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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CIA NO 51 0F 2011
BERNARD STEVEN PHILIPAE
Appellant
V
ATIO IGASO
Respondent
Madang: Cannings J
2011: 19, 25 August
APPEAL
COURTS – District Court – absence of defendant in civil proceedings – duty to observe natural justice – effect of orders made in absence of party – District Courts Act, Section 143 – circumstances in which the District Court can proceed to hear and determine a complaint in the absence of the defendant.
The respondent obtained from the Madang District Court an order under the Summary Ejectment Act for possession of a block of land he claimed that he owned. The order had the effect of evicting the appellant, who had been residing on the land with his family, and requiring him to at his own cost remove all fencing and repair all earthwork he had carried out on the property. The appellant appealed against the order on the ground that he was never served the complaint by which the District Court proceedings were instituted and the order was made in his absence, thus he was denied a right to be heard and natural justice.
Held:
(1) The appellant was not served the complaint and this amounted to a denial of his right to be heard and a denial of natural justice. It was also apparent that the presiding magistrate made the ex parte order in contravention of Section 143 (where defendant does not appear) of the District Courts Act.
(2) The procedural errors of the District Court led to a substantial miscarriage of justice.
(3) The District Court order was quashed and the matter remitted to the District Court for rehearing in accordance with law.
Cases cited
The following cases are cited in the judgment:
Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396
Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Primus Kikia and 3 Others v Kikia Solowet (2009) N3682
Tony Yagon on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375
APPEAL
This was an appeal from a decision of the District Court ordering recovery of possession of land to the respondent.
Counsel
J Maingu, for the appellant
B W Meten, for the respondent
25th August, 2011
1. CANNINGS J: This is an appeal against an eviction order of the Madang District Court which was issued against the appellant, Steven Bernard Philipae. The order was made on 8 March 2011 under the Summary Ejectment Act. It stated that the respondent, Atio Igaso, who was regarded by the District Court as the registered proprietor of Section 66, Allotment 32, a residential block in Newtown, Madang, was entitled to recover possession of his property, and that the appellant, who had been residing on the block with his family, had to at his own cost remove all fencing and repair all earthwork he had carried out on the property. The appellant has appealed against the order on the ground that he was never served the complaint by which the District Court proceedings were instituted and the order was made in his absence, thus he was denied a right to be heard and natural justice.
2. The respondent argues that, in fact, the appellant was served the complaint but if the court finds that he was not served, the appeal should still be dismissed as there has been no substantial miscarriage of justice as the respondent was indisputably the registered proprietor and was entitled to the order made in his favour.
3. Three issues arise:
1 WAS THE COMPLAINT SERVED ON THE APPELLANT?
4. The appeal book reveals that the complaint was mentioned in the District Court on 18 November, 25 November, 9 December, 15 December and 23 December 2010 and on 7 February and 10 February 2011 before the order the subject of appeal was made. On none of those occasions was there an appearance for the appellant or any proof that the complaint had been served on him. Only on 8 March 2011 did the presiding Magistrate become satisfied that the appellant had been served. This is apparent from his Worship's notes which record the respondent's counsel, Mr Meten, as being present and stating "we now file our POS [proof of service]". The proof of service in question is a pro-forma proof of service form on Meten Lawyers letterhead that had been partially filled in and signed by Constable Paul Yazing of Madang Police. This form is undated and fails to give details of the person on whom the complaint was served and the date, time and place of service. It simply states: "served and he refused to sign". This is insufficient proof of service. No other evidence was presented to the National Court on this issue so I find as a fact that the complaint was never served on the appellant.
2 HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE?
5. This is a critical question to ask as Section 230(2) of the District Courts Act states:
An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.
6. Mr Meten, for the respondent, submits that there has been no miscarriage of justice as the respondent's case for possession of the property was so strong the District Court undoubtedly made the correct order. The respondent was the registered proprietor of the property and an affidavit filed in the District Court provided evidence of that. The respondent had indefeasible title so it was exactly the sort of situation in which the District Court could make an order for possession under Section 6 of the Summary Ejectment Act. The District Court made no error so the appellant has been done no injustice and there would be no point in the matter returning to the District Court.
7. These submissions gloss over the significance of the appellant not being served on the complaint. Giving all parties to a court case proper notice of the hearing is a fundamental component of any court's duty to observe natural justice or procedural fairness. Anybody joined as a party to a civil court case is at risk of having a decision made against them and has a constitutional right to be dealt with fairly in open court. In this case the appellant was at risk of being ejected from land on which he lived. His rights to a fair and open hearing are conferred by Sections 37(11) and (12) (protection of the law) of the Constitution, which state:
(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.
(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.
8. Those are basic, human rights and they are enforceable under Section 57 of the Constitution. The duty of every court in the National Judicial System to accord natural justice to parties and to conduct its proceedings fairly is reinforced by Section 59 (principles of natural justice) of the Constitution, which states:
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
9. All of these principles were breached in the present case. It is no answer to such a serious breach of the principles of natural justice to say to someone 'Well, don't worry about it, there is nothing you could have said anyway. The decision would have been the same.' The appellant had a right to be heard, and he was denied that right. The District Court decision was made unfairly. It was not a minor error of procedure. It was a significant error resulting in a substantial miscarriage of justice. For that reason alone the appellant was done a substantial injustice, which warrants the appeal being upheld.
10. Before leaving this issue of miscarriage of justice there are three matters that, though not directly raised at the hearing of the appeal, require comment.
11. First, I query whether it is correct to suggest, as Mr Meten submitted, that the appellant has no case at all worthy of consideration. The National Court has on a number of occasions upheld appeals against orders for possession of property made by the District Court under Section 6 of the Summary Ejectment Act on the ground of failure to recognise the appellant's equitable interest in the property (see the leading Supreme Court cases of Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396 and Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74). In 2008 I decided a Madang case in favour of a group of settlers whose ancestors had been living on Dylup Plantation with approval of the registered proprietor for 80 years. This gave them an equitable interest and protected them against being evicted under the Summary Ejectment Act (Tony Yagon on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375). In a Kimbe case, Primus Kikia and 3 Others v Kikia Solowet (2009) N3682, I upheld an appeal against an eviction order under Section 6(1) on the ground that the District Court failed to take account of the equitable interest of the appellants in the land over which their father, the respondent, was the registered proprietor. Often these issues are not as straightforward as they at first appear to be, even when the applicant for an ejectment order is the registered proprietor. This is another reason it was so important, indeed critical, for the appellant to be given his right to be heard.
12. Secondly, I query whether the presiding Magistrate adhered to the requirements of Section 143 (where defendant does not appear) of the District Courts Act, which states:
Where, in the case of a complaint, the defendant does not appear at the place and at the time specified in the summons, or at the place and time to which the hearing was adjourned or postponed, as the case may be, if—
(a) it appears to the Court on oath that—
(i) the summons was duly served at least 72 hours before the time appointed in the summons for appearing; or
(ii) an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise was duly complied with; and
(b) no sufficient grounds are shown for an adjournment,
the Court may proceed ex parte to hear and determine the complaint or may adjourn the hearing to a future day.
13. Section 143 dictates that if a defendant does not appear, the Magistrate must check three things before deciding that it is appropriate to hear and determine the complaint ex parte:
1. check the summons and the file for the place and time specified for the hearing;
2. check for evidence on oath that the summons was duly served at least 72 hours before the time appointed in the summons or that an order for substituted service has been complied with; and
3. check that no sufficient grounds are shown for an adjournment.
14. Once all three matters are satisfied the Magistrate may at his or her discretion proceed to hear and determine the complaint ex parte. In the present case there is no indication that his Worship checked any of those things so the manner in which the matter was heard and determined on 8 March 2011 would appear to have contravened Section 143.
15. Thirdly, the ancient adage that justice must not only be done, it must be seen to be done, comes to the fore in this case. Every court must be seen to be doing justice to every person affected by its orders. An essential part of being seen to do justice is ensuring that parties are given notice of a hearing so that the right people have the opportunity to be heard. If that is not done, perceptions of secrecy or bias or corruption can arise.
3 WHAT ORDER SHOULD THE NATIONAL COURT MAKE?
16. Section 230(1) of the District Courts Act states:
On the hearing of an appeal, the National Court shall inquire into the matter, and may—
(a) adjourn the hearing from time to time; and
(b) mitigate or increase a penalty or fine; and
(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) make such further or other order as to costs or otherwise as the case requires.
17. Given the history of this matter, I propose to allow the appeal and invoke Sections 230(1)(c), (d) and (f): the order of the District Court will be quashed and the case remitted to the District Court for further hearing in accordance with law and the appellant, as the successful party, will be awarded costs. As to who should reside on the property until the matter is heard and determined properly, either party is at liberty to approach the National Court at short notice for an interim order if that issue cannot be amicably resolved.
ORDER
(1) The appeal is allowed.
(2) The order of the Madang District Court of 8 March 2011 in DC Complaint No 298 of 2010 is quashed.
(3) DC Complaint No 298 of 2010 is remitted to the Madang District Court for rehearing in accordance with law.
(4) Either party is at liberty to apply by notice of motion to the National Court, upon 24 hours notice to the other party, for an interim order regarding possession of the property the subject of this appeal.
(5) The respondent shall pay the appellant's costs of these proceedings on a party-party basis, to be taxed if not agreed.
(6) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.
__________________
Thomas More Ilaisa Lawyers: Lawyers for the appellant
Meten Lawyers: Lawyers for the respondent
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