Walambo v Kemesi [2023] PGNC 88; N10210 (28 March 2023)

N10210

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 426 OF 2005

BETWEEN
SIDION WALAMBO as Chairman of Melipu Yesiki ILG 8784
Plaintiff

AND
MELIPU YESIKI ILG 8784
Second Plaintiff

AND
URUMPA KEMESI, Deceased Chairman of Yesiki ILG 447
First Defendant

AND
YESIKI ILG 447
Second Defendant

AND
MARTHA KAIA
Third Defendant

Waigani: Shepherd J
2018: 13^th December
2019: 27^th February
2023: 28^th March

CONTEMPT OF COURT - contempt scandalising the Court – elements of the offence - allegation that contemnor publicly stated that plaintiffs’ lawyers bribed National Court judge – standard of proof applicable to allegation that statement was made - proof beyond reasonable doubt – evidence fell short of criminal standard of proof – contemnor acquitted.

EVIDENCE - affidavits by non-English speaking deponents in criminal and civil proceedings - purpose of interpretation certificate - interpreter must be impartial and independent of parties and their lawyers – interpreter must not be the lawyer or draftsperson of affidavit – interpreter must not be a party to the litigation - duty of interpreter and the Court to be satisfied that non-English speaking deponent properly understands nature of oath and content of affidavit before oath is administered – meaning of the term “oath” - if oath is not administered then affidavit is not admissible in evidence and should be excluded - Court has a wide discretion to exclude affidavit evidence if circumstances call into question whether non-English speaking deponent fully understood nature of oath or content of affidavit or if oath was not administered by Commissioner for Oaths or other person authorised to administer oath – deponent can depose to matters by making solemn declaration or affirmation instead of swearing affidavit on oath.

EVIDENCE – deponent of affidavit must state facts not opinions - opinion evidence in affidavit is inadmissible unless given by properly qualified expert in area of concern.

Cases Cited:

Papua New Guinean Cases
Augera v Tigavu (2010) N4185
Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533
Golpak v Kali [1993] PNGLR 8
Kingston v QBE Insurance (PNG) Ltd (2018) SC1698
Kupako v Covec (PNG) Ltd (2019) N7889
Kwimberi v The State (1998) SC545
Meten v Seneka & Magisterial Services ( 2011) N4462
Public Prosecutor v Rooney (No. 2) [1979] PNGLR 448
Salo v Gerari (2005) N2923
Siu v Waine Land Group Inc (2011) SC1107

Overseas Cases
In the Estate of Fuld, Hartley v. Fuld [1965] 2 All E.R. 653
R v Begum (1985) 93 Cr App R 96
R v Imrie (1917) 12 Cr App R 282
R v Martin [1973] Crim. L.R. 282
R v Mitchell [1970] Crim LR 153
R v Saraya (1993) 70 A Crim R 515 (NSW CCA)
R v West London Youth Court: Ex parte N [2000] 1 All ER 823
Re Trepca Mines Ltd [1960] 1 W.L.R. 24
Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4A
Singh v Singh [1971] EWCA Civ 10; [1971] 2 All ER 828

Legislation:
Interpretation Act 1975: .Section 3(1)
Land Disputes Settlement Act Chapter 45: Sections 26 & 54
Oaths, Affirmations and Statutory Declarations Act Chapter 317: Sections 6, 7 & 8; Schedule 1, Forms 1 & 2

Textbooks:

Halsbury’s Laws of England (4^th Ed.) Vol. 17(1)
Injia on Contempt of Court in Papua New Guinea and the Pacific (2013) University of PNG Press
Phipson on Evidence (13th Ed.) (1982) Sweet & Maxwell Ltd

Counsel
Mr William Hagahuno, for the Plaintiffs/Applicants
Mr Laken Aigilo, for the Third Defendant/Contemnor

DECISION

28^th March, 2023

1. SHEPHERD J: This is a decision following the hearing of an application by the plaintiffs to have the contemnor punished for alleged contempt of court.
   
2. The contemnor is the third defendant in this suit. She was joined as a party to this suit by order of this Court made with the consent of the other abovenamed parties on 25 April 2008. The first plaintiff has, despite that consent order, subsequently asserted to others that the contemnor is not a party to this suit.
   
3. According to the first plaintiff (Mr Walambo), there was an incident involving the contemnor (Ms Kaia) which occurred outside the office of the Department of Finance at Vulupindi Haus, Waigani, NCD at about 10.30 am on 13 December 2017. The first plaintiff says that he and his supporters had gathered on that occasion near the entrance to Vulupindi Haus and were waiting to be called by the Department of Finance’s legal officer, Mrs Caroline Jaruga, who had requested a meeting with the plaintiffs to try to resolve an ongoing issue regarding the identification of persons claiming to be the beneficiaries of royalty payments and other benefits owed to members of the second plaintiff (Melipu Yesiki ILG 8784) and the second defendant (Yesiki ILG 447) which were awaiting payment by the Department.
   
4. Mr Walambo alleges that while he and his supporters were waiting to be called by Mrs Jaruga on 13 December 2017, Ms Kaia arrived on the scene and, in full public view, yelled abuse at the plaintiffs and is alleged to have said that the plaintiffs’ lawyer had bribed a judge in this suit WS No. OS 426 of 2005. Ms Kaia has a history of vigorously challenging Mr Walambo, the abovenamed two ILGs and others for their refusal to recognise Ms Kaia’s representation as alleged former chair of Yesiki ILG 447, in which capacity Ms Kaia had asserted that she and others of her faction within the Yesiki Clan were entitled to share in the distribution of royalties and other benefits accruing to members of Yesiki ILG 447.
   
5. These contempt proceedings were filed for the plaintiffs by Williams Attorneys on 26 February 2018 and were initially instituted against three contemnors, not just Ms Kaia. The other two contemnors were named as Bob Sari, Director of the Petroleum Division of the Department of Petroleum and Energy (DPE) and Kepsey Puiye, Acting Secretary of the DPE.
   
6. The documentation for the contempt proceedings comprises:
   

(1) a notice of motion naming the three contemnors and seeking orders that they each be punished for alleged breach of an interim order made in this suit on 5 September 2012 and that personnel at the DPE, Department of Finance, Mineral Resources Development Company Ltd (MRDC), the Police and others be restrained from dealing with Ms Kaia and others on “matters” concerning Yesiki ILG 447 and the Yesiki Clan;

(2) separate statements of charge against each of the three contemnors;

(3) a total of eight affidavits in support.

Reason for delay in delivery of this Decision

7. There is a preliminary issue that needs to be addressed, namely the reason for the delay in the delivery of this Decision.
   
8. The Civil Registry of the National Court previously had two folders for this proceeding. The folder for Part 1 of the Court’s file for OS No. 426 of 2005 held the originals of Court documents numbers 1 to 48, commencing with the plaintiffs’ originating summons filed many years ago on 8 June 2005 followed by further Court documents through to the affidavit of Mr Walambo filed on 3 October 2017. The folder for Part 2 of the Court’s file held the originals of Court documents numbers 49 to 86, starting with the affidavit of service of Samo T. Agura filed by Williams Attorneys on 9 October 2017 through to the Court’s order of 27 February 2019, which order stated to the effect that a date for delivery of the Court’s reserved decision on the contempt charge against Ms Kaia would be notified by the Registry to the parties’ respective lawyers in due course.
   
9. After the contempt charge against Ms Kaia had been heard, at some point during 2019 Parts 1 and 2 of the Court’s file for OS No. 426 of 2005 went missing from the Civil Registry. Despite numerous searches over the years, starting in late 2019, the two folders for the Court file for this suit holding the originals of all documents filed for the various parties could not be located by my Associate or by any of the staff of the Civil Registry.
   
10. When staff at the Civil Registry at my request in early February 2023 recently repeated their many earlier searches, I was informed that Parts 1 and 2 of the Court’s file were still missing. The folders for Parts 1 and 2 were therefore considered to have been permanently misplaced or lost. The Court’s Case Docketing System (CDS) does, however, have scanned digital copies of most of the missing Court documents. Staff at the Civil Registry were therefore instructed by me on 8 February 2023 to create a supplementary Court file for OS No. 425 of 2005, which was duly prepared and recently delivered to me and which now contains copies of the majority of digitised Court documents numbers 1 to 86 filed in this suit. The Court’s Reporting Service has also furnished transcripts of the contempt proceedings which were heard by the Court 13 December 2018 and on 27 February 2019.
    
11. I turn now to a consideration of the lengthy background to this case which resulted in the filing of the plaintiffs’ contempt proceedings against Ms Kaia, Mr Sari and Mr Puiye on 26 February 2018.
    

BACKGROUND TO THESE CONTEMPT PROCEEDINGS

12. It is not in dispute that the first plaintiff in this suit, Mr Walambo, was at all material times the chair of Melipu Yesiki ILG 8784. He is well educated. He speaks and understands both English and Pidgin.
    
13. The second plaintiff, Melipu Yesiki ILG 8784, represents members of the Yesiki Clan who come from villages in the Southern Highlands Province.
    
14. The second defendant, Yesiki ILG 447, represents members of the Yesiki Clan who come from villages in the Gulf Province.
    
15. The first defendant, Urumpa Kemesi (also known as Urupa Kemesi) (Mr Kemesi) is deceased. Mr Walambo has deposed that Mr Kemesi died in October 2010. Prior to his death, Mr Kemesi asserted in this suit that he was the duly elected chair of the second defendant, Yesiki ILG 447, an assertion that has always been challenged by Ms Kaia.
    
16. Ms Kaia, the third defendant and contemnor, has vigorously contended in this proceeding that on 28 October 2004 she was declared by PNG Electoral Commission returning officer David Nul as having been duly elected as the chair of Yesiki ILG 447 at a meeting of the members of that ILG convened on 28 October 2004 at Kikori, Gulf Province, and that Mr Kemesi cited as first defendant had no lawful authority to represent himself as chair of Yesiki ILG 447 as second defendant when the plaintiffs commenced this suit on 8 June 2005.
    
17. The Certificate of Recognition of Yesiki ILG 477 which was issued by Mark Tola, Delegate of the Registrar of Incorporated Land Groups on 18 July 2005 pursuant to the Land Groups Incorporation Act Chapter 147 states that as at that date the chair of Yesiki ILG 447 as officially recorded by the Registrar of Incorporated Land Groups was Martha Kaia. The Certificate states that the recorded deputy chair of Yesiki ILG 447 as at 18 July 2005 was James Kaia. There is affidavit evidence filed in this suit which indicates that James Kaia is the biological brother of Ms Kaia.
    
18. Mr Walambo asserts that quite apart from being the longstanding chair of Melipu Yesiki ILG8784, he has also been the acting chair or caretaker chair of Yesiki ILG 447 ever since he was allegedly appointed to that office at a meeting of members of Yesiki ILG 447 on 15 October 2011, which was held following the death of Mr Kemesi in October 2010. Ms Kaia has also strenuously contested this assertion made by Mr Walambo. Ms Kaia contends that as a legitimate member of Yesiki ILG 447, she and others of her faction were never given notice of the purported meeting of members of that ILG said to have been held on 15 October 2011 and that the meeting, if it was held, and all resolutions and appointments made at that purported meeting, were void, including a resolution for the appointment of Mr Walambo as the acting chair or caretaker chair of Yesiki ILG 447.
    
19. The primary relief sought by the plaintiffs when they filed their originating summons in this suit OS No. 476 of 2005 on 8 June 2005 was a judicial declaration that a memorandum of understanding dated 16 January 2002 signed by Mr Walambo as chair on behalf of Melipu Yesiki ILG 8784 and countersigned by Mr Kemesi as chair on behalf of Yesiki ILG 447 for the sharing of royalty and other benefits derived from the Gobe and Kutubu Oil and Gas Projects was binding on those two ILGs. The plaintiffs also sought ancillary orders in connection with the payment of royalty and other benefits by the DPE and MRDC as well as an order restraining Yesiki ILG 447 from interfering with Melipu Yesiki ILG 8784’s 50 per cent share of those benefits.
    
20. Mr Walambo asserted in paragraph 14 of a statement filed in support of OS No. 426 of 2005 on 8 June 2005 that Mr Kemesi was uneducated and illiterate and that he was being manipulated by others to interfere with royalty and other benefits accruing under the memorandum of agreement signed by the two ILGs on 16 January 2002.
    
21. On 4 August 2006 an interim injunction was granted in OS No. 476 of 2005 which restrained the DPE, MRDC and the State from making any payments accruing to the Yesiki Clan through Yesiki ILG 447 in connection with the Kutubu and Gobe Oil Projects pending determination of all issues in this suit or until further order of the Court. The DPE, MRDC and the State were ordered to pay all such accruals into the Registrar of the National Court’s Trust Account until further order of the Court.
    
22. One of the reasons the interim injunction was issued in this suit on 4 August 2006 was because of the dispute which had arisen between Ms Kaia and Mr Kemesi as to who was the validly elected chair of Yesiki ILG 447 at that point in time and who therefore was entitled to receive royalty and other payments from the DPE and MRDC for distribution to members of Yesiki ILG 447.
    
23. In separate proceedings OS No. 142 of 2005 Mr Kemesi and Mr Walambo as plaintiffs jointly challenged Ms Kaia’s assertion that she had been duly elected as the chair of Yesiki ILG in October 2004. Those proceedings were dismissed by order of the National Court on 2 October 2006 as having been an abuse of process. This meant that the dispute between Ms Kaia on the one hand and Mr Kemesi and Mr Walambo on the other hand as to who was the validly elected chair of Yesiki ILG 447 at that time remained judicially unresolved.
    
24. Reverting to what then occurred in this suit OS No. 426 of 2005, it is of considerable significance that the Court record shows that an order was made on 25 April 2008^[1] that Ms Kaia was joined as a defendant to this action – with the consent of the plaintiffs and all other parties. The Order dated 25 April 2008 states:

“ COURT ORDER

THE COURT ORDERS BY THE CONSENT OF THE PARTIES THAT:

1. The Applicant/Martha Kaia for and on behalf of the Yesiki Clan to be joined as a Defendant in this proceeding.

2. All parties to pay their own costs.

3. Abridgement of time of the entry of this order. ”

25. The Court’s record also shows that subsequent to the consent order of 25 April 2008 having been made, for reasons unknown, the entituling of all court process in this suit has failed to cite Ms Kaia as a defendant in OS No. 426 of 2005. I propose to correct that anomaly later in this Decision as the consent order of 25 April 2008 for the joinder of Ms Kaia as a defendant in this suit has never been set aside by the National Court and, being a consent order, it was never appealed to the Supreme Court by Mr Walambo or by Mr Kemesi prior to his death.
    
26. The next event of significance in this suit is that on 20 June 2008 an order was made, again with the consent of all parties, including the purported consent of Ms Kaia, for the payment out from the Registrar of the National Court’s Trust Account of monies held pursuant to the Court’s order made on 4 August 2006. Set out below is the text of the Court’s order which was made by the consent of the named parties on 20 June 2008:^[2]

“ CONSENT ORDER

BY CONSENT OF THE DISPUTING PARTIES, NAMELY Sideon Walambo for Himself And On behalf of Second Plaintiff, URUMPA KEMESI for himself and on behalf of the Second Defendant and JAMES KAIA for MARTHA KAIA on their and on behalf of the Yesiki ILG 447, the Court Orders THAT:

1. The monies sum of K283,830.00 held in the National Court Trust Account for the Yesiki ILG No. 447 pursuant Court Order of 4^th August 2006 be paid out in the following manner:

(i) K94,610.00 be paid to Saulep Lawyers Trust Account for the Yesiki ILG No. 447 to deduct its fees and pay the balance to Urumpa Kemesi subject to item (v) below.

(ii) K94,610.00 be paid to Williams Attorneys Trust Account for the Melipu Yesiki ILG No. 8784 to deduct its fees and pay the balance to Sidion Walambo subject to item [v] below.

(iii) K94,610.00 be paid to Parkil Trust Account for James Kaia & Martha Kaia’s group to deduct its fees and pay the balance to James Kaia.

(iv) Of the monies paid to Saulep Lawyers Trust Account on behalf of Urumpa Kemesi and the Yesiki ILG No. 447, the said Saulep Lawyers are directed to pay Parkil Lawyers K30,000.00 as Urumpa Kemesi’s contribution towards Martha and James Kaia’s legal fees.

(v) Of the monies paid to Williams Attorneys Trust Account on behalf of Sidion Walambo and Melipu Yesiki ILG No. 8784, the said Williams Attorneys are directed to pay Parkil Lawyers K20,000.00 as Sidion Walambo’s contribution towards Martha and James Kaia’s legal fee defence deducting its fee out on paying its client.

2. The Third Defendant, the Secretary for Department of Petroleum and Energy and Fourth Defendant, Managing Director of Minerals Resources Development Company are directed to release all equities and royalties currently due and held in trust for Yesiki ILG 447 to be split in three equal portions:

(i) Saulep Lawyers Trust Account to be held in trust for and on behalf of Urumpa Kemesi and his clan members;

(ii) Williams Attorneys Trust Account to be held in trust for and on behalf of Sidion Walambo and his clan members;

(iii) Parkil Lawyers Trust Account to be held in trust for and on behalf of Martha Kaia and James Kaia and their clan members.

3. This Consent Order is for a one-off payment to assist the parties meet their clan members financial obligations to date and does not affect any ongoing or future court proceedings between the parties herein or any legal position maintained by the parties.

4. This Consent Order shall not be used in any other court proceedings for any other purposes other than this intended one-off settlement for the sharing of the funds due and held by the Third and Fourth Defendants as of the date of the signing of hits consent, but does not relate to all other future benefits and dues.

5. The Orders of this Honourable Court dated 04th day of August 2006 are set aside and discharged.

6. A further order that until this proceeding ha[s] been determined or until further orders of this Court, all future benefits due and accruing to the Yesiki Clan and payable through the Yesiki ILG No. 447 shall be held in the Trust Account of the Fourth Defendant.

7. Each party meet their own costs of this application.

8. Time for entry of judgments [sic] be abridged to the date of settlement by the Registrar to take place forthwith. ”

[underlining added]

27. There is some doubt as to whether Ms Kaia gave her personal consent to this order made on 20 June 2008 for disbursement of royalty monies because the written consent for this order to be made by the Court was not given by Ms Kaia personally but by her brother James Kaia on her behalf.^[3]
    
28. However, it is abundantly clear from the wording of the order made on 20 June 2008 that Ms Kaia was considered by the other consenting parties, Mr Walambo and Mr Kemesi, to be a legitimate party to this suit OS No. 426 of 2005 when the Order was made. This is relevant to a later conflict in the evidence of Mr Walambo which indicates he repeatedly asserted to officials at the DPE and Department of Finance that Ms Kaia was never a party to OS No. 426 of 2005 and that Ms Kaia was allegedly an interfering outsider and therefore not entitled to receive any royalties or benefits accruing to members of Yesiki ILG 447.
    
29. On 2 March 2009 leave was granted to the plaintiffs in this suit OS No. 426 of 2005 to withdraw the proceedings against the DPE as third defendant, against MRDC as fourth defendant and against the State as fifth defendant. Thereafter this suit continued to remain on foot between Sidion Walambo and Melipu Yesiki ILG 8784 as first and second plaintiffs against Mr Kemesi and Yesiki ILG 447 as first and second defendants and against Ms Kaia as third defendant following the departure of the DPE, MRDC and the State as third, fourth and fifth defendants.
    
30. The next event of significance in this suit is that more than three years later, on 5 September 2012 an order was made with the consent of the first and second plaintiffs Mr Walambo and Melipu Yesiki ILG 8784 on the one hand and the first and second defendants the late Mr Kemesi and Yesiki ILG 8784 on the other hand, there having been no mention in that consent order that the late Mr Kemesi had already been long since deceased when the order was made.
31. The terms of the consent order of the Court made on 5 September 2012^[4] were couched in the following terms.
    

The Court Orders by Consent that:

1. The parties are equal beneficiaries of all benefits derived and accruing to Yesiki Clan through Yesiki ILG 447 from the Yesiki Clan lands to be shared on 50/50 basis as follows:

(a) 50% of the benefits to Yesiki ILG 447 led by Urupa Kemesi;

(b) 50% of the benefits to Melipu [Yesiki] ILG led by Sidion Walambo.

2. The parties are permanently restrained from interfering with the above benefit sharing arrangement as agreed to between themselves.

3. All other third parties are permanently restrained from interfering with the benefit sharing arrangement set out in paragraph 1 of this order.

4. Each party meet their own costs.

32. It is apparent on the face of the record that Ms Kaia was excluded from the negotiations which gave rise to this consent order. I observe that Ms Kaia is not cited as the third defendant in the order of 5 September 2012, an order which purports to have been made with the consent of all parties in this proceeding in which Ms Kaia was herself already a party by virtue of the earlier order by consent which was made on 25 April 2008 for her joinder as a defendant.
    
33. I also observe that Mr Kemesi had been deceased for almost two years before this consent order was made on 5 September 2012. The consents for this order came from Mr Walambo as chair of the second plaintiff, Melipu Yesiki ILG8784 and presumably also from Mr Walambo in his asserted capacity as the acting chair or caretaker chair of the second defendant, Yesiki ILG 447.
    
34. On the face of it, the consent order of 5 September 2012 should have effectively determined the primary relief which Mr Walambo and Melipu Yesiki ILG 8784 had been seeking against the then late Mr Kemesi and Yesiki ILG 447, all ancillary relief claimed by the plaintiffs in this suit having previously been largely disposed of by way of prior interim orders.
    
35. However, it seems that because the consent order of 5 September 2012 did not state that it disposed of the suit in its entirety, the Court’s file for OS No. 426 of 2005 remained dormant in the Civil Registry of the National Court for almost the next four years.
    
36. After the consent order of 5 September 2012 was made, Mr Walambo used the order to pressure the DPE to release to him outstanding accrued royalties owed to Melipu Yesiki ILG 8784 and Yesiki ILG 447 which had been suspended from payment pending the determination of this suit. Mr Walambo objected to any further royalty payments being made by the DPE to that faction of Yesiki ILG 447 which was still led by Ms Kaia.
    
37. Ms Kaia was incensed with the manoeuvring by Mr Walambo which had resulted in the consent order made by the Court on 5 September 2012. Term 3 of that order had not named Ms Kaia as one of the third parties external to the proceedings in OS No. 26 of 2005 who were permanently restrained from “interfering” with the benefit sharing arrangement between the two ILGs. However, term 3 of the order of 5 September 2012 was used by Mr Walambo to protest and block any royalty payments being made by the DPE to Ms Kaia’s faction of Yesiki ILG 447.
    
38. The next development in this suit is that after the Court’s file had remained dormant for almost four years after the consent order was made on 5 September 2012, it seems that the case was listed by the Registrar for summary determination. The matter came before her Honour Justice Polume-Kiele who, on 11 May 2016, ordered that OS No. 426 of 2005 be dismissed for want of prosecution.^[5]
    
39. Then, 14 months later, when the DPE notified interested parties in or about early September 2017 that it had in excess of K500,000 in accrued royalties and benefits ready to pay to the Yesiki Clan, Mr Walambo filed a notice of motion in OS No 426 of 2005 on 3 October 2017^[6] seeking to have this suit resurrected so that the Court could grant the following relief:
    
    • (a) that the order for the dismissal of this suit made by Her Honour Justice Polume-Kiele on 11 May 2016 be set aside;
      

(b) that the dismissal order of 11 May 2016 be removed from the Court’s file and that the Court’s file be closed and archived;

(c) that Martha Kaia, James Kaia and other “third parties” be permanently restrained from interfering with Yesiki ILG and its leadership;

(d) that both Martha Kaia and James Kaia be restrained from representing themselves to be chairpersons and members of Yesiki ILG 447 and the Yesiki Clan;

(e) that pending further orders of the Court, all other parties, including the DPE, MRDC, Finance Department and the Police, be restrained from “entertaining and or acting on Martha Kaia and James Kaia’s instruction[s] concerning Yesiki ILG and Yesiki Clan matter[s].”

40. The motion filed for Mr Walambo by Williams Attorneys on 3 October 2017 came before his Honour Kandakasi J (as he then was) on 14 November 2017. These are the terms of the order made by his Honour on that occasion:^[7]
    

COURT ORDER

THE COURT ORDERS THAT:

1. The orders of 11^th May 2016 per Her Honour Polume-Kiele J are set aside in the light of the orders by consent made on 5^th September 2012 and formally entered on 21^st November 2012.

2. This matter stands concluded by virtue of the orders made on 5^th September 2012.

3. The time of entry of these orders is abridged to take place forthwith upon the Court signing the Orders.

41. It can be seen from the Court’s order made on 14 November 2017 that the only relief sought by Mr Walambo which was granted by his Honour Kandakasi J was the setting aside of the summary dismissal order of 11 May 2016 and the Court’s acknowledgement that this suit had been “concluded” by the earlier order made on 5 September 2012. All other relief that had been sought by Mr Walambo in his notice of motion filed on 3 October 2017, that further relief having been clearly designed to restrain Ms Kaia and her brother James Kaia from accessing any royalties and other benefits held by the DPE and Department of Finance, was either refused or declined by his Honour.
    
42. The Court’s file should then have been closed for a second time and archived after the order was made by his Honour Kandakasi J on 14 November 2017. This apparently did not happen and the Court’s file again remained dormant and in limbo in the Civil Registry.
    
43. The final step taken in this suit by Mr Walambo was the filing of the present contempt proceedings on 26 February 2018 against Ms Kaia, Mr Sari as Director of the DPE and Mr Puiye as Secretary of the DPE.
    
44. After a series of directions hearings, the substantive hearing of the contempt proceedings against Ms Kaia took place before me on 13 December 2018 and 27 February 2019.
    

STATEMENT OF CHARGE AGAINST CONTEMNOR

45. The statement of charge against Ms Kaia filed for the plaintiffs on 26 February 2018 in support of their motion for Ms Kaia to be convicted of contempt of court pleaded that she had committed six counts of alleged contempt of court:
    

a) counts 1 to 4 of the statement of charge all related to allegations that Ms Kaia had breached the order of the National Court made on 5 September 2012 which had allegedly restrained her and others from interference with the plaintiffs’ entitlement to receive a payment of K520,852 owed by the State for underpaid royalty payments from the Gobe petroleum project.

b) count 5 of the statement of charge alleged that Ms Kaia had laid a false criminal complaint against Mr Walambo and other members of the Yesiki ILG [sic] and had sought to have them arrested by Police, thereby interfering with the plaintiffs’ entitlement to receive royalty payments and other benefits contrary to the order of the Court made with the consent of Melipu Yesiki ILG 8784 and Yesiki ILG 447 on 5 September 2012.

c) count 6 of the statement of charge alleged that on 13 December 2017 Ms Kaia had committed contempt of court by making a false allegation of bribery of the Judge who had made the Court order of 14 November 2017.

46. At the commencement of the hearing of the contempt proceedings on 13 December 2018, counsel for the plaintiffs William Hagahuno indicated to the effect that the plaintiffs had abandoned counts 1 to 5 of their statement of charge against Ms Kaia and that they were only pursuing count 6 of that statement of charge. Mr Williams also indicated that the plaintiffs had elected not to pursue their inter-related contempt proceedings against Mr Sari and Mr Puiye at the DPE.
47. Count 6 of the plaintiff’s statement of charge against Ms Kaia accuses her of contempt by scandalising the National Court. Count 6 is reproduced in full below.

“ COUNT 6

Furthermore, that on the 13^th of December 2017, at about 10.30 am, in front of Vulupindi Haus and whilst in public view, you pointed your fingers at Sidion Walambo and late Urupa Kemesi’s group who are the legitimate members of Yesiki ILG and you falsely accused the Court and His Honour Kandakasi J of receiving bribery from the Applicants’ lawyers,. Referring to the order of 14^th November 2017 in this proceeding and shouting at the top of your voice in full public view, you in your own words stated these words or words to this effect in pidgin language:

“Lawyer bilong yupela braibim Justice Kandakasi na judge in givim yupela dispel order bilong 14^th November 2017. Bai me go long Supreme Court na rausim dispela giaman order bilong yupela”.

(English translation: “Your lawyer bribed Justice Kandakasi and judge granted that Court Order of 14^th November 2017. I will appeal to the Supreme Court and set aside this false Court Order of yours”.

You[r] allegations of the Applicants’ lawyers bribing Justice Kandakasi were false, without merits and scandalous and seriously called into question the independence, impartiality, reputation and integrity of this Honourable Court and His Honour Kandakasi J. The scandalous allegations were made by you with intention to attack, demean, disgrace, destroy and lower the image and the integrity and respect for the Court and His Honour Kandakasi J who is a very senior member of our National and Supreme Court bench and thus is contemptuous of the Court. ”

LAW ON CONTEMPT PROCEEDINGS

48. The offence of ‘contempt of court’ where it is alleged to have been committed against the Supreme Court or the National Court is an offence having its origins in English common law and which offence is now part of the underlying law of Papua New Guinea. The explanation for this is well expressed by Cannings J in Meten v Seneka & Magisterial Services ( 2011) N4462 where his Honour said at paragraph 12:

“ ... the offence of contempt of court where it is alleged have been committed against the Supreme Court or the National Court, is a common law, or underlying law, offence. The offence in relation to those courts is not defined by written law, a scenario that is expressly authorised by Section 27(2) of the Constitution. The Supreme Court and the National Court have each been established as a superior court of record, under Sections 160(2) and 163(2) of the Constitution respectively, and expressly given power to punish the offence against themselves commonly known as contempt of court. Under the underlying law of Papua New Guinea – i.e. the unwritten law, consisting of the common law and customary law, which form part of the laws of Papua New Guinea under Section 9 (the laws) of the Constitution – the elements of the offence are very broad; so it is often said that the categories of contempt are never closed. The elements of the underlying law offence 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). ”

49. Contempt of the Supreme Court and the National Court in civil proceedings is now treated in essence as a criminal offence but within the civil jurisdiction of our superior courts of record: see Injia on Contempt of Court in Papua New Guinea and the Pacific (2013) University of PNG Press at p.45.
    
50. The prosecution bears the onus of proving contempt according to the criminal standard of proof: beyond reasonable doubt: Bishop v Bishop Bros Engineering Pty Ltd 1988-89] PNGLR 533. Such proof must be based on admissible evidence: Consolidated Press v McRae [1955] HCA 11; (1955) 93 CLR 325 at 333.
    
51. There are numerous categories of contempt, including taking reprisals on witnesses and court officials on account of what they have said or done (Augerea v Tigavu (2010) N4285), disobedience of a court order (Salo v Gerari (2005) N2923) and scandalising the court (Public Prosecutor v Rooney (No. 2) [1979] PNGLR 448).
    
52. As to the offence of contempt by scandalising the Court, the offence with which Ms Kaia is charged, this is defined in the textbook Injia on Contempt of Court in Papua New Guinea and the Pacific (ibid) at pages 113-115 as follows:
    

“ ‘Contempt by Scandalising the Court’ means any act done or any writing published that is calculated to:

• bring a Court or a Judge into contempt;
• lower the authority of the Court;
• lower the authority of the Judge;
• undermine the confidence of the public in the administration of justice;
• interfere with the due course of justice;
• interfere with the lawful process of the Court; or
• endanger public confidence in the Court.”
  

53. It was held in Public Prosecutor v Rooney (No. 2) (supra) that the offence of scandalising the Court is committed by any act or written publication which is calculated to bring a court or a judge into contempt, to lower the authority of the court or a judge, or to interfere with the due course of justice or the lawful process of the court.
    

THE ISSUE

54. Having reviewed the affidavit material presented for the two plaintiffs and for Ms Kaia, the oral evidence given by witnesses during the substantive hearing and the respective submissions made for the parties in these contempt proceedings, I consider that the primary issue for the Court to determine is this:
    

Did the contemnor Martha Kaia in fact utter the words she is alleged to have said outside Vulupindi Haus on 13 December 2017?

If the Court makes a finding on the evidence that Ms Kaia did in fact utter those words, only then can the Court proceed to consider if the utterance of those words and the circumstances in which those words were uttered by Ms Kaia constitute sufficient facts from which a finding of contempt by scandalising the Court could be made.

THE EVIDENCE FOR THE PROSECUTION AND THE CONTEMNOR

55. The plaintiffs relied on the following affidavits which were admitted into evidence at the substantive hearing of the contempt proceedings for the purposes of the plaintiffs’ prosecution of Ms Kaia:
    

(1) first affidavit of lead plaintiff Sidion Walambo filed on 26 February 2018 (Court document no. 53)

(2) second affidavit of lead plaintiff Sidion Walambo filed on 5 March 2018 (Court document no. 58)

(3) affidavit of Rex Balape filed on 27 April 2018 (Court document no. 74)

(4) affidavit of Kopono Biwa filed on 27 April 2018 (Court document no. 73)

(5) affidavit of Roy Tom Soko filed on 27 April 2018 (Court document no. 72)

(6) affidavit of Jerry Lene filed on 21 September 2018 (Court document no. 79)

56. The first plaintiff Mr Walambo and his witnesses also gave short oral evidence at the substantive hearing in response to a notice for cross-examination which had been served on the office of the plaintiffs’ lawyers.
    
57. There were two further affidavits from other deponents filed for the plaintiffs in support of count 6 of the statement of charge against Ms Kaia, but those affidavits were not admitted into evidence because the deponents were unavailable to attend at Court in response to the notice to cross-examine.
    
58. The evidence for the contemnor Ms Kaia is contained in her affidavit filed on 20 April 2018 and her oral testimony given at the substantive hearing.
    

THE ISSUE: DID THE CONTEMNOR UTTER THE WORDS SHE IS ALLEGED TO HAVE SAID OUTSIDE VULUPINDI HAUS ON 13 DECEMBER 2017?

Evidence for the Plaintiffs

59. I observe that the lead plaintiff, Mr Walambo, gave his oral evidence at the substantive hearing in English. However the other witnesses for the plaintiffs, Mr Balape, Mr Biwa, Mr Soko and Mr Lene, all gave their oral evidence in Pidgin with the assistance of the Court interpreter. All of the affidavits for these four Pidgin-speaking witnesses were prepared in the English language. The affidavits of Mr Balape, Mr Biwa and Mr Lene contained interpretation certificates on their last pages.
    
60. Before I proceed further, I wish to make some general observations regarding the use of interpreters in civil and criminal proceedings.
    
61. The position at English common law is that, where a party or witness does not understand English, an interpreter must be sworn and the evidence translated.^[8] An interpreter must be impartial and have no bias: see R v Imrie (1917) 12 Cr App R 282; R v Mitchell [1970] Crim LR 153; R v Martin [1973] Crim. L.R. 282.
    
62. The use of interpreters in proceedings in courts is entirely a matter of discretion for the presiding judge in the exercise of the court’s inherent jurisdiction: see Re Trepca Mines Ltd [1960] 1 W.L.R. 24; In the Estate of Fuld, Hartley v. Fuld [1965] 2 All E.R. 653. And see Halsbury’s Laws of England (4^th Ed) Vol. 17(1) at para. 1012.
    
63. An interpreter must have the skill to accurately translate matters: R v Begum (1985) 93 Cr App R 96; R v Saraya (1993) 70 A Crim R 515 (NSW CCA).
    
64. There is a duty on the court to be satisfied that the interpreter and the party or witness properly understand each other: R v West London Youth Court: Ex parte N [2000] 1 All ER 823.
    
65. Under Australian law, it has been held to be a denial of natural justice to proceed without an interpreter when one is genuinely needed: Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4A.
    
66. Because of the proliferation of languages in Papua New Guinea, the use of interpreters for non-English speaking parties and witnesses is a daily occurrence in the civil and criminal courts of this jurisdiction.
    
67. Affidavit evidence serves the same purpose as evidence given orally by a witness at a trial or judicial hearing. Section 14 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317 provides:
    

14. A Commissioner for Oaths may take and receive affidavits in all matters pending in a court.

68. In the context of legal proceedings, an oath is a swearing by a person to tell the truth which would subject the oath-taker to prosecution for the crime of perjury if that person knowingly lies in a statement, either orally at a trial or in an affidavit.
    
69. The oath is fundamental to the judicial process. Testimony sworn on oath is used to demonstrate the truthfulness of the evidence to be given by a witness, with the attendant consequence of punishment for perjury if the witness lies under oath.
    
70. The oath that is taken by a deponent of an affidavit used in judicial proceedings in Papua New Guinea and administered by a commissioner for oaths or other person authorised by law to take oaths is the same as the oath of a witness who is called to give evidence in person at a trial or judicial hearing.
    
71. Section 2 of the Oaths, Affirmations and Statutory Declarations Act states that the oath of a witness in civil proceedings is the oath set out in Form 1 of the Act. The oath of a witness in criminal proceedings is the oath set out in Form 2 of the Act. In both instances the oath-taker is required to swear that the evidence given to the Court “will be the truth, the whole truth and nothing but the truth”. This is then followed by the statutorily-required invocation of the words: “So help you God”.
    
72. If an oath-taker in Papua New Guinea is non-religious, he or she is not required to call on divine witness to the evidence to be given but may instead solemnly declare or affirm that the evidence to be given will be the truth. The term “oath” is defined in s.3(1) of the Interpretation Act 1975 as including the solemn declaration and affirmation of a person. Section 5(2)(a) of the Oaths, Affirmations and Declarations Act provides that a person who is a witness and who wishes to solemnly affirm or declare that the evidence about to be given is the truth may do so in either Form 9 or Form 10 of the Act.
    
73. An interpreter who translates an affidavit from English into the language of a non-English speaking deponent of an affidavit must be satisfied that the deponent fully comprehends the nature of taking an oath or of making a solemn declaration or affirmation and that the deponent fully understands the content of his or her affidavit. Otherwise, the interpreter can be called by the Court to give evidence as to how he or she was able to be satisfied of these matters.
    
74. As to the powers of the Court which apply when deponents are incompetent to understand the nature of an oath or the meaning of making a solemn declaration or affirmation, whether or not an interpreter is involved, see Sections 6, 7 and 8 of the Oaths, Affirmations and Statutory Declarations Act.
    
75. A judge in this jurisdiction accordingly has a wide discretion to exclude affidavit and oral evidence which has been: (1) unfairly or improperly obtained through use of an incompetent or biased interpreter, or (2) where it can be established that the oath, solemn affirmation or declaration required by Oaths, Affirmations and Statutory Declarations Act to be administered to a deponent by a commissioner for oaths or other person authorised to administer an oath, affirmation or declaration was defective or absent, or (3) where there are other circumstances that call into question whether the deponent or witness fully understood the nature and meaning of swearing an oath or making a solemn declaration or affirmation or that the deponent did not understand the content of his or her affidavit or any part of that affidavit.
    

Evidence of Mr Walambo – the incident outside Vulupindi Haus on 13 December 2017

76. The primary evidence in support of count 6 of the plaintiffs’ statement of charge against the contemnor is provided by the first of the two affidavits of Sidion Walambo. Mr Walambo is well educated. He is proficient in both English and Pidgin. He gave his oral evidence at the substantive hearing in English.
    
77. Mr Walambo deposes in his first affidavit, filed on 26 February 2018, that at all material times he was the chair of the second plaintiff, Melipu Yesiki ILG 8784. He says that as at February 2018 he was also the then current caretaker chair of the second defendant Yesiki ILG 447. Mr Walambo says in his affidavit that this proceeding OS No. 426 of 2005 was filed by himself and Melipu Yesiki ILG 774 back on 8 June 2005 to enforce an agreement in the form of a memorandum of understanding signed by himself on behalf of Melipu Yesiki ILG 8784 and counter-signed by the late Mr Kemesi on behalf of the Yesiki ILG 447 on 16 January 2002. The agreement was for the equal sharing by the two ILGs of royalty, equity and other benefits accruing to the Yesiki Clan from the Gobe and Kutubu Oil Projects and the PNG LNG Project.
    
78. The gist of Mr Walambo’s evidence against Ms Kaia is contained in paragraphs 41 to 49 of his first affidavit, the text of which is reproduced below:
    

“ 41. On the 13^th of December 2017, we attended at Finance Department at Vulupindi Haus for a meeting with the Finance Legal Officer Mrs Caroline Jaruga. She had arranged the meeting to settle the confusion created by Mrs Martha Kaia and to finally resolve the issue of the rightful beneficiaries of Yeseki funds. Ms Kaia was invited to attend as well with her lawyers as well as ourselves.

42. On that day we attended at Vulupindi Haus and waited to be called in. We called our lawyer William Hagahuno to come as well. He was on his way and whilst we were waiting, at about 10.30 am, Martha Kaia walked up to the entrance to Vulupindi Haus and when she saw us in the car park, myself, Wilfred Kemesi, Sumira Kemesi,, Stanley Kopono, Max Walambo, Jennet Walambo and Rex Balape, she turned around and in full public view, pointed at us and screamed at the top of her voice the following words or words to that effect in pidgin language:

“Lawyer bilong yupela braibim Justice Kandakasi na judge in givim yupela dispel order bling 14^th November 2017. Bai me go long Supreme Court na rausim dispela giaman order bilong yupela”.

43. She publicly accused us and our lawyers of bribing Justice Kandakasi to grant orders setting aside her defective orders of 11^th May 2016. We were shocked and disgusted that the public stared at us. Mrs Sumira Kemesi was angry and had a short argument with her and questioned her which clan she belonged to. She further told Martha Kaia that our lawyers was coming and that we would all go up and see the Finance Legal Officer so she can make her case. Upon hearing this Martha Kaia escaped, and when we were called up by the Finance Legal Officer, Martha Kaia was not there. The Finance Department Legal Officer enquired about her but she was nowhere to be seen.

44. On numerous occasions, our lawyers had written to DPE Officers including Bob Sari who is the current Director for Petroleum Division as well as Mr Kepsey Puiye who is the current Acting Secretary for DPE to refrain from dealing with Martha Kaia and all other third parties in respect of Yesiki ILG matters. Copies of the Court Order of 05^th September 2012 had been served on them time and again but as it appears, both gentlemen have taken no notice of the Court.

45. They have downplayed the seriousness of the Court Order of 05^th September 2012 and have instead been unlawfully entertaining, attending to and dealing with Martha Kaia in their offices as the leader of Yesiki ILG contrary to and in deliberate defiance of paragraph 3 of the orders of this Honourable Court of 05^th September 2012. This included writing to the Finance Secretary on the 07^th October 2017 and installing Martha Kaia as the Chairlady of Yesiki ILG contrary to the findings and orders of this Honourable Court in this proceeding.

46. On the 20^th of February 2018, we attended at DPE Office at Konedobu and were referred by the Secretary’s Office to see the Director for Petroleum Mr Bob Sari. When we met him, he told us to go and bring Martha Kaia along for the meeting with him. We told him that Martha Kaia was a third party who had been interfering with our ILG and that the Court in this proceeding had restrained her and other third parties and therefore we would be acting in breach of the Court Order to allow a third party to interfere with us. Mr Sari then blankly told us that he would not see us without Martha Kaia’s presence.

47. We then realised that the main player in all of these and one who is conspiring and conniving with Martha Kaia to defy the Court Order and defraud us of our lawfully entitled benefits is Mr Sari. As it appears, he has no regard for the orders of this Honourable [Court] and seem[s] to think himself and Martha Kaia are above the Court and can downplay the seriousness of the Court Order, defy it and even breach it. They both seem to show no respect at all for the Court; otherwise if he has any regard for the Court, he would refrain from dealing with Martha Kaia in respect of Yesiki ILG matters.

48. From the trail of actions by Martha Kaia, Bob Sari and Kepsey Puiye, and from the dealings between them and the actions and events that I have stated above, it can be seen that the contemnors Martha Kaia, Bob Sari and Kepsey Puiye have no regard and respect for this Honourable Court at all and have deliberately and continuously breached and defied the orders of this Court on numerous occasions. Martha Kaia has even gone to the extent of raising very serious, malicious and scandalous allegations against His Honour Kandakasi J of receiving bribe from our lawyer to set aside her defective order which she has been using to deceive so many officers of the departments.

49. I verily believe that all of their actions stated in the foregoing paragraphs are contemptuous [and] in my belief are disrespectful of this Honourable Court warranting the displeasure of this Court. I therefore crave for orders in terms of the Notice of Motion. ”

79. I have included Mr Walambo’s allegations against DPE officers Mr Sari and Mr Puiye in the above extract from Mr Walambo’s first affidavit because his allegations give context not only to his own personal grievances against Ms Kaia but also to his grievances against senior officials at the DPE.
    

Evidence of Mr Balape – the incident outside Vulupindi Haus on 13 December 2017

80. Mr Balape’s affidavit filed on 26 April 2018 repeats Mr Walambo’s version of the incident which involved Ms Kaia outside Vulupindi Haus on 13 December 2017.
    
81. Mr Balape gave his oral evidence at the substantive hearing in Pidgin, with the assistance of the Court interpreter. After identifying his affidavit, Mr Balape was cross-examined by counsel for Ms Kaia, Laken Aigilo. Mr Balape said under cross-examination that he is a member of the Yesiki Clan and that he is a clansman of Sidion Walambo. After further questioning, Mr Balape said that he and Sidion Walambo are stepbrothers, having the same father but different mothers.
    
82. In paragraph 8 of his affidavit Mr Balape uses exactly the same words as Mr Walambo says in his first affidavit that Ms Kaia allegedly called out in anger in public on 13 December 2017.
    
83. Much of the remainder of Mr Balape’s affidavit is devoid of factual material but contains an abundance of opinion evidence such as that which is contained in the following paragraphs of his affidavit regarding the alleged incident involving Ms Kaia:
    

“ 9. She publicly accused us and our lawyers of bribing Justice Kandakasi to grant orders on the 14^th of November 2017 setting aside her defective orders of 11^th Mary 2015 which she had improperly taken out in OS No. 426 of 2005. On hearing this, the general public who were present around the Vulupindi Haus were alarmed and starrred [sic] at us in disbelief. We were also shocked, disgusted and embarrassed at the allegation she publicly levelled at us and the judge.

...

12. I know that Martha Kaia is a desperate and crafty woman who had been trying unsuccessfully all these years to defraud us Yesiki Clan of our lawful inheritance of our own land and the benefits accruing from it. ...

...

17. I must state that, as an ordinary person who places my full trust and confidence in the independence of the judiciary and impartiality [of the] judiciary and the judges believing it to be free of all or any influences, I am disgusted that the contemnor Martha Kaia could indulge in such scandalous allegations and accusations against the Court and our lawyers. She has shown deliberate and complete disrespect for this Honourable Court and His Honour Kandakasi J and I crave for her to be dealt with accordingly and punished with the severest of punishment available in law for this kind of offence. ”

84. It need hardly be observed that opinion evidence is irrelevant to assist a Court to determine if the facts of a case, whether civil or criminal, establish that a cause of action or an offence has been proven on the standard of proof commensurate to the nature of the proceedings, unless that opinion evidence has been given by a properly qualified expert in the area of concern.
    
85. As to the admissibility or otherwise of opinion evidence, I cite the following statement from Kingston v QBE Insurance (PNG) Ltd (2018) SC1698 (Makail, Collier & Higgins JJ) where the Supreme Court said at para. 135:

“ As a general rule, at common law, witnesses must state facts, not opinions: Hollington v F Hewthorn & Co Ltd [1943] KB 587 [1943] 2 All ER 35. The rationale for this rule was explained in Hollington at 595 (KB, 40 (All ER) as follows:

It frequently happens that a bystander has a complete and full view of an accident; it is beyond question that while he may inform the court of everything that he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned to this is the precise question the court has to decide; but in truth it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not. The well-recognised exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial ... ”

86. Mr Balape’s affidavit evidence is only of assistance to the Court where he has deposed to facts based on his own direct observation or direct experience. I am judicially obliged to disregard all opinion evidence contained in Mr Balape’s affidavit.
    
87. There is further cause for my concern with Mr Balape’s evidence. Mr Balape’s affidavit contains an interpretation certificate dated 26 April 2018 on page 5, signed by the plaintiffs’ counsel Mr Hagahuno as interpreter, who certified that he had explained the content of the affidavit to Mr Balape in the Pidgin language and that Mr Balape understood that content. Mr Hagahuno was also the commissioner for oaths who administered the oath and witnessed the signing of Mr Balape’s affidavit. Mr Hagahuno does not state in his interpretation certificate how he satisfied himself that Mr Balape understood the content of the affidavit he had just signed or that Mr Balape had even signified to Mr Hagahuno that he understood the content of his own affidavit that had been translated from English into Pidgin.
    
88. By signing the interpretation certificate for Mr Balape’s affidavit as interpreter, Mr Hagahuno, as counsel and lawyer for the plaintiffs, placed himself in a difficult situation.
    
89. An interpreter ought not to be called as a witness.^[9] It was held Megarry LJ in the English case of Singh v Singh [1971] EWCA Civ 10; [1971] 2 All ER 828 at p.833:
    

“ It is undesirable that a person present at a trial as an interpreter should be called to give evidence by the trial judge without the express consent of the parties. Before giving such evidence, a person sworn as an interpreter must take the oath of a witness. ”

90. I observe that there has developed over the years in Papua New Guinea an all too frequent practice where a lawyer who has prepared an affidavit for a client or a witness for a client then, as commissioner for oaths, administers the oath to a non-English speaking deponent who signs that affidavit, and that lawyer as interpreter then signs an interpretation certificate that the content of the affidavit was explained to the deponent in the deponent’s own language before it was signed and that the deponent appeared to understand that content. This practice should, in my view, not be condoned and should be subjected to careful scrutiny by the Courts because it smacks of unfairness to the other party.
    
91. Where there is judicial doubt as to whether a party or witness who is unable to communicate in English has fully understood the nature of swearing an oath or the content of an affidavit which has been translated before it was signed, the Court can, in the exercise of its discretion, call the interpreter to give evidence as to the circumstances surrounding the signing of the affidavit. This includes requiring the interpreter to give evidence on oath as to how the interpreter was able to satisfy himself or herself that the non-English speaking deponent fully understood not only the translated content of the affidavit before it was signed but also that the deponent truly understood the meaning of swearing an oath and the consequences of perjury if any of the matters deposed to were found by the Court not to be the entire truth.
    
92. Mr Balape is an uneducated village man. His grasp of the English language is negligible. Yet I find that the content of his affidavit contains expressions in legalese which are sophisticated and crafted in such a way as to influence the Court rather than depose to strictly factual matters. In his affidavit Mr Balape accuses Ms Kaia of having made “scandalous, disrespectful and malicious allegations”. He uses expressions such as “I crave leave for her to be dealt with accordingly and punished with the severest punishment available in law for this kind of offence.” I find that it is simply not credible that a Pidgin-speaking deponent such as Mr Balape could, had he written or dictated his own affidavit in Pidgin, have deposed to these additional matters using the equivalent in Tok Pisin of such legally elaborate terminology. Mr Balape could obviously have deposed to matters that he witnessed and heard outside Vulupindi Haus on 13 December 2017, but I find that the text of the remainder of his affidavit does not reflect his own words but are the words of others, put down in writing in English, not properly interpreted to him in Pidgin, and which he was told to sign in affidavit form. The probative content of Mr Balape’s affidavit is limited to what he alleges he witnessed and heard on 13 December 2017.
    

Mr Biwa’s evidence – the incident outside Vulupindi Haus on 13 December 2017

93. The next witness to give evidence for the plaintiffs was Kopono Biwa. His affidavit was also filed on 27 April 2018. It almost exactly mirrors the content of Mr Balape’s affidavit, including similar statements of opinion. Mr Biwa does not speak English. He gave his oral evidence at the substantive hearing in Pidgin, with the assistance of the Court interpreter.
    
94. When cross-examined on his affidavit by counsel Mr Aigilo, Mr Biwa said in Pidgin, translated by the Court interpreter, that he is from the Pelita Clan of Southern Highlands Province. He said that the Pelita Clan is aligned with Mr Walambo’s Yesiki Clan and that the two clans share benefits 50/50 from money flowing to customary landowners from the oil and gas projects in the Southern Highlands Province.
    
95. Mr Biwa said in his oral evidence that Ms Kaia is his daughter, but he then clarified when further questioned by Mr Aigilo that he meant that Ms Kaia is the daughter of a brother of his. He did not name the brother. I take it that Mr Biwa was endeavouring to say that Ms Kaia is either a niece or a daughter of his in the customary sense, in that she is a close relative or a member of his sub-clan. Mr Biwa was not questioned further as to the degree of consanguinity that exists between himself and Ms Kaia.
    
96. I observe that Mr Balape’s affidavit is in English, and it was signed by him. However, there is no interpretation certificate endorsed on Mr Biwa’s affidavit.
    
97. I am not satisfied that Mr Biwa, who does not speak English, understood the content of his affidavit in the absence of any interpretation certificate, particularly in the absence of any interpretation certificate by an independent competent interpreter who was able to certify to the Court that he or she was satisfied that Mr Biwa fully understood the content of his affidavit before it was sworn and signed by him.
    
98. I consider that Mr Biwa’s affidavit was drafted with the notion that multiple affidavits which say much the same thing would hopefully provide corroboration for Mr Walambo’s version of the incident involving Ms Kaia which occurred outside Vulupindi Haus on 13 December 2017. I also consider that, in view of the absence of an interpretation certificate, Mr Biwa was told to sign his affidavit without its contents having been properly explained to him in Pidgin. I therefore find that Mr Biwa’s affidavit is of little or no evidentiary value.
    

Mr Soko’s evidence – the incident outside Vulupindi Haus on 13 December 2017

99. The fourth witness for the plaintiffs was Roy Tom Soko. Mr Soko is also a Pidgin speaker. He does not understand English. He gave his oral evidence at the substantive hearing in Pidgin, again with the assistance of the Court interpreter.
    
100. Mr Soko’s affidavit was filed on 27 April 2018. Except for some minor personal details, Mr Soko’s affidavit is in essence a “cut and paste” replication of the affidavits of Mr Balape and Mr Biwa. Mr Soko deposes as to the words which Ms Kaia is alleged to have said outside Vulupindi Haus on 13 December 2017 and the circumstances in which those words were alleged to have been said. Mr Soko’s affidavit also contains a repetition of the opinion evidence given by Mr Balape and Mr Biwa in their affidavits, opinion evidence which for the reasons I have explained is inadmissible in these contempt proceedings.
     
101. Mr Soko’s affidavit is typed in English, but it contains an interpretation certificate on page 4. The interpretation certificate is undated, but it is signed by the lead plaintiff Mr Walambo himself, who has certified that he interpreted the English content of the affidavit to Mr Soko in Pidgin and that Mr Soko understood the content of his affidavit.
     
102. To my mind, a party in a proceeding before the Court should under no circumstances act as an interpreter for a witness who is giving affidavit or oral evidence in support of that party’s own cause. To do so creates a perception of untrustworthiness and of undue influence having been exerted on the witness to testify to matters in favour of the party who is also acting as an interpreter.
     
103. I consider that an affidavit sworn by a non-English speaking witness where the affidavit purports to have been interpreted into the local language of that witness by an English-speaking party to a court proceeding carries no evidentiary weight whatsoever. Such an affidavit offends every concept of fairness and impartiality. To put it another way, a non-English speaking witness should not have his or her evidence, whether it be oral evidence in court or affidavit evidence to be used in court, interpreted by the very party for whose benefit that evidence is being given.
     
104. This is exactly the situation which pertains to Mr Soko’s affidavit. I therefore disregard the whole of the content of Mr Soko’s affidavit. It was interpreted to him by the very party for whose benefit the affidavit was prepared. It is the same as if, when Mr Soko was about to give his oral evidence at the substantive hearing, Mr Walambo took it upon himself to assume the role of the Court interpreter and proceeded to administer the oath on the bible to his own witness, Mr Soko. The reaction from the presiding judge and from opposing counsel would have been instantaneous. Such a travesty of justice would never have been allowed.
     
105. As to Mr Soko’s actual oral evidence given at the substantive hearing, Mr Soko’s testimony was given after the Court interpreter was sworn and Mr Soko then properly sworn on oath. Mr Soko was asked by Mr Aigilo during cross-examination as to his relationship with Mr Walambo, bearing in mind that Mr Walambo was the lead plaintiff in this suit and that it was Mr Walambo who had certified to the Court that he was the interpreter who had translated Mr Soko’s affidavit into Pidgin. Mr Soko said in response to his cross-examination that his mother is married to Mr Walambo and that Walambo is his step-father. I accept that aspect of Mr Soko’s evidence as being the truth.
     

Mr Walambo’s second affidavit – the incident outside the Office of the Department of Petroleum and Energy on 28 February 2018

106. The next affidavit in support of the plaintiffs’ count no. 6 in the statement of charge against Ms Kaia is Mr Walambo’s second affidavit which was filed on 5 March 2018, and which was admitted into evidence at the substantive hearing. In that affidavit Mr Walambo deposes that there was a further incident involving Ms Kaia which he says occurred on 28 February 2018 at the office of the DPE at Konedobu, some 10 weeks after the Vulupindi Haus incident happened on 13 December 2017.
     
107. Mr Walambo says that on 28 February 2018 he and his clansmen Wilfred Kemesi, Max Walambo and Stanley Kopono had gone to the DPE’s office for the purpose of serving the plaintiffs’ contempt charges on Mr Sari, the Acting Director of DPE’s Petroleum Division. Mr Walambo says that when he and his clansmen entered the DPE’s office, they were surprised to see Ms Kaia at the reception counter there. Mr Walambo deposes that when Ms Kaia saw them, she shouted the following words in Pidgin at them:
     

“Court Order bilong yupela em fraud order, giaman order na no gat use long en order yupela wok lon karim raun istap. Mi sori long yupela, mi save gut long Judge Kandakasi na em save long mi na em bai salim yupela igo long kalabus long Bomana wantaim lawyer bilong yupela”

108. Mr Walambo did not in his evidence give a translation in English of the words he attributes as having been said by Ms Kaia inside the DPE’s office on 28 February 2018 but my own understanding of these Pidgin words is this:
     

“Your Court order is fraudulent. It is a fake order which is of no use. That’s the type of order you have. I know Judge Kandakasi and he knows me. He will send you and your lawyer to prison at Bomana.”

109. Mr Walambo says in his second affidavit that he and his clansmen did not respond to Ms Kaia’s alleged tirade inside the DPE’s office except to say to her that she should “tell the Court that it had fraudulently granted orders on the 14th November 2017 setting aside the orders of 11^th May 2016”.
     
110. Mr Walambo also says in his second affidavit to the effect that Ms Kaia’s words were heard by officers of the DPE and by members of the public who were then present in the reception area of the DPE’s Office.
     
111. The plaintiffs endeavoured at the substantive hearing to corroborate certain of the matters deposed to by Mr Walambo in his second affidavit filed on 5 March 2018. They did this almost 7 months after the incident at the DPE office on 28 February 2018 by filing an affidavit from Jerry Lene on 21 September 2018. Mr Lene did not claim that he was a witness to what Ms Kaia was alleged by Mr Walambo to have said in the reception area of the DPE’s office on 28 February 2018. Mr Lene’s evidence was to the effect that he witnessed a confrontation between Ms Kaia and Mr Walambo and his clansmen which took place outside the DPE’s office that morning.
     
112. Mr Lene has deposed in his affidavit that he is from the Hauekerake ILG of Paowala Village, Samberigi, Erave District in the Southern Highlands. He says that he was waiting outside the DPE’s office at Konedobu on 28 February 2018 when he saw Ms Kaia enter the DPE’s office, and that Mr Walambo and his clansmen arrived at some point thereafter and that they also went into the DPE’s office.
     
113. Set out below is Mr Lene’s account of what he says in his affidavit he observed and heard when, on the morning of 28 February 2018, he was standing outside the building which houses the office of the DPE. Mr Lene says this in his affidavit:

“ 3. I am a landowner leader and beneficiary of PDL4 in Gobe Petroleum Project and did attend at DPE Office with some other clan members and other landowning clan leaders of Gobe Project. We attended DPE Office to receive our under payment claims from the Department. I was outside and saw the contemnor Martha Kaia walk into the DPE Office and thereafter, Max Walambo and Sidion Walambo accompanied by Wilfred Kemesi and Stanley Kopono walk in the office as well.

4. At the material time I was waiting with other landowner leaders outside of the DPE office and we were waiting outside next to some street vendors and buying drinks and betel nuts and chatting with the landowners.

5. Some time between 10.00 am and 11.00 am, I saw Martha Kaia walk out of the DPE office after Sidion and Max Walambo and others had come out of the office and left. She walked over close to us and I overheard her getting cross to Sidion Walambo and Max Walambo. She appeared very upset and was screaming around at no-one in particular in front of the office and in full view of the public who had gathered there.

6. I heard her state the words to the effect that Yesiki lawyer William Hagahuno had bribed Justice Kandakasi and obtained order against her. She stated that she would instruct her lawyers to set aside the false or fake order and sen[d] lawyer William Hagahuno to prison.

7. She stated these words or words to this effect,

“Lawyer bilong Sidion, William braibim Justice Kandakasi na judge in givim ol dispela order long 14^th November 2017. Bai me go long Supreme Court na rausim dispela giaman order bilong ol”.

(English translation)

“Sidion’s lawyer William bribed Justice Kandakasi and judge gave them that order of 14^th November 2017. I will go to the Supreme Court and have that false court order of yours set aside”.

8. She publicly accused the Yesiki Clan members and their lawyer of bribing Justice Kandakasi and obtaining favourable orders from His Honour Kandakasi J on 14^th of November 2017. I did not know much about their court cases so I did not understand what court orders she was talking about.

9. I must state there that I had never heard allegations of judges receiving bribery to grant orders before and that this was the first time I heard from Ms Martha Kaia’s own mouth about bribery of a National Court judge by a party appearing before him in the court to influence the judge and obtain favourable orders from the judge.

10. I however am aware that Martha Kaia had been trying unsuccessfully over the years to defraud the Yesiki Clan of their inheritance and lawfully entitled benefits from their own land. I am also aware that she is not a member of Yesiki Clan but from Foie sub-clan of Pelitou stalk Clan of Yanguri Village, Erave District, Southern Highlands Province but has been falsely claiming to be from Kaiam Village, Kikori, Gulf Province.

114. Notwithstanding the inclusion of similar opinion evidence in Mr Lene’s affidavit as that given by Mr Balape, Mr Biwa and Mr Soto in their affidavits, the lawyer who prepared Mr Lene’s affidavit should have left it at that at paragraph 10. I say this because the next two paragraphs of Mr Lene’s affidavit are bizarre. They are an embarrassment because they conflict with the earlier content of Mr Lene’s affidavit as well as with Mr Lene’s oral evidence at the substantive hearing. Paragraphs 11 and 12 of Mr Lene’s affidavit are reproduced below, without editorial correction:

“ 11. At the material time the contemnor Martha Kaia made this statement in front of Vulupindi Haus on the 13^th December 2017, it was Finance Department’s clients day and there was a large crowd of people in front of the building, at the security reception and outside in the car park of the building and they all witnessed the statement by the contemnor.

12. Ms Martha Kaia’s public statement about the bribery of Justice Kandakasi by Yesiki lawyer took the members of the public within the vicinity of Vulupindi Haus by surprised [sic] and most people starred [sic] at her in disbelief. ”

115. In the preceding paragraphs 1 to 10 of his affidavit, Mr Lene never asserted that he had been attendance outside Vulupindi Haus at Waigani, NCD on 13 December 2017 when the incident which is the subject of the plaintiff’s count 6 of the statement of charge against Ms Kaia is alleged to have taken place. Nor did he say in his oral evidence at the substantive hearing that he was present when the incident outside Vulupindi Haus took place on 13 December 2017.
     
116. I find that, that paragraphs 11 and 12 of Mr Lene’s affidavit are a direct “cut and paste” which exactly reproduce the text of paragraphs 11 and 12 of the affidavit of Mr Biwa and paragraphs 12 and 13 of the affidavit of Mr Soko, which affidavits were filed for the plaintiffs 5 months earlier on 27 April 2018.
     
117. This ‘cut and paste” exercise is confirmed by the interpretation certificate which was typed on page 4 of Mr Lene’s affidavit. The interpretation certificate states as follows:

“ Certificate of Interpretation

I, William Hagahuno hereby certify that I am fluent in English and the Pidgin languages and further certify that I have interpreted the contents of this affidavit in the Pidgin language to Roy Tom Soko and the said Roy Tom Soko understands the contents of his true affidavit of facts.

[signature of William Hagahuno] [signature of Jerry Lene]

William Hagahuno Jerry Lene
Interpreter Deponent
21/04⁰⁹/18 21/04⁰⁹/18 ”

This careless inclusion of the wrong interpretation certificate at the conclusion of Mr Lene’s affidavit indicates that Mr Lene was asked by Mr Hagahuno to place his signature on an interpretation certificate which wrongfully attested that Mr Hagahuno had interpreted the content of Mr Lene’s affidavit to Mr Soko, not to Mr Lene.

118. Mr Lene was cross-examined on his affidavit by counsel for Ms Kaia at the substantive hearing. Before he was sworn, Mr Lene informed the Court that he would give his oral evidence in Pidgin. He was duly sworn by the Court interpreter. Counsel for the plaintiffs, Mr Hagahuno, then produced a copy of Mr Lene’s affidavit to him, which was confirmed by Mr Lene as being the affidavit which he had signed on 21 September 2018.
     
119. When Mr Aigilo commenced his cross-examination, Mr Lene said that on 28 February 2018 he was present outside the DPE’s office at Konedobu, not at Vulupindi Haus at Waigani. Mr Lene said that on 28 February 2018 he went to the DPE’s office at Konedobu to do some work for his incorporated land group, which he said was named Hauekerake Tipurupeke ILG.
     
120. When Mr Lene was asked by Mr Aigilo as to what his relationship is with Mr Walambo and the Yesiki clan, Mr Lene said that he comes from the same village as Mr Walambo. However, Mr Lene then corrected himself when questioned further by Mr Aigilo. Mr Lene said that he actually comes from the same district in the Southern Highlands as Mr Walambo, which is the Erave District, not from Mr Walambo’s village.
     
121. Set out below is an extract from pages 21 and 22 of the proceedings heard on 27 February 2019 which recorded further aspects of Mr Lene’s cross-examination after translation from Pidgin into English:
     

MR AIGILO: So, you are saying you are one of the Yesiki clan members, is that correct?

A: No, your Honour

Q: How is Mr Sidion Walambo related to you. Is he related to you in any way, Mr Sidion Walambo?

A: No, your Honour. He is married to my daughter.

Q: So, you are Sidion Walambo’s father-in-law, is that correct?

A: Yes.

122. During re-examination, Mr Hagahuno obtained further explanation of Mr Lene’s relationship to Mr Walambo. The following extract is taken from pages 23 to 25 of the transcript:
     

Mr HAGAHUNO:

Q: ... Firstly, are you the biological father of Sidion’s wife?

A: Your Honour, she is my first brother’s daughter.

Q: So, you are an uncle?

A: Yes.

Q: You also benefit from Yeseki benefits?

A: No, your Honour.

...

Q: ... Now, Mr Lene, should you have any reason to fabricate a serious allegation concerning the court against Ms Kaia?

A: Yes, your Honour.

Q: I put it to you again. Please, interpreter, interpret it properly. Would you have any reason to make such a serious allegation against Martha to fabricate a false story against Martha?

A: Yes.

Q: Why would you – sorry, your Honour. Why would you make a false story against Martha?

HIS HONOUR: No, no, that is not what I want you to ask him. He is confused by your question.

MR HAGAHUNO: Yes, I can see that.

HIS HONOUR: So, I think the better question is, what you are trying to get at is, is there a problem between him and Martha?

MR HAGANUNO: Yes.

HIS HONOUR: If so, what is that problem?

MR HAGAHUNO: Yes.

Q: Do you have a personal problem between yourself and Martha?

A: No, your Honour.

MR HAGAHUNO: Thank you, your Honour, no further questions.

HIS HONOUR: Are you wanting to tender [his] affidavit in evidence?

MR HAGAHUNO: Yes, your Honour, we seek to tender the affidavit of Jerry Lene into evidence.

HIS HONOUR: All right, affidavit of Jerry Lene sworn on 21 September 2018, filed the same day, document number 79 on the court’s [file] admitted into evidence.

123. My observation of Mr Lene when he was giving his oral testimony at the substantive hearing was that he was respectful of the Court but very nervous. He seemed not to understand various of the questions put to him by both counsel, as translated by the Court’s interpreter, and he gave confused answers at times. I do not consider him to have been a reliable witness. Mr Lene may well have been outside the DPE’s office at Konedobu in the morning of 28 February 2018 when Ms Kaia and Mr Walambo and his clansmen emerged from the DPE’s office and angry words were said. But Mr Lene’s affidavit is unconvincing as to what Ms Kaia may actually have said in Mr Lene’s presence. Mr Lene’s affidavit was crafted in legalese. Instead of referring to Ms Kaia by name, Mr Lene’s affidavit has frequent references to Ms Kaia as “the contemnor” and it contains repeated opinion evidence that Ms Kaia had engaged in scandalous allegations against the Court and disrespect for the Court rather than Mr Lene deposing as to factual material. It is not plausible that an uneducated village man such as Mr Lene would use, or understand, most of the terminology used in his affidavit. It is also not credible that Mr Lene would have such perfect recollection 6 months after the event that the order of the Court which Ms Kaia is alleged by Mr Lene to have referred to outside the DPE’s office on 28 February 2018 was said by him at paragraph 7 of his affidavit to have been made by the Court on 14 November 2017.
     
124. Furthermore, it is not credible that the words which Mr Lene says he heard Ms Kaia say in anger outside the DPE’s office on 28 February 2018 were almost exactly the same words that Mr Walambo and all of his three witnesses say Ms Kaia used when that group was outside Vulupindi Haus on 13 December 2017.
     
125. All of these dubious aspects of Mr Lene’s affidavit point to its content having being drafted by Mr Walambo’s lawyer in such a way as be to self-serving for Mr Walambo in an endeavour to somehow corroborate not only what Ms Kaia is alleged to have said outside the DPE’s office on 28 February 2018 but also in the car park of Vulupindi Haus on 13 December 2017. I am fortified in this observation by the fact that paragraphs 11 and 12 of Mr Lene’s affidavit are an almost exact transposition of the concluding paragraphs in the affidavits of Mr Biwa and Mr Soto and were clearly never intended by Mr Lene to be part of his evidence.
     
126. I accordingly find that the affidavit of Mr Lene is of little or no probative evidentiary value in respect of count 6 of the statement of charge against Ms Kaia.
     

Evidence for the Contemnor

127. The evidence of Ms Kaia as contemnor before the Court comprised her affidavit filed on 20 April 2018, which was augmented by her oral testimony given at the substantive hearing. Ms Kaia gave her oral evidence in English.
     
128. Ms Kaia vigorously denied in her affidavit and in her oral evidence that she had ever said the words attributed to her by the plaintiffs in count 6 of their statement of charge against her.
     
129. Set out below are extracts from Ms Kaia’s affidavit in which she states her denial in no uncertain terms:
     

“ 3. At the outset, I outrightly deny this allegation [and] swear to this Honourable Court that I have never said any words to the effect as stated therein. Those words in one paragraph entrenched as charge 6 are purely crafted out by Mr Sidion Walambo or by his lawyer or whoever that may be, [and] are intended or designed to tarnish my standing and make me look stupid in the eyes of [the] Court ...

...

7. ... a person with common sense would not reveal such words for public view as such out of respect for this Honourable Court and the Judge [because] even if said by a person ... by merely publishing it, it will deface the Court and the Judge.

9. I have big respect for Justice Kandakasi and this Honourable Court and I swear to this Honourable Court that I never said anything to the effect as stated in charge 6. I never [said] such and I will never in my life. ”

130. Ms Kaia’s denial was strenuously repeated by her during her cross-examination at the substantive hearing by counsel for the plaintiffs, Mr Hagahuno. Set out below is an extract from the transcript of the continuation of the substantive hearing on 27 February 2019 which gives Ms Kaia’s responses to Mr Hagahuno’s often disjointed questioning of her after she confirmed that she was the deponent of her affidavit filed on 20 April 2018:
     

MR HAGAHUNO:

Q: In that affidavit you have made a serious allegation again that the first plaintiff, Sidion Walambo, has conspired with his lawyer, which I believe is referring to me as I was – had always been – their lawyer, to fabricate all [those] words. How do you know that [those] words have been fabricated in conspiracy with myself by the first plaintiff?

A: I know because I did not say [those words]. I said that you and Sidion accused me on what I said is not true and I never said that regarding me, giving bribery to [Justice] Kandakasi. I never said that.

Q: So now you are denying that you never said the words that all the other witnesses, there is overwhelming evidence against you that you never said those words. You have not produced any other evidence in support. So, at the time you were alleged to have a statement, were you with any other person?

A: I came by myself and you people attacked me at Vulupindi [Haus] and that statement that you are writing is not true against me. You people attacked to fight with me.

Q: When you said: “you people”, who are you referring to?

A: Your client Sidion Walambo and Rex and his wife and late brother of mine Kemesi’s wife. That is all.

Q: Well, you have also stated to have stated the same words at Department of Petroleum and Energy. Why did you not respond to that as well by Jerry Lene – the statement by Jerry Lene?

A: How can I say the same thing at Department of Petroleum and Energy in public place?

Q: So you have no reason for not responding to that affidavit?

A: I am responding and I am saying I never said that.

Q: In relation to the statement at Finance Department which you said were fabricated by myself and my clients, I put to you that you did in fact say those statements and then now you are telling lies before the Court?

A: I never said that, that statement that I gave bribery to [Justice] Kandakasi. He is not my enemy. He is a big judge. I cannot say that in public.

Q: The fact is that you can make allegations again in this affidavit that myself and my client fabricated words without evidence, you are capable of making such accusation in public.

A: No. How can I say that to a big judge of this nation? You and your clients made up all this.

131. Ms Kaia deposes in her affidavit that she is of good standing and a leader in her community and her church. She says that she was elected chair of Yesiki ILG 447 in October 2004 and was endorsed by her community to contest the National Elections on two occasions, first the Gulf Regional Seat in 2012 and the Gulf Open Seat in 2017.
     
132. As to Ms Kaia’s demeanour when giving her oral evidence, she was forthright and did not waver. She was indignant and upset that she had been accused of the words attributed to her in count 6 of the plaintiff’s statement of charge, which she denied.
     

Conclusion on the parties’ evidence

133. If it could be substantiated beyond reasonable doubt that Ms Kaia said the words she is accused of having said in count 6 of the plaintiff’s statement of charge against her, this would constitute scandalisation of the court and the judge concerned. This would be a most serious contempt of court because the imputation of bribery of a judge brings with it the impairment in public confidence in the impartial administration of justice.
     
134. Mr Hagahuno argues that the evidence presented for the plaintiffs as the prosecutors in these contempt proceedings is overwhelming. He submits that the words which Ms Kaia is accused of having publicly uttered outside Vulupindi Haus on 13 December 2017 has been established by all of the corroborative affidavits adduced in evidence in support of the case for the plaintiffs.
     
135. Mr Hagahuno says that Ms Kaia was aggrieved by his Honour Justice Kandakasi’s order of 14 November 2017 which had:
     

a) set aside the order made by her Honour Justice Polume-Kiele on 11 May 2016 that had dismissed the plaintiffs’ suit for want of prosecution;

b) declared that this suit was concluded by the earlier order made by consent of the parties of 5 September 2012, which earlier order was still in force and which, it was submitted, restrained Ms Kaia and other persons from interfering with the 50/50 benefits sharing agreement which Melipu Yesiki ILG 8784 had negotiated with Yesiki ILG 447 in January 2002.

136. Mr Hagahuno argues that Ms Kaia’s grievance with his Honour Justice Kandakasi’s order of 14 November 2017, and with the plaintiffs generally, manifested itself in the angry words she is alleged to have said outside Vulupindi Haus on 13 December 2017, words which were said by the plaintiffs to have been repeated again by Ms Kaia outside the DPE’s office at Konedobu on 28 February 2018. Mr Hagahuno contends that Ms Kaia has committed contempt of court of the highest order and that, upon conviction, the sentence which the Court should impose should be severe so that it operates as a deterrent to others.
     
137. In answer, Mr Aigilo submitted that the conflict between the plaintiffs and Ms Kaia has a long history and that these contempt proceedings are but one instance of the plaintiffs endeavouring, through fabricated evidence, to retaliate against Ms Kaia, to have her punished and silenced for what the plaintiffs perceive is her interference in payment of their royalties and other entitlements generated by the Gobe and Kutubu Oil and Gas Projects.
     
138. Mr Aigilo submits that Mr Walambo conspired with his witnesses to fabricate the offending words which Ms Kaia is alleged to have uttered outside Vulupindi Haus on 13 December 2017 so that she could be charged in these contempt proceedings with scandalising the court.
     
139. Having considered the evidence for the plaintiffs and for the contemnor Ms Kaia and having heard the submissions made for them by their respective counsel, it is the duty of the Court upon considering all of the admissible evidence to determine the matter of the charge.
     
140. To convict Ms Kaia of count 6 of the statement of charge made against her, the evidence adduced by the plaintiffs as prosecutors must establish beyond reasonable doubt that Ms Kaia uttered the words she is accused of saying. If the Court has any doubt in that regard, count 6 of the statement of charge must be dismissed and Ms Kaia acquitted.
     
141. Having weighed up the plaintiffs’ evidence for the prosecution when compared with the evidence of Ms Kaia, I am not satisfied that the plaintiffs have established beyond reasonable doubt that Ms Kaia uttered the words in question. My reasons for this conclusion are based on the following of my findings:
     

(1) The primary evidence for the prosecution that Ms Kaia uttered the words she is accused of saying is the testimony of the first plaintiff, Mr Walambo. Although Mr Walambo sought to have his evidence corroborated by his witnesses, the affidavit evidence of his witnesses carried little or no weight.

(2) Mr Balape’s admissible affidavit evidence simply endeavours to attest to what Ms Kaia is alleged to have said outside Vulupindi Haus on 13 December 2022. The remainder of Mr Balape’s affidavit is largely opinion evidence and is of no probative value.

(3) Mr Biwa’s affidavit is of no evidentiary value to the prosecution because it failed to have any interpretation certificate. Mr Biwa is not literate in English. He speaks Pidgin. There was no evidence adduced for Mr Biwa at the substantive hearing that his affidavit was ever explained to him in Pidgin by an interpreter or that he understood the content of his affidavit.

(4) I find that the affidavit of Mr Soko, who does not understand English, is similarly of no evidentiary value to the prosecution. The interpretation certificate at the conclusion of Mr Soko’s affidavit states that it was translated from English to Pidgin by Mr Walambo, who is the first plaintiff in this suit. I decline to give any credence to the content of an affidavit which has been translated from English into the language of a deponent by the very party for whose benefit that affidavit has been prepared. To allow such an affidavit to carry any evidentiary weight would be a serious injustice to the opposing party.

(5) As to the affidavit of Mr Lene, the factual matters he deposed to relate to an incident which has nothing to do with the incident the subject of count 6 of the statement of charge against Ms Kaia. I find that the only purpose of Mr Lene’s affidavit was a misguided endeavour to persuade the Court that the ongoing dispute between Mr Walambo’s faction and Ms Kaia which Mr Lene witnessed outside the DPE’s office at Konedobu on 28 February 2018 involved Ms Kaia allegedly repeating similar actionable words to those which Mr Walambo says Ms Kaia uttered in anger outside Vulupindi Haus on 13 December 2017. I do not find it credible that Ms Kaia would have used almost exactly the same words outside the DPE’s office as she is alleged by Mr Walambo and Mr Balape to have uttered in public outside Vulupindi Haus. Mr Lene said in paragraph 8 of his affidavit that he did not know much about the court cases involving the Yesiki Clan, Mr Walambo and Ms Kaia and yet, 6 months after the incident outside the DPE’s office, Mr Lene was miraculously able in his affidavit sworn and filed on 21 September 2018 to remember that one of the orders in those court cases was made on 14 November 2017, this being the order which Ms Kaia is allegedly said by Mr Lene to have referred to during the verbal altercation which took place between herself and Mr Walambo and his clansmen outside the DPE’s office.

(6) I find that all of the opinion evidence contained in Mr Lene’s affidavit is inadmissible for the same reasons as I have given in connection with the opinion evidence given in the affidavits of Mr Walambo and Mr Balape.

(7) I find that Mr Lene’s affidavit contains purported evidence of the Vulupindi Haus incident which Mr Lene did not witness. Paragraphs 11 and 12 of Mr Lene’s affidavit are a “cut and paste” of the same paragraphs contained in the inadmissible affidavits of Mr Biwa and Mr Soko, which paragraphs relate to the incident outside Vulupindi Haus, an incident at which Mr Lene never claimed to have been present. Paragraphs 11and 12 of Mr Lene’s affidavit are not the fault of Mr Lene. The accidental inclusion of those two paragraphs in Mr Lene’s affidavit was the fault of whoever prepared the affidavit for Mr Lene to sign. This inexcusable error on the part of the draftsperson of Mr Lene’s affidavit was compounded by the fact that the interpretation certificate dated 21 September 2018 at the conclusion of Mr Lene’s affidavit on page 4 states to the effect that the affidavit was translated from English to Pidgin to Roy Tom Soko, not to Pidgin-speaker Mr Lene. The interpretation certificate was signed by counsel for the plaintiffs, Mr Hagahuno. As these fundamental two errors were not corrected by Mr Hagahuno at the substantive hearing when Mr Lene gave his oral evidence, I accord negligible weight to Mr Lene’s evidence insofar as it attempts to somehow suggest that Ms Kaia coincidentally used the same alleged words contemptuous of the Court and the Judge outside the DPE’s office on 28 February 2018 as Ms Kaia is alleged by the plaintiffs to have uttered outside Vulupindi Haus on 13 December 2017.

(8) I find that the affidavits deposed to by Mr Balape, Mr Biwa and Mr Soko which were filed in support of Mr Walambo’s evidence as to what Ms Kaia is alleged in count 6 of the plaintiffs’ statement of charge to have uttered outside Vulupindi Haus on 13 December 2017 were all signed by relatives of Mr Walambo, all of whom, as with Mr Walambo, had a longstanding grievance against Ms Kaia and her Gulf Province faction of the Yesiki Clan. This grievance arose from Ms Kaia’s efforts to have herself and her faction included in payouts from royalties and benefits which flowed the Gobe and Kutubu Oil and Gas Projects but which were blocked after the order was made in this suit on 20 June 2008 for a one-off payment of K94,610 to be paid to the trust account of Parkil Lawyers for Ms Kaia and her brother James Kaia’s “group”.

The oral evidence of Mr Walambo’s witnesses given at the substantive hearing was that Mr Balape is the step-brother of Mr Walambo as they have the same father but different mothers; Mr Biwa said that Ms Kaia is the daughter of a brother of his; Mr Soko said that his mother is married to Mr Walambo, who is his step-father. All of Mr Walambo’s witnesses had a vested interest in obstructing Ms Kaia’s claim to the entitlement of herself and her faction to royalties and other benefits accruing from the two oil and gas projects. As all of those witnesses are relatives of Mr Walambo, their affidavit evidence is not the testimony of independent eyewitnesses to the events that unfolded outside Vulupindi Haus on 13 December 2017. Not one of Mr Walambo’s witnesses could be said to be an independent and impartial witness. Mr Lene is the only witness called for the prosecution of Ms Kaia who had any degree of independence from the long history of grievances between Mr Walambo and his relatives on the one hand and Ms Kaia and her faction on the other hand. But Mr Lene was not a witness to the incident that is the subject of count 6 of the statement of charge against Ms Kaia. Mr Lene’s affidavit evidence as to his ostensibly clear recollection of what Ms Kaia is alleged by him to have said outside the DPE’s office on a totally different occasion is not credible and is suspect for that reason.

(9) I observe that no evidence by any impartial bystander to the incident outside Vulupindi Haus which occurred on 13 December 2017 was adduced by plaintiffs at the substantive hearing. Nor was any impartial bystander such as an employee of the DPE called to give evidence as to the incident which Mr Walambo deposed in his second affidavit allegedly involved Ms Kaia and which he said took place in the reception area of the DPE’s office on 28 February 2018.

142. In summary, I find that the admissible content of the affidavits and oral evidence of Mr Walambo and Mr Balape, taken in conjunction with Ms Kaia’s own affidavit and oral evidence, has established that there was indeed a verbal altercation between Ms Kaia and Mr Walambo and his supporters outside Vulupindi Haus on 13 December 2017. I am satisfied on a careful consideration of that evidence that there was an angry confrontation between those parties on that occasion.
     
143. However, for the reasons I have given, I am not satisfied that the plaintiffs as prosecutors have established on the criminal standard of proof that Ms Kaia uttered the words contemptuous of the Court and the particular judge which Ms Kaia is alleged in count 6 of the statement of charge to have said. I consider that the evidence for the prosecution in this regard falls short of even the civil standard of proof on the balance of probabilities.
     
144. It is not a contempt of court for a person to express in colourful, forceful or vulgar language his or her frustration with what has occurred in court proceedings. The jurisdiction of the Court to punish for contempt by scandalising the court should be exercised sparingly and only when warranted.^[10]
     
145. The offence of contempt of scandalising the court can only occur where there is proof beyond reasonable doubt of words, spoken or published by the contemnor, which endanger public confidence in the Court and the judicial system by, for example, accusing a judge of having been bribed.
     
146. The evidence adduced by the plaintiffs in this instance does not meet the strict degree of proof of facts required for the Court to be able to make a finding that Ms Kaia committed the offence of contempt by scandalising the Court. It therefore follows that proof of count 6 has failed and that Ms Kaia must be acquitted of the contempt offence with which she was charged.
     

COSTS

147. Costs normally follow the event. I see no reason to depart from the usual order as to costs in connection with the contempt proceedings which were pursued by the plaintiffs against Ms Kaia. The plaintiffs are to jointly and severally pay on a party/party basis Ms Kaia’s costs in defending the contempt proceedings, such costs to be taxed if not agreed.
     
148. As to the parties’ costs for the remainder of this suit, subject to earlier existing orders as to costs, the first and second plaintiffs (Sidion Walambo and Melipu Yesiki ILG 8784), the first defendant (now the estate of the late Urumpa Kemesi), the second defendant (Yesiki ILG 447) and Ms Kaia (third defendant) are to each bear their own costs.
     

CONCLUDING REMARKS

149. I make no finding of professional impropriety by Mr Hagahuno in advancing the plaintiffs’ application for Ms Kaia to be dealt with by this Court for contempt. Mr Hagahuno was not present when the incident involving Mr Walambo, Ms Kaia and others took place outside Vulupindi Haus on 13 December 2017. It was the plaintiffs who were responsible for instituting these contempt proceedings. Mr Hagahuno was only acting on instructions which he received from Mr Walambo and from Melipu Yesiki ILG 8784 represented by Mr Walambo. There is no evidence that Mr Hagahuno conspired with Mr Walambo or his witnesses to fabricate the alleged scenario which gave rise to count 6 of the statement of charges against Ms Kaia.
     
150. I am however concerned that Mr Hagahuno saw fit to have acted as the interpreter in connection with Mr Balape’s affidavit, an affidavit which Mr Hagahuno prepared in support of his clients’ application. I repeat that a lawyer for a party should, wherever possible, avoid acting as the interpreter for a non-English speaking deponent whose affidavit evidence will be sought to be admitted into evidence in support of that party’s cause. Otherwise the lawyer runs the risk of being examined on oath by the Court or by the opposing party as to the circumstances surrounding his or her translation of the affidavit to the deponent if those circumstances are called into question, especially when there is doubt as to whether the deponent fully understood the content of the affidavit or fully understood the nature of swearing an oath and the consequences of making false statements in an affidavit.
     
151. As to the terminology that should be used for an interpretation certificate when preparing an affidavit to be sworn on oath by a deponent for use by a party in Court proceedings, I commend use of the following template:
     

INTERPRETATION CERTIFICATE

I, [name of interpreter], [occupation], [contactable physical address, postal address and email address] HEREBY CERTIFY that I am familiar with the English and the [Pidgin, Motu or other language] languages and that I read, speak and write both languages fluently in my everyday communications AND I HEREBY CERTIFY that the abovenamed Deponent [full name of Deponent] speaks the [Pidgin, Motu or other language] but not the English language AND I HEREBY CERTIFY that before the Deponent was sworn on oath by the abovenamed Commissioner for Oaths, I explained to the Deponent the whole of the contents of this Affidavit word by word in the [Pidgin, Motu or other language] AND I HEREBY CERTIFY that the Deponent signified to me in [Pidgin, Motu or other language] that he/she understood the nature of swearing an oath and its consequences and that the Deponent accepted as true all of the contents of this Affidavit before it was signed by him/her in my presence AND I HEREBY CERTIFY that I have no personal interest in any of the issues in this Court proceeding.

Dated at [place] this day of 20[23].

................. [Signature of Interpreter]

................. [Print full name of Interpreter]

152. On other matters, I indicated in my outline earlier in this Decision of the historical background to this case that I consider it was an anomaly for Ms Kaia not to have been cited as a defendant in the entituling to all Court process filed in this suit after Ms Kaia was joined, with the consent of the plaintiffs, as a defendant to this suit. Whether that anomaly was an oversight or intentional on the part of the plaintiffs is hard to say. However, Ms Kaia should have been specifically cited as the third defendant in all Court documents, including orders of the Court, after leave was granted by the Court on 2 March 2009 for the plaintiffs to discontinue their claims in this suit against the DPE, MRDC and the State, those defendants having initially been cited in the plaintiffs’ originating summons filed on 8 June 2005 as the third, fourth and fifth defendants respectively. I repeat that Ms Kaia was joined as a defendant to this suit with the consent of all parties, including the consent of Ms Kaia herself, by virtue of the earlier order made on 25 April 2008. An order will accordingly be made today to remedy this anomaly.
     
153. An order also needs to be made to bring finality to this litigation. His Honour Justice Kandakasi endeavoured to do that in term 2 of the Court’s order of 14 November 2017 which stated that this case “stands concluded by virtue of the orders made on 5^th September 2012”, those prior orders being contained in the formal order of the Court which was made by consent of first plaintiff Mr Walambo as chair of second plaintiff Melipu ILG 8784 and as purported acting chair for and on behalf of second defendant Yesiki ILG 447 following the death of first defendant Mr Kemesi in October 2010. The consent order of 5 September 2012 declared that the parties in this suit are equal beneficiaries of all benefits accruing to the Yesiki Clan through Yesiki ILG 447. However, it is now clear from the Court’s record and the plaintiffs’ own evidence that his Honour was not aware when he made the consent order of 5 September 2012 sought by Mr Walambo, claiming to represent all parties, that the order did not have the consent of Ms Kaia as third defendant. Therein lies the cause of much of the conflict that then ensued between Mr Walambo and Ms Kaia and the different factions they represent. But as his Honour ordered in term 2 of the order that this case was concluded, it was only inadvertence that caused the Court’s file to remain dormant in the Civil Registry instead of being closed and sent to the Court’s archives, thereby leaving the way open for the several orders that followed and for these contempt proceedings to be pursued by the plaintiffs. An order will therefore be made by the Court today that this case is concluded and that the Court’s supplementary file is soon to be sent to archives.
     
     154. If there is any continuing dispute between Mr Walambo and Ms Kaia relating to their representation of various factions of the Yesiki Clan, including representation of Yesiki ILG 447, resolution of that dispute will need to be pursued by voluntary mediation or by fresh proceedings in the National Court potentially involving referral to Court-annexed mediation under the ADR Rules 2022. But if there is any continuing dispute between Mr Walambo and Ms Kaia which relates more to issues concerning actual entitlement to monetary or financial benefits arising from the extraction of natural resources such as gas and oil from customary lands of the Yesiki Clan in the Gulf and/or Southern Highlands Provinces, then the National Court would have no jurisdiction to deal with those issues, which could only be dealt with at first instance by a Local Land Court under Section 26 of the Land Disputes Settlement Act Chapter 45, subject to any appeal to a Provincial Land Court under Section 54 of that Act: see Golpak v Kali [1993] PNGLR 8; Siu v Waine Land Group Inc (2011) SC1107; Kupako v Covec (PNG) Ltd (2019) N7889.
          

ORDER

155. The terms of the formal order of the Court are these:
     

(1) Martha Kaia is adjudged not guilty of contempt of court on count 6 of the statement of charge against her and is acquitted of that charge.

(2) Martha Kaia is discharged from these contempt proceedings with immediate effect.

(3) The Court declares that:

(a) Martha Kaia was joined as a defendant to this suit in OS No. 426 of 2005 by order which was made herein on 25 April 2008 with the consent of all relevant parties, including the consent of Martha Kaia; and

(b) Martha Kaia became the third defendant in this suit following leave having been granted by the Court on 2 March 2009 for the plaintiffs to withdraw their claims in this suit against the former third, fourth and fifth defendants, namely the Department of Petroleum and Energy, the Minerals Resource Development Company Limited and the State.

(4) The first and second plaintiffs shall jointly and severally pay Martha Kaia’s costs of and incidental to the contempt proceedings against her on a party/party basis, such costs to be taxed if not agreed.

(5) Subject to existing earlier orders as to costs, the first and second plaintiffs, the estate of the first defendant, the second defendant and Martha Kaia as third defendant shall each bear their own costs of and incidental to all other matters in this suit.

(6) This suit is now concluded and the Court’s file shall be archived at the expiration of 40 days from today, subject to any application relating to taxation of Martha Kaia’s costs in defending the contempt proceedings.

(7) The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

Verdict accordingly.
_________________________________________________________________
Williams Attorneys: Lawyers for the First & Second Plaintiffs/Applicants
Lakakit & Associates: Lawyers for the Third Defendant/Contemnor

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^[1] Court document no. 31.
^[2] Court document no. 32.

^[3] See signature of James Kaia on behalf of Martha Kaia on page 3 of draft Consent Order which is Annexure “B” to Affidavit of Sidion Walambo filed in OS No. 426 of 2005 on 5 May 2008 (Court document no. 27).
^[4] Court document no. 44.
^[5] The Court’s order for dismissal of OS No. 426 of 2005 is Court document no. 46.
^[6] Court document no. 47.
^[7] Court document no. 51.
^[8] Phipson on Evidence (13^th Ed) para. 33-03.

^[9] Halsbury’s Laws of England (4^th Ed) Vol. 17(1) at para. 953.
^[10] See Injia on Contempt of Court in Papua New Guinea and the Pacific (supra) at pp.111, 112 and cases there referred to.