Onguglo v Kowane [2016] PGNC 288; N6485 (29 September 2016)

N6485

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 471 OF 2014

BETWEEN:

Nick Onguglo
Plaintiff

AND:
James Guma Kowane, District Administer
Kerowagi District
First Contemnor

AND:
Honourable Dangma Camilus
Member for Kerowagi
as Chairman of Joint District Budget & Priority Committee
for Kerowagi District
Second Contemnor

Kundiawa: Liosi, AJ
2016: 20^th April & 29^th September

CIVIL PRACTICE & PROCEDURE –Contempt of Court – Disobedience of Court orders – Mode of proceedings – Completed case awaiting settlement of judgment debt – Failure to prove service of court order – Wrong mode of process invoked – Abuse of court process – Proceedings dismissed.

Cases cited:
Andrew Kwimberi of Paulus M Dowa Lawyers -v- The Independent State of Papua New Guinea (1998) SC545
Moses Wau -v- Francis Mavu (2008) N3294
Raina No.1 Ltd -v- Noami Elisha (2013) N5234)
Robinson -v- PNG [1986] PNGLR 307
Ross Bishop -v- Bishop Brothers engineering Pty Ltd [1988-89] PNGLR 533

Counsel:
Mr. M Yawip, for the Plaintiff
Mr. M. Kombri, for the First Contemnor

Ruling

29^th September, 2016

1. LIOSI AJ. This is a ruling on an application by the defendants pursuant to notice of motion filed on 22^nd October, 2014 to dismiss contempt proceedings against the defendants. The contempt proceeding was instituted by way of originating summons and notice of motion filed on 9^th July 2014.

Brief Facts

2. The plaintiff instituted two proceedings in this court in WS No.1340 of 2008; Nick Onguglo v. Kerowagi District Administration and Simbu Provincial Government and OS 723 of 2011; Nick Onguglo v. District Administrator, Kerowagi and Simbu Provincial Government and Administration.
   
3. In WS No. 1340 of 2008; Nick Ongulgo v. Kerowagi District Administration and Simbu Provincial Government, a consent order was entered on 4^th November, 2011 for a sum of K30, 000.00 to be paid to the plaintiff by the defendants. This is yet to be satisfied by the defendants.
   
4. In OS No.723 of 2011; Nick Onguglo v. District Administrator, Kerowagi and Simbu Provincial Government and Administration, a consent order was ordered on 1^st June, 2012 for a sum of K25, 882.00 to be paid to the plaintiff by the defendants. This is yet to be satisfied by the defendants.
   
5. It is important to note that State was not named as a party hence there was no section 5 notice given. The plaintiff argues that these were claims made under the Claims by and Against the Simbu Provincial Government hence there was no need to comply with the relevant provisions of the Claims by and Against the State Act.
   
6. The State failing to settle this two Court Orders prompted the plaintiff to file this proceeding.
   
7. The defendants filed their initial submissions on the competency of the contempt proceedings on 4^th November, 2014.
   
8. A further extract of submission on points of law was filed on the 10^th April, 2015.
   
9. A further submission was filed on 17^th February, 2016 basically reiterating the earlier submissions.

Defendants Motion

10. The defendant’s motion is that the entire proceedings be dismissed pursuant to Order 12 Rule 40(1)(c) for non-compliance of the procedures under Order 14, Rule 42(1), 43&45 of the National Court Rules in relation to contempt proceedings.

Competency of Contempt Proceedings

11. The alleged contemnor submits that this contempt proceeding be dismissed on the basis of abuse of Court process under Order 12, Rule 40(1) (c) of the National Court Rules. The provision deals with frivolity.
    
12. The alleged contemnor claims that the plaintiff/applicant abused the Court process in filing this proceeding. The correct process to be followed is as provided for under Order 14, Rules 42(1), 43&45 of the National Court Rules. These rules of the National Court provide the general procedure for issuance of contempt proceedings.
    
13. Order 14, Rule 43 of the National Court Rules provides for a statement of charge that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or originating summons.
    
14. Order 14, Rule 45 of the National Court Rules provides for service of proceedings and that they must be served personally on the contemnors.
    
15. The proper process to be followed in contempt proceedings are as succinctly enunciated by the Supreme Court in Andrew Kwimberi of Paulus M Dowa Lawyers v. The Independent State of Papua New Guinea (1998) SC545 (Woods, Hinchliffe & Injia, JJ presiding) in these words;

“Under Order 14, there are two types of procedures. First, under Sub-division “B” O14 r.38, 40 (contempt in the face or hearing of the Court), there is a summary procedure for dealing with contemnors. Where it appears to the Court “on its own view, that a person is guilty of contempt of Court, committed in the face of the Court or in the hearing of the Court, the Court may” issue oral orders directing the contemnor to be brought before the Court or issue a warrant for arrest. (r. 38). When the contemnor of the charge orally, requires him to make his statement in defence, hears him and determines the matter of the charge and make such orders as to punishment. (r.39). The Court may direct the contemnor to be kept in custody pending the Court’s determination of the Charge. (r.40).

The second type of procedure is under Sub-division “C” Order 14 r. 41 – 42 where the contempt committed is “in connexion with proceedings in the Court”. Proceedings are commenced by motion if in relation to contempt in connexion with proceedings in Court or by originating summons if the contempt is not “in connection with proceedings in Court”. O.14, r.42. A Statement of charge is prepared together with a notice of motion: O.14 r.43. Evidence may be given by affidavit or otherwise as ordered by the Court: O.14 r. 44. The documents are served on the contemnor personally: O.14 r. 45. The Court may also refer the matter to the Public Prosecutor for prosecution: Robinson -v- PNG [1986] PNGLR 307.”

16. It is ascertained from the above that there are two (2) types of contempt of Court. One is in the face or hearing of the Court and the other is in connection with the proceedings.
    
17. For the first type of contempt, the mode of proceedings is that the Court takes its own initiative to proceed with the alleged contemnors. For the second type, if the contempt is in connexion with the proceedings in the Court, the proceedings is commenced by way of a notice of motion together with a statement of charge and affidavit in support. If the contempt is not in connexion with the proceedings in Court, the proceedings is commenced by way of originating summons together with statement of charge, notice of motion and affidavit in support.
    
18. Court documents in the second type of contempt proceedings must be personally served on the alleged contemnors.

Defendants Arguments

19. The plaintiff/applicant had instituted this contempt proceedings by way of an originating summons filed on 9^th July, 2014 against the alleged contemnors for not complying with the Court orders.
    
20. The non compliance of the Court Orders is a contempt committed “in connexion with proceedings in the Court” pursuant to Order 14, Rule 42(1) of the National Court Rules and Andrew Kwimberi’s case (supra).
    
21. Hence, as per Order 14, Rule 42 (1) of the National Court Rules and Andrew Kwimberi’s case (supra), the plaintiff/applicant should have made an application for contempt by way of notice of motion in both proceedings. The notice of motion should have been accompanied with a statement of charge and supporting affidavit.
    
22. The plaintiff/applicant instead filed fresh proceedings, by instituting the originating summons which, is contrary to Order 14, Rule 42(1) of the National Court Rules.
    
23. It also argues that the alleged contemnor deposed to his affidavit that the Court orders of 4^th November, 2014 and 1^st June, 2012 were “not properly served” on the Kerowagi District Administration or the alleged contemnor.
    
24. It is settled in this jurisdiction that three (3) things must be proved to sustain the allegation of contempt in relation to breach of court order and they are;

(a) the Court order must be clear and unambiguous;

(b) the Court order must be properly served; and

(c) there must be a deliberate failure on the part of the alleged contemnor to comply with the terms of the Court order.

25. There is no affidavit of Service on the court file in respect of service of the court orders to prove that the court orders of 4^th November, 2011 and 1^st June, 2012 were properly served. It is merely stated in the affidavit in support of this application that the relevant court orders were served. This is not substantiated.
    
26. The defendants therefore submit the contempt proceedings should be dismissed in its entirety.

Plaintiff’s argument

27. The plaintiff submits that what constitutes an abuse of process of the Court has been settled in this jurisdiction. That is that the pleadings must be incontestably bad.
    
28. The plaintiff submits that three (3) elements need to be proved beyond reasonable doubt as rightfully stated in paragraph 24 (supra).
    
29. The plaintiff submits that those elements are matters that should be determined at a proper hearing for which the burden lay with the plaintiff. It argues that determining those questions now would amount to an abuse of process as the same issues will be raised at the trial proper again.
    
30. The plaintiff submits that in respect of service, it has been properly effected. This is stated in the affidavit of Nick Onguglo that service was effected in 2008 and 2011 and later through the office of the Public Solicitor as well. It says this ground should be properly raised at the trial as it is an element to be proved and raising it at this point is an abuse of process.
    
31. In relation to the mode of proceedings, it says that there is nothing wrong by instituting the proceedings by way of originating summons. He contends that where a proceeding is completed and orders are not complied with the contempt shall be by way of originating summons as stipulated under Order 14 Rule 42(2) of the National Court Rules. This rule provides for such situations.
    
32. He submits that where a judgment is entered the case is closed and proceedings have come to an end. That is the situation with both cases here. Consequently, under Order 14 Rule 42(2) the contempt proceedings will have to come by way of originating summons and not notice of motion.
    
33. The notice of motion filed on the 2^nd October 2014 relates to dismissal of proceedings under Order 12 Rule 42(1) (c) for non compliance of procedures under Order 14 Rule 42(1), 43 & 45 of National Court Rules relating to contempt proceedings. I will therefore strictly confine myself to those grounds in my ruling.
    
34. In contempt proceedings, three (3) elements need to be proved. The plaintiff submits that this are matters that should be determined at the substantive hearing. He argues that determining the questions now would amount to an abuse of process as the same issues will be raised at the substantive hearing.
    
35. This is a misconception. In my view an interlocutory application such as this serves as a screening process to ensure that proceedings are filed on merit. It serves to ensure that Courts are not inundated with unnecessary litigation and to ensure that only meritorious proceedings are filed. This is in essence the very reason for the existence of Order 12 Rule 40 to ensure processes are properly followed and proceedings are properly before the Court. The argument that this are matters for substantive hearing is therefore without merit. In any event if a proceeding is determined at an interlocutory application that will be the end of the matter.
    
36. In Ross Bishop -v- Bishop Brother Engineering Pty Ltd [1988-89] PNGLR 533, it was held that in civil contempt cases, the onus of proof is beyond reasonable doubt and it must be established that the defendant intended to disobey or flout the order of the Court. In Moses Vua -v- Francis Mavu (2008) N3294, the Court held among others that, where it is alleged that a person has committed contempt of court for breaching a court order, three things must be proven. The order must be clear and unambiguous, it must be properly served, and there must be a deliberate failure to comply with it.
    
37. These matters are crucial to the success of a contempt of Court proceedings and the onus is on the applicant as the party making the allegation to prove them beyond reasonable doubt. The reason is obvious. Contempt of Court carries criminal sanctions. A person’s liberty is at stake. He or she could end up in jail or fined. If it is a company, it may have its property sequestrated or fined: National Court Rules, O14, r 49.
    
38. It is therefore serious and the party instituting the proceedings must ensure that the procedures and powers of the Court are correctly invoked and the charge proven beyond reasonable doubt.
    
39. In this case the defendants took issue with service of the order and the mode by which the proceedings was instituted.
    
40. As to the requirements of service, I have read the affidavit of Mr. Nick Onguglo filed on 9^th July 2014. He merely says he served the two court orders to the District Administration since 2011 and 2012 but the District has failed to settle the orders. This in itself does not establish service of the order on the defendants. Furthermore, there is no affidavit of service of both the orders. Service in my view has not been proved beyond reasonable doubt.
    
41. As to the mode of proceedings, the plaintiff submits that where a proceeding is complete and orders are not complied with the proceedings shall be by way of originating summons. He submits Order 14 Rule 42(2) provides for such situations. He does not substantiate this with any case authority on point, particularly as to when the proceedings come to an end.
    
42. The point was made earlier that contempt of Court proceedings is a very serious matter because where the alleged contemnor is a human being, his or her liberty is at stake. He or she could be sent to jail if found guilty. Therefore, there is no room for complacency or error in complying with the proper mode of proceedings. The applicant must also exercise great care and diligence in its prosecution. In my view the failure to have the affidavit of service of Nick Onguglo filed in respect of service is fatal to the applicant’s case. There is no evidence to establish service.
    
43. Secondly, it is my view that the wrong mode of proceedings was invoked by way of originating summons. This was contempt in connexion with the proceedings and proceedings should have been instituted by way of a notice of motion pursuant to Order 14 Rule 42(1) of the National Court Rules. Accordingly the contempt proceedings must fail and it is dismissed.

Ruling and Orders Accordingly.
________________________________________________________________Public Solicitors : Lawyers for the Plaintiff
Kombri & Associate Lawyers : Lawyers for the first Contemnor