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Kasau v Mekerepa [2015] PGNC 128; N6021 (10 July 2015)

N6021

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 118 of 2011

BETWEEN:

JACINTA KASAU
Plaintiff

AND:

APO PATRICK MEKEREPA
Respondent

Lorengau: Geita J
2015: 10th July

PRACTICE AND PROCEDURE — District Courts — Appeals to — National Courts – District Courts are creatures of statute as such one must be guided by set procedures and conditions set out in the statute – Non observance will result in breaches.

Cases

Kiau Ninkints v Moki Rumints [1990] PNGLR 123

Counsel

Mr. Julius Javapro, for the Appellant
Respondent in person

10th July, 2015

1. GEITA J: The Appellant here is appealing against two orders made on 26 November 2010 and 26 July 2011 by the District Court. The basis of the appeal is that the magistrate acted unfairly when he dismissed the orders obtained by the applicant on 7th January 2011 setting aside ex-parte orders of 26th November 2010. The same magistrate than made new orders on 26th July 2011 ex-parte and reinstated his earlier ex-parte orders of 26 November 2010 in favour of the respondent. A total of six (6) grounds of appeal were moved. Since they are all inter related I have grouped them into one i.e.; breach of Natural Justice Rules.

2. At the hearing of this appeal, the respondent, an elderly man probably in his late 60's said since the orders were made in his favour he had nothing more to say to this court. The position he has adopted is understandable. He now finds himself standing before the Nation Court with the applicant represented and some concern for intimidation. The court has assisted him throughout the appeal process to which he said he understood what was going on.

3. Since this appeal is grounded on the questions of 'natural justice' I will be guided by the relevant provision quoted in the Constitution and identify areas of breaches by the court below. Section 59 Constitution 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.

4. First up are ex-parte orders. By their very nature, they are made in the absence of one party to any proceedings and may be set aside on such terms as to costs or otherwise the court thinks just. Hence strict compliance with procedures and rules governing their operations must be observed (S.25 District Courts Act). Once the court is satisfied that reasonable notice of service has been affected on the offending party it may then proceed to hear the information or complaint. As a rule of thumb it is always advisable to determine the proceedings inter-party after the first ex parte hearings in the interest of justice and to avoid challenges as has happened in this appeal. The magistrate's basis for making those two orders were due to the non appearance of the appellant on seven (7) consecutive days in court. Whether those days were set for hearing or mention remains unclear. The magistrate's figures appear somewhat misleading. The appellant recorded 6 non appearances whilst the respondent recorded 5 non appearances.

5. The first ex-parte order obtained by the respondent was set aside when it became apparent to court during the hearing that the appellant had not being properly served. The respondent misled the court into believing that he personally served the court summons on the appellant. The appellant's court papers were given to one of his friends to serve on her. The respondent lied in his affidavit of service that he had served the appellant.

6. The second issue is whether the appellant was properly served when the orders of 26 July 2011 were taken out. During four (4) court appearances leading up to the grant of the offending ex-parte order by the court below the appellant had not been properly served. No minutes of proof of service were recorded or shown in the magistrate's notations. This is what Section 47 District Court Act says on service:

"(1) A summons shall be served at least 72 hours before the time appointed in the summons for the hearing—

(a) in the case of a natural person—on the person to whom it is directed by delivering a copy of the summons to him personally or, if he cannot be found, by leaving it at his last known place of abode with some other person apparently an inmate and apparently not less than 16 years of age; and

(2) Within seven days after service, a person who serves a summons shall make an affidavit, endorsed on the original summons, stating the day and place of service and shall immediately transmit the original summons to the Clerk for production at the time and place and before the Court specified in the summons.

(3) A document purporting to be an affidavit of service under Subsection (2) is prima facie evidence of the service of the summons.

7. That omission in my view is fatal and so any orders made under those circumstances would amount to clear breaches of natural justice rules. District Courts like the National Court are creatures of statute and one must look at the procedures and conditions set out in the statute to find the ambit of the power of the court (Kiau Ninkints v Moki Rumints [1990] PNGLR 123).

8. This truly is a very sad state of affairs for the parties and the judicial system. From the time the complaint was filed on 26th August 2010 for the recovery of K2, 230.00 for work done for the respondent it has taken almost five (5) years to this day for the matter to be settled. These long years of delay has contributed to parties losing interest and keeping track of the case. My observation of District Court's handling of this simple case from start to finish from the court's minutes leaves a lot to be desired.

9. Due to the foregoing reasons given above this appeal is allowed. I am also satisfied that there has been a substantial miscarriage of justice. To have the matter remitted back to the District Court for rehearing by another magistrate in my view is not the best of options. There is only one magistrate in the province at the moment and it appears highly unlikely a neutral magistrate will be available until next year or so I am told. In the interest of justice I will however exercise powers available to me under Section 230 (1) (c) (e) of The District Courts Act Ch No. 40. I make the following orders instead:

1. The appeal is allowed and the District Court orders quashed,
2. By consent of both parties the appellant will pay K500 to the respondent as full and final settlement of his complaint within two weeks.
   

Appeal allowed.

Public Solicitor: Lawyer for the Appellant
The respondent in person