Bates v Badinga [2010] PGDC 67; DC2057 (2 February 2010)

DC2057

PAPUA NEW GUINEA

[In the District Court held at Lae]

DC No 1024/08

BETWEEN:

FELING BATES & KURUMEN CLAN
(Applicants/Informants)

AND:

FIPEFEOC BADINGA
(Respondent/Contemnor)

Lae & Mendi: C Inkisopo

2009: 4th of June, and
2010: 2nd of February

District Courts (Practice & procedure) – Contempt of Court Proceeding – relevant
Provisions of the District Courts Act dealing with contempt proceedings – Section
277 of the District Court Courts Act –

District Court Practice & Procedure – contempt charge arising out of alleged breach of a District
Court Order in civil (private prosecution) matter - "disobedience contempt" –

Contempt attracts punitive punishment of imprisonment and/or fine – standard of
proof; proof beyond reasonable doubt –

Legislations/rules/regulations referred to:

1: Constitution of the Independent State of Papua New Guinea

2: District Courts Act Chapter No 40

3: National Court Rules of 1983 (Amended)

PNG cases cited and referred:

1: Augerea –vs- Jack Pambel & 2 Ors (2007) N3332
2: Bishop –vs- Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533
3: Kwimberi -vs- State (1998) SC 545
4: Poka –vs- PNG [1988] PNGLR 218
5: Rose & An Or –vs- Acting Solicitor General (2007) N337

Appearances:

1: Ms Wendy Dogura: - of Counsel for Applicant.
2: Mr Fipefeoc Badinga : - alleged Contemnor in person.

HELD:

1: Case for Contempt not proved beyond reasonable doubt,

2: Notice of Motion seeking to cite Defendant with contempt is refused.

3: The alleged Contemnor is discharged forthwith from these proceedings.

2nd February, 2010

JUDGMENT

C Inkisopo:: Applicant instigates these proceedings by way of a Notice of
Motion seeking Fipefeoc Badinga (hereinafter called "the Contemnor") to be cited with a Contempt of Court charge and be punished accordingly. The facts as borne out from the "Statement of Charge" filed by the Applicant says that by order of the District Court at Lae, an order dated 14th of April, 2008 was issued, inter alia, restraining both parties from instigating further trouble and to keep the peace towards each other.

2: The Applicant alleged that the Contemnor breached Clauses 6 and 7of that order by instigating the Yauwo Villagers through misleading information thereby causing disharmony amongst the Yauwo Villagers and the Applicant and his Kurumen Clansmen. Applicant therefore seeks through this application pursuant to Division 6 of Order 14, rule 42 of the National Court Rules to charge the Contemnor with a contempt of Court charge and be punished accordingly.

Contempt Proceedings Commenced by way of Notice of Motion – Whether Appropriate?

3: Before proceeding into fully dealing with this matter, I'd wish to address an issue the Contemnor earlier raised as a preliminary matter that was back then during the initial stages of this matter considered and dealt with and dismissed that which the Contemnor has raised again in his final written submission and addressed it at great length and I feel it imperative to address it yet again to complete the over all picture.

4: This matter concerns the question of the choice of the method of commencement of the contempt proceeding under Order 14, rule 42 of the National Court Rules as the choice of method preferred by the Applicant.

5: In any case and suffice it to say that the commencement of this contempt proceeding by way of Notice of Motion is proper and in order as the prescribed method under the relevant applicable rules under Order 14, r42 wherein by sub-rule (1) it provides that where contempt arises in connection with a proceeding it must be commenced by way of notice of motion. And where it arises out of proceeding not connected with a proceeding, then it, as the Contemnor argues, must be commenced by way of originating summons or some other fresh originating process. (Refer O 14, r 42 (2) of the NCR). It is my humble view that this contempt arose out of an Order of restraint in connection with a proceeding before this Court which issued live negative restraining orders that are still current and valid and live even past the life of the original proceeding that the Contemnor argues has completed and closed. Besides, the relevant rule does not make a distinction between a pending matter and a completed matter; for as long as it was connected to a proceeding, period!

6: In the instant case, the contempt allegation arose out of an alleged breach of a restraining order in connection with or flowing from a proceeding regardless of whether pending or completed but the fact of the matter is that, it was connected with or arose out of a proceeding before the District Court.

7: The argument by the Contemnor that the commencement of this contempt proceeding was improper should be laid to rest as a non-issue, in my humble view, as it is perfectly obvious that it is one of the prescribed methods of commencing contempt proceedings under Order 14, rule 42 of the National Court Rules. See Ross Bishop & Ors -vs- Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 553, Ian Augerea –vs- Jack Pambel & 2 Ors (2008) N3332 which cases were commenced by way of Notice of Motion with supporting affidavits. I therefore dismiss this argument by the Contemnor as being wholly misconceived.

Introduction and background giving rise to this Contempt Proceeding

8: Felling Bates (Applicant) and Fipefeoc Badinga (Contemnor) seem to have been entangled in a long running Court battle over land related issue apparently over a portion of land located at Yauwo Village of the Hube Local-Level Government area of Pindiu in the Finschhafen District of the Morobe Province. The Applicant recently took out a restraining Court action against the Contemnor over that portion of land called "Douruac" which seemingly is included as a property in the Applicant's Kurumen Clan's Incorporated Land Group (ILG) Certificate Property Listing segment. The Applicant seemed to have taken out a restraining Court action against the Contemnor on the strength and back of the ILG certificate but the District Court at Lae refused the Applicant's restraining order application through a formal Order issued by that Court dated 14th April, 2008. Clause No's #6 and #7 of that Order are the subject of this Contempt proceeding which are set out verbatim as follows;-

(6) "Both parties together with their servants and/or agents are restrained from instigating further trouble and to keep the peace towards each other.

(7) Any breaches will result in distress or contempt proceedings."

9: The Statement of Charge which seeks to cite the Contemnor for contempt is as follows;-

(1) "The First and Second Informants seek restraining and other orders against the Defendant.

(2) The District Court at its Sitting at Lae made several orders for compliance by the Defendant.

(3) The Defendant despite that has breached Orders 6 and 7 by instigating Villagers through misleading information to cause disharmony with the Informants.

(4) The informants thus seek orders of the Court pursuant to Division 6, Order 14 of the National Court Rules."

Applicant's Case

10: The Applicant claims that the Contemnor breached Order No #6 when he instigated disharmony in Yauwo Village by spreading false or misleading information thereby spawning bad feelings in the villagers towards the Applicant and his Kurumen Clansmen, hence causing disharmony. The Applicant further claims that the Contemnor instigated disharmony when he went about telling the Yauwo Villagers that Applicant and his Kurumen Clansmen have taken out Court orders forbidding all the communal lands in and around the Yauwo Village locale from usages by the villagers. The Applicant therefore claims a Contempt of Court charge to be preferred against the Contemnor.

11: In support of the claim, the Applicant actually called only four (4) of his five (5) proposed witnesses in Ms Felling Bates, Kilaung Boungiong, Pasa Inga, Furi Bates and Mage Defi.

Summary of each Witness's evidence

12: The first witness was Ms Francesca Felling who says to be the biological daughter of the Applicant and currently is a medical professional at Angau Memorial General Hospital. She testified that she is her father's authorized lead representative instructing Counsel in this case against the Contemnor as Applicant is frail and old and not in good physical position to attend Court to prosecute this matter.

13: Her evidence is that she was in the village at the relevant time during the Christmas/New Year period of 2008/2009 attending to the death of her uncle, the late Rinati Bates. Whilst there, she says to have been told by persons who were tasked to dig her uncle's grave at the village cemetery that 'Fipefeoc' stopped them from digging the grave at the Yauwo Village communal cemetery. She next testified of showing the people and the village leaders of the exact text of the Order of the Lae District Court to counter the misinformation being spread and perpetuated among the villagers by the Contemnor.

14: The second witness was Mr Kilaung Boungiong who is from Yauwo Village but from a different clan and also a community leader. He said that the Contemnor at a forum in the village on 30th and 31st day of December, 2008 read from a document he held at the time to the many people gathered there and said the document was a Court Order that forbids the use of the cemetery ("Dumbafogoc") land and the Church land ("Buameng Hobu") and other communal areas and resources of the Yauwo Village as they belonged to the Applicant and his Kurumen Clan.

15: The witness continued to say that he heard of the dead of a child on the 4th of January, 2009 and went to the place where the child's body was held. On his way to the place where the child's body was kept, he saw a notice on the wall of a house that said something to the effect that there is to be no burials of dead bodies at the cemetery and also the use of the communal lands, water and other communal resources as they now (then) belonged to the Applicant and his Kurumen Clansmen. This witness continued on to say that he talked about what the Contemnor said with the other leaders and all thought it appropriate to send for the Contemnor to talk and sort this matter out.

16: The burial of the child was done after the matter of the Court Order was sorted out and clarified as the Order referred to only a portion of land called "Douruac". He ended his evidence by saying that the whole community of Yauwo Village felt strongly and bad when the Contemnor forbade the village people from burying their dead at their only communal cemetery when he told everyone that the Court Order obtained by the Applicant and his Kurumen Clansmen forbid the communal or individual usages of the communal resources in the Village of Yauwo.

17: The third witness for the Applicant was one Mage Defi who said that he is the common brother-in law of the parties – in that his elder sister is married to Applicant, Felling Bates whilst his younger sister is married to the Contemnor, Fipefeoc Badinga.

18: With the kind of relationship he had with the parties, he said he favoured no allegiance to any of the parties but would like to tell the Court as a "namel man" of what he knew to be the facts in the matter.

19: He continued to say that Applicant told the people not to get water, not to use the village communal land and resources and that this prohibition was relayed to the people including himself by the Contemnor, his kid brother-in law Fipefeoc Badinga. That was Mage Defi's evidence.

20: The fourth and last witness for the Applicant was Pasa Inga from Yauwo Village whose child had died but could not be buried as the talk of the prohibition of the burial of new bodies at the cemetery was rife during the material time. She testified that her deceased child could not be buried due to the restriction of the cemetery from burials of the village's dead people. She said that the delay due to the Contemnor's restriction was so irking and frustrating that her brother, the dead child's uncle even proposed to bury his nephew's dead body under his house and look after it. She continued to say that after several days of waiting holding up the child from burial, the majority of the people talked it over and reached a common consensus to assume responsibility on the question of the prohibition over the use of the cemetery by proceeding to bury the child at the cemetery.

21: She went on to say that she was very upset and greatly displeased at the prohibition that made her dead child's body held up for days for just an infant which she said was three (3) days.

22: Witness No #5 was not called because what that witness would be saying would generally be a repetition of what the others have already said. The Applicant's evidence through his witnesses ended on that note.

Contemnor's Case

23: The Contemnor called two (2) witnesses apart from himself in his defense against the proceeding.

24: The Contemnor gave sworn testimony in his defense. He said he is from Yauwo Village of the Hube Local-Level Government area of Pindiu, Finshhafen District of the Morobe Province.

25: He prefaced his evidence in chief by saying that the charge is not true because, as he said, the whole matter arose all because Applicant illegally registered and incorporated an Incorporated Land Group (ILG) and obtained a certificate in which all the communal resources of the village were included in the Property Listing segment of the ILG certificate as all belonging to Applicant and his Kurumen Clan such as the communal land called "Dumbafogoc" where the village communal cemetery is located and "Buameng Hobu" where the village Church is located.

26: He continued on to say that there are ten (10) clans in Yauwo Village that included Applicant's Kurumen clan. He quipped as to how two (2) very important communal lands of Church and cemetery were included in the ILG certificate of the Applicant in the first place as if they were his sole private portions of land.

27: This was the concern of the villagers that he took up upon himself to make issue with Applicant as the villagers were mainly simple subsistence farmers and was merely explaining to them the implication of any interference or trespass to those restricted resources as they will be taken to Court as he had just faced one such Court action regarding the "Douruac" land which is also included in the Applicant's ILG certificate Property Listing. He said Applicant took restraining order application against him over that "Douruac" land that the Lae District Court threw it out as there was no clear indefeasible title in favour of the Applicant hence entitling him to take such Court actions.

28: The Contemnor went onto say that he never breached the Court Order as he did not and never stopped people from using the village communal resources all because of a Court Order, rather he was merely explaining to the people a fact of the matter out from the ILG certificate of the Applicant and alerting the simple village people to the implication of any trespass to properties listed in the ILG Certificate property listing. Contemnor said that he did not make the prohibition because he had no power nor authority to say or do so but merely stating facts out from the Applicant's own ILG Certificate of which he had a copy at the material time in question - a copy of which is tendered into Court and on file as Annexure "A" to the Contemnor's affidavit of 11th March, 2009.

29: The Contemnor made a pointed remark in his evidence that he was not relating a lie in what he was doing nor perpetuating lies and misinformation to agitate, instigate and stir up the people's malice and resentment toward the Applicant nor did he cause any disharmony and breach of the peace but only stating a fact of matters borne out from the Applicant's own ILG Certificate.

30: He concluded that this contempt charge is not a new one but one of many he has had to fight in Court at the behest and instigation of the Applicant for the past 23 years. He therefore said he was not guilty of contempt and asked the Court to dismiss the Applicant's application to cite him with Contempt charges.

31: The second witness for the Contemnor was Wewi Bangu who is from Yauwo Village and personally knows the parties well as co-villagers. He addressed Applicant as his maternal uncle as his mother is Applicant's sister. He testified that 'Uncle Felling' registered all the communal lands of "Dumbafogoc", "Buameng Hobu" and "Douruac" and some more others which brought big disputes inside Yauwo Village. He said that they disputed so came to Lae District Court which gave orders for an appropriate forum to solve the matter of the dispute. One of the forums was held on the 29-30th December, 2008 where every villager was there in attendance at the forum, but Uncle Felling (reference to Applicant) did not come. He went on to say that as the villagers were generally simple people, Fipefeoc read out from the ILG certificate and explained to the people who had gathered as to what the document was all about and what it meant to them regarding those communal resources they were so used to using freely in the past and the implication of it as well.

Assessment of Evidence

32: The allegation against the Contemnor was that he did breach the Order of the Lae District Court of 14th April, 2009 by instigating disharmony and breach of peace when he went about misleading the villagers that Applicant had obtained Court Order forbidding the people from using the cemetery and church land, rivers, creeks and other communal resources. So it is alleged, when he disseminated this information which Applicant says was misleading which had the effect of instigating disharmony amongst the villagers and the Applicant and his Kurumen Clansmen and hence causing a breach of the peace. Applicant says this was in direct breach of the Lae District Court Order of 14th April, 2009 and therefore seeks a contempt charge preferred against the Contemnor.

33: The Contemnor defends against the application by basically saying that the Statement of Charge forming the basis of the Application is not true.

34: The Contemnor's case is that he did not breach the order by telling the people of any restriction by a Court Order whatsoever but he was telling the simple village people matters of facts as contained in the Applicant's ILG Certificate a copy of which he says he was in possession of at the relevant time.

35: This is the general state of the evidence in this matter before this Court as borne out from the evidence adduced by both parties.

The Law on Contempt

36: The law on contempt of Court as an unwritten offence attracting punitive punishment is constitutionally recognized under Section 37(2) of the National Constitution by way of an exception to the constitutional provision that says 'no person is to be convicted of an offence not defined by written law save for what is said to be the offence commonly known as contempt of court' which exists as a mechanism available in the hands of the Courts to utilize to protect the process, authority and the powers of the Courts of law; the National Court and the Supreme Court of Papua New Guinea and to a limited extent, the District Courts by virtue of Section 277 of the District Court Act Chapter No 40. And it is said that the purpose of the contempt power is 'to serve and protect the general community interest, not the Court's own dignity, in suppressing unjustifiable interference in the authority of the Courts of the land', per Injia J (as he then was) in Kwimberi -vs- State (1998) SC 545.

37: As for the District Court in contempt of court cases, Section 277 of the District Courts Act Chapter 40 makes provisions for proceedings for contempt of court committed at the District Court level. Therefore, in my humble view, the District Court's primary source of power and processes when dealing with contempt of court proceeding at the District Court must by necessity start with Section 277 of the District Courts Act Chapter No 40. Only when that provision could not adequately cover the particular or peculiar facts and circumstance of the case under immediate inquiry, then recourse is to be had to other legislations, rules and regulations to assist this Court (which is a Court of limited jurisdiction) find its judicial legs to assist it deal with the immediate inquiry.

38: Counsel for the Applicant has not addressed the Court at all on this aspect of the process of the contempt proceedings at the District Court under Section 277 of the District Court Act but initiated this present contempt application under Order 14 of the National Court Rules. I understand and appreciate Counsel's dilemma, preference and choice of the commencement of this contempt application under the National Court Rules probably as I assume, because of the particular nature of the contempt allegation preferred against the Contemnor which apparently does not seem to adequately get covered by Section 277 of the District Courts Act.

39: Accordingly, I accept that the present method and choice by the Applicant to have commenced this contempt application under the National Court Rules to be appropriate under the circumstance of the case at hand and I do not intend making any bone of it.

40: The Superior Courts in this jurisdiction have had occasions to deal with contempt of court charges of various natures from lawyers failing to appear in Courts thereby causing interferences with the due administration of justice. See Poka -vs- PNG [1988] PNGLR 218, Ian Augerea -vs- Jack Pambel & 2 Ors (2008) N3332, Kwimberi -vs-State (1998) SC 545 and disobeying Court orders which is termed 'disobedience contempt' as found in Ross Bishop -vs- Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533, Rose & Anor -vs- Acting Solicitor General (2007) N3327 and a host of others in this jurisdiction covering other forms of Contempt of Court cases.

41: "Contempt of Court is an act or omission in the face of the Court or outside the Court which is intended or calculated to or likely to interfere with or obstruct the fair or due administration of Justice." See Kwimberi -vs- State (1989) SC 545. As the penalty for contempt is punishable as a criminal contempt (Poka -vs-PNG) (supra), the standard of proof to apply is one of proof beyond reasonable doubt. See Ross Bishop -vs- Bishop Brothers (supra) and accordingly, there must be proper proof and the contempt must be properly established. (Bishop -vs- Bishop Brothers Engineering Pty Limited) (Supra).

42: Our instant case is where the Contemnor is alleged to have breached a certain restraining order of the District Court at Lae dated 14th April, 2008 in instigating disharmony among the Yauwo Village community and the Applicant and his Kurumen Clansmen by way of spreading misleading information thereby causing a breach of the peace. This is 'disobedience contempt' as in the case of Bishop -vs- Bishop Bros (supra) and Rose -vs- Acting Solicitor General (supra).

43: The Court Order that forms the basis of the contempt proceeding 'must be clear and unambiguous'. See Bishop -vs- Bishop (supra) in order for the Court before which the matter is to be dealt with can be assisted in dealing with it properly and appropriately.

44: "[I]n relation to establishing the allegation(s) of a 'contempt by disobedience' of (or refusal to comply with) an order or direction of the Court, the rules of evidence and procedure normally applicable to criminal trials are to be used. Because of the open-ended power to punish (or sanction) pursuant to Section 37 of the Constitution, the evidentiary burden of proof lies with an applicant, the accuser." See Bishop -vs- Bishop Bros (supra) as the old legal adage says 'he who accuses/asserts must prove'.

45: Approaching this instant case against those legal principles as discussed, the evidence led and adduced so far by the Applicant is generally more of hearsay than direct whilst the Contemnor says he was only reading from an ILG Certificate belonging to the Applicant and his Kurumen Clansmen and merely stating facts from that document to the Village people.

46: I find as a fact that the total aggregate of evidence presented in this case by the Applicant in support of this Contempt proceeding is in my humble view, insufficient to meet that high standard required in such contempt proceedings of 'proof beyond reasonable doubt'. More so and besides; the Contemnor's evidence adduced in his defense in this application seems so cogent, logical and reasonable that it creates and casts obvious doubts into the Court's mind as to the overall evidence led against him especially when viewed against the background of the charge for the particular contempt being pressed against him. As there obviously is doubt in my mind, the Contemnor is entitled to the benefit of that doubt; however slight that doubt might be. I further find that the overall evidence against the Contemnor in this case has fallen far short of the mark! As such, I can not be satisfied beyond reasonable doubt that the case has been proven to the required standard and accordingly this application must fail.

47: I therefore refuse the Applicant's Notice of Motion to cite the Contemnor with a Contempt of Court charge and accordingly, this Application is dismissed forthwith.

FORMAL COURT ORDERS:

1: Notice of Motion seeking orders to charge Contemnor with Contempt of Court is refused.

2: This Application is dismissed forthwith.

3: The Contemnor is discharged forthwith from this Application to charge him with a contempt of Court charge.

4: The Contemnor's costs of defending this Application shall be paid by the Applicant if not agreed, they are to be taxed.

LAWYERS:

1: The Public Solicitor for the Applicant.
2: The Contemnor in Person.