Mark, Re [1995] PNGLR 234 (1 February 1995)

PNG Law Reports 1995

[1995] PNGLR 234 - Re Lina Mark 

[1995] PNGLR 234

N1308

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LINA MARK

AND IN THE MATTER OF SECTION 42(5) OF THE CONSTITUTION

Waigani

Doherty J

1 February 1995

VILLAGE COURT ACT - Endorsement of warrant of commitment - Difference between civil and criminal procedure - Harsh and oppressive order - Repugnancy - Absence of evidence of custom.

Facts

The applicant was brought before the Kaugere Village Court on two separate complaints and on one complaint was ordered to pay K500 compensation to a complainant within 6 weeks of the date of the hearing. She failed to pay the compensation ordered and an order for her imprisonment for 6 months was made by the Kaugere Village Court. The order was endorsed by a Local Court Magistrate. There was no hearing before the order for imprisonment was made.

Held

1.       Section 74(1) of the Village Courts Act requires proof that the person has failed to pay an order for compensation without reasonable excuse and it is only after that proof has been given that the Court may order imprisonment. In this case there had been no hearing to determine whether payment had been made and on the same day that the period of 6 weeks allowed for payment expired, a warrant was issued for the applicant’s imprisonment.

2.       In the case of a civil claim, an order for imprisonment must be endorsed by a District Court Magistrate in accordance with s 75(1) of the Village Courts Act. Section 68 of the Act allows a District or Local Court Magistrate to endorse such an order in criminal procedures.

3.       An order for imprisonment when made arbitrary will be declared to be harsh and oppressive and repugnant to the general principles of humanity.

Cases Cited

Papua New Guinea cases cited

Re: Theresa Maip, (1991) PNGLR 80.

Re: Kaka Ruk, [1991] PNGLR 105.

Counsel

Applicant, in person.

1 February 1995

DOHERTY J: Lina Mark has been brought before this Court as a result of questions raised by the prison officers at Bomana CIS concerning her warrant of commitment to prison.

The Court papers show that she was brought before the Kaugere Village Court for two separate claims; both were heard on 13 October 1994. One of these was a complaint laid by Kaia Thomas of Badili who sought compensation of K100.00. It is not entirely clear what the compensation was for but the applicant says that it was for an assault she made on Mrs Thomas as a result of gossiping by Mrs Thomas. The second complaint was laid by Simeon Timbi and is worded as follows: “Mi kisim dispela summons paper long yu bilong wanem mi tupela i bin marit na stap wantaim inap olsem one year na bihain yu kirap lusim mi. Mi bin spendim money olsem K1,000.00” which I interpret as a claim for K1,000 spend by the complainant on Lina Mark when they co habited together for about 1 year.

The applicant was ordered to pay K500.00 to Simeon Timbi within six (6) weeks of the date of the hearing. She was also ordered to pay a court fine of K20.00 in addition to the compensation for Mrs Thomas.

On 24 November 1994 an order for imprisonment was made by the Kaugere Village Court ordering Lina Mark be imprisoned for six (6) months for failing to pay the K500.00 compensation to Simeon Timbi. The order of the 24 November 1994 was endorsed by a Local Court Magistrate on the 10 January 1995 and two warrants of commitment were made out on the same date and signed by the same magistrate one for imprisonment of Lina Mark for six (6) weeks and the other, also written six weeks, but changed to six months.

It is clear from the orders for imprisonment that they were made on the 24 November 1994, that is precisely six weeks after the 13 October 1994 when the orders for payment of compensation were first made. It is clear that there could not have been any hearing in accordance with s 61 of the Village Court Act and this is borne out both by the records of the Court and by the applicant’s own statement before this Court.

It is apparent also that both these claims are claims in the nature of civil matters and accordingly the provisions of Part 5 Division 4, 8, 9 and 10 of the Village Court Act 1989 apply.

Section 74(1) of the Village Court Act requires proof that the person has failed to pay an order of compensation without a reasonable excuse. It is only on that proof that the Village Court may order imprisonment.

It is quite obvious in this case that the Village Court could not have satisfied itself that the applicant had an excuse of any kind as there was no hearing to consider why she had failed to pay. She was allowed a period of time to pay the compensation and on the very day that period expired a warrant was made out for her imprisonment, clearly there could not have been a second hearing nor consideration of her excuse, if any.

In this regard the Village Court has failed to consider or follow its own procedures.

Further s 75(1) of the Village Court Act provides:

“Subject to section 76, an order for execution under this Act is of no force or effect unless the order is endorsed by a District Court magistrate.”

Subsection 2 provides that the Village Court that made the order for execution shall immediately cause the order to be presented to a District Court magistrate for endorsement under subsection 1.

This contrasts with the provisions of s 68 of the Village Court Act in relation to criminal procedures which provides that an order for imprisonment is to be endorsed by a magistrate. Magistrate is defined under s 1, (the interpretation section) as meaning a District Court, a Local Court, A reserve District Court and a deputy Local Court magistrate.

Hence the legislature clearly intended a distinction to be made between endorsement of warrants in criminal proceedings when s 68 applies and the endorsement of warrants following non payment of compensation when s 75 applies.

The warrants before me are sealed by a Local Court magistrate and therefore the endorsement does not comply with the Act and is made in excess of the jurisdiction and void.

I cannot determine why there was a delay in having the order endorsed. It is apparent that the intention of the Village Court Act is that a Village Court considers custom. Section 57 states -

“Subject to subsections (2) and (3) in all matters before it a Village Court shall apply any relevant custom as determined in accordance with Sections 2, 3 and 7 of the Customs (Recognition) Act (Ch 19).”

The action brought by Mr Timbi claims “mitupela i bin marit na stap wantaim inap olsem 1 year na behain yu kirap lusim mi. Mi bin spenim money olsem K1000.”  Which I understand to be a claim for money spent by the claimant on the defendant whilst they co habited for about one year. The applicant says he sent a ticket for her to come to join him in Port Moresby from her home village in Western Highlands Province. She came, they stayed together from February to August or thereabouts during which time he assaulted her repeatedly alleging she was “greasing” other men. Word of this reached her family at home, a brother came, took her from Mr Timbi and demanded Mr Timbi pay bride price. Mr Timbi had no means of paying so the brother did not allow her to return. His claim was for the air ticket and food she consumed.

There appears to be no suggestion of custom being followed nor any consideration of the services the applicant would have rendered to Mr Timbi, both by way of work and generally as a co habitee.

It appears to me that this order, following no custom, and using the Village Court because she ceased to co habit was to use the words of the late Chief Justice Sir Buri Kidu in the matter of Theresa Maip “oppressive to the woman.” It is abusing the Court system to denegrate and for revenge. As Woods J. said he Kaka Ruk [1991] PNGLR 105 “Goals in Papua New Guinea are for criminals. They are not designed as sanctions in what are purely personal family problems” and the man must not use (again to quote Woods J) his “dominating position and where the situation has been partly caused by his behaviour.”

However the orders were made and remain in force until overturned by a Court of competent jurisdiction and the applicant is at liberty to appeal them pursuant to s 86 Village Court Act.

The order for imprisonment is void and I consider the order is harsh and oppressive and repugnant to the general principles of humanity and I order her release forthwith.