Sam Anonga and Mainland Holdings Ltd trading as Abco Transport v Jack Were (2001) N2149

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 25 May 2001
• Citation: (2001) N2149
• Court: National Court
• Year: 2001
• Judgement Number: N2149

Full Title: Sam Anonga and Mainland Holdings Ltd trading as Abco Transport v Jack Were (2001) N2149

National Court: Injia J

Judgment Delivered: 25 May 2001

N2149

PAPUA NEW GUINEA

[In the National Court of Justice]

APPEAL NO. 219 OF 1999

BETWEEN:

SAM ANONGA

-First Appellant-

AND:

MAINLAND HOLDINGS LTD t/s ABCO TRANSPORT

-Second Appellant —

AND:

JACK WERE

-Respondent-

Lae : Injia, J.

2001 : April 18

May 25

Inferior Courts — Appeals — Decision — Reaons for decision — No Reasons for
Decision. — Substantial miscarriage of justice — Appeal allowed — Decision quashed — Re-Trial ordered.

Cases cited in the judgment

Lee v. Lee [1973] PNGLR 89;

Bougainville Copper Limited v. Liu [1978] PNGLR 221;

Acting Public Prosecutor v. Unama Aumane [1980] PNGLR 510

Godfrey Niggints v. Tokam [1993] PNGLR 66;

Kelly Yawip v. Police Commissioner [1993] PNGLR 93;

Anton Angra & Another v. Tonny Ina [1996] PNGLR 303.

Pierson Joe Kamagip v. Police Commissioner N1853 (1999).

S. Maliaki for the appellants

L. Siminji for the respondent

25 May 2001

INJIA, J.: This is an appeal against the decision of the District Court held at Lae on 5/08/99 in which the Court entered judgment for the respondent for K10,000.00 plus costs and interest. The amount was for loss of PMV fee earnings in the period the respondent's PMV bus was undergoing repairs as a result of damage caused by the negligent driving of a truck by the first appellant, an employee of the second appellant. The judgment was entered after hearing only the respondent's case, the Magistrate having refused an application by the appellant's counsel for adjournment of the hearing to locate the first appellant for instructions to defend the claim. At the hearing, the appellant's counsel was unable to cross-examine the respondent's witnesses because she had no instructions from the first appellant.

Both parties had entered into pleadings in which the defendant denied the claim and in the alternative, pleaded contributory negligence. At the hearing on 4/8/99, the only evidence before the Court was from the respondent and these were in the form of two affidavits, namely the affidavit of the respondent sworn on 18/5/99 and filed on 19/5/99; and the affidavit of Rodney Era sworn on 23/7/99 and filed on 23/7/99. Based on these two affidavits, the respondent applied for judgment. The Magistrate then adjourned the matter to 5/8/99 for decision. On 5/8/99, the Court handed down its decision. The decision as per the Magistrate's worksheet reads:

"That Judgment be entered for the Complainant in the sum of K10.000.00 plus costs and interests. Payment to be paid forthwith".

On 11/8/99 the appellants appealed the decision by filing a Notice of Appeal. On 16/8/99, the Registrar wrote to the Clerk of Court advising that an appeal had been filed and requested that he forward to the "Court depositions (all typed up) and also the Magistrate's reasons for decision" (my underlining). The request for reasons for decision I would imagine was prompted by the absence of any reasons for the decision/judgment/order made on 5/8/99 and or absence of any record of any such reasons being given. The request was made to the Clerk of Court so that he could invoke S.225 of the District Court Act (Ch. No.40) which provides:

"1. Where no reasons were given by the Court for the making of the conviction, order or
adjudication, the Clerk of Court the decision of which is appealed...