced evidence before the trial Court on 4 July 2013. Based on the evidence, the trial magistrate was satisfied and he ruled in favour of the respondent. The parties did not have lawyers then so it is obvious that the trial magistrate had to and had conducted a simple hearing under the circumstances of the case at that time.


34. Ground (ii) reads, The Appellant had repaid the full K14,000 and did not owe the respondent any further amount as shown by his written and verbal statement to the court. The ground of appeal must be dismissed for three (3) reasons. Firstly, it is a repeated claim. The appellant had raised this argument before the trial magistrate. And based on the evidence, the trial magistrate had rejected it. The appellant should have for example pleaded, as a ground of appeal, how the trial magistrate erred when he reached his finding on this point or argument. Secondly, I find nothing wrong with the findings by the trial magistrate on this point. The trial magistrate was satisfied on the balance of probability based on the evidence before him, that the appellant owed the respondent the outstanding debt of K7,000. Thirdly, I note that the appellant had made admissions to the trial magistrate on the 3rd and 4th of July 2013. The trial magistrate in his hand-written notes (page 16 and 18 of the AB) recorded them. The appellant had admitted in Court that he owed the respondent K3,000. So obviously such an admission would have been taken into account by the trial magistrate when he was deciding on the matter. And it seems that the appellant had contradicted himself when he had also denied owing any money to the respondent (page 19 of the AB). These factors may have reduced his credibility and could have meant that little or no weight was given to his evidence before the trial Court.


35. I turn to ground (iii). It reads, When there were obvious errors and inconsistencies in the summons and the receipts relating to the calculation of the amount claimed as admitted by the respondent in court during the hearing as such it required a proper hearing on the evidence. I have explained this above in my judgment particularly under the sub-heading "DISPUTED FACTS/ CONFUSION". I also found that the hearing had been duly conducted under Division 3 Part VIII of the DCA. I dismiss this ground of appeal.


36. I note that I dismissed ground (iv) under the sub-heading "APPEAL GROUNDS."


37. Ground (v) reads, The total amount of the alleged receipts was K10,000. This would have meant that the amount owing was K4,000 and not K7,000 as stated in the summons. This showed that there was merit in the appellant disputing the claim as such it required a hearing on the evidence. I dismiss this ground. The said ground, in my opinion, is misconceived. The K10,000 payment relates to monies already received by the respondent which is equivalent to the 25 days. The respondent's claim was in relation to the 35 days or K14,000 which was calculated at K400 per day. And as I have discussed above in my judgment particularly under the sub-heading "DISPUTED FACTS/ CONFUSION", the respondent, for whatever reason, had decided to only claim K7,000 in his default summons and not the full K14,000.


38. I turn now to ground (vi). It reads, Given the inconsistencies the Learned Magistrate erred in law in not conducting a trial and for sworn affidavits or evidence to be given under oath to determine the truth and veracity and credibility of each of the parties and the witnesses. I dismiss this ground of appeal for all the reasons I have stated above in my judgment. I make particular reference to my discussions under the sub-headings "APPEAL HEARING" and "DISPUTED FACTS/ CONFUSION."


39. Ground (vii) reads, There was no credible or sworn evidence by the respondent with affidavit in support or any of his witnesses demonstrating that the debt of K7,000 was still owing given that the civil debt was in dispute and there were inconsistencies in the amounts stated in the summons, receipts and the respondent’s statement (letter) to court and also given the respondents own admission of errors on summons and receipts, the court erred in law in proceedings to make the orders without trial on evidence. I have covered this above in my judgment. May I add that the hearing before the trial magistrate on 4 July 2013 was a trial on evidence heard under Division 3 Part VIII of the DCA. I will dismiss this ground of appeal.


40. Finally, ground (viii) reads, The Learned Magistrate erred in law in not according the appellant neutral justice but [by] not allowing him to defend and put forward his case and told not to talk and sit down during the hearing on the 4th July 2013 and the court went ahead and made the orders. I dismiss this ground of appeal. Firstly, there is no evidence including fresh evidence, which the appellant has filed or included in the AB to establish the allegation. I note that the District Court is not a court of record. As such, it can be difficult for a party to establish what has for example transpired during the hearing. But there are ways of addressing that. One way is to file affidavits or fresh evidence with leave of the Court, and to have them inserted into the AB. I do not see how I can be able to consider this ground of appeal without any evidence supporting it. The Court's reason is somewhat similar to its findings in relation to ground (iv). As such, I find the allegations in ground (viii) of appeal baseless. I also wish to add this. The trial magistrate had the power to exclude the appellant from the beginning of the Court proceeding because the appellant had failed file his notice of intention to defend. The trial magistrate instead had allowed the appellant to defend himself. The appellant was allowed to speak and file his evidence in Court at the mention and hearing of the matter. So without any evidence to the contrary, I find that the appellant had been treated fairly by the trial magistrate both before and during the hearing of 4 July 2013.


SUMMARY


41. I note that I have dismissed all the grounds of appeal. The appeal will therefore fail.


42. So in regard to the first issue Can the trial magistrate conduct a hearing of the matter in the manner as he had done? my answer is "yes he can". In regard to the second issue If not, what was or should have been the correct process? I find the issue irrelevant because of my answer to the first, which is in the affirmative.


COSTS


43. The appeal was heard ex-parte. I will not order the appellant to pay costs.


THE ORDERS OF THE COURT


I make the following orders:


1. The appeal is dismissed.


  1. The trial magistrate's ruling of 4 July 2013 remains binding and enforceable.

3. I make no order on costs for this appeal.


The Court orders accordingly,


________________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant


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