N2489

PAPUA NEW GUINEA
[National Court of Justice]

WS 756 of 2001

BETWEEN

BEWA TOU
on his own behalf and on behalf of Isou Clan
of Krissa Village, Vanimo, Sandaun Province
Plaintiffs

AND

PAPUA NEW GUINEA FOREST AUTHORITY
First Defendant

AND

VELE IAMO
Secretary for Department of Finance
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND

AND RE CONTEMPT OF COURT CHARGES AGAINST VALENTINE KAMBORI

Waigani	:	Sevua, J
2003		:	10th December

CONTEMPT – Contempt of court – Order not to leave National Capital District as condition of bail - Disobedience of court order –– Contemnor traveled out of National Capital District without leave of Court – Contempt made out.

Contempt – Contempt of court – Written undertaking to do a particular act – Not abide by such undertaking – Contempt made out.

Contempt – Contempt of Court – Procedures under Order 14 Rule 47 (1) National Court Rules – Motion for punishment for contempt is not a trial where witnesses are called.

No cases cited in the judgment.

Counsel:
Mr. P. Parkop for Plaintiffs
Mr. B. Koae for Registrar
Ms. N. Eliakim for Contemnor

10th December 2003

SEVUA, J:	These proceedings are related to two charges of contempt of court laid against Valentine Kambori in his capacity as Chairman of National Forest Board.

The motion before the Court this morning was filed by the Registrar of National Court in pursuance of Order 14 Rule 47 (1) of the National Court Rules. I think there is a degree of misconception in this procedure as evident from what transpired in the morning and the Court needs to set the background of these charges in order for the parties to these proceedings and the public at large to appreciate the basis for which the Court had proceeded to deal with the contemnor this morning. Thus in order to appreciate that, the Court shall set out the factual background in chronological order as to what occurred and as to the Court’s knowledge of those facts, constituting the charges against the contemnor.

On 26th September 2003, the plaintiffs filed a motion for contempt against the present contemnor and two other officers of the National Forest Authority. Those proceedings for contempt relate to an order which this Court had granted on 24th April 2003, which order was in respect of a default judgment against the Papua New Guinea National Forest Authority in the sum of K942,809.96 plus interest and costs, regarding timber royalties due to landowners in Vanimo.

The contempt proceedings came before me on 10th October 2003, when I convicted this contemnor and the other two officers of the National Forest Authority of contempt of court. Decision on penalty was adjourned on that date to 17th October 2003 and the contemnors were granted bail at their request. In those proceedings, Mr. Mills and Mr. Shepherd were acting for the contemnors. Those proceedings are the subject of an appeal to the Supreme Court as Mr. Mills has appealed against conviction.

At the time the contemnors were granted bail on 10th October 2003, this Court made certain orders constituting the terms and conditions of bail. The third order was that the contemnors must not leave National Capital District without the leave of the Court.

The contemnor in the current proceedings, Valentine Kambori, had on the 19th October 2003, travelled to Malaysia in direct violation of that order. On 20th October 2003, I issued certain orders after the breach was reported to me while I was ill and at home. Order No. 3 of those orders was that the contemnor be cited for contempt of court. I also revoked his bail and ordered his arrest.

When the contemnor returned to the country on 24th October 2003, he was consequently arrested and brought before Gavara-Nanu, J., who reinstated bail and made other orders. It must be emphasized here that Gavara-Nanu, J., did not deal with the contempt charge pursuant to my order of 20th October 2003 then. He merely reinstated bail and imposed other bail conditions.

At the time the contemnor left Jacksons airport on 19th October 2003, he did not get a variation of Order No. 3 which prohibits him from leaving National Capital District without the permission of the Court. He left the country despite the existence of an order that he must not leave National Capital District without the leave of the Court.

Furthermore, when he was at the airport on 19th October 2003, he sent a hand written undertaking to the Court, via the plaintiff’s lawyers addressed to me. For the record, I wish to refer to the undertaking:

"To:	
Justice Sevua
Via Powes Parkop Lawyers
C/-Professor L. Kalinoe
Waigani

Subject:	Payment to Bewa Tou

I hereby give my undertaking that the cheque
raised by Department of Finance to National Court
Trust will be changed next week to Powes Parkop
Trust as expressed by the Judge’s Associate from 
Justice Sevua’s direction per letter of 17th October 2003.

(Signed)
VALENTINE KAMBORI
CHAIRMAN."

I have omitted the address on the top right side of the page, but the undertaking is dated 19th October 2003. Those are the circumstances in which the Court came to know about the conduct of the contemnor on 19th October 2003. Those facts have not really been disputed by the contemnor except that he had tried to justify his conduct.

Prior to considering the statement of the contemnor made in Court this morning, I wish to allude, at this juncture, to the manner in which this matter proceeded in the morning.

But let me go back earlier in time than this morning. On 21st November 2003, the contemnor made an application through counsel, Mr. Leahy, for variation of bail conditions so that he can travel out of National Capital District. That application was refused, however, the significance of that date is that, the contemnor was first informed that he was being cited for contempt of court and the two counts forming the basis of the motion by the Registrar were explained to him, and he acknowledged them. The charges were adjourned to Wednesday, 26th November, however, due to the Supreme Court sittings, the matter was further adjourned to Wednesday, 3rd December 2003.

Again on 3rd December 2003, the contemnor appeared with counsel, Mr. Leahy and was informed again that he had been cited with the two counts of contempt. It was at that time the Court was suggesting to Mr. Parkop, counsel for the plaintiffs, to file a motion for contempt against the contemnor that Mr. Leahy informed the Court that the correct procedure was for the Registrar to file the motion in accordance with Order 14 Rule 47 (1). Mr. Parkop and the Court agreed with that hence the order directing the Registrar to file a motion for punishment pursuant to Rule 47 (1) of Order 14 National Court Rules.

As far as the Court was concerned, it had formed the view on those two earlier occasions that Mr. Kambori was guilty of contempt of court, firstly, for traveling outside the jurisdiction of National Capital District without leave of the Court, and, secondly, for not abiding by his own undertaking upon his return to the country.

The Registrar’s motion thus sought an order, inter alia,

"1. That Valentine Kambori be punished for contempt
of court for breaching bail condition orders issued on 
10th October 2003 and his own undertaking dated 19th 
October 2003."

Therefore, as far as the Court is concerned, the application by motion this morning is to punish Mr. Kambori for contempt of court. Unbeknown to me, the Registrar had filed two affidavits which were served on the contemnor on 8th December together with amended motion and statement of charge prompting the contemnor to plead not guilty and ask for an adjournment, which was refused because the contemnor had already been informed of the two charges on two previous occasions and the Court was then dealing with an application to punish him.

Rule 47 (1) Order 14 is in these terms:

47.	Motion or proceedings by Registrar

(1)	Where it is alleged, or appears to the court on its own view, that a person is guilty of contempt of the court, or of any other court, the Court may, by order, direct the Registrar to apply by motion for, or to commence proceedings for punishment of the contempt.

(2)	Sub-rule (1) does not affect the right that any person other than the Registrar may have to apply by motion for, or to commence proceedings for, punishment of contempt.

My understanding of Rule 47 (1) is that, on motion by the Registrar, the Court will determine the punishment to be meted out to a person whom the Court has already formed a view that he is guilty of contempt of court. This is done adopting the criminal procedures in view of the fact that the penalty for contempt is imprisonment or fine or both. I do not read Rule 47 (1) to mean that when the Registrar files a motion seeking an order to punish a person, that the application turns into a trial, where the person will be arraigned and if he pleads not guilty, witnesses will be called. That is not my undertaking of how the Court would proceed under Order 14 Rule 47 (1).

I allude to the procedural aspect of this mater because it became apparent that counsel for the contemnor, Ms. Eliakim, had sought an adjournment because she wanted to file a defence in view of her client’s pleading not guilty. Because the contemnor had pleaded not guilty, I had allowed him to proceed to make a statement to explain his plea before the Court determines whether or not to refuse his plea in the light of the fact that the Court was already of the view that he was guilty of contempt. In that way, his constitutional right to be heard would not be denied.

In my view, it is like a criminal trial where the accused is expected to enter an unequivocal plea which becomes equivocal that the Court needs to hear him further in order to determine whether it should accept the plea or alter it to a plea of not guilty and order a trial.

The Court had permitted the contemnor to give a full statement so that it would determine whether the statement by the contemnor amounted to a defence. In that way, the Court had ensure that he exercised his right to be heard. That is the manner in which we proceeded. Besides, no objection was raised by any party.

Having heard the contemnor spoke at great length and having analysed what he has told the Court, and mindful of the procedure under Rule 47 (1), which I had ordered, the Court is of the view that its earlier view of the contemnor’s guilt is correct, ie., that the contemnor was guilty of contempt of court.

Mr. Kambori has gone to great lengths to explain his actions in relation to the charges of contempt, and the Court has listened very carefully to his statement and paid all attention to him.

Whilst the Court appreciates the contemnor’s approach to seeking variation to his bail conditions, it is somewhat surprising that he has made no mention whatsoever of whether he sought advice from his lawyers. As I adverted to earlier on, he was previously represented by Mr. Mills and Mr. Shepherd in the previous contempt proceedings which resulted in the conviction and subsequent bail application. Why didn’t Mr. Mills or Mr. Shepherd make an application for variation before another Judge?

On that aspect, the Court needs to say that on 10th October 2003, following the conviction recorded against this contemnor and the other two officers of the National Forest Authority, it was Mr. Shepherd of Blake Dawson Waldron who applied for bail for the three contemnors. Subsequent to the grant of bail, it was Mr. Shepherd who appeared in my Chamber and made an application for variation to Order No. 3 so that Mr. Kambori could attend to a funeral at Wewak on the same weekend. And if I might add, there was no problem with that application. The plaintiffs did not object to it and the Court readily granted the order for variation to allow the contemnor to travel to Wewak.

As I alluded to earlier on, the Court indeed appreciates the approaches Mr. Kambori had made, that is, his intention to seek leave before me because I was seized of his matter. However, the reality is, I do not have conclusive jurisdiction on this matter to the exclusion of other Judges. Secondly, when I fell ill from the 10th October onwards and remained at home, I did not carry my Chamber and the Court to my house. The contemnor could have applied for variation of bail before another Judge, and I do not believe that leave would have been refused.

I have great difficulty in trying to understand why the contemnor insisted on appearing before me during my absence on account of illness, when he could have easily made his application before another Judge. It would be understandable if I had been the only Judge in Waigani at the time Mr. Kambori had wanted to travel. But there were other Judges available and I am certain that one would have granted him a variation to the order had he gone to the Registry and inquire of the Registrar or his Registry staff, to make that arrangement, or even contacted my Associate to liaise with the Registrar. No Court is out of reach to a litigant.

So the question is, do I accept his statement that he had done his best to apply for a variation of the order for his bail condition? I think the answer is no. I consider that the contemnor had not done much to obtain a variation of his bail condition. The fact that he wanted to make his application before me was probably a grand idea to him, however, he had made no effort at all to make an arrangement to appear before another Judge. I would have accepted his explanation if he had come to me but, I could not hear him because I was sick and he had then gone to another Judge or other Judges and they had refused to deal with his application or had declined his application.

But that is not the situation here. He wanted to make his application before me but I was ill so he prevailed upon the plaintiffs and their lawyers to consent to his travel. With respect, even if the plaintiffs did not oppose his application for variation, the contemnor still needs to appear before a Judge to make his application. The plaintiff’s consent or objection does not mean the contemnor’s bail conditions are varied.

In respect of the disobedience of the order not to leave National Capital District without the leave of the Court, I find that the contemnor’s explanation does not amount to a defence. I am of the view that, although I was ill therefore unable to deal with the contemnor’s application for variation, there were other Judges who could have dealt with it. Under the circumstances, the contemnor has advanced no reasonable explanation as to why he did not make his application before a different Judge.

I consider that intention to violate a bail condition is not relevant here. Mr. Kambori might not have intended "wilfully" as he put it, but the fact is that he did leave National Capital District without the Court’s permission and he did so knowing that he had breached the order not to leave National Capital District without the leave of the Court. In my view, intention is immaterial to this charge. In any event, I am of the view that intention can be inferred from his conduct.

I further find as a fact that when the contemnor travelled out of Port Moresby, hence National Capital District, on Sunday, 19th October 2003, he did so whilst the order restraining his movement out of National Capital District was in force and that he had not have a variation to that order to enable him to travel out of National Capital District to Malaysia.

Under these circumstances, and taking into consideration all that the contemnor has said in his defence, the Court is of the opinion that the explanation advanced by the contemnor this morning does not constitute a defence to the first charge of contempt of court.

The Court therefore finds that Valentine Kambori is guilty of contempt of court in that he travelled to Malaysia on 19th October 2003 in direct disobedience of the Court order of 10th October 2003 that he must not leave National Capital District without the leave of the National Court.

On the second count, the contemnor has told the Court that the Monday following his travel overseas, he was advised that the Ombudsman Commission had issued a Direction which stopped settlement of his matter in the manner he had intended. He also informed the Court, that, the undertaking he gave was subject to the National Forest Board’s ratification, therefore he did not have the authority to give that written undertaking when he gave it.

There is one fundamental flaw in that explanation. The actual undertaking that I have cited earlier on does not contain what the contemnor and his lawyers have now revealed to the Court. In the written undertaking, the contemnor did not say that he would alter the cheque payable to National Court Trust to Powes Parkop Lawyers Trust Account subject to the Forest Board’s approval. So this is a new and recent invention. The original hand written undertaking made not reference at all to the National Forest Board.

The impression given to the Court for releasing the written undertaking is that the contemnor, as Chairman of National Forest Board, had the authority to change the cheque. He had given the undertaking to change it upon his return, but he did not abide by his undertaking.

There is also a misconception here. The Court is not talking about payment of the cheque because it has not received any advice from the parties of any intended settlement. The second charge does not deal with actual payment of the cheque, but the alteration to it.

To that extent, this Court needs to question the jurisdiction of the Ombudsman Commission. Does the Ombudsman Commission have a concurrent jurisdiction with the National Court in relation to a matter or dispute appropriately in the jurisdiction of the Court? This Court is not aware of any, and whilst this will be the subject of a different proceedings, this Court must question the legality and constitutionality of the Ombudsman Commission’s interference with this matter, the subject of a judicial inquiry that has been hijacked by the Commission.

On the basis that the Ombudsman Commission has no jurisdiction to deal with this dispute, which is before the National Court, I find that the contemnor failed to abide by his undertaking to change the cheque. I reiterate that we are not talking about payment of the cheque, but the alteration of the payee’s name on the cheque. The Court will either hear the dispute or sanction the settlement if agreed to by the parties.

On the other hand, if the contemnor did not have the authority as he now puts it, why did he give the undertaking? If it is correct that his decision was subject to the Board’s approval, why didn’t he state so in the undertaking?

This Court needs to set the record straight because it seems the contemnor is saying that I had issued a direction in the letter of 17th October 2003 and that is not correct.

I will quote the letter written by my Associate to Powes Parkop Lawyers on 17th October 2003 on my instructions in full because there seems to be some misunderstanding that I had directed that the money be paid to the plaintiff’s lawyers and that is not the case at all.

The letter, dated 17th October 2003 and signed by my Associate, omitting the address, reads:

"Attn: Mr. Powes Parkop

Dear Sir,

RE:	WS756 of 2003 – BEWA TOU AND OTHERS v. PNG FOREST AUTHORITY & TWO OTHERS

This matter is now further adjourned as per His Honour Justice Sevua’s instructions of today’s instant, 17th October 2003 and wish to advise all counsels that this matter is adjourned to next Friday, 24th October 2003.

If the defendants wish to settle, they should do so in accordance with the Prime Minister’s directive. Justice Sevua dealt with this matter on the 10th October 2003 in which he convicted the contemnors and suggested strongly that the contemnors settle this matter with the plaintiffs so that in mitigation, they might be saved from adverse penalty. However, it seems they are not complying with the orders issued and His Honour will deal with the penalty/sentence and not other issues next week, Friday, 24th October 2003.

The Bail for the three contemnors is also extended to Tuesday, 24th October with the same conditions, failing to comply with the bail conditions, they will be arrested and detained at Bomana CIS until this matter is completed.

Yours faithfully,
(Signed)
STANLEY WORRI
Associate to Justice Sevua

cc.	Peter Mills"

Having cited that letter, it is not correct that I directed the defendants/contemnors to pay the money to the plaintiffs. I suggested that parties settle the matter in accordance with a directive issued by the Prime Minister. I did not direct or order the contemnors to pay the plaintiffs. Therefore it is a misconception for the contemnor to say that the cheque to be paid to Powes Parkop Lawyers Trust Account was in accordance with my directive. I issued no such directive.

The basis for such a suggestion I made was for the benefit of the contemnors and I made that suggestion after hearing both counsels, Mr. Parkop and Mr. Shepherd. I do not think it is fair to refer to that letter out of context. Having said that, I consider that the written undertaking given by the contemnor is, as it is, in the affidavit of the Registrar sworn and filed on 8th December 2003, the original of which is in the Court file.

I find that the contemnor, Mr. Kambori, gave a written undertaking to the Court to make some alterations to the cheque. He did not address the undertaking to the Registrar, but to me as the Court. He failed to abide by that undertaking and I therefore find that he is guilty of contempt of court.

Simply, he promised the Court he would do something but he had not fulfil that promise. And he advanced two reasons which I have already addressed. But in passing, I want to reiterate that the first reason that he had no authority to issue such an undertaking, I find was not his written undertaking. Secondly, whilst the Court appreciates the Ombudsman Commission’s power under s.27 of the Constitution, this Court is of the opinion that, when an issue is before a Court of law, in this case, the National Court, the Ombudsman’s power to issue directions does not apply and the Ombudsman Commission has no right to interfere with a case in which the issues are for judicial determination. Because I find that the Ombudsman Commission had interfered with the judicial proceedings in this case when it had no right to, the failure by the contemnor to abide by his undertaking therefore is contempt.

The Court has read and duly considered the statement of Steven Mera dated 26th November 2003 in support of the contemnor’s oral statement. However, it does not assist the contemnor very much.

For these reasons, I find the contemnor, Valentine Kambori, guilty of contempt of court on two charges cited upon him and the Court shall now hear the contemnor and his counsel prior to proceeding to penalty.

Lawyer for Plaintiffs	:	Powes Parkop Lawyers
Lawyer for Registrar	:	Bernard Koae
Lawyer for Contemnor:	Maladinas