Panao v Panao [2020] PGNC 89; N8280 (14 April 2020)

N8280

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No.279 of 2016

BETWEEN:

GEORGE PANAO
Plaintiff

AND:

ANNA NAWARA PANAO
Defendant

Waigani: David, J
2020 : 14 April

CIVIL PRACTICE AND PROCEDURE – application for orders for eviction, injunction, interim custody of contemnor and amendment of statement of charge by plaintiff – contempt proceedings commenced by originating summons – substantive relief be confined to punishment for alleged contempt – no consequential or other relief should be claimed in originating summons.

CIVIL PRACTICE AND PROCEDURE - applications to adjourn contempt proceedings sine die pending hearing of related substantive proceedings and dismissal of proceedings by contemnor.

PNG cases cited:
Andrew Kwimberi v The State (1998) SC545
Eremas Wartoto v The State (2015) SC1411
Geoffrey R.E Vaki, v Gari L Baki (2014) N5612
Jamie Maxton-Graham v Honourable William Tongamp (2013) N5384
Kalip Salo v Peter Terry Gerari (2005) N2923
Lerro v Stagg (2006) N3050
Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2013) N4956
Mathew Damaru v Geoffrey Vaki (2015) N6858
Michael Kewa v Elias Mai Kombo (2004) N2688
Philip Takori v Simon Yagari (2008) SC905
Rage Augerea v The Bank South Pacific Ltd (2007) SC869
Robinson v The State (1986) PNGLR 307
The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273

Treatise cited:
Injia et al, Papua New Guinea, Civil Procedure in the National Court, Colorcraft Ltd, Hongkong, 2016

Counsel:
Lionel Manua, for the Plaintiff
Anthony Donigi, for the Defendant

JUDGMENT

14. April 2020
1. DAVID, J: INTRODUCTION; This is my ruling on two contested motions. One is moved by the plaintiff pursuant to an amended notice of motion filed on 7 June 2019. The other is moved by the defendant pursuant to a notice of motion filed on 11 June 2019.
   
2. The plaintiff seeks, among others, the following relief:
   
   1. Pursuant to Order 14 Rule 10 and or Order 12 Rule 1 of the National Court Rules or Section 155(4) of the Constitution and inherent discretion of the Court, the defendant and/or the defendant’s servant(s) and/or agent(s) and/or associate(s) be evicted from the properties described as Section 42, Allotment 27 Boroko, Coronation of Angau Drive and Meara Place, National Capital District and Section 79 Allotment 33 Boroko (Korobosea), Moonbi Street, National Capital District and she be further restrained from entering or occupying or dealing with these properties pending the determination of this proceeding or further other order of the Court discharging the injunction.
   2. Pursuant to Order 14 Rule 10(1) and/or (2) and/or Order 12 Rule 1 of the National Court Rules or Section 155(4) of the Constitution and/or inherent discretion of the Court, the Police Station Commander of Boroko Police Station and/or a member or members of Royal Papua New Guinea Constabulary at Boroko Police Station shall with or without assistance of the plaintiff and/or Century 21 Siule Real Estate enter and evict the defendant or her servant(s), agent(s) or associate(s) from the properties described as Section 42 Allotment 27 Boroko, Coronation of Angau Drive and Meara Place and Section 79 Allotment 33 Boroko (Korobosea) Moonbi Street, National Capital District and hand over these properties to Century 21 Siule Real Estate in accordance with the Court order of 4 December 2015 and Court order of 17 February 2016.
   3. Further and/or in the alternative, pursuant to Order 14 Rule 40 of the National Court Rules, the defendant be kept in custody pending the determination of this proceeding.
   4. Pursuant to Order 8 Rule 50(1) of the National Court Rules, the plaintiff be given leave to amend the Statement of Charge filed on the 16 day of May 2016 by adding these additional paragraphs commencing from paragraph number 26 to 28 as follows:
      

“26. Since the filing of this proceeding on the 16 March 2016, the defendant failed to comply with all the terms of the Court orders of 14 December 2015 and 17 February 2016 except handing over the property described as Section 42 Allotment 27 Boroko, Coronation of Angau Drive/Meara Place, National Capital District to Century 21 Siule Real Estate in April 2016.

27. On the 21 January 2019 or thereabout, the defendant forcefully and deliberately entered the property, Section 42 Allotment 27 Boroko, Coronation of Angau Drive/Meara Place, National Capital District and changed locks to the property and took possession control and/or management of the property from Century 21 Siule Real Estate and had breached the Court order of 4 December 2015 and 17 February 2016.

28. At all material times to date, the defendant had breached the Court orders of 4 December 2015 and 17 February 2016 and continue to do so and remains defiant of the Court orders of 4 December 2015 and/or 17 February 2016.” (sic)

3. The evidence relied on and read by the plaintiff to support his application and to respond to the defendant’s application is contained in his affidavits sworn on 11 May 2016 and filed on 16 May 2016 (plaintiff’s First Affidavit) and the other sworn on 14 February 2019 and filed on 6 March 2019 (plaintiff’s Supplementary Affidavit).

4. The defendant seeks, among others, the following relief:

1. Leave be granted to the defendant applicant to move her motion pursuant to Section 155(4) of the Constitution and Order 8 Rule 2(1)(a) and (b) to adjourn the notice of motion regarding contempt until the substantive matter is completed in WS 1013 of 2015 because it was filed first in time and it must be heard first in time as against the first and second defendants proceeding in OS No.279 of 2016 which is filed second in time and if determined therein it will do injustice to the defendant in this multiple proceedings concerning the same subject matter (BSP Loan).
2. An order confirming the defendant is a joint owner of all the four (4) properties in the mortgage loan against the second defendant and therein she cannot be in contempt of Court regarding the same and joint ownership rights in the same properties which is a matter yet to be deliberated on by this Honourable Court in WS 1013 of 2015.
3. The whole proceedings be dismissed for abuse of Court’s process pursuant to Order 12 Rule 40(1)(c) of the National Court Rules because:
   
   • (1) All the issues raised in these proceeding, OS No.279 of 2016, George Panao v Anna Nawara Panao have been settled in Court orders dated the 11^th December 2018 in WS 1013 of 2015 between Anna Nawara Panao being the first defendant/first cross-claimant.
   • (2) The current proceeding OS No.279 of 2016, George Panao v Anna Nawara Panao is all to do with the same properties and therefore is barred by the doctrine of res judicata and is a multiplicity of same proceedings by the same plaintiff and same first defendant.
4. Alternatively, the contempt proceedings against the defendant be dismissed because it has no utility even if the pleadings are proven it cannot succeed based on the married women’s property rights in the same property by law making this proceeding, frivolous and vexatious pursuant to Order 8 Rule 27(1) and Order 12 Rule 40(1) of the National Court Rules. (sic)
   
5. The evidence relied on and read by the defendant to support her application and to respond to the plaintiff’s application is contained in her affidavit sworn and filed on 11 June 2019.
   

BRIEF FACTS AND BACKGROUND

6. The brief background of these proceedings is this.
   
   1. Between 2001 and August 2011, prior to a multiplicity of proceedings filed by the plaintiff and the defendant against each of them and Bank of South Pacific Limited in relation to properties they jointly owned, the parties were married and cohabited.
   2. The parties are joint owners of two properties described as Section 42 Allotment 27 Boroko, Coronation of Angau Drive and Meara Place, National Capital District (Boroko Property) and Section 79 Allotment 33 Boroko (Korobosea) Moonbi Street, National Capital District (Korobosea Property).
   3. A dispute arose between the parties as to the management, control and possession of the properties and repayment of loans exceeding K2 million obtained from the Bank of South Pacific Limited secured by registered mortgages over the properties.
   4. Several proceedings have been filed by the parties arising from the dispute against each other and Bank of South Pacific Limited and they include:
      • (a) OS No.726 of 2012, George Panao v Anna Nawara Panao filed on 6 December 2012;
      • (b) OS No.437 of 2014 (CC3), Anna Panao v Bank of South Pacific Limited & George Panao filed on 26 June 2014;
      • (c) WS No.1013 of 2015, Anna Panao & Mileplus Investments Limited v George Panao & Bank South Pacific Limited;
      • (d) OS No.565 of 2015 (CC2), George Panao v Anna Nawara Panao filed on 3 September 2015;
      • (e) SCA No.5 of 2016, Anna Nawara Panao v George Panao filed on 13 January 2016;
      • (f) OS No.279 of 2016 (CC4), George Panao v Anna Nawara Panao filed on 16 May 2016.
   5. On 13 December 2013, the parties in OS No.726 of 2012 executed a Mediated Agreement after undergoing mediation sanctioned by the Court: copy of Mediated Agreement is annexure B to plaintiff’s supplementary affidavit. In consideration of the settlement of those proceedings by the Mediated Agreement, the plaintiff agreed to discontinue those proceedings.
   6. On 13 November 2014, by order of the Court, the plaintiff in these proceedings was removed as a party to in proceedings OS No.437 of 2014 and the claim against him withdrawn: copy of order is annexure F to the plaintiff’s supplementary affidavit.
   7. On 20 November 2015, leave was granted by the Court for the proceedings in OS No.437 of 2014 to be discontinued: copy of order is annexure G to the plaintiff’s supplementary affidavit.
   8. By OS No.565 of 2015 (CC2), the plaintiff here on 4 December 2015 successfully sought to convert the Mediated Agreement in OS No.726 of 2012 into a Court order: copy of order is annexure J to the plaintiff’s supplementary agreement.
   9. On 17 February 2016, for purposes of implementation, the Court reviewed and varied the order of 4 December 2015 issued in proceedings, OS No.565 of 2015 (CC2): copy of order is annexure L to the plaintiff’s supplementary affidavit.
   10. On 3 March 2016, the Supreme Court through Higgins, J in SCA No.5 of 2016 refused the defendant’s application for leave to challenge the Court’s order of 4 December 2015 in OS No.565 of 2015: copy of order is annexure Q to the plaintiff’s supplementary.
   11. On 16 August 2016, the defendant’s application to dismiss these proceedings for disclosing no reasonable cause of action pursuant to Order 12 Rule 40(1)(a) of the National Court Rules was refused: copy of ruling is annexure R to the plaintiff’s supplementary affidavit.
   12. On 11 December 2018, the plaintiff’s applications to dismiss the proceedings in WS No.1013 of 2015 for failing to disclose a reasonable cause of action or were frivolous or vexatious or an abuse of process of the Court or to enter summary judgment on his cross-claim were refused: copy of ruling is annexure S to the plaintiff’s supplementary affidavit.
       

7. The plaintiff states that since the decision of the Court on 11 December 2018 in WS No.1013 of 2015; the defendant has taken over the Boroko Property from Century 21 Siule Real Estate, changed locks to the property to prevent access by Court appointed manager, Century 21 Siule Real Estate; the defendant has contacted Century 21 Siule Real Estate to take over the management of the Boroko property; and the defendant continues to blatantly defy existing Court orders of 4 December 2015 and 17 February 2016 issued in OS No.565 of 2015 (CC2).

LEGAL ISSUES
8. The main legal issues that arise from the two motions for my decision are:

1. Whether the defendant and/or her servant(s), agent(s) and/or associate(s) should be evicted from the Boroko Property and Korobosea Property pending the determination of these proceedings or further order of the Court?
2. Whether the defendant should be restrained from entering or occupying or dealing with the Boroko Property and Korobosea Property pending the determination of these proceedings or further order of the Court discharging the injunction?
3. Whether the Police Station Commander of Boroko Police Station and/or a member or members of Royal Papua New Guinea Constabulary at Boroko Police Station should, with or without the assistance of the plaintiff and/or Century 21 Siule Real Estate, enter and evict the defendant or her servant(s), agent(s) or associate(s) from the Boroko Property and Korobosea Property and hand over those properties to Century 21 Siule Real Estate in accordance with the Court orders of 4 December 2015 and 17 February 2016?
4. Whether the defendant should be kept in custody pending the determination of these proceedings?
5. Whether the plaintiff should be given leave to amend the Statement of Charge filed on 16 May 2016 as proposed in the plaintiff’s notice of motion?
6. Whether the contempt charges commenced by these proceedings should be adjourned sine die pending the completion of the substantive matter in WS No.1013 of 2015 because the latter proceedings were filed first in time and be heard first?
7. Whether the continuance of these contempt proceedings would have no practical utility or purpose if an order is made confirming the defendant as joint owner of the Boroko Property and Korobosea Property and two other properties which are all mortgaged to the Bank of South Pacific Limited and are the subject of the proceedings in WS No.1013 of 2015 which are yet to be determined?
8. Whether the whole contempt proceedings should be dismissed for failing to disclose a reasonable cause of action or were frivolous or vexatious or an abuse of Court’s process pursuant to Order 8 Rule 27 (1) and Order 12 Rule 40(1) of the National Court Rules on the basis of the principles of res judicata, multiplicity of proceedings and because they serve no practical utility in light of the defendant’s married women’s property rights?
   

9. I have considered the parties’ submissions contained in their respective written submissions and ventilated at the hearing through their respective oral submissions.

EVICTION/INJUNCTION
10. Issues 1, 2 and 3 are considered together as they relate to eviction and occupation of both the Boroko Property and Korobosea Property. Contempt of court proceedings are criminal in nature, the elements of which are any act or omission, committed in the face of the court or outside court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice: Andrew Kwimberi v The State (1998) SC545, Kalip Salo v Peter Terry Gerari (2005) N2923, Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2013) N4956, Geoffrey R.E Vaki, v Gari L Baki (2014) N5612, Eremas Wartoto v The State (2015) SC1411, Mathew Damaru v Geoffrey Vaki (2015) N6858.

11. The Court has jurisdiction to deal summarily or of its motion with contempt in the face or hearing of the Court or otherwise relating to proceedings before it. Order 14 Rules 37 to 50 of the National Court Rules contain a comprehensive statement of a procedure to be followed in cases involving contempt of Court in the face or hearing of the Court (O.14 r.38) and in other situations where the contempt complained of is in connection with proceedings in the Court (O.14 r.42): Robinson v The State (1986) PNGLR 307 at 309.

12. The correct procedure in a case such as this one would be by notice of motion or originating summons with supporting evidence by way affidavit (O.14 r.44) (Robinson v The State (1986) PNGLR 307 at 309) and a statement of charge. The statement of charge must either be subscribed to the notice of motion or originating summons or filed as a separate document: O.14 r.44, Injia et al, Papua New Guinea, Civil Procedure in the National Court, Colorcraft Ltd, Hongkong, 2016 at 344. In the present case, the application for punishment of the contempt allegedly committed by the defendant is made by originating summons. It seems to me that, upon a close examination of Order 14 Rules 42 and 44, the originating summons should only seek one relief, namely, that the contemnor be punished for the contempt alleged. The criminal nature of contempt proceedings also requires that in my view. In addition, none of the rules from Order 14 Rules 42 to 50 expressly states that consequential relief or other relief other than for punishment for the contempt alleged should be claimed in the originating summons.
    
13. In the present case, the originating summons claims other relief apart from the relief for punishment for the contempt alleged. The proceedings are not void as non-compliance with the rules alluded to above does not render the proceedings void: Order 1 Rule 8, National Court Rules. Any defect can be cured by appropriate amendment with the leave of the Court.
    
14. The upshot of this is that the relief sought are an affront to contempt proceedings. They amount to an abuse of the process of the Court and therefore are refused.
    

INTERIM CUSTODY

15. Issue 4 relates to grant of an order to direct that the defendant be kept in custody pending determination of the proceedings. Order 14 Rule 40 of the National Court Rules applies to proceedings for contempt in the face or hearing of the Court. The application of the rule is misconceived. Therefore, I refuse the relief sought.
    

AMENDMENT OF STATEMENT OF CHARGE
16. With regard to Issue 5, the plaintiff seeks leave to amend the statement of charge in the manner proposed in the notice of motion. There is no serious objection to this application by the defendant. I have considered the relevant principles for the grant or refusal of leave to amend a pleading enunciated in The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273 and Michael Kewa v Elias Mai Kombo (2004) N2688. In Jamie Maxton-Graham v Honourable William Tongamp (2013) N5384, a case involving contempt proceedings, I held that leave was required to amend an originating summons. The relevant principles are considered in favour of granting the application. I therefore grant leave as sought by the plaintiff.

THESE CONTEMPT PROCEEDINGS
17. Issues 6 to 8 are considered together.

18. With regard to Issue 6, the defendant in essence requests that the contempt proceedings be adjourned sine die pending the determination of the substantive matter in WS No.1013 of 2015 because the latter proceedings were filed first in time and ought to be heard first. These proceedings are not ordinary civil proceedings. As I have alluded to already, these are actually contempt proceedings which are criminal in nature. The plaintiff seeks the Court’s intervention to punish the defendant for the alleged failure to comply with the judgment or order of the Court made on 4 December 2015 and subsequently varied on 17 February 2016 in proceedings, OS No.565 of 2015. Failure to comply with orders of the National Court is a serious matter and can lead to a charge of contempt of court. The aim in civil contempt is to restore the rights of a party who is wronged by the failure by a party to satisfy the court order which is clear and unambiguous and has been served on him and there is a wilful failure to obey and give effect to the terms of the order: Geoffrey R.E Vaki, v Gari L Baki (2014) N5612. Civil contempt will be brought to an end when a party in contempt complies with the relevant court order or when the substantive matter is resolved: Geoffrey R.E Vaki, v Gari L Baki (2014) N5612.

19. The plaintiff claims that the order of the Court made on 4 December 2015 and subsequently varied on 17 February 2016 in proceedings, OS No.565 of 2015 has not been complied with and the defendant by her conduct continues to blatantly defy the order.

20. I will not adjourn the proceedings sine die. The contempt proceedings must be prosecuted with due diligence.

21. Questions raised by Issues 7 and 8 as to whether the proceedings will serve any practical utility or purpose when the defendant is declared as a joint owner of both the Boroko Property and Korobosea Property in proceedings WS No.1013 of 2015 which are yet to be determined or due to the alleged defendant’s married women’s property rights are a misconception and rejected in view of the criminal nature of the contempt proceedings.

22. As to whether the entire contempt proceedings should be dismissed for failing to disclose a reasonable cause of action or were frivolous or vexatious or an abuse of Court’s process pursuant to Order 8 Rule 27 (1) and Order 12 Rule 40(1) of the National Court Rules on the basis of the principles of res judicata, multiplicity of proceedings, I think there is no basis for such an application.
23. I have considered the relevant principles summarised in Lerro v Stagg (2006) N3050 which were approved in Rage Augerea v The Bank South Pacific Ltd (2007) SC869 and Philip Takori v Simon Yagari (2008) SC905.

24. The substantive proceedings in WS No.1013 of 2015 are yet to be determined. My ruling of 11 December 2018 did not resolve the substantive issues. Therefore, the principle of res judicata does not apply. There is no abuse of the process of the Court. Again, the nature of these contempt proceedings are criminal in nature, very different from the issues raised in WS No.1013 of 2015.

25. As to the argument on multiplicity of proceedings, again it is reiterated that these are contempt proceedings. The contemnor’s argument is understandable as the originating summons claims other relief apart from punishment for the alleged contempt and I have addressed this already. There is no abuse of the process of the Court.

COSTS
26. In both parties’ motions, they have asked that costs be in the cause. I will accede to their request.

ORDER
27. The formal orders of the Court are:

1. Leave is granted for the plaintiff to amend the statement of charge in the manner proposed at paragraph 4 of his amended notice of motion filed on 7 June 2019.
2. All other relief sought by the plaintiff at paragraphs 1, 2 and 3 of his amended notice of motion filed on 7 June 2019 are refused.
3. All relief sought by the defendant in her notice of motion filed on 11 June 2019 are refused.
4. Costs shall be in the cause.
5. Time is abridged.
   

Ruling and orders accordingly.
___________________________________________________________
Rageau, Manua & Kikira : Lawyers for the Plaintiff
Ama Wali : Lawyers for the Defendant