Consort Express Lines Limited v Winnie Namane (2001) N2147

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 10 November 2001
• Citation: (2001) N2147
• Court: National Court
• Year: 2001
• Judgement Number: N2147

Full Title: Consort Express Lines Limited v Winnie Namane (2001) N2147

National Court: Injia J

Judgment Delivered: 10 November 2001

N2147

PAPUA NEW GUINEA

[In the National Court of Justice]

APPEAL NO. 43 OF 1999

BETWEEN:

CONSORT EXPRESS LINES LIMITED

-Appellant-

AND:

WINNIE NAMANE

-Respondent-

LAE : INJIA, J.

2000 : November, 10

2001 : July 11, 20

Practice and Procedure — Magistrates — Disqualification for Bias — Grounds
– Complainant's wife communicated with Magistrate hearing case — Case decided in favour
of complainant — Ground of appeal alleging bias — Magistrate described ground of appeal as
"totally absurd", intolerable and "Stupid" — "Reasonable suspicion of bias" occurred —
Appeal allowed — Rehearing ordered.

Cases cited in the judgment

R v. Altrincham Justices; Ex parte Pennington [1975] 2 All ER 78

Ex parte Topping [1983] 1 WLR 119 at 123; [1983] ALL ER 490

Thomas Kavali v. Thomas Hohoi [1984] PNGLR 182

Fidelis Agai v. Buckley Yarume [1987] PNGLR 124

R. v. Liverpool City Justices; Ex parte Topping [1983] 1 W.L.R 119

Kwame Okyere Boateng v. The State [1990] PNGLR 342

John Nilkare v. Ombudsman Commission Unreported Supreme Court judgment No. SC 498 (1996).

P. Ousi for the appellant

Resp. in person

20 July 2001

INJIA, J.: This is an appeal against a decision of the District Court held at Lae on 29/03/99 whereby the Court awarded K2,008.70 in damages plus 8% interest and costs of K160.72, to the respondent.

The Notice of Appeal as amended by order of this Court on 14/05/99 states 8 grounds of appeal. Seven of the grounds relate to procedural and substantive issues on liability and quantum of damages. The eighth ground, ground (h), relates to issue of disqualification for bias on the part of the Magistrate. As the fate of this last ground can affect the validity of the entire decision to which the other 7 grounds of appeal relate, I will determine ground (h) first. Ground (h) states:

"The learned Magistrate erred in law and in fact in … not dsqualify himself when the Magistrate acknowledged receiving a call from the Respondent's wife who work at the Goroka District Court to make a ruling in favour of the respondent."

The evidence in support of this ground is set out in the affidavit of the appellant's counsel, Mr. Paul Ousi, sworn and filed on 29/04/99 in support of application to amend the Notice of Appeal to add ground (h). Paragraphs 5 — 6 of his affidavit states:

"5. Prior to the Court hearing this case, (the Magistrate named) briefly told me that the respondent's wife rang from Goroka Court house and asked him to rule in her husband's favour.

"6. Whilst I do not believe the Magistrate acted on her advice, the Magistrate should have disqualified himself. He, told me if he heard the case, he would dismiss it which I took to mean that he did not wish to hear the case".

To this ground of appeal, the learned Magistrate responds as follows:

"As to appeal ground paragraph "H". I do remember a lady calling from Goroka, she claims to work for National Court registry, Goroka. She claims to be Mr. Nomane's wife. I personally have never met her or even know her up till now. I do not even know now if Mr. Nomane's wife works for National Court registry in Goroka. She called to advise that day that Mr. Nomane was sick and could not come down from Goroka for that day's hearing.

"She then complained of the case dragging on by the defence and me entertaining the continuous defence request for adjournments for one reasons or another. I got annoyed and fired her on the phone and told her if she does that again I will penalize her husband. So she apologizes and hung up. I told Mr. Ousi of the fact and so we adjourned the case to another day.

"There was in no way forced me or entice me to rule in her husband's favour.

"Why should also because they are not my wantoks and I don't even know her and further to that I am not a kid to be old what to do.

This appeal ground is totally absurd and I can't tolerate such...