State v Morgan [1985] PGSC 25; SC309 (6 December 1985)

Unreported Supreme Court Decisions

SC309

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO. 8 OF 1985
BETWEEN: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
APPELLANT
AND: LEO MORGAN
RESPONDENT

Waigani

Pratt Amet Los JJ
1 August 1985
6 December 1985

DEFENDANT QUERIES OPPOSING COUNSEL INSTRUCTIONS - Material tendered from the bar table - No proper proof - Defendant’s query in fact went to the central issue affecting validity of complaint - Plaintiff prevented from presenting his case.

JUDICIAL NOTICE OF CERTAIN STATE SIGNATURES - Evidence Act Ch. No. 48 Section 7 - Does not obviate necessity of producing and tendering document in the normal way.

Held

(Los, J. Dissenting) - Appeal allowed - Rehearing ordered.

Legislation

Constitution - s. 149

Evidence Act Ch. No. 48 - ss. 7, 49

Summary Ejectment Act - s. 3

Counsel

Mr. O’Sullivan for the Appellant

Mr. Steele for the Respondent

Cur. adv. vult.

6 December 1985

PRATT J: The State, through its duly authorised solicitor instituted eviction proceedings against the respondent under the Summary Ejectment Act by way of complaint dated 3 October 1984. The matter came on for hearing before a Port Moresby Magistrate on the 12th October 1984 when both sides were represented by counsel. I set down the short transcript of those proceedings.

“The State v. LEO MORGAN

Jack Gala for State

Wilson for Defendant

Mr. Wilson: Y.W. I have instruction to ask the court to s/o the case on the grounds the State Solicitor did have proper instruction to institute the proceedings. For this is evidence by the fact two letters I have - I like to produce.

Produced over objection letter for P.M. and letter for Secretary (PSC)

Jack: opposed the objection.

1) that neither P.M. nor the Secretary has ultimate authority to allocate houses of this kind - Institutional house or Reserve House.

2) NEC has that right and authority to do so. NEC decision No. 13 clearly give the authority to the Departmental Head to allocate. Tender NEC decision No. 13/84 (82).

COURT:

Mr. J. I am now concerned with the application I am not concerned with the substance and the merit of the case.

Wilson

Y.W. that is correct. But I put out Secretary’s letter clearly indicate NEC No. 21/84 exceeded the authority of NEC 13/84 the applicant now rely. Tendered NEC dec. No. 21/84 (82).

COURT:

I find from the two letters of the P.M. and Secretary (PSC) an indication that the State Solicitor did not have proper instruction to institute the proceedings. The letter of the Secretary indicate that the matter is subject to rectification by NEC and that I suggest too be so done.

I order the proceedings be struck out.

Mr. W. request it to be dismissed. This 2nd time we’ve been here, the nature of the case is left untouched and I sought to only have it struck out.

K. Lofena (SM).”

The appellant took the matter on appeal to the National Court but again was unsuccessful. In my view the error perpetrated at the very commencement of the case was thereby perpetuated.

What the whole matter boils down to is the unusual claim that despite an appearance by counsel for the complainant who maintains he is properly instructed, the respondent has managed to convince the magistrate that this is not so.

The situation was brought about by a series of basic errors. In the first place I am completely unable to see how the threshold issue can be fought out from the bar table. The complainant was never allowed to start his case let alone adduce evidence in proper and legally permissible fashion. Had the matter proceeded correctly it may have turned out that the wrong arm of Government had instructed the State Solicitor. That in itself poses some special difficulties but they do not require investigation here.

Much weight has been placed by the respondent on a letter to him by the Prime Minister dated 11 October 1984. I agree that s. 7 of the Evidence Act Ch. No. 48 judicial notice must be taken of the official position and the signature of Mr. Somare. I do not agree, however, that one simply tenders a private letter, even from such an august personage, from the bar table. Like any other piece of evidence it requires proper proof - in this instance from the respondent at least, whilst he is in the witness box. There are a number of questions which I for one would have wished to put in cross examination about this letter had I been the complainant’s counsel and I do not believe I should be deprived that right simply because my opponent wishes to tender the document from the bar table, and thereby seek not only to query my instructions but to adduce evidence that he says “will show that the complainant was taken out by the wrong department of the Government” (although I note that the complainant is in fact the State). The letter was never in evidence before the District Court of the National Court and it is not properly in evidence before this Court. Furthermore, the letter is a personal one only. The Prime Minister is not purporting to act in place of the National Executive Council nor is he endeavouring to implement the French maxim “L’‚éstat c’est moi”. He is not the National Executive Council but one member only. For both these reasons I do not consider it necessary to analyse the submission of learned counsel based on the Constitution and the underlying law of Westminster style of Government.

The derailment of the original proceedings was further compounded by counsel for the complainant producing a determination of a National Executive Council Decision No. 13 of 1982 (referred to as 13/84). How this was legitimately received by the Court is not explained. The document was not proved in any way, and although I tend to the view that it may amount to a proclamation under s.40(c) of the Evidence Act, it still must be tendered through the proper officer and during the course of evidence. This interpretation of the Act was not however argued before us. In addition I suppose that what was tendered to the magistrate was a photostat copy which may well not have complied with the requirements set down in Part IV Division 6 of the Evidence Act,

The same criticism applied to the second letter tendered by respondent’s counsel, namely, the letter of 11 October 1984 purporting to be signed by the Chairman of the Public Service Commission. It was never tendered during the taking of evidence. Like the letter from the Prime Minister the production was specifically objected to. It has not been shown under what Act judicial notice may be taken of the signatory, let alone of the content.

The final element of confusion was then introduced once more by respondent’s counsel in his reference to a further National Executive Council Determination No. 21 of 1982 which he claims was at odds with No. 13 and led to the final result that the National Executive Council had issued two conflicting determinations. Frankly, I cannot make any sense at all out of the document included in the appeal book purporting to represent such determination. I certainly cannot read out of it the interpretation placed thereon by Mr. Steele. This difficulty may have been resolved by evidence from some departmental representative but the situation was never allowed to arise. The document cannot be said to speak for itself and presupposes a considerable amount of knowledge of what constitutes “institutional housing”, “reserve housing”, “pool housing”, and no doubt other forms of Government housing which are beyond my ken or of those of any other court in the absence of evidence on the point.

In the final analysis what the respondent was really saying in addition to his claim that the State Solicitor was not properly instructed was the Notice to Quit was not signed by the proper authority. This surely is a matter for evidence going to the crux of the issue. The proceedings were aborted in limine however and the real issues have never been canvassed. The magistrate proceeded as if certain evidence had been adduced before him. No doubt he believed that he was acting in the best interest of both parties and perhaps like the judge on appeal, that the whole question was best sorted out administratively. The appellant, however, has been deprived of a right to be heard and to adduce any evidence at all. The error was created by a failure to appreciate in both the Magistrate’s Court and the National Court that the respondent’s counsel was basing his submissions on evidentiary material which was not properly before the Court. Not only was it improperly tendered and accepted over objection but the course followed by the Magistrate precluded any examination in chief and cross examination. The only solution is to start from square one again, based on the complaint set down for hearing before the District Court on 12th October 1984.

I would uphold this appeal and quash both the National Court order dismissing the appeal and the Magistrate’s order striking out the complaint. I would order that the District Court continue to hear the proceedings properly brought before it, assuming the appellant is still minded to press on, and determine the issues in accordance with the evidence. The appellant should have its costs both on this appeal and on the matter before the National Court.

AMET J: This is an appeal from the judgment of the National Court in dismissing an appeal to it by the appellant from an order of the Port Moresby District Court.

The short facts of the case in the District Court are as follows: The respondent Leo Morgan was and is Secretary of the Department of Provincial Affairs. In September, 1984 he resided in the house at allotment 27 section 21 Boroko. The Civil Aviation Agency maintained that it was an institutional house within the control of the Agency and therefore Leo Morgan was not entitled to reside in it. lt would seem that Leo Morgan refused to vacate the house. Consequently, the Director of Civil Aviation Agency, J.P. Wal caused to be written on the 12 September, 1984, a ‘Notice to Quit’ and had it served on the respondent Leo Morgan on the 14 September, 1984. The notice gave Leo Morgan 14 days to vacate the house or face legal eviction proceedings in default. The Notice to Quit expired on the 28th September, 1984, by which date Leo Morgan had not vacated the premises. On 3rd October, 1984 the State Solicitor laid a complaint against Leo Morgan for the State seemingly upon instructions from the Director of Civil Aviation. The complaint was taken out under s.3 of the Summary Ejectment Act claiming an order that the defendant Leo Morgan deliver up possession of the premises forthwith to the State, the complainant.

The matter went on for hearing by the Port Moresby District Court on the 12th October, 1984. At the outset of the hearing the defendant made application to the court to strike out the complaint on the basis that the State Solicitor did not have proper instructions to institute proceedings. Counsel for the defendant then sought to tender from the bar table two letters, one from the Prime Minister and the other from the Secretary of the Department of Public Services Commission. Counsel for the State objected to tender and reception of the two letters as evidence conclusive of the issue. The court allowed the tender of the subject letters. The State then tendered NEC decision No. 13/82. The defendant in turn tendered NEC decision No. 21/82.

On the basis of the two letters tendered by the defendant, the Court found that they indicated that the State Solicitor did not have proper instruction to institute the proceedings. The Court ordered that the proceedings be struck out.

The State then appealed to the National Court. I set out the seven(7) grounds of appeal in full:

“1. That the learned Magistrate erred in law in admitting into evidence copies of two letters tendered from the bar table and without requiring proof of the same.

2. That the learned Magistrate erred in rejecting objections to the tendering of the said two letters aforesaid.

3. That in admitting the said two letters into evidence the learned Magistrate erred in that he admitted into evidence material which was irrelevant to the matters in issue between the parties in the proceedings.

4. The learned Magistrate erred in construing the said two letters as conclusive in determining the issues between the parties

5. The learned Magistrate erred in not permitting the complainant to address him on the lack of significance of the said two letters to the proceedings between the parties.

6. That the learned Magistrate erred in law in that he did not give the complainant any or any proper opportunity to open its case or to be heard at all before stricking out the summons.

7. That the learned Magistrate erred in law in striking out the summons.

The National Court dismissed the appeal with costs. The appellant has appealed to this court on two basic grounds:

1. That the judgment of the learned judge was wrong in law.

2. That the learned judge took into account irrelevant factors or ignored relevant matters:

(a) in considering only two of the grounds of appeal contained in the notice of appeal;

(b) in adopting the same attitude as the Magistrate in holding that the State did not have its own position in order;

(c) in holding that if the matter had proceeded, the Government was likely to move the Defendant (Respondent) to another government house or re-allocate the house to him, therefore making a mockery of any court proceedings;

(d) in not considering the content and effect of the NEC Decision No. NG 13/82 dated 27th September 1982 or NEC Decision No. NG 21/82;

(e) in not considering and ruling that the failure of the magistrate to conduct a proper hearing by not allowing the complainant any or any proper opportunity to open its case or to be heard prior to striking out the summons; and

(f) in considering that copies of two letters tendered from the Bar Table at the District Court hearing were properly admitted into evidence.

I consider that the whole proceedings in the District Court went astray from the very outset. The learned magistrate unfortunately allowed counsel to commit basic procedural errors and thereby the court fell into error. The matters alleged by counsel for the defendant as going to whether or not counsel for the complainant was properly instructed, were in my view issues going to the substance of the complaint. It was the very issue to be tried; that is that the complainant alleging that Leo Morgan had no entitlement to remain in the house whilst the defendant was contending he had permission from the lawful authorities to occupy the house. This necessitated the proper calling of evidence and production and tender of the various documents, letters and proclamations of various authorities including the Prime Minister and the National Executive Council, in the proper way.

The two letters from the Prime Minister Mr. Somare and the Secretary of the Public Services Commission were quite improperly admitted by the court over objection. Firstly, the learned Magistrate erred in allowing counsel for the defendant to take issue with counsel for the complainant’s instructions to appear. As I have said the matters raised were ones fittingly for substantive determination. More significantly the learned Magistrate then quite wrongly allowed counsel for the defendant to tender the two letters. The letters, at whatever stage, ought to have been produced and sought to be tendered in the correct evidentiary manner by the recipient or the sender and to depose to either receiving it or of sending it. The proper occasion would have been in the defendant’s case. Whatever the terms of the two letters may be I do not consider matter; they were irregularly admitted as evidence at the very outset before the complainant was allowed to open its case.

I have read the judgment of Mr. Justice Pratt and I concur with his remarks as to the effect of the signature of Mr. Somare as the Prime Minister. I too consider that judicial notice of the signature simpliciter does not include the contents nor its truthfulness. The effect of the contents of such a letter have to be attested to and explained in the proper way by a competent witness such as the writer or the addressee of the letter.

This original error was compounded further by reception into evidence by the court of two NEC decisions, one each by either side. Once again the proper legal basis for this was not established. I do not propose to attempt to understand these two decisions. Evidence ought properly to have been led as to their effect and meaning, once again by a competent officer.

The end result was that the District Court received four documents, all quite irregularly in my view, whatever their contents may have been, before the complainant had even open its case. The Court thus received evidence from the bar table and heard submissions about the very issues in the complaint, without proper evidentiary basis all from the defendant before the complainant was allowed to open its case and call any evidence.

The District Court thus fell into error at the very outset and did not allow the complainant a fair hearing according to law. The National Court similarly erred in adopting the same attitude as the District Court that the matter was an administrative one and one best sorted out in that way without regard to rules of evidence and legal technicality.

I would therefore uphold the appeal, quash both the National Court order dismissing the appeal and the Magistrate’s order striking out the complaint. I agree with the course proposed by Mr. Justice Pratt.

LOS J: The circumstances leading to this appeal is that a complaint was taken out by the appellant against the respondent when he refused to vacate the premises owned by the appellant at Allotment 27, Section 21, Boroko Drive after he was served with a Notice to Quit. The matter came before the District Court on the 12th October 1985 at Port Moresby and it was struck out on the strength of two letters produced before the Court on behalf of the respondent. The first letter was from the then Prime Minister indicating that his Government was in favour of the respondent remaining in the house. The second letter was from the Public Services Commission indicating that it would facilitate the respondent remaining in the house. The basis upon which the Magistrate struck out the complaint was that the letters indicate that the State Solicitor did not have proper instructions to proceed with the complaint. An appeal from this decision to the National Court was dismissed on the 15th February 1985.

The allocation of institutional houses is a responsibility of the controlling Department. In this respect I do not see any inconsistencies between the National Executive Council Decision No. 13/82 and the National Executive Council Decision No. 21/82. In the Decision No. 13/82 certain houses including the house in question were declared to be Institutional Housing and that the responsibility for allocation of these houses was given to the Director of Civil Aviation. In the N.E.C. Decision No. 21/82 the responsibility for maintenance (repair, painting etc) of the Institutional Housing was given to the Works and Supply Department. The responsibility in relation to allocation, which is a part of the management of building but less constructions, repair or painting work, was left to the Controlling Department. In this case the Controlling Department is the Department of Civil Aviation. Two obvious points arise from this. The State remains the owner of the category of houses described as institutional houses. It has, however, granted the allocating responsibilities to a smaller management unit as a matter of administrative convenience. The grant of this responsibility was made through the operational machinery of the State, namely the National Executive Council: s.149 of the Constitution.

The Court has not been told how the Respondent had moved into the house in question. But it appears the move was with permission and was for a limited period only. As head of the Provincial Affairs Department, he was entitled to a free house provided by the State and it would seem the house was allocated to him in that capacity. It appears from the District Court decision and Woods, J.’s decision on appeal that the State does not dispute that the respondent is entitled to a house provided by the State. The sore question is does the State not wish to allocate Lot 27, Section 21, Boroko Drive to the respondent. Mr O’Sullivan argues that it is not the State’s intention to allocate this house to the respondent. His reasoning is that only the Director of Civil Aviation Department can allocate institutional housing and since the Director refuses to let the respondent stay on in that house, the State must be refusing him to stay on in that house. Obviously this reasoning troubled the learned magistrate and subsequently it also troubled Woods, J.

The learned magistrate acted on a letter signed by the Prime Minister. The content of the letter appeared inconsistent with the complaint before the learned magistrate. The Prime Minister is not the State nor the National Executive Council. What he says is not what the National Executive Council says or what National Executive Council might say. But in my view what the Prime Minister says taken on the lowest level is that he would express to the National Executive Council along the same line as he has said in the letter. Isn’t possible that the National Executive Council instructions would be different from what the State Solicitor thought they were.

Mr O’Sullivan argues that the letters were improperly received by the Court. I could not agree more. However, the Prime Minister’s signature needs no proof: s.7 of the Evidence Act. In my view the fact that the Prime Minister has signed a document in relation to the complaint before the Court begs a question. Something in the document that the Court ought to know. Is the Prime Minister supporting the complaint or opposing the complaint. On the face of it when the question remained unanswered, the State Counsel could hardly say he had instructions to proceed with the complaint. It was embarrassing for the Prime Minister to write such a letter; he should have indicated his personal view subject to a decision by the National Executive Council. However, the best course would have been to stand over the case for further instructions. Instead the Counsel for the State objected to an adjournment and proceeded to challenge the authority of the letters. In my view without any reference to the content of the letter the fact that there was a letter addressed to and in the possession of the opposite party puts the State Counsel in an ambiguous position. It would appear that the complaint was merely a conflict between one administrative unit of the State Services and the head of another administrative unit. It is an in-house conflict which the Court is being asked to decide upon. Further if the State is prepared to give another house to the Civil Aviation Department in lieu of this one, where is the injustice. I do not, therefore, see that the dismissal by the National Court an appeal from the District Court has resulted in any injustice.

I therefore dismiss the appeal.

ORDER

Appeal upheld. Orders of the National Court and District Court quashed. Costs to the Appellant on this appeal and before the National Court.

Lawyer for the Appellant: State Solicitor

Lawyers for the Respondent: Warner Shand Wilson & Associates