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Re Kabia Maris and Nalik Village Court [1994] PGLawRp 622; [1994] PNGLR 314 (8 August 1994)

PNG Law Reports 1994

[1994] PNGLR 314 - Re Kabia Maris and Nalik Village Court�

[1994] PNGLR 314

N1263

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF KABIA MARIS

AND

IN THE MATTER OF NALIK VILLAGE COURT

Kavieng

Doherty J

8 August 1994

CRIMINAL LAW - Sentence - Village Court - Reduction of term for part payment of fine - Principle to be applied on part payment of debt.

INFERIOR COURTS - Village Courts - Provisions re hearing are mandatory - "Substantial justice" and s 74(1)(c) Village Courts Act 1989 - Reduction in term of imprisonment for payment or part payment of the judgment debt.

CONSTITUTIONAL LAW - Imprisonment without hearing for civil debt - Release under s 42(5) Constitution.

Facts

Two separate warrants of commitment were issued by Nalik Village Court ordering imprisonment of Kabia Maris for a civil debt. Both warrants were signed by a Kavieng District Court magistrate. The first warrant ordered him to be imprisoned for a period of 10 weeks, the second one for a period of one month in hard labour. In the case of the latter warrant, the document stated that the compensation and fine for which he was being committed for non-payment was nil. In any case, the matter was dealt with, and the subsequent warrants of commitment were issued without Kabia Maris being present and without taking into account part payments made already towards settlement of the debt.

Held

The Village Court acted outside the provisions of the Village Courts Act 1989 in failing to give the defendant a hearing and in failing to reduce his sentence in proportion to the part payment he made. The prisoner was discharged under s 42(5) of the Constitution.

8 August 1994

DOHERTY J:� The prison records show that there are two warrants of commitment in respect of Kabia Maris. The first is from a Village Court ordering him to be imprisoned for a period of 10 weeks. The order is dated 1 May 1994 and it is signed and endorsed by a magistrate of the District Court in Kavieng. The second warrant orders commitment for a period of one month in hard labour. It is signed and endorsed by the same magistrate at the District Court at Kavieng and is dated 17 May 1994.

This second warrant is void and should never have been signed, because it says that there was "nil" compensation ordered and "nil" fine ordered, and the defendant has "failed without reasonable excuse to pay" and obey the said order. How someone can be imprisoned for failing to pay nothing when they have been ordered to pay nothing and fined nothing is beyond my comprehension.

It is clear from the records of the Village Court that a summons was issued to the prisoner on 3 May 1994. That is two days after the first warrant of commitment was signed. It ordered him to appear on 16 May 1994 at 11 o'clock at Nalik Village Court. The service part on that summons, which states in pidgin, "tudei mi givim summons long en," is left blank, thereby implying that the summons was never served. This, to my mind, bears out the statement by the prisoner that he only went to the Village Court once.

The hearing of the Village Court that he refers to is shown to have been held on 28 February 1994 between Taia, who was his grandmother, and him over a debt of K100. The Village Court recorded a consent order saying that they both agreed that he would pay this money. He said that he was told to pay it in two instalments of K50. The Village Court order says that he would pay Taia by 7 March 1994.

Something appears to have happened between the date of the order on 28 February 1994 and 7 March 1994, because there is a further summons saying that he ignored the Village Court order dated 2 March - that is, several days before the original order was due to take effect. That order directed him to be imprisoned for one month and was endorsed by the Magistrate.

The provisions of the Village Courts Act 1989 (No 37 of 1989) are very clear, and there should be no doubt about them. They provide at s 79 that "a Village Court shall not proceed in the absence of a party". There is an exception in s 79(2) if a party is represented at the Village Court and in s 79(3) if the Village Court is satisfied that a person is absenting himself deliberately from the Village Court area.

In the case before me, there is no record that the prisoner was ever served with the summons. The warrant for commitment was signed before the summons was even issued. So the exception provided under s 79(3) does not apply.

Further, the provisions of s 61 of the Village Courts Act 1989 clearly state that, "A person who fails, without reasonable excuse (proof of which is on him), to obey an order of a Village Court for the payment of a fine is guilty of an offence". There is no record that there was any hearing to give the prisoner an opportunity to show why he had failed to pay the money, whether it was by reasonable excuse or otherwise.

The provisions of the Act clearly place on the Court an obligation to determine if there was a reasonable excuse for non-payment. They must be complied with. Failure to do so renders the order void. For these two reasons, I consider that the Village Court acted outside its jurisdiction and that the learned Magistrate was equally at fault in signing a warrant of commitment two days before the summons was even issued.

Further, the record clearly shows that the prisoner had paid K80 of the K100 ordered. He informed me in court that he has paid some other money. I have no record of that.

The provisions of ss 63 and 65 of the Village Courts Act 1989 provide that if a person is detained under an order for non-payment of a fine, and part of the fine is paid, then that prison term will be reduced in proportion to the amount paid. This case involves a debt, as I understand the order, not a fine. But a Village Court is bound by s 58 to decide all matters in accordance with substantial justice, and the principles enshrined in ss 63 and 65 allowing for reduction in sentence for part payment of a fine, should apply also to part payment of debts when assessing imprisonment under s 74(1)(c). This is clearly the intention of s 74(1)(c), which provides that the term of imprisonment is for each K10 or part of K10 unpaid (emphasis mine). Hence, if a person is detained for non-payment of a debt, and he pays part of it, his term should be reduced proportionately. According to the records before me, the prisoner is here only for this particular debt.

I consider that he should now be discharged, and I am empowered by virtue of the provisions of s 42(5) of the Constitution to so discharge him. I consider he is being held in breach of the jurisdiction of the Village Courts Act 1989. He has already paid part of the debt, and he is entitled to be released proportionately. For these two reasons, I order his release forthwith.

Applicant appeared in person.