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Wellis v Simakus [2016] PGNC 347; N6567 (7 December 2016)

N6567

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 30 OF 2015

BETWEEN

YATEFA WELLIS
Appellant

AND

MARGARET SIMAKUS
Respondent

Kundiawa: Liosi, AJ

2016: 22 July, 23 August & 7 December

DISTRICT COURT – Duty to State decisions and reasons for Decision
DISTRICT COURT – Court of Record and must keep written records of it’s decision and reasons for decision – Constitution S.155(1), S.160(2),S.163(2)&S.225(2) District Courts Act Chp. 40 – Appellate Court unable to exercise it’s powers under S.230 of District Court Act due to lack of reasons.
DISTRICT COURT – Practice & Procedure – Appellant not advised of hearing date – Appellant not given chance to be heard – Breach of Natural Justice Appeal allowed – matter remitted back for rehearing.

Cases Cited:
Acting Public Prosecutor -v- Unama Aumane [1980] PNGLR 510
Anton Angra & Oimbo Security Services Pty Ltd -v- Tony Ina [1996] PNGLR 303
Bougainville Copper & Masai Levi -v- Matthew Liu [1978] PNGLR 221
Francis Mabon -v- Francis Gesa N314(m) (1981)
Godfrey Niggints -v- Tokam (1993) PNGLR 66
Henry Asi -v- Malaita Hoala [1981] PNGLR 1999
Kelly Yawip -v- Police Commissioner [1993] PNGLR 93
Nerin Neame -v- Ovia Namba (2000) N2060
Pierson Joe Kamagip -v- Police Commissioner N1853 (1999)
Sam Anonga -v- Jack Were (2001) N2149
Toni Orani -v- Benson Tamean N323(m) (1981)

Counsel:
Mr. M. Yawip, for the Appellant
Ms. M. Simakus, In Person

Ruling

7^th December, 2016

1. LIOSI AJ: The Appellant appeals against the decision of the Kundiawa District Court made on 13^th March 2015 whereby the appellant was ordered to pay K3, 000.00 to the respondent within 3 months in default 4 months imprisonment in hard labour for assaulting the respondent.

2. There are three (3) grounds of the Appeal

1. The learned Magistrate erred in law and facts when it failed to give weight to the Defence of the appellant and the appellants witness evidence.
2. The Magistrate erred when he considered the evidence of the Respondent without giving the opportunity to the appellant to be heard in his defence which was in breach of the principles of natural justice.

100. The trial was part heard and the Court without hearing the appellant’s evidence made its decision denying him the opportunity to present his evidence.

3. I consider the three (3) grounds of appeal to be one ground as they all relate to alleged breach of natural justice.

Orders sought:

(a) Appeal be upheld and the decisions of the District Court quashed.

(b) Costs be paid by the respondent

(c) Any other orders the court deems proper

4. The brief alleged facts are that the appellant is a Policeman based at Kundiawa. The respondent is a nurse employed by the Kundiawa General Hospital. On the 27^th March 2014 at about 6.30 pm the appellant assaulted the respondent from which she sustained serious bodily injuries particularly fracturing of her front tooth. After various adjournments the District Court found him liable of the assault on 13^th march 2015. On the 18^th March 2015 the District Court ordered the appellant to pay compensation to the respondent in the sum of K3, 000.00 in default four (4) months imprisonment.

5. The Complainant laid her complaint on 20^th June 2014 some three (3) months after the alleged assault. The Court handed down it’s decision on 18^th March 2015. The decision of the Court as appearing in the Magistrate’s worksheet is;

Stood over from December at 27/01/15
27.01.15. S/O to 17/3
17.03.15 Complainant present
Defendant N/A

S/O to 18.3
18/03/15 Comp: Present
Def: Present
Complaint: Proved

Court Order: Complaint proved
Def. to pay K3, 000.00 to Complainant within 3 months, in default sent to 4 months.

The formal orders of the Court reads;
The Court Orders that:

The Defendant is to pay K3, 000.00 as compensation within 3 months.
In default be sentenced to 04 months imprisonment.
Case adjourned to 18^th June 2015 for recheck.

Dated at Kundiawa this 18^th day of March 2015

6. The first observation, I make about this judgment is that it does not give any reasons for decision. I do not know if any reasons for decisions were given. If reasons were given orally, there is no evidence of this in the notes. If the above statement was all that was pronounced at the time of decision, then it is not a judicial decision based on reasons. The need for a Magistrate to give reasons for decision has been expressed many times in many cases: see Lee v Lee [1973] PNGLR 89; Bougainville Copper & Masai Levi v. Liu [1978] PNGLR 221; Anton Angra v. Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303; Henry Asi v. Malaita Hoala [1981] PNGLR 1999; Francis Mabon v. Francis Gesa N314(m) (1981); Toni Orani v. Benson Tamean N323(m) (1981); Nerin Neame v. Ovia Namba (2000) N2060; Sam Anonga v. Jack Were (2001) N2149.

7. The District Court is a Court of record. It is implicit in Section 160(2) and Section 163(2) of the Constitution, when referring to the National Court and the Supreme Court as “Superior” Courts of record, that the District Court is an “interior” Court of record. Both the two Superior Courts and the District Courts are Courts of National Judicial System: Constitution, Section 155(1). As such, the District court must keep written record of its proceedings for appeal and other administrative purposes. The Magistrate’s decision on the case is an integral, if not the most important, part of the case and it must be fully recorded in writing or by some form of audio recording system if such equipment is available. The practice seems to be that the Magistrate’s decisions are recorded in a worksheet provided for that purpose. The Court must record its decisions and the reasons for decisions on the Magistrate’s worksheet or in some other written form.

8. The Court’s decision comprises of a decision or judgment on the claim or action itself and the reasons for that decision. The reasons for decision are indispensable in every case. It may be a summary in note form or verbatim record of the reasons as pronounced in Court. It is not sufficient to say or record statements of the type above, which seems to be the normal practice in appeals. It also makes it difficult for the appeal Court to fully deal with the grounds of appeal. It also hinders the preparation and presentation of the appeal by the parties. A party is entitled to rely on the lack of reasons for decision as a ground of appeal, and it is a valid ground of appeal. In such cases, if the Magistrate’s decision is under challenge in the appeal, the Court may infer that a decision without reasons is not a good decision and allow the appeal.

9. In the present case the magistrate’s failure to give reasons for its decision if any is not a ground of appeal. I will therefore assess the evidence and make my own findings. See Sections 230(1)(e) of the District Courts Act.

10. I now address the grounds of Appeal and the respective evidence adduced in respect of each ground.

Ground 1

11. The learned Magistrate erred in law and facts when it failed to give weight to the Defence of the appellant and the appellant’s witness evidence.
The Complainant in this case filed statements of two (2) witnesses supporting the Complainant’s evidence of assault. The respondent also filed statements of two (2) witnesses denying the assault. The respondent maintains he was never present on the 13^th March 2016 when the matter was heard as he was never informed of the hearing date after the matter was adjourned sinedie. The court in all fairness should have considered the evidence of the respondent and his witnesses given the denials and weight of the evidence.

Ground 2

12. The Magistrate erred when he considered the evidence of the complainant without giving the opportunity to the defendant to give his evidence which is in breach of principles of natural justice.
The appellant claims he was not given the opportunity to be heard as he was not notified of the hearing date which was on the 13^th March 2015. The respondent submits the hearing was held on the 7^th March 2015 and not 15^th March as submitted by the appellant. Exhibit “H” which the respondent refers to does not support her argument. There appears to be no evidence of any hearing on the 7^th March 2015. It is apparently unclear from the Court records and the magistrate’s worksheet as to when the trial was held whether on the 7^th or 15^th March 2015.

Ground 3

13. The trial was part-heard and before the court could hear the appellant’s evidence, it gave it’s decision denying the appellant the opportunity to present his evidence. Again, it is very unclear from the record of the proceedings and the magistrate’s worksheet as to whether the matter was part heard and if so when the matter was part-heard. There is no evidence stating when the evidence of the respondent was heard and when the court was to hear the evidence of the appellant.

14. Although failure to give reasons is not specified as one of the grounds of the appeal, the obligations to give reasons once an appeal is lodged is a mandatory obligation imposed by Statutory Law and must be complied with.

15. From the foregoing, it is obviously clear that there has been a miscarriage of Justice. There also appears to be no records to show that the magistrate made a proper determination on the question of liability. The magistrate did not make any independent assessment on the quantum of damages. Consequently, I am called upon to review his decision. However, there is no way I can determine how the magistrate reached his decision. How could the appellate court assess where the magistrate erred when there is no reason for the decision that was made.

16. An appellate Court can only determine the issue of liability and quantum if there is sufficient evidence before it. The evidence in respect of both are vague and scarce. It is a well settled principle that the court must always give reasons for its decision. Giving reasons is a fundamental requirement of a fair hearing in the Judicial making process. See Godfrey Niggints v. Tokam (1993) PNGLR 66, Kelly Yawip v. Police Commissioner [1993] PNGLR 93; Pierson Joe Kamagip v. Police Commissioner N1853 (1999). A decision of a Court without reasons is an unreasonable one: Acting Public Prosecutor v. Unama Aumane [1980] PNGLR 510 at 539. Similarly, if no reasons are given by an administrative authority, then the logical conclusion is that there were no good reasons at all for making the decision: Niggints v. Tokam (supra). Failure to give reasons by the District Court in this case constitutes a substantial miscarriage of justice and a re-trial ought to be ordered: see Lee v. Lee [1973] PNGLR 89; Bougainville v. Mathew Liu [1978] PNGLR 221; Anton Angra & Another v. Tonny Ina [1996) PNGLR 303.

17. Whilst I have powers under S.230 of the District Court Act to affairm, quash or vary the decision, I am unable to do this given the lack of reasons for the decision.

18. For this reasons, I allow the appeal, quash the decision of the District Court made on 18^th March 2015 and Order that the matter be referred back to the District Court for rehearing interparty. Parties shall bear their own costs.

Ruling accordingly,

___________________________________________

Public Solicitor: Lawyer for the Appellant
Respondent in Person