Bewani Oil Palm Plantations Ltd v Allan [2019] PGNC 287; N8082 (30 October 2019)

N8082

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 283 of 2016

BETWEEN
BEWANI OIL PALM PLANTATIONS LIMITED
First Plaintiff

And
BEWANI PALM OIL DEVELOPMENT LIMITED
Second Plaintiff

And
MINISTER FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING-HON BENNY ALLAN, MP
First Defendant

And
ACTING REGISTRAR OF TITLES-MR YANJOL APIN
Second Defendant

And
SURVEYOR GENERAL FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING-CHRIS MANDA
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

And
OSSIMA RESOURCES LIMITED
Fifth Defendant

Waigani: Miviri J
2019: 16^th October

PRACTISE & PROCEDURE – originating summons – notice of motion – contempt of court – valid court order – served on contemnor – awareness of order – failure to comply – not beyond doubt – company official – major shareholder – not beyond doubt – how contemnor subject of order – order unclear – contemnor not named in order – Not proved beyond reasonable doubt – Not guilty of contempt – acquitted and discharged.

Cases Cited:

Andrew Kwimberi v State [1998] PGSC 9; SC 545 (27 March 1998).

Daiva v Pukali, Ome Ome Forests Limited v Cheong [2002] PGNC 61; N2289 (8 October 2002)

Gumoi v Gorgum [2016] PGSC 39; SC1520 (28 July 2016)

OS (JR) No. 283 between Bewani Oil Palm Plantation Limited First Plaintiff and Bewani Palm Oil Development Limited Second Plaintiff v Minister for Department of Lands & Physical Planning Hon. Benny Allen, MP First Defendant & 3other defendants including Ossima Resources Limited Fifth Defendant N6833 [21 July 2017].
Counsel:

L. Evore, for Plaintiff/Applicant
E. Parua, for Applicants/Contemnors

RULING

30^th October, 2019

1. MIVIRI, J: This is the Ruling of the Court pursuant to two Notices of Motion heard together, firstly of the Plaintiff Applicant 23^rd March 2018 and secondly by the alleged Contemnor Applicant of the 10^th July 2018. The former seeks contempt against and the latter in response rebutting.
   
2. The dispute emanates over the order that this court made on the 21^st July 2017 in proceedings OS (JR) No. 283 between Bewani Oil Palm Plantation Limited First Plaintiff and Bewani Palm Oil Development Limited Second Plaintiff v Minister for Department of Lands & Physical Planning Hon. Benny Allen, MP first defendant & 3other defendants including Ossima Resources Limited fifth defendant N6833 [21 July 2017]. The order was in the following terms, “the fifth defendant is compelled to deliver up its owners copy of the title to Portion 163C Milinch Bewani (NE & NW) & Oenake (NE & SE) Fourmil Aitape & Vanimo in the Sandaun Province containing an area of 31, 430 hectares, entered in the Register as Volume 18 Folio 205 to the Registrar of Titles for cancellation in accordance with sections 160 and 161 of the Land Registrations Act within 14 days of this order”.
   
3. Hence the primary issue is whether the Fifth Defendant is in contempt of court because it has failed to deliver up the owners copy of the title to Portion 163C (supra). It is not necessary to determine this issue because plaintiff applicant has abandoned it. By abandoning him he is now focused on Charles Osi. Because the evidence shows that at all material time the relevant owner’s copy of the title was in the possession of Mr Osi the major shareholder and chairman of the Fifth Defendant. So, he is pursuing him for contempt of the order set out above. But the problem is Mr Osi is not the Fifth Defendant named in the order set out above. Because He is not a party to the proceedings set out above from which emanate the order in question. The orders are specifically directed at the Fifth Defendant who is a different legal person from Charles Osi. He is the Chairman of the Fifth Defendant and was directly involved in the proceedings from which the subject orders were derived. He is versed with what transpired there having been actively involved by the records of the proceedings. This is not the same as being named a defendant. The name in the terms of the order is, Ossima Resources Limited.
   
4. In law Ossima Resources Limited the Fifth Defendant is not the same person as Charles Osi because by operation of the Companies Act 1997 Section 16 Separate legal Personality Ossima Resources Limited is a legal entity separate from the shareholders and continues in existence until removed from the register. Charles Osi is a major shareholder holding 64 out of the 111 shares. He is also the Chairman. But that does not make him the Fifth Defendant Ossima Resources Limited because of the operation of section 17 capacity, powers and validity of actions following. For the present purposes it follows that for contempt to be levelled only Ossima Resources Limited is accountable as the fifth defendant.
   
5. It is Ossima Resources Limited subject of Order number five set out above. Because he is not named as the person responsible to deliver it to the Registrar of titles. When he is not named, he cannot be responsible for implementing the order made. Any failure in the implementation execution of the order is not his responsibility. And failure in its implementation cannot be attributed as his fault. He cannot bear responsibility for being in contempt of court because he has not breached an order of the court. Contempt is criminal in nature and the burden of proof is not civil but beyond all reasonable doubt. The identity of the person committing the offence of contempt must be spelt out in the order that is made initially. Or that the person must be a principle offender in that he aids abets counsels or procures the commission of the offence. So, for the statement of the contempt alleged must name him as a person who is alleged to have committed the contempt. Or that he assisted to commit the contempt. This means that by operation of section 7 and 8 of the Criminal Code he must have been a principle in the offence. Here Ossima Resources is not pursued because the title was with Charles Osi. To succeed the latter must be also included because the order relates to him made by this court. Charles Osi must be tied in with him to defy the order to produce the owners copy.
   
6. He has explained that he made a mistake that the owners copy of the title was with him but amongst his file. He is the Chairman of the Fifth Defendant and is it reasonable that he has made a genuine innocent mistake of fact in not locating it amongst his file. Is it possible in the light of the facts that he was primarily involved in the proceedings to not have found the owners copy of the title the subject of the proceedings in N6833 [21 July 2017] (supra). If he was knowingly assisting in not divulging a court ordered document the title to the subject dispute, then contempt is made out against him. He is not the subject of the order but if it is reasonable that he knew of its existence and does not help with that knowledge in not giving effect to it implementing it by the delivery of the owners copy to the Registrar of titles up to the date of the hearing enduring nine months duration then his conduct leading must be examined whether the intention is in defiance of the order and therefore contemptuous or innocent in that he cannot in all reasonableness find the owners copy of the title document.
   
7. Further can it be deduced that the court order has been complied with by the letter of Ossima’s new Lawyers Leahy Lewin Lowing Sullivan Lawyers writing to the Registrar of Titles on the 10^th May 2018 and disclosing the subject owners copy of the title to Portion 163C Bewani Sandaun for cancellation hence considered as complying with the order of the court. And therefore, contempt is not made out. Because it is not the seriousness it deserves as no reasonable cause of action is shown because the proceedings cannot be attained. And if continued as it is done by the plaintiff is it harassment of the defendant and therefore vexatious and should be dismissed by Order 12 Rule 40.
   
8. The evidence pointed by applicant is of Charles Osi admitting that he was in possession of the subject owner’s title but that he did not find it there until much later the 23^rd March 2018. And on the 10^th May 2018 Ossima’s new Lawyers Leahy Lewin Lowing Sullivan Lawyers wrote attaching the owners copy of the title which was 9 months after the order was initially made by this court. He is the major shareholder the chairman of the company would it be accepted on the facts as it is that he has aided abetted Ossima Resources Limited to not abide by the terms of the orders issued against. In my view the principle accused Ossima Resources Limited is not pursued by the Plaintiff Applicant in the statement and the charging for contempt then there cannot be an aider and abetter to the offence. The order is specific it is directed at Ossima Resources Limited who is Fifth Defendant. And liability for contempt attaches upon the principle to the order not without. It follows that if Ossima Resources Limited is not pursued for contempt by the orders directed to it by this court, there cannot be an aider and abetter to the offence if the principle accused is not pursued for the alleged violation of the order. Andrew Kwimberi was the subject of the order he chose not to comply with it and was found guilty of gross carelessness contempt of court pursuant, Andrew Kwimberi v State [1998] PGSC 9; SC 545 (27 March 1998). This is not the situation as in Gumoi v Gorgum [2016] PGSC 39; SC1520 (28 July 2016) because it must be proved beyond all reasonable doubt that the order was clear and unambiguous. It was properly served, or the Contemnor was aware of the order and there was deliberate failure to comply. Because the facts here disclose contempt by disobedience of a court order. In my view these elements are not proved beyond all reasonable doubt because there is specific reference by the plaintiff applicant not to pursue contempt against the fifth defendant in the proceedings but only Charles Osi. The order the subject of contempt relates to the fifth defendant not Charles Osi. It is not clear as to how Charles Osi comes in the realm or ambit of the order. It is not beyond doubt as to how he is drawn using the word, fifth defendant to the proceedings because he is not party to that proceeding. The language of the order is not clear to establish identity of who is the Fifth Defendant and how it includes Charles Osi as a party to that proceeding and therefore liable for contempt of court. His responsibility and duty to that order is not as clear as in Daiva v Pukali, Ome Ome Forests Limited v Cheong [2002] PGNC 61; N2289 (8 October 2002). When this is the case the law is clear any doubts created must be accorded the accused. Accordingly, Charles Osi is found not guilty of contempt of court as charged.
   
9. It is not necessary to consider the motion of the contemnor for dismissal as effectively this verdict in law dismisses the proceedings against him. It is a strict liability action in that the proof is beyond all reasonable doubt and therefore costs will follow the event. Plaintiff applicant will meet the cost of the respondent Charles Osi itemised if not agreed to be taxed.
   
10. Not guilty of Contempt of court. Acquitted and discharged. Proceedings are dismissed forthwith.
    
11. Plaintiff is to pay the Costs of the proceedings for the respondent.
    

Orders Accordingly.

__________________________________________________________________

Ashurst Lawyers: Lawyer for the Plaintiff Applicant

Leahy Lewin Lowing Sullivan Lawyers: Lawyer for the Contemnor/Applicant