East West Services Ltd v Tuanakuas [2009] PGDC 51; DC877 (15 June 2009)

DC877

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
[SITTING IN ITS CRIMINAL JURISDICTION]

COMPLAINT NO 22 0F 2009

BETWEEN

EAST WEST SERVICES LIMITED
Complainant / Applicant

AND

FRANCISA TUANAKUAS
as the PRINCIPLE LANDOWNER and The LANDOWNERS
of the land known as M; DADADOWOS CAMP Situated at
KUNAYE NO 1 VILLAGE, WARD 11, and LIHIR ISLAND N.I.P.
Defendants / contemnors

LIHIR: B. TASIKUL
2009: 11, 15, JUNE

REASON FOR DECISION

TASIKUL,: This is a contempt of court proceeding institute by the complainant, against the Principle contemnor for the breach of an interim order of this court issue on the 13th April 2009.The contemnors include Jerry Morus, Gas Maria, and Ignatius Nuruo.

To appreciate the nature of this proceeding let me briefly herein state the background of this case.

The complainant / applicant and the defendant / contemnor entered into an agreement for the complainant to lease a portion of a customary land owned by the contemnor and her landowners group at kunaye 1 village.

The purpose of this land lease agreement was for the complainant to built facilities for its employees. The term of the lease was to run from the date of the signing of the agreement, until the closure of the Lihir mine. The rental fee that was agreed at that time was for the complainant to pay K1500.00 per month.

O n the 9th of November 2008, the monthly rental payment was increase to K2, 000.00 a month. It happens that on the 19th of January 2009, the complainant received a letter from the contemnor demanding the complainant to remove all its property from the Mdadowos camp. Then again the contemnor sent another letter dated 7th of April 2009, to the complainant informing them their intention to permanently close the said camp. The complainant was given until 15th April 2009, to remove all their properties out of the MDadowos camp.

As the result of these threatening letters the complainant /applicant filed a Notice of Motion, with supporting affidavits from its employees seeking an interim order restraining the defendant / contemnor and her agent, associates, or any others persons directly under her from accessing the camp until such time the parties enter into negotiations.

The court granted the orders on the 13th of April 2009.The following are the orders as stated:

1. Leave is granted to the complainant to dispense with the requirement for service;

2. That the defendant by their servants, agent, and whosoever including persons associated with the Defendants are restrained from accessing the MDadowos camp area until the substantive matter is heard and determined;

3. The Defendants by their servants, agents, and whosoever including persons associated with the Defendants are restrained from getting anywhere within six (6) meters of the boundary of MDadowos camp area until the substantive matter is heard and determined;

4. The Defendants by their servavts,agents, and whosoever including persons associated with the Defendants are retrained from intimating, threatening, harassing, and being abusive to the employees, servants, and agents of the Complainant until the substantive matter is and determined;

5. The parties shall takes all steps necessary to address matters relating to the joint venture and the lease agreement with in ninety (90) days with the view to an amicable resolution of the dispute failing that the matter shall proceed to a hearing;

6. Costs be in the cause;

7. Such further orders the court deems fit.

It was then on the15th of April 2009, the Defendant / contemnor with others namely Jerry Morus, Gas Maria, and Ignatius Nuruo entered the MDadawos camp and planted gorgor effectively stopping the complainant and its employees from having access to the camp

Their action therefore, gives rise to this present contempt proceeding.

The issues that I need to address are:

1. Does this court have the jurisdiction to determine this matter?

2. Are the defendants guilty of contempt of this court?

I would deal with the first issue as it is important to determine whether or not I have the jurisdiction.

The operation of the District Courts are governed by the District Court Act chp40.As it has been settle in the various cases that the District Court are not courts of records. In Maus v Otto Magiten (unreported judgment) 2000, his honor Kandakasi J, stated:

It is now settle laws that the District Courts are not courts of records and creatures of statutes.Therefor their powers, function, and anything to do with them are governed by their enabling legislation. Consequently, all things done not in accordance with the Act have held to be null and void and no effect.

See: Rabaul Shipping Limited v Rita Ruru (2000) N2022. However, the only provision which deals with contempt of a District Court Order is Section 277 of the District Court Act,

277. Contempt of court

(1) A person who-

(a) willfully interrupts the proceedings of a court; or

(b) conducts himself disrespectfully to the court during the sittings of the court; or

(c) obstructs or assaults a person in attendance, or an officer of the court, in view of the court; or

(d) willfully disobeys an order made by the court under section 63 may be excluded from the court and is guilty of an offence.

Penalty: A fine not exceeding K200.00

(2) A person who, in the opinion of the court, willfully prevaricates in giving evidence is guilty of an offence.

Penalty: A fine not exceeding K100.00

(3) The court in the presence of which an offence under this section is committed may immediately convict the person guilty of the offence, on its own view or on oath for some credible witness.

(4) If a person convicted of an offence against sub-section(1) makes to the court, before its rising, such apology as it consider satisfactory, the court may remit the fine wholly or part o it.

In my view I consider this provision only refers to where a person or persons disturbed the court when it is on session. It has no jurisdiction over matters where a final order has be issued. This then bring to us another question, as, to, how then the District Court enforces its orders in this present circumstance?

Part 1X of the District Court Act clearly sets out the procedure in enforcing District Court orders in civil proceeding. However in this present case, the court issued an interim order or an injunction ordering the contemnors not to do something i.e.: restrained them from entering or going any closer to the MDadowos camp. I am of the view that in this type of circumstance the District Court has the jurisdiction under Section 22 and Section.171 (b) of the District court Act.

22 General ancillary jurisdictions

This provision gives the court general ancillary jurisdiction to grant such relief, redress, or combination of remedies..................................

171 Warrant of commitment in other cases:

(1) Where-

(a)

(b) a court orders the doing of an act other than the payment of a fine or sum of money or cost directs that, he shall be imprisoned, and the defendant neglects or refuses to do the act, the court or magistrate may issue a warrant of commitment for the imprisonment of the defendant for such time as the conviction directs.

Before any warrants are issued the contemnors also have the rights to be heard as provided under s.37 of the Constitution.Becaues the District Court Act does not provide for a direct contempt, the only available avenue from my view is for the District Court to give effect to ss.22&171 and adopt the procedures apply by the National Court under the National Court Rules.

In the case of Pius Mark v Korali [1995] PNGLR 116 his honor, AkuramJ stated:

This is a contempt of court order against a decision of a District Court. The District Court provision on contempt is s.227.......I am of the view that this section does not apply to contempt of an order made by the District Court. S227 (1) (d) only talks about a removal order made by the magistrate during the proceeding and not a final orders of the court

Section 277(3) is in similar terms as section163 (2) const and also section160 (2) const ...................................

His honor continued further: Whereas contempt in procedure, otherwise known as civil contempt consisting of disobedience to judgments, orders or other process of the court and involving a private injury. It also explained that although a civil contempt is essentially a wrong done to the person who is entitled to the benefit of the order or judgment concern, it also obstruction of the fair administration of justice.

His honor stated:

Section 155(1) Constitution says

(1) The National Judicial System consists of

(a) The Supreme Court

(b) The National Court

(c) Such other as are established under section 172(establishment of court)

Section 22-Enforcment of the Constitution says:

The provision of this Constitution that recognized rights of individuals ( including corporation and association) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable be supplied the National Court in the light of the National Goals and Directives Principles and by way of analogy from other laws, general principles of justice and generally accepted doctrine.

The Constitution also established other inferior courts such as District Court under section 172(1) which says:

(1) Subject to this Constitution, Acts of Parliament may establish, or provide for the establishment of courts within the National Judicial System in addition to the Supreme Court and the National Court, and may define, or provide the definition of, their respective powers, functions and jurisdiction and their relationship with other components of the National Judicial System.

The intention of the Constitution as can be seen from the above provision can be summarized as follows:

(1) National Court has both an unlimited jurisdiction and inherent power to make orders as necessary to do justice in the circumstances of a particular case

(2) The District Court is also part of the National Judicial System, but is created by the statute, the District Court Act, and is regarded as inferior court.

(3) It is also, subject to any power of appeal or review of a decision, the duty of all persons and all bodies and institutions, to comply with and, so far as is within their respective lawful powers to put into effect all decisions of the National Judicial System. The decision or order of the District Court is a decision or order of the National Judicial System and therefore must be put into effect by the Enforcement provision of the Constitution.

(4) The lack of supporting machinery or procedural laws, as far as practicable, be supplied by the National Court in the light of the National Goal and Directive Principles and by way of analogy from other laws, general principles of justice and general accepted doctrine.

In adopting the above principles as highlighted by his honor I am of the same view. In this present matter the defendants / contemnors failed to complied with the order issued by this court.Becaues the District Court Act does not provide for the enforcement of an order under this type of situation, then it would be appropriate to adopt the procedure that are use in the National Court. That is under the National Court Rules.

In this present matter the complaint counsel filed a notice of motion together with supporting affidavit and the charges which fully complied with the National Court Rules Order 14 Rule 42,43,44,45. Therefore in this situation this court has the jurisdiction to determined the matter on the face of the records.

The next issue now is: Are the defendants guilty of contempt of court?

Contempt of court as defined by Osborn’s Concise Law Dictionary, Seventh Edition, Sweet & Maxwell as: Failure to comply with the order of a superior Court, or an act of resistance or insult to the court or the judges.

In the case of Hankinson v Hankinson [1952] AllER 567 his honor Hinchliffe, J. adopted the same principles in Yap v Tin Siew Tan, B & T Engineering PTY LTD [1987] PNGLR 227 which he stated:

It is the plain and unqualified obigatition of every person against or in respects of, whom an order is made by a court of competent jurisdiction to obey it unless and until the order is discharged. The uncomprising nature of this obligation is shown by the fact that it extends to even cases where the person affected by an order believes it to be irregular or void.

A party, who knows of an order, whether null or void, regular or irregular cannot be permitted to disobey it.

In this present matter, the District Court on the 13th April 2009, issued an order restraining the defendants / contemnors from having access to the M, Dadowos camp. The order was served on the defendants by the Police Station Commander Mr. Ekeri Rovi as deposed in his affidavit swore and filed on the22nd April 2009 at 5.30 pm on the same day.

However, despite the order been served on them, the defendants / contemnors on the 15th April 2009,the defendants / contemnors went ahead and placed gorgor at the gate of the M,Dadowos camp as the result the complainant’s employee were not able to access the camp.

During the contempt preceding the defendants namely Francisca Tuanakuas, Jerry Morus, Gas Maria and Ignatius Nuruo were present. The nature of the proceeding was explained to each one of them who understood very well why they were in court. In respond Jerry, explained the land was theirs and have every rights to do what they did. He also further stated that defendant Ignatius was never been with them as he belongs to another clan.

This court found that their explanation was not justifiable as there were evidence before me that, despite the court order they continued to enter the camp and placed gorgor which is clearly shows that they don’t have the respect of the court.

In this respect I found Francisca Tuanakuas, Jerry Morus, and Gas Maria guilty for contempt of the District Court Order. I discharge the defendant Ignatius Nuruo.

SENTENCING:

In considering an appropriate sentence, let me just remind the three of you that contempt of court is a very serious crime. Your action shows that you don’t care about the court order. You have demonstrated a disrespectful attitude towards the court.

While this court, acknowledge your custom in respect to the gorgor and its traditional value, you all must also mindful that from the beginning you have a legal bidding agreement between the complainant and yourself. This agreement is still bidding between the parties. If you have any dispute regarding this agreement, then, both parties must seek appropriate avenue to resolve it. This is a commercial arrangement and we cannot use custom to address such problem.Eventhough the Constitution recognized custom as part of our laws. The Customs Recognition Act, s. 3(1) (a) states that:

Subject to this Act, custom shall be recognized and enforced by, and maybe pleaded in, all courts except so far as in a particular case or in a particular context-

(a) Its recognition or enforcement would result, in the opinion of the court, injustice or would not be in the public interest

As I have mentioned above, this arrangement between yourself and the complainant is an commercial arrangement.

Having said that I now made the following orders:

(1) That Francisca Tuanakuas, Jerry Morus, and Gas Maria hereby sentence to six (6) months imprisonment, However I will suspend the whole sentence on the following condition:

(a) That the defendants / contemnors shall remove the gorgor attached to the gates of M, Dadowos camp forthwith and allow the employees of the complainant to have access to the camp.

(b) That the defendants / contemnors, or their servant, agent, and whosoever from interfering, harassing, and intimidating the complainants employees or other business associates.

(c) That the defendants / contemnors or their agents or servant further restrained from planting or placing gorgor anywhere within the said camp.

(d) That the parties are directed to takes necessary steps to address the matter related to the joint venture and land lease agreement within another ninety (90) days with the view in resolving the dispute.

(2) In the event any of the above condition is breach a warrant of commitment shall be issued.

___________________

COPLAND RAURELA of ELEMI LAWYERS, PORT MORESBY for the complainant
DEFENDANTS appearing in persons.