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Bareji v Japara [2022] PGDC 91; DC9030 (1 March 2022)

DC9030
PAPUA NEW GUINEA.
CIVIL JURISDICTION.

DCC NO: 64/2021

IN THE MATTER BETWEEN:

LEONARD BAREJI.
Complainant/Respondent.
.
AND.
WILLIAM JAPARA
Defendant.

Popondetta: Michael W. Apie’e

2021: April 20^th,27^th,May 11^th, 18^th,June 25^th,July 01^st, 15^th, 22^nd,September 09^th, December 16^th,22^nd, 2022 January 04^th 06^th, 27^th, February 01^st,07^th, 15^th,22^nd March 01^st.

CIVIL PROCEEDINGS.- Application Seeking Magistrate to be Disqualified in presiding over an Enforcement phase of court Orders.
-Application made during enforcement phase and not before the commencement of Proceedings.

Cases Cited:

References:
District Court Act.

Representation:
Complainant/Respondent in Person
Defendant/Applicant in Person

JUDGMENT NOTICE OF MOTION.

Background.
Complainants case.

1. The Complainant Leonard Bareji had filed a claim against the Defendant William Japara or later Corrected as William Kathuo on the 16^th of April 2021 for that he alleges that the defendant on the 07^th of February 2018 did commit assault on the Complainant by throwing a stone at him and also insulting him saying ‘ Kok pekpek asshole’
   
2. The Complainant being aggrieved for some time verified and affirmed his decision and brought action against the Defendant in his claim of 16/04/21.
   
3. On the 20/04/21 the matter is first mentioned before me and the Defendant did not attend court even though he was served on the 19/04/21.
   
4. Given what was obviously a short service of the action the matter was further adjourned to the 27/04/21, and when the Defendant did not attend further adjourned to the 11/05/21.
   
5. On the 11/05/21 the Defendant was still not present and so the matter was further adjourned to the following dates, 18/05/21, 25/06/21, 01/07/21, 15/07/21, whereupon the matter then set for possible Ex-parte hearing for the 22/07/21 and further notice ordered to be served on the Defendant.
   
6. On the 22/07/21, the Defendant was still not present despite issuance of Notice of hearing on him so Ex-Part hearing was conducted.
   
7. On the basis of his Originating Documents the Complainant in submitting on his claim stated inter-alia as follows;
   
   1. He was working on a Land mediation case when the Defendant and two others set upon him and assaulted and insulted him.
      
   2. He further claimed that the other two defendants had shown their contrition and compensated him with K300.00 each for the minor parts they played in this assault on him.
      
   3. He further stated that the Defendant had actually admitted liability and paid a K120.00 and promised to pay him more later but did not do so, hence the delay from 2018 to 2021.
      
   4. He further stated that apart for the insults issued at him by all the three men, the Defendant had particularly thrown a sizeable stone at him and chased him whilst he was doing his Land Mediator functions.
      
   5. The Complainant them asked that since the Defendant had never attended, the court should grant the orders he was seeking.
      
8. Since the Defendant had never attended the Court to respond to this claim, the Court granted the Orders Sought as follows;
   
   1. Compensation o K5000. 00 sought is ordered for the Complainant.
   2. Cost of K3.00
   3. Interest from Filing up to date of Order at K106.60
   4. Total of K5109.60 to be settled within 31 days.
   5. In default enforcement to ensue.
      

Setting aside of Ex-parte Order.

9. The Defendant at that stage had the option to seek to set aside the Ex-parte Orders but did not.
   
10. That would have been the correct course to have undertaken as in the course of his application I note that he does not contest the allegations except to contest the amount ordered on the basis of no medical assessment.
    

Warrant of Execution/Order for Oral examination.

11. On the 18/08/21 Warrant of Execution is issued against the Defendant, but to no avail as the Defendant did not have properties worth executing.
    
12. On the 19/10/21 some three months later and again on the 26/10/21 various summons to Judgment Debtor is served on the Defendant with a notice for Oral Examination to attend court on the 09/11/21 and again on the 10/12/21 without any response.
    
13. A further Summons to Debtor is issued on the 26^th of October requiring the Defendant to attend court on the 09/11/21 at 9.30am out any response let alone attendance by the Defendant to the Court.
    
14. After various adjournments, on the 16^th of December 2021, the Court was forced to Issue a Warrant of Arrest for the Defendant to be arrested and to be brought in for Oral Examination.
    
15. Warrant actually dated the 17/12/21 and was executed on the 21/12/21 and the Defendant was brought to Court on the 22/12/21, whereupon he did not contest the Orders not the amount ordered but made a commitment to the Court to settle the judgment Debt of 22/07/21 by at the Complainants agreed amount of K4000.00 by the 06/01/22.
    
16. On the 06/01/22, the Defendant attended Court armed with new legal idea’s from advice he got from his Legal Advisers that he would ask the Magistrate (Myself ) to Disqualify himself on the basis of Conflict of Interest and to allow other Magistrates to deal with the matter instead.
    
17. It is obvious this Advice was given him by certain Court Staff who are connected to him and so I will firstly address this matter.
    

Conflict of interest.

18. According to Wikipedia ‘A Conflict of interest is a set of circumstances that creates risk that a professional judgment of or actions regarding a primary interest will be unduely influenced by a secondary interest.’ Primary interest being the Principal Goals of the Organization and Secondary interests including personal benefits which might not only be limited to financial but also other benefits like personal advancement or elevations.
    
19. It was incumbent on the Defendant to advance and provide evidence on where ‘the Conflict of Interest of myself as a Magistrate in this case was.
    
20. The mere contention that since Leonard Bareji was a Land Mediator and I should disqualify myself as I am running Local Land Court cases in Popondetta is in my adjudication not enough to warrant my disqualification from presiding over cases.
    
21. What is the conflict of interest and what is the Secondary interest that I am supposed to have obtained in pursuing the primary District Court interest to Disposing of Pending cases? How have I benefitted from this Order of 22/07/21?
    
22. Besides, the Order given in July of 2021 long before Leonard Bareji was call upon to preside on the Local Land Court Bench as a Land mediator.
    
23. The History of the case itself highlighted in Paragraphs # 3,4,5 and 6 shows a Defendant that did not care what was happening before the Court until he was arrested and faced the real possibilities of Legal penalties befalling him if he did not comply.
    
24. When he was arrested on Warrant of Arrest on the 21/12/21 and brought to court on the 22/12/21, he voluntarily conceded and told the court that he would settle the amount only to change his mind and go back on this commitment to the Court when he is given advice by some unqualified court staff on the concept of Conflict of interest on the 06/01/22.
    

Applications for disqualifications of Magistrates.

25. Application for Disqualification of a Judge or Magistrate is normally expected at the start of any proceeding and not in the middle or at the end.
    
26. In this case the Orders were issued on the 22/07/21 and warrant of arrest on the 16/12/21 after the court had being very patient with this defendant over the course of about 5 months.
    
27. Even when he was arrested and he undertook in open court to settle at K4000.00, the court was again very patient and allowed him until the 06/01/22 to try and settle the whole or part of the Judgement Debt to the satisfaction of the Complainant.
    
28. Instead due to some unqualified ‘Legal Advice’ given him by some unqualified court staff he seeks to have myself as the Presiding Magistrate to disqualify myself this late in the process-enforcement stage.
    
29. I will out right refuse this application to disqualify myself this late in the process as to adjourn and transfer the Enforcement Aspect of my Court order to another Magistrate is untenable and basically unheard of in my experience both on the bench and also from the bar table.
    
30. I refuse the application by the Defendant to disqualify myself and look forward to any appeal that might to be lodged to the National Court to challenge my ruling as a matter of the development of the Underlying Law of Papua New Guinea and case precedents.
    

Exercise of Discretion.

31. Having established that, I still have the right to exercise my discretion in finalizing my orders and or adjusting my orders to suit the circumstances of the case.
    
32. Despite my refusal of the Defendants primary application to disqualify myself, I do agree with him that the total amount adjudged against him Ex-parte at K5109.60 was unsubstantiated by any medical reports verifying actual injury.
    
33. However, given that the matter proceeded ex-parte on the 22/07/21 and without any rebuttal from the Defendant the orders sought were issued on face value, I would concede that this is an appropriate case in which I should appropriately use my discretion to make appropriate adjustment to the primary orders of 22/07/21.
    
34. The fact that the Defendant had paid K120.00 previously to the Complainant and also his two companions on the day paying a total of K300.00 each to the Complainant, I would adjust the total amount to be paid is compensation down on the basis that the Complainant was not actually hurt himself, hence no medical report.
    
35. Also, if the Defendant had made an application to set aside the Ex-parte orders within the allowable reasonable time, I have indicated that I would have definitely set aside the Orders of 22/07/21 in order to fully hear the matter to arrive at a rational judgment sustained on evidence, but he never came to court to make such application for the full 5 months the Order remain outstanding.
    
36. I would on the whole of the matter adjudge that a compensation of K2000.00 for insulting, threatening and assaulting a Land Mediator carrying out his official Land Mediator Function is sufficient and justifiable compensation, in all the circumstances of the case.
    
37. In the final analysis, pursuant to Section 22 of the District Court Act the Court will order as follows;
    
    1. The Application by the Defendant for myself as Presiding Magistrate in this case to Disqualify myself is Reject as it is too late in the process for such applications.
       
    2. The court will alternately in the exercise of its Discretion adjust the Judgement Amount of K5000.00 down to K2000.00
       
    3. Cost of K3.00
       
    4. Interest of K42.00
       
    5. The Defendant is allowed 31 days from today to fully the total of K2045.00.
       
    6. Failing that, Warrant of commitment will be raised for his imprisonment.
       

Complainant in person.
Defendant in person.