Tou v Papua New Guinea Forest Authority (No 3) [2003] PGNC 18; N2490 (11 December 2003)

N2490

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 756 of 2001

BETWEEN

BEWA TOU
on his own behalf and on behalf of Isou Clan
of Krissa Village, Vanimo, Sandaun Province
Plaintiffs

AND

PAPUA NEW GUINEA FOREST AUTHORITY
First Defendant

AND

VELE IAMO
Secretary for Department of Finance
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND

AND IN THE MATTER OF CONTEMPT OF COURT CHARGES AGAINST VALENTINE KAMBORI

Waigani : Sevua, J
2003 : 11th December

CONTEMPT – Contempt of Court – Disobedience of Court order – Order not to leave National Capital District – Contemnor travelled out of National Capital District contrary to order – Power of Court to punish – Public interest in upholding integrity of Courts – Public interest in due administration of justice – Punishment for contempt ought to take values into consideration – Imprisonment is appropriate punishment for contempt.

Cases cited:
Pius Mark for and on behalf of the Council of the Mount Hagen Technical College v. Korali Iki [1995] PNGLR 116
Public Prosecutor v. Nahau Rooney (No. 2) [1979] PNGLR 448
The Attorney General and The State v. Dr. Pirouz Hamidian Rad, SC668, unreported, 5th October 1999
Richard Sikani v. Peter Luga in SCA 79 of 2002
The State v. Foxy Kia Tala [1995] PNGLR 303
The State v. Lucas Sasoruo [1997] PNGLR 676
Peter Luga v. Richard Sikani and The State, unreported, N2285 and N2286, 1st October and 4th October 2002
Attorney General v. Times Newspaper [1974] AC 273, 302
John Rumet Kaputin v. The State [1979] PNGLR 559
The State v. Mark Taua Awaita [1985] PNGLR 178
The State v. Lucas Sasaruo [1997] PNGLR 676
The State v. Raymond Tupundu, N1536, unreported, 30th May 1996

Counsel:
Mr. P. Parkop for Plaintiffs
Mr. B. Koae for Registrar/Applicant
Ms. N. Eliakim for Contemnor

11th December 2003

SEVUA, J: Yesterday, I found Mr. Valentine Kambori, Chairman of National Forest Board and Secretary for National Planning and Rural Development guilty of contempt of court on two counts of contempt in his capacity as Chairman of the National Forest Board.

The facts were outlined in my judgment on verdict yesterday, but for the purpose of sentence, I will allude to the facts again.

On 24th April 2003, this Court granted a default judgment in favor of the plaintiffs and against the National Forest Authority in the sum of K942,809.71 with interest and costs. That order was in relation to timber royalties in Vanimo invested in 1990 for and on behalf of the landowners of Bewani area, Vanimo. Therefore this is not an ordinary claim for a debt but for monies invested for the landowners of Bewani. The National Forest Authority did not pay the interest and costs submitted by the plaintiffs nor did they dispute the quantum.

On 10th October 2003, the plaintiffs prosecuted their application by way of notice of motion seeking that the Chairman of the National Forest Board, Valentine Kambori, and the two other officers of the National Forest Authority, namely, Terry Wara, Acting Managing Director, and Joseph Pea, Acting Finance Manager be cited and punished for contempt in respect of the order of 24th April 2003.

I convicted the Chairman and the other two officers of contempt of court and adjourned the proceedings from 10th October to 17th October 2003 to hear submissions on penalty. In the meantime, I fell ill on the 10th October 2003 and was unwell for sometime. When the contemnors were convicted on 10th October 2003; they applied for bail through their counsel Mr. Ian Shepherd and were granted bail. The third order of the bail conditions was that the contemnors were not to leave the National Capital District without the leave of the Court.

On 19th October 2003, the contemnor, Valentine Kambori, traveled to Malaysia without a variation to that condition of bail. He knew full well that he was prohibited from leaving National Capital District unless he was granted permission by the Court. On the same date, the contemnor made a hand-written undertaking to the Court addressed to me via the plaintiffs lawyers. The undertaking was that the week he returned, he would change the name of the payee on the cheque from National Court Trust to Powes Parkop Lawyers Trust. As it were he did not effect the change.

Accordingly, on 20th October 2003, I ordered that he be arrested for breaching the order for bail, and consequently revoked his bail. I also ordered that he be cited for two counts of contempt of court. The Registrar’s motion filed in accordance with Order 14 Rule 47 (1) of National Court Rules, was filed on that basis.

On 24th October 2003, the contemnor was brought before Gavara-Nanu, J who reinstated bail and made other orders. However, His Honour did not deal with contempt as ordered in paragraph 3 of the orders of 20th October 2003.

On 21st November 2003, the contemnor appeared before me on his application to vary his bail condition so that he could be permitted to travel to Wewak and Rabaul and other places. I refused his application and revoked bail previously granted and imposed other terms and conditions of bail. The Court cited him for contempt, the basis of which, has been adverted to earlier on. The contempt proceedings were adjourned to Wednesday, 26th November 2003, however, due to the Supreme Court sittings, it was further adjourned to Wednesday, 3rd December 2003. Again on that day, the contemnor was informed of the two charges of contempt of court. He acknowledged the charges on both occasions. The procedures were further adjourned to Wednesday, 10th December 2003.

It was on 3rd December 2003, that the Court, at the contemnor’s counsel’s submission, ordered the Registrar to file a motion for punishment for contempt in accordance with Order 14 Rule 47 (1) of the National Court Rules. It is not necessary to refer to the procedure in Rule 47 (1) as I have already canvassed that briefly in my judgment on Wednesday, 10th December 2003.

I have carefully listened to the contemnor in his allocutus and considered everything he said. He acknowledged that he did breach the order for bail although he maintained that he "did not have any wilful intention." Since the disobedience of the order, he said he has learnt two things which he had misconceived. Firstly, he said he did not know that he could go before another Judge to seek leave, and secondly, he was mindful that I was the presiding Judge and therefore felt he should come before me.

The problem with those issues are that he had the services of two very experienced lawyers in one of the biggest foreign law firms in the country. At the material time, he was being represented by Mr. Mills and Mr. Shepherd of Blake Dawson Waldron. Secondly, Mr. Kambori is no ordinary small man on the street or a grassroot, if I could put it that way. He, as his counsel puts it, is a graduate of the University of Technology in Lae with a degree in Business and Agriculture. His substantive position is Secretary of National Planning and Rural Development. However, he is also the Chairman of the National Forest Board. He worked as a private entrepreneur previously and was later appointed to these very high and esteemed public service offices. As he himself puts it, he is the "Chief Advisor" to the government in National Planning and Development.

Therefore as one can see the contemnor is no ordinary small man, but a highly educated person and a very experienced and intelligent man. Either he was just being arrogant or he lied. I have difficulty in accepting that a highly educated man with a lot of experiences in both private and public life and holding two very senior posts in government could think that he could only come to me and not another Judge. What is the use of engaging and paying private expensive expatriate lawyers if they cannot offer simple advices?

So in relation to the contemnor’s disobedience of the Court order of 10th October 2003, in travelling out of National Capital District to Malaysia without the Court’s permission, it is evident that he is not exempted from culpability. There can be no doubt in anyone’s mind that the conduct of the contemnor was wilful despite him maintaining otherwise.

As part of his explanation, the contemnor attempted to convince the Court that his travel was influenced by the Minister for State Enterprises, Mr. Arthur Somare, because it was not his plan to travel, but was co-opted at the last minute, therefore had little time to seek a variation to his bail. Perhaps the Minister played a leading role in this contempt, perhaps he did not. This Court will not really know the position. However, the crux of the matter is that Mr. Kambori was on bail and one of his bail conditions is an order that he must not leave National Capital District. The obligation, by law, is therefore his. He knew better than just run off to Malaysia because on the same day, he and others were granted bail, his lawyer, Mr. Shepherd came to my Chambers to apply for a variation so that he (contemnor) could attend a funeral at Wewak that weekend. As I alluded to my judgment on Wednesday, 10th December, there was no problem at all. The plaintiffs did not object to such application and the Court graciously and readily granted his application.

There was therefore no basis for him travelling to Malaysia without the Court varying the order restraining his movement out of the National Capital District. As it were, his breach/disobedience of the Court order has landed him in this Court facing a possible term of imprisonment as punishment for contempt.

The Court considers that despite the contemnor’s stance that he did not "wilfully intend" to disobey the order, it is of the view that the contemnor could not have acted in any other way than wilful in travelling outside National Capital District. With respect, the court cannot see the contemnor’s conduct in defying the Court order as anything else other than wilful and intentional, otherwise he could have decided to stay back in the country simply because his restriction to travel out of National Capital District had not been varied. It was a blatant disobedience of the order of the Court, which in my view, is much more serious than other circumstances of contempt.

In the Court’s view, the public interest and confidence in the Court and its administration of justice must not be jeopardized in the manner the contemnor had so acted. The public must not be left to question the dignity and integrity of the Court when its authority and administration of justice are flouted by public officials in the calibre of the contemnor. That is why, if the Courts do not act decisively to impose sanctions against people who disobey their orders, public interest in the integrity of the Courts and the administration of justice will wane and the trust and confidence they have on the Courts as pillars of democracy and as constitutional institutions will be eroded. I think the bottom line is that public interest and public confidence in the judiciary as a pillar of constitutional democracy must never be allowed to be questioned when the Court’s authority is trampled on by public officials either bureaucrats or national leaders.

On the second count, it was a case of the contemnor making a promise he did not keep. The Court has heard what he attempted to say as the reason for not fulfilling the written undertaking he made on 19th October 2003. However, in my judgment of 10th December, I discussed this aspect and refused to accept the explanation. Many people do not realise it, but you cannot make promises you can’t keep, and sometimes, it is wise not to make promises you cannot keep.

Again, I consider that the circumstances in which this contempt was committed was culpable, thus warranting a serious thought on penalty. It is my view that the second count is also serious like the first count. A hand written note undertaking to alter a cheque was addressed to the presiding Judge. It was not directed to the Judge’s Associate or the Registrar of the Court, but at a Judge. And in the written undertaking, the contemnor told the Judge that he would change the name of the payee on a cheque. But he failed to live by his undertaking.

Can one imagine litigants and members of the public sending written undertakings to the Courts but such undertakings are not honoured? The Courts and their administration will be thrown into disarray and there will be chaos in the Courts trying to pursue people who give undertakings but do not abide by their undertaking. We can only imagine how the administration of justice in cases involving failed and unhonoured undertakings will be.

That is why, in my view, contemnors must not be allowed to get away from this kind of conduct. The contemnor had given an undertaking directly to this Court. It was reasonable for this Court to expect that he would carry out its undertaking to its letter and spirit. However, when the contemnor fails, for whatever reasons, to make good his promise he too must expect that the Court will punish him.

The breach of undertaking like the disobedience of the Court order in the first count, have not caused any injury to the Court. The breach of undertaking has, in my view, caused some anxiety to the plaintiffs because it was directed to the Court through the plaintiff’s lawyers and I believe there was a reasonable expectation that the dispute would be settled. Nevertheless, both incidents are direct and incidental to the administration of justice in this case. It is the administration in this case that is of concerned to the Court, not any hurt feelings suffered by the presiding Judge because there has been none.

So the Court is of the view that both incidents of contempt are serious enough to warrant consideration of stern punishment for purposes of both personal and public deterrence. As alluded to, it is the public interest in the integrity of the Court and its administration of justice that must be protected.

In mitigation, counsel for the contemnors and counsel for the applicant have urged the Court to consider a non-custodial sentence.

Counsel for the contemnor, Ms. Eliakim submitted that the contemnor is 47 years old and married with four children. He, as noted previously, is the Secretary of Planning and Rural Development. He is also the Chairman of the National Forest Board, in which capacity, he appears before this Court. He has no prior record of convictions and this is the first time he has been convicted of an offence. As his counsel puts it, he is a first offender. It is submitted that the contemnor has apologized to this Court on the three occasions that he had appeared and therefore has expressed great remorse.

In 1980, the contemnor graduated from the University of Technology in Lae with a degree in Business and Agriculture. Since graduation, he has been self employed but also held public office as Director General of National Agriculture and Research Institute from 1997 to 2002, when he was appointed Secretary of Planning and Rural Development. In that capacity, he says he is the Chief Advisor to the Government in national planning and development.

He is also the Chairman of the National Forest Board. In his allocutus, he stated an overview of what he intends to do in the National Forest Service after his 10 months experience as Chairman of the Board. For instance, he said in the last Board Meeting, he highlighted what he saw as inefficiency in the administrative processes of the National Forest Service. He wanted to tighten the bureaucratic system within the National Forest Service so that the system expedites royalty claims due to forest resource owners and develop projects in Forest Concession Areas.

Since becoming Chairman ten months ago, the contemnor said he has realized that the bureaucratic processes require rationalization and implementation so that matters of timber royalties and other benefits to resource owners and land owners can be discharged in accordance with agreements in a timely manner so that there is no need for such matters to end up in legal disputes. In so far as these issues relate to the present case, he said this is a simple matter that could be resolved instead of coming to Court.

The contemnor acknowledged that this matter commenced in 1991 and that he accepted the Court’s decision following its decision on 10th December. The experience in this Court case has enlightened him and made him more wiser in terms of learning the judicial processes, Court rules and litigant representation. He again apologized to the Court and the aggrieved parties.

There are other impressive matters that the contemnor said in his allocutus, which are on record and, which I do not intend to refer to them, save that, it is significant to refer to his commitment to resolve this dispute with the plaintiffs.

This commitment is that all administrative processes must be pursued at all costs so that Bewa Tou and others receive what is due to them and to that extent, the contemnor wants to see the National Forest Service bureaucratic administrative processes and procedures tightened up and rationalized to ensure that all benefits to resource owners and land owners whether by law or contract due to them are paid accordingly.

The Court acknowledges the commitment to settle this matter proposed by the contemnor. In particular, the Court has taken note of the fact as submitted in Court that the Forest Board has approved that the cheque currently held be altered and paid to the plaintiffs following actions by two senior Finance Department Officers who are currently overseas. I see that as a positive sign to resolve this matter which should not have come this far in the first place. It is further noted that the contemnor requests one week to settle this matter.

I have alluded to some of the things that the contemnor said as I consider them to be relevant in mitigation of sentence. I have considered them and have taken into account and in his favour, those matters that warrant such consideration.

Ms. Eliakim has referred to a number of cases on penalty – Pius Mark for and on behalf of the Council of the Mount Hagen Technical College v. Korali Iki [1995] PNLGR 116; Nahau Rooney v. Public Prosecutor [1979] PNGLR 448; State and Others v. Dr. Hamidian Rad SC618; Richard Sikani v. Peter Luga in SCA 79 of 2002; The State v. Foxy Kia Tala [1995] PNGLR 303; The State v. Lucas Sasoruo [1997] PNGLR 676. Counsel then submitted that a custodial sentence is not warranted, but that the Court should impose a fine instead, and if the Court was mindful of imposing a fine, the sum of K2,000.00 would suffice.

Mr. Koae, counsel for the Registrar referred to Order 14 Rule 49 and the alternative penalties available to the Court therein and submitted that a fine should be considered.

Mr. Jogimab for the plaintiffs submitted that the penalty should reflect the value that the integrity of the Court must be upheld in contempt cases. If the Court were to accede to the submissions by the other parties in considering the fine, such an order must be conditional upon settlement so that if within a given period, he submitted three days, settlement is not effected, the contemnor should be imprisoned.

I have considered all these submissions and the cases that I have been referred to.

On punishment, I want to start with the Constitution and the National Court Rules. His Honour Justice Sakora alluded to this in his two decisions in Peter Luga v. Richard Sikani and The State, unreported, N2285 and N2286, 1st October and 4th October 2002 respectively.

I simply want to reiterate the power and scope of the Court’s power to punish for contempt.

Section 37(2) of the Constitution says:

"Except, subject to an Act of Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an office that is not defined by and the penalty for which is not prescribed by a written law."

Order 14 Rule 49 National Court Rules provides:

(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to prison or fine or both.
(2) ................
(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

I agree with His Honour Justice Sakora who said that the principles and rules of common law have assisted Papua New Guinea by establishing principles and guidelines in determining issues relating to contempt of court and the summary and unlimited nature of the contempt powers as part of the inherent powers of the Supreme Courts as emphasized by what Section 37(2) Constitution says.

I think what I have previously alluded to is supported by what His Honour Sakora, J had adverted to in Sikani’s case especially the summary by Lord Morris in Attorney General v. Times Newspaper [1974] AC 273, 302:

"In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community, it is imperative that the authority of the courts should be imperilled and that recourse to them should be subject to unjustified interference. When such unjustified interference is suppressed it is not because those charged with the responsibility of administering justice are concerned with their own dignity, it is because the very structure of ordinary life is at risk if the recognized courts of the land are so flouted and their authority wanes and is supplanted."

In the Public Prosecutor v. Nahau Rooney (No. 2) [1979] PNGLR 448 at 482. His Honour Justice Saldanha said:

"I have shown earlier how necessary it is for an ordered society to observe the rule of law and maintain the authority of the Courts and judges. The stand taken by the judges against the contemptuous remarks and statements is not out of a tender regard for their own feelings and not because they have false idea of their own dignity. The rule of law is central to a democratic way of life."

I adopt these statements in the present case as they complement and support some of the matters I said earlier on in this judgment.

On sentencing, the Courts have over the years imposed non custodial and custodial sentences as well. In Nahau Rooney (supra), she was sentenced to 8 months by the Supreme Court. In John Rumet Kaputin v. The State, [1979] PNGLR 559, he was sentenced to 10 weeks which was confirmed on appeal. In The State v. Mark Taua Awaita [1985] PNGLR 178, lawyer Awaita was fined K1,000.00. In The State v. Foxy Kia Tala, Re. Corney Winjan [1995] PNGLR 303, I sentenced the contemnor. Policeman to 6 months, suspended on conditions. In The State v. Lucas Sasaruo [1997] PNGLR 676, I ordered the lawyer to pay a fine of K500.00. In The State v. Raymond Tupundu, N1536, unreported, 30th May 1996; the lawyer was fined K500.00. In Pius Mark and others v. Korali Iki [1995] PNGLR 116, the contemnor was sentenced to 12 months, suspended with conditions. In The Attorney General and The State v. Pirouz Hamidian Rad and others, SC668, 5th October 1999, I believe the Supreme Court sentenced the contemnor to 3 months imprisonment.

In Peter Luga v. Richard Sikani and The State, N2286, unreported, 4th October 2002, the Court sentenced the contemnor to 6 months although this was subsequently overturned on appeal by a majority of 2 – 1.

The list of cases in this jurisdiction is not exhaustive however, the ones I have cited gives a picture of what type of persons have been convicted and imprisoned or fined by both the Supreme and the National Courts. You have Members of Parliament, Lawyers, Policeman and a Senior Economic Advisor to one of our former Prime Ministers.

I think the penalties reflect the notion that I have already adverted to in this judgment. It is not the Judge’s feelings that is injured in a contempt of court case. Rather it is the administration of justice and the authority and integrity of the Courts. In maintaining these, the public interest is safeguarded in knowing that if a person commits contempt, he will be dealt with in a manner that the authority of the Court and the administration of justice in a particular case are not flouted.

In respect of the contemnor, Valentine Kambori, I am impressed with his background and his achievements in life. He is an intelligent person but I think at times, arrogant. I have considered his personal antecedent and his achievements both in private and public life. I appreciate his contributions to the country and the various offices he holds and I am sure the government values his services.

Whilst the Court is very mindful of who and what he is, it must be highlighted in this case, as it has been in numerous other cases that contempt of court is a serious matter. And while the Court will consider a person’s interest on the circumstances of his case, the Court does not stop to look and select that the person should not go to prison because he is a politician or a senior civil servant or bureaucrat. It is one law for everybody.

I have especially taken into account the submission that the contemnor be spared a prison term. But I am of the view that the Court must not allow its authority, due process and its administration of justice to be ridiculed and flouted. When this happens, it is my view that the Court must be able to deal with the contemnor sternly and decisively.

For these reasons, I consider that a custodial sentence is warranted to act as a personal and public deterrence to like-minded bureaucrats and persons that they will be treated in the same manner.

It is therefore my sad and unfortunate duty that I sentence Valentine Kambori to six (6) months imprisonment with hard labour on the first count, and a fine of K2,500.00 on the second count.

However, mindful of what transpired in Court yesterday, especially the undertaking that both Mr. Kambori and the National Forest Board and the officers of Finance Department will settle this matter within one week, I order that execution of the sentence and fine be stayed until Friday, 19th December 2003.

If the parties reach a settlement during the week, they must return to Court before Friday, 19th December 2003 to have the settlement or its terms in whatever form it may take, formally sanctioned by the Court.

If those issues are satisfied, the term of six months imprisonment will then be suspended with conditions that:

1. The contemnor pays a fine of K2,500.00 on count one.

2. The contemnor pays a fine of K2,500.00 on count two.

3. The contemnor enters into his own recognizance to keep the peace and be of good behavior for 12 months commencing today, with a surety of K5,000.00 not cash.

4. The payment of fines and the recognizance must be satisfied by 2.30pm Thursday, 18th December 2003.

Lawyer for Plaintiffs : Powes Parkop Lawyers
Lawyer for Registrar : Bernard Koae
Lawyer for Respondent : Maladinas