Wuni v Namah [2018] PGNC 597; N8360 (30 January 2018)

N8360

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 304 OF 2014

BETWEEN:
JOHN WUNI and OTHERS
First Plaintiff

AND:
BEWANI PALM OIL DEVELOPMENT LTD
Second Plaintiff

AND:
PALMS 21 LIMITED
Third Plaintiff

AND:
HON. BELDEN NAMAH et al
(7 other defendants)
Defendants

Waigani: Hartshorn J.
2017: 7^th & 10^th April
2018: 30^th January

CONTEMPT - Application for orders for contempt – Order 14 Rule 42 and 49 National Court Rules

Cases Cited:

Ross Bishop and Ors v. Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533

Counsel:

Mr. J. Brooks and Mr. T Griffiths, for the Seventh and Eighth Defendants
Mr. M. Philip, for the Plaintiff

30^th January 2018

1. HARTSHORN J. This is a decision on an application by the seventh and eighth defendants, Bewani Oil Palm Plantations Ltd and Bewani Forest Product Ltd (Applicants), for orders that amongst others, the first plaintiff Mr. John Wuni is guilty of contempt of court by breaching orders of this court made on 22^nd December 2015 in this proceeding and that penalties be imposed upon him. Application is made pursuant to Order 14 Rules 42 and 49 National Court Rules and s. 163(2) Constitution. No issue was taken with the jurisdiction relied upon by the Applicants.

Background

2. The plaintiffs are pleaded as being landowners, directors and two landowner companies. The plaintiffs seek declaratory relief concerning the directorship, shareholding and operations of the second plaintiff Bewani Palm Oil Development Ltd (BPODL), and a project agreement entered into between some of the parties to this proceeding. Ancillary orders of accounting and restraint amongst others, are also sought.

This application

3. The Applicants allege:

a) that on 22^nd December 2015 this court made the following orders:

“1. Pursuant to Order 12 Rule 1 of the National Court Rules and section 155(4) of the Constitution the Plaintiffs and their associates, servants and agents be restrained from threatening, intimidating and harassing the Seventh and Eight Defendants and their servants and agents.

2. The Plaintiffs and their associates, servants and agents be restrained from interfering with the Seventh and Eighth Defendants assets.” (22/12 orders);

b) That John Wuni was aware that the 22/12orders had been made. Further that on 4^th January 2016 at about 9:00am a sealed copy of the 22/12 orders was personally served upon John Wuni by Mr. Wesley Bigi;

c) On or about 9^th November 2016, John Wuni signed a letter of that date and caused it to be delivered by his brother BukaWuni to the VanimoOperations Office of the Applicants;

d) On or about 14^th November 2016, John Wuni signed a letter of that date and on 15^th November 2016 he handed the letter to Paul Wong, General Manager of the Seventh defendant;

e) On or about 16^th November 2016, John Wuni along with a number of others constructed barricades and blockaded the Imbinis Road near the Imbinis Village on the National Highway. He stopped employees and contractors of the Applicants and their trucks and equipment from moving along the road so as to carry out the operations of the Applicants;

f) As a leader amongst those persons maintaining the roadblock, JohnWuniparticipated in a refusal to comply with the law and with the proper and lawful requests of the police to take down the roadblock leading to a situation of violence and threatened violence. The roadblock was maintained until on or about 21^st November 2016;

g) On 22^ndNovember 2016, John Wuni accompanied by a number of others stormed into the seventh defendant’s operations office in Vanimo and without invitation entered the office of Mr. Paul Wong, the General Manager of the seventh defendant. John Wuni was abusive and threatening and made a number of loud demands. He deliberately intimidated Mr. Wong and the employees of the seventh defendant. He ripped up papers and threw them. He created a deliberate disturbance to the operations of the seventh defendant and caused real apprehension of threat and harm on the part of the seventh and eighth defendants and their servants and agents;

h) On 24^th November 2016 John Wuni, by his servants and agents established a new roadblock and made demands on passing vehicles. The roadblock lasted until on or about 29^th November 2016;

i) In the circumstances, John Wuni’s conduct as detailed above constitutes a contempt of the National Court and the Orders as made on 22^nd December 2015.

4. John Wuni by his counsel submits that:

a) It has not been proved beyond reasonable doubt that the 21/12 orders were personally served upon John Wuni;

b) There is no evidence that the subject conduct of John Wuni was wilful;

c) It is conceded that the 21/12 orders are clear and unambiguous;

d) The letters of 9^th and 14^thNovember 2016 do not contain threats against the Applicants;

e) The relationship between John Wuni and his supporters and the Applicants is ongoing and continuing;

f) John Wuni admits that he was frustrated on 22^ndDecember 2016 as Mr. Wong had not attended the police station. John Wuni believes that this non-attendance gave him the right to swear at Mr. Wong in Mr. Wong’s office;

g) There was no assault on anyone, and no damage to any assets;

h) There were not any roadblocks and any evidence that there were is hearsay;

i) The allegations against John Wuni have not been proved beyond reasonable doubt.
Law

5.To succeed on a charge for contempt of an order of the court, the Supreme Court held in Ross Bishop and Ors v. Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533, that amongst others, the order must be unambiguous, the failure to obey the terms of the order must be wilful and the standard of proof is beyond reasonable doubt. Further, at p545 Barnett J said:

“To sustain an action for contempt of a court order there must be proof beyond reasonable doubt that it has been properly served “upon the alleged contemnor”:...... Mere technical service will not be sufficient as the major element of the offence is that it must be a wilful refusal to obey the order.”

Consideration

6. No issue was taken with whether this court made the 22/12 orders and whether they remained in force and I am satisfied that this court did make the 22/12 orders and that they were in force at all material times.

7. As to service of the 22/12 orders upon John Wuni, it is submitted on behalf of John Wuni that he was not served and that the person who deposes that he did personally serve John Wuni is lying.

8. John Wuni deposes in his affidavit sworn 4^th April 2017 that he was not served with the 22/12 orders. Wesley Bigi deposes that he personally served John Wuni with a sealed copy of the 22/12 orders at about 9:00am on 4^th January 2017, in his affidavit sworn the same day, 4^th January 2017. He deposes that he served the 22/12 orders on John Wuni when John Wuni attended at Henaos office to serve an application by Korerua Lawyers, the lawyers for the plaintiffs.

9. Mr. Bigi, a lawyer, confirmed under cross-examination that he served John Wuni at his offices on 4^th January 2017. John Wuni in his affidavit sworn 21^st January 2016, exhibit “B”, deposes amongst others that he served certain documents on 6^th January 2016. Of significance is a copy of a letter marked annexure “A” to that affidavit which has an acknowledgement of receipt on it. The acknowledgement of receipt is signed by Wesley Bigi, Lawyer, Henao’s Lawyers Office, 4.1.16, 9.59.

10. I am satisfied beyond reasonable doubt from a perusal of the affidavit evidence and after hearing both Mr. Wuni and Mr. Bigi give oral evidence that John Wuni was personally served with the 22/12 orders by Mr. Bigi. This is particularly because of Mr. Bigi’s affidavit being sworn the same day as the service, whereas Mr. Wuni’s affidavit denying service was sworn three months later; and the acknowledgement of receipt signed by Mr. Bigi dated 4^th January 2016 in the affidavit of Mr. Wuni in which Mr. Wuni appears to have given incorrect evidence of the date he attended at Henaos to serve documents. Further, Mr. Wuni’s affidavit exhibit “B” confirms that he was in Port Moresby at the relevant time.

11. As to whether Mr. Wuni breached the 22/12 orders, Mr. Wuni in cross examination was evasive and aggressive to questions that were put to him that he did not want to answer. When it was put to Mr. Wuni that on several occasions he had gone to the seventh defendant’s offices, pushed passed security guards, sworn at and harassed staff and ripped up documents, he did not deny the allegations directly but on the basis of “mobile squad intimidation”, that Mr. Wong should address landowner issues and that Mr. Wuni was standing up for his rights. When asked on how many occasions he had attended at the offices of the seventh defendant demanding money and was it on many occasions, he answered to both questions that he could not remember. Mr. Wuni did not deny making the demands. Further, in re-examination, Mr. Wuni admitted that he and others were in the video evidence that had been shown to the court and that in that video evidence he was behaving aggressively towards, and was swearing at Mr. Wong.

12. The evidence of Mr. Wong is that he was intimidated by Mr. Wuni on 22^ndNovember 2016 when Mr. Wuni and others stormed into the office of the seventh defendant and Mr. Wong. In paragraphs 20, 21 and 22 of Mr. Wong’s affidavit he deposes that on 22^nd November 2016 at about 11:30am John Wuni and others stormed into the seventh defendant’s operations office and uninvited and walked straight into Mr. Wong’s office. They were very angry and made a lot of noise. They would not listen to Mr. Wong and blocked him so that he could not leave his office. John Wuni shouted at Mr. Wong, was abusive and ripped up some papers that were on Mr. Wong’s desk. This incident was video recorded on a mobile phone. As mentioned, John Wuni has admitted that it was him and others in the video recording and that he was behaving aggressively towards and swearing at Mr. Wong.

13. I am satisfied beyond reasonable doubt on the evidence of Mr. Wong and the oral evidence and examination of John Wuni that John Wuni did on 22^nd November 2016, threaten, intimidate and harass Mr. Wong and other members of the staff of the Applicants. Further, I am satisfied that the evidence establishes that the actions of John Wuni were wilful. Consequently, I find that John Wuni is guilty of breaching the 22/12 orders.

14. As to the evidence concerning the two letters, I am not satisfied that this is evidence of a threat being made or of intimidation or harassment. In regard to the evidence that I collectively refer to as the alleged roadblocks evidence, objection was made by counsel for Mr. Wuni to some of the evidence concerning the alleged roadblocks on the basis that the evidence is hearsay. This was conceded in some respects by counsel for the Applicants. I have considered these alleged roadblocks evidence on the basis of what weight should be given to it. After considering the evidence concerning the two letters and the evidence concerning the alleged roadblocks, I am not satisfied that the evidence is such that it has been proved beyond reasonable doubt that John Wuni has interfered with the Applicants assets. Therefore, I find that John Wuni is not guilty of breaching the 22/12 orders on that basis.

15. I have found that John Wuni is guilty of contempt of court for breaching the orders of this court made on 22^nd December 2015 by threatening, intimidating and harassing Mr. Paul Wong an employee of the seventh defendant and other members of the staff of the seventh defendant on 22^nd November 2016. I convict John Wuni accordingly. The matter is adjourned to a date to be advised for submissions on sentence.
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Korerua & Associates Lawyers: Lawyers for the Plaintiffs
Ashurst Lawyers: Lawyers for the Seventh and Eighth Defendants