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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[In the National Court of Justice]
OS 309 of 1995 (H)
PIUS MARK
for and on behalf of the Council of the MT. HAGEN TECHNICAL COLLEGE
Plaintiff
-v-
KORALI IKI
Defendant
Mt. Hagen: AKURAM, AJ
1995: 25th August, 5th & 8th September
Contempt - Contempt of Court - Disobedience of District Court Order - Order directing vacating of premises and removal and or destruction of improvements - obligation to obey order - contempt proved.
Contempt - Civil Contempt - Disobedience of District Court order to vacate premises etc., Jurisdiction of National Court to entertain contempt of an inferior court's order - unlimited jurisdiction and inherent powers to watch over the proceedings of the inferior courts and to prevent persons from interfering with the course of justice in such courts.
Contempt - Contempt of order of inferior court - punishment - appropriateness.
Cases cited in the Judgment:
Yap -v- Tan (1987) PNGLR 227
Hadkinson -v- Hadkinson (1952) 2 ALL ER 567
Bishop -v- Bishop Brothers Engineering (1988-89) PNGLR 533
Public Prosecutor -v- Rooney (No.2) (1979) PNGLR 448
Texts Cited in the Judgement:
Halsbury's Laws of England - Vol. 9.
Statutes Cited in the Judgment:
Constitution - ss.22, 155, 160, 163, 166, & 172
District Courts Act, Ch. 40, s. 277
The District Court ordered the Defendant to vacate the Plaintiff's premises within 14 days (from the date of receipt of order) and further to remove and or destroy any improvements he made on the Plaintiff's land. In proceedings for punishment for contempt of court order in failing to comply with the directions in the order.
Held:
(1) It is a civil contempt of a court order issued by an inferior court to refuse or neglect to do an act required by a judgment or order or to disobey a judgment or order requiring a person to do a specific act.
(2) National Court has jurisdiction to watch over the proceedings of the inferior courts not only to prevent them from exceeding their jurisdiction or otherwise acting contrary to the law but also to prevent person from interfering with the course of justice in such courts - (Const. sections 22, 155 (4 & 6), 166 & 172; Halsbury's Laws of England, Vol. 9, Paras. 47) considered and applied.
(3) Where an order is made by a court it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless an until that order is discharged. Hadkinson v Hadkinson (1952) 2 ALL ER 567 adopted and applied.
(4) In the circumstances the contempt charge has been proved beyond reasonable doubt and the contempt being a serious offence involving contemnor who is a person and not a company, a sentence of 12 months suspended and placed on 2 years Good Behaviour and with conditions is more appropriate.
KOPUNYE for the Plaintiff
Defendant in Person
8th September 1995
AKURAM, AJ. This is a contempt of a Court Order proceedings. The Mt. Hagen District Court ordered the Defendant on the 10/8/94 to vacate the College Grounds after a lengthy trial. The Defendant who was an employee of the College for over 15 years has been dismissed but has certain improvements on the land such as bush material houses, piggery, kaukau gardens, chicken, coffee, pineapples, etc. and is still living on the College grounds looking after the same.
The proceedings are by way of an Originating Summons filed and issued on the 7th August 1995 (O.14 R.42 (2)) supported by a Statement of the charge for contempt of Court (O.14, R.43) also filed on the 7th August 1995. The evidence was in affidavit form of three witnesses (Harry Kupi affidavit of Service of O.S. and Statement, Notice of Motion, Affidavit of P. Kopunye, and Affidavit of Pius Mark; Affidavit of Pius Mark; Affidavit of Bran Kewa). An order was sought and granted by this court on the 11th August 1995 ordering the defendant to appear on the 25th of August 1995 to answer the charge. Failure to appear a warrant of arrest will be issued.
Following this Order, the Defendant appeared before me on the 25th August 1995. The following contempt charge was then put to the Defendant:
"You are charged that you have wilfully and intentionally failed to comply with the Orders of the Mt Hagen District Court dated 10 August 1994 in that you together with your friends, assignees, relatives and family continue to live in the premises of the Mt Hagen Technical College without any right, authority or permission."
The court order for which he is charged for disobeying reads:
"Order:
This order was dated 10th August 1994 and served on the defendant on the 15th September 1994 as defendant was not present when the District Court pronounced its order. After putting or reading the charge to him, I also said in conclusion:
"Have you got any reasonable grounds for disobeying the court order" to which he explained thus, amongst other things:
"I got a lawyer to defend me in District Court proceedings. The decision was made on 10/8/94. At the time of decision, I was not present, neither my lawyer. I was served the Court Order on the 15th September 1994 by Mt. Hagen Technical College. I was surprised.
At the time of the case I told court I said I was claiming compensation for improvements and for 15 years I was in the College. Had I been present I would have appealed. I told court for compensation of coffee and three (3) houses."
I then asked defendant:
"Can you give reasons why you did not move out?"
He answered:
"College had paid me one time with K500 and another time K600 - a total of K1100.00. I did not receive the money. So I am still claiming for the K1100.00. Also I was waiting for the decision to be made in my presence but I was surprised to be served Court Order."
I then asked defendant:
"Are you going to move out of the premises?"
He answered:
"I have moved out and now at Police Barracks."
I asked him:
"Have you removed your property or properties?"
He answered:
"There is no person in the house. Only coffee and garden."
I asked him:
"Do you go back to harvest what is on the land such as coffee, pineapples, bananas etc..."
He answered:
"I go back to get food and things in the garden."
I finally asked:
"When exactly did you move out?"
He answered:
"About 2 months ago.
Although the Defendant says he moved out 2 months ago, the affidavit of service of one Harry Kupi dated 10th August 1995 says that:
"1. I am an employee of the Mt. Hagen Technical College.
(a) original letter from Kopunye Lawyers dated 09 August 1995, and
(b) all the documents that were attached to the said letter from Kopunye Lawyers.
And the affidavit evidence of one Bras Kewa, a security in the employment of Hagen Technical College says:
"1. I am a Security in the employment of Hagen Technical College.
Korali Iki continues to have his residence house, his large pineapple garden, kaukau mounds and coffee trees."
These two witnesses clearly say that the defendant is still on the College premises even though he says he has left about two (2) months ago, which would have been about June 1995. Furthermore, he said himself that he was served the court orders on the 15th September 1994 which is eleven (11) months ago and he still has not moved out nor destroyed the properties or improvements he had on the College grounds. I then asked him about the evidence given by the above witnesses:
"Q. You said you left 2 months ago and now the affidavits of two witnesses say you are still there."
He answered:
"I use to sleep at Police Barracks and go to get food at the College."
There was further affidavit evidence of Peter Kopunye, the lawyer for the College in the District Court proceedings and in these proceedings deposing that:
"1. I am the Principal of the firm "Kopunye Lawyers" and as such have the carriage of this matter.
I was satisfied beyond reasonable doubt, the standard of proof in contempt proceedings, that the defendant is contumaciously disobeying the District Court Orders to move out of the premises within 14 days and to destroy his improvements on the College premises within 3 weeks after eviction. However, to be fair to the defendant in the circumstances of this case, the 14 days and 3 weeks should run from the 15th September 1994 and not 10th August 1994, as he was served the order on the 15th September. I therefore found the defendant guilty of the charge of contempt.
The Defendant in his allocutus said "I have nothing to say but the School (College) has done nothing to me for 15 years I was with them. I am married with 3 children, unemployed and have one wife."
The Counsel for the College referred me to Order 14, Rule 49 (1) of the National Court Rules and submitted that Defendant should be sentenced to a period of imprisonment exceeding six months. He also referred me to a case involving a Councillor at Minj involving Malabang Plantation where Councillor was sentenced to twelve months but I was unable to locate it. He submitted that the Defendant is a person so he can be imprisoned unlike companies who are fined.
He also referred me to sections 53 and 54 of the Constitution (Protection from unjust deprivation of property and special provision in relation to certain lands) and submitted that the circumstances in this case do not apply and that an order be made to destroy Defendant's properties on the College land either by himself or by the college.
I then made following rulings:
That sentence be deferred to 5/9/95 on condition that Contemnor removes and or destroys all his property or improvements on the land by the 30th August 1995. And if he does not then the College will destroy the said improvements with the assistance from police.
JURISDICTION OF NATIONAL COURT ON Contempt of an Order of an Inferior Court
Before going any further, I wish to say here that this is a contempt of Court Order against the Decision of a District Court. The District Court provision on Contempt is in section 277 which reads:
"277 Contempt of Court.
(1) A person who—
(a) wilfully 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) wilfully 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, wilfully 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 it sworn view or on the oath of some credible witness.
(4) If a person convicted of an offence against Subsection (1) makes to the Court, before its rising, such apology as it considers satisfactory, the Court may remit the fine wholly or in part." (emphasis added)
I am of the view that this section does not apply to Contempt of an order made by the District Court. Section 277 (1) (d) only talks about a removal order by the magistrate during the court proceedings and not final orders of the Court. Section 163 (2) of the Constitution only gives the National Court the power to punish the offence against itself commonly known as contempt of Court. Section 277 (3) above is in similar terms as Section 163 (2) (Const.) and also section 160 (2) (Const.) in case of the Supreme Court and Or. 14, Rules 38 to 40 all deal with Contempt in the face of hearing of the Court. However, the question here is can the National Court hear and determine contempt of an order of a District Court which is not only inferior Court but which is governed by Statute.
The Halsbury's Laws of England, Vol 9, para.2 distinguishes the Criminal and Civil contempts and says that criminal contempt consisting of words or acts obstructing, or tending to obstruct or interfere with, the administration of justice. Whereas contempt in procedure, otherwise known as civil contempt, consisting of disobedience to the judgments, orders or other process of the Court, and involving a private injury. It also explains that "although a civil contempt is essentially a wrong done to the person who is entitled to the benefit of the order or judgement concerned, it also involves an obstruction of the fair administration of justice and may accordingly be punished in the same manner as a criminal contempt". It also goes onto say (in para. 47 supra) this about "contempt of inferior courts" and the role played by the Queen's Bench Division (similar to National Court), that:
"The Queen's Bench Division watches over the proceedings of the inferior courts not only to prevent them from exceeding their jurisdiction or otherwise acting contrary to the law but also to prevent persons from interfering with the course of justice in such courts."
The National Court Rules, O.14, Rules 41 to 47, particularly Rules 41 to 46 deal with a situation other than "contempt in the face or Hearing of the Court" - (O. 14, R.41). The present proceedings are taken pursuant to Rules 42 to 46. That is they commenced by way of an Originating Summons (R. 42 (1)) supported by a Statement of the charge (R. 43), Affidavit evidence (R.44) and copies of above documents must be served on the contemnor (R.45).
As to the original question of National Court's jurisdiction in this matter on proceedings where the order is that of a District Court, heed must be had to the Constitutional provisions. The relevant sections are s.166, 155, 22 & 172. I will deal with them in that order. Section 166 reads:
166. Jurisdiction of the National Court.
(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.
(2) In particular, the National Court has the jurisdiction set out in—
(a) Section 22 (enforcement of the Constitution); and
(b) Subdivision III.3.D (s. 57 & 58 (enforcement) and
(c) Section 155 (the National Judicial System),
and otherwise as provided by this Constitution or any other law.
Section 155 - the National Judicial System particularly subsections 4 & 6 and they read:
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
(6) Subject to any right to appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of 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.
Section 155 (1) also says:
(1) The National Judicial System consists of—
(a) The Supreme Court; and
(b) The National Court; and
(c) such other courts as are established under Section 172 (establishment of other courts).
Section 22 - Enforcement of the Constitution says:
The provisions of this constitution that recognise rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive 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 and Local Courts under section 172 (1) which says:
(1) Subject to this Constitution, Acts of the 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 for the definition of, their respective powers, functions and jurisdictions and their relationship with other components of the National Judicial System.
The intention of the Constitution as can be seen from the above provisions can be summarised as follows:
I am therefore of the view, as is similar to the powers and jurisdiction of the Queen's
Bench Division in England, that the National Court has an inherent power and unlimited jurisdiction to watch over the proceedings of the inferior courts not only to prevent them from exceeding their jurisdiction or otherwise acting contrary to the law but also to prevent persons from interfering with the course of justice in such courts. I therefore apply that power to do justice in this case.
SENTENCE
In the present case I have deferred sentence to the 5th September with certain directions (mention earlier) but I have discovered that the Defendant has not fully complied with those directions. That is, of the three houses, he only removed two, he did not destroy the kaukau and pineapple gardens but he did cut down all the coffee trees. I then further adjourned for sentencing on the 8th of September and further directed that he pull down or burn down the third house, cut all the pineapples and dig out all the kaukau gardens. As to the casuarina trees (about 7-10) I will decide in my sentencing as to how much time to give him to remove them. As I have said earlier, Defendant has contumaciously disobeyed a District Court Order for him to move out within 14 days from the premises and to remove or destroy any improvements he had on the land within 3 weeks thereafter. This he has failed to do. The powers of the court to punish for contempt are:
Contempt of court is an extremely serious matter as it involves person's unqualified respect for the laws and courts of this country. If people do not obey orders given by courts, there will be chaos where people will take the law into their own hands. I adopt, in this regard the views expressed by Romer LJ in Hadkinson v Hadkinson (1952) 2 ALL ER 567 at 569 in the Court of Appeal and followed in Yap -v-Tan (Supra) by Hinchlifffe J, that:
'It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular to even void. Lord Cottenham LC said in Chuck v Cremer [1846] EngR 924; (1846) 1 Coop T Cott 205; 47 ER 820: "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it...It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.'"
In the present case, the Defendant was served with the order on the 15th of September 1994, a period of almost eleven (11) months whereby he did not do anything. The order was clear and unambiguous (see Bishop v Bishop Brothers Engineering (1988-89) PNGLR 533 at 545 and also Halsbury's Laws of England (supra) paras. 66).
However, unlike the Bishop v Bishop Brothers Engineering case (supra) this is a situation where the Defendant had attended the Court hearing in the District Court but was not present when the order was announced (10/8/94) but served a month later with the order on 15/9/94. He therefore had knowledge of the terms of the order and that his conduct shows that he wilfully disobeyed it by not doing anything for almost eleven months till the time he was served the contempt charges on the 9th August 1995 at 3.15 pm by one Harry Kupi.
It is also the duty of the court to "protect the administration of justice by demonstrating that the court's orders will be enforced" as illustrated by the Constitutional provisions stated above.
I have been at pains as to what is an appropriated penalty. The authorities I have come across either gave a substantial fine (see Yap v Tan - supra) to a term of imprisonment (Public Prosecutor v Rooney (No.2) (1979) PNGLR 448). I cannot impose a fine as Defendant is currently unemployed. A custodial sentence is the other alternative with non-custodial sentence as the third option. I also keep in mind the fact that Defendant has to remove or cut down the casuarina (yar) trees which he says may take three weeks. There is also the fourth option of a bond with sureties and conditions. Finally there is the option of a suspended sentence with conditions. In the final analysis, I am of the view that a long term suspended sentence with conditions is most suitable for him, keeping in mind section 19 of the Code.
I therefore sentence the contemnor to 12 months. I suspend the 12 months and place contemnor on 2 years Good Behaviour Bond on following conditions:
________________________
Lawyer for the Plaintiff: KOPUNYE LAWYERS
Defendant in Person
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