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Nikints, Re [1988-89] PNGLR 164 (10 May 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 164 - Re Moki Nikints�

[1988-89] PNGLR 164

N710(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE MOKI NIKINTS AND SECTION 42(5) OF THE CONSTITUTION

Mount Hagen

Woods J

3 May 1989

10 May 1989

INFERIOR COURTS - Village Courts - Jurisdiction - Power to order imprisonment - Subject to Constitution - Complaint for enticement - Enticement a statutory offence - Complaint not dealt with as statutory offence - Order for imprisonment made before opportunity to pay compensation - Order for imprisonment unlawful - Adultery and Enticement Act 1988 - Constitution, s 42(5).

CONSTITUTIONAL LAW- Rights of all persons - Liberty of person - Imprisonment for failure to pay compensation for enticement - Statutory procedure for enticement proceedings - Procedure not followed - Imprisonment unlawful - Constitution, s 42(5).

The Constitution, s 42(5), provides that where a judge is satisfied that the imprisonment of a person is not �lawful�, he may order release of the person.

On a complaint that the respondent had encouraged the complainant�s wife to leave the complainant and live with someone else, a Village Court Magistrate made an order for compensation and on the same day an order for imprisonment for failure to pay the compensation.

The offence of enticement is created under the Adultery and Enticement Act 1988, which provides procedures for mediation and compensation with criminal sanctions only as a last resort. None of the provisions of this Act was complied with by the Village Court.

Held

Insofar as the complaint was one for the offence of enticement under the Adultery and Enticement Act 1988, the failure to comply with the statutory provisions thereunder rendered the order for imprisonment unlawful under s 42 of the Constitution.

Inquiry into Complaint

This was an inquiry by a judge into a complaint made to the National Court that the complainant had been unlawfully detained. Section 42(5) of the Constitution provides:

�(5)��� Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained:

(a)����� the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b)����� unless the Court or Judge is satisfied that the detention is lawful, ... the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.�

10 May 1989

WOODS J: The applicant has come before me on a complaint that he is being unlawfully or unreasonably detained in Baisu Corrective Institution. He is held on a warrant issued for 25 weeks imprisonment by virtue of an order of the Village Court at Ulga in the Western Highlands Province and endorsed by the Local Court at Mt Hagen on 27 February 1989. The warrant refers to failing to comply with a Village Court order that he pay K250 compensation and K50 fine on 27 February 1989.

From a perusal of the Village Court papers it appears that this matter arose from a complaint that the applicant encouraged the complainant�s wife to leave the complainant and go and live with someone else. Insofar as this may be an offence, it may be the offence of enticement which is clearly covered by the Adultery and Enticement Act 1988. However, there is nothing in the Village Court papers to show that this was dealt with as an offence of enticement under this Act. The Act clearly provides for mediation and if the court gets to the stage of determining any compensation there are specified matters to be taken into account.

There is nothing to show that there was any attempt at mediation nor that proper matters were considered in assessing compensation. Further, the order for imprisonment was made the same day as the order for compensation was made. Thus no time was given to the applicant to find the compensation. This matter is not an offence for which imprisonment is the primary penalty. The intent and purpose of the Adultery and Enticement Act is clearly not to create criminal offences but rather to regulate disputes relating to adultery and enticement and to provide for compensation in appropriate cases with criminal sanctions only as a last resort.

The Village Court has not followed the law as laid down by Parliament.

The National Court has power under the Constitution, s 42, to inquire at any time into the detention of persons held in custody. I find that this case is an appropriate case for me to have inquired into.

I find that the order for imprisonment of Moki Nikints is unlawful. I order that Moki Nikints be released from custody forthwith.

Order of imprisonment declared unlawful