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Miamil v Narowen [2021] PGNC 100; N8856 (4 February 2021)

N8856

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 10 OF 2012

BETWEEN:
JOHN MIAMIL for himself and on behalf of the Settlers of Salamanda
Appellants/Contemnors

AND:
PASTOR LEO NAROWEN, PASTOR JOHN GARU NAD CHRISTIAN OUTREACH CENTRE INC.
Respondents/Applicants

Lae: Dowa AJ
2020: 06^th October
2021: 04^th February

CONTEMPT OF COURT – contempt proceedings filed by the respondents for appellants failure to give up vacant possession of land the subject of a state lease registered to the respondents – whether the Contemnors are guilty as charged for contempt of court - Contempt of Court is an offence not prescribed and a penalty for which is not specifically prescribed – applicants for contempt have the onus of proof - there are discrepancies in the way the terms of the orders were obtained, and the anomalies contained in the two titles - reasons advanced by the Contemnors create reasonable doubt on the guilt of the Contemnors – no proper description of property when the order was made - orders did not correctly reflect status of the properties the subject of the eviction orders – changes to the size of the property after the issue of the eviction orders – not safe to convict appellants for contempt -application for contempt dismissed – appellants to give vacant possession

Cases Cited:

Nil

Counsel:

H. Simon, for the Appellants/Contemnors
T. Berem, for the Respondents/Applicants

RULING

04^th February, 2021

1. DOWA AJ: This is my ruling on an application by the Respondents (hereinafter referred to as “the Applicants”) seeking punishment against the Appellants (hereinafter referred to as “the Contemnors”) for contempt of Court orders. The main Contemnors are John Miamil and Dominic Kaima.
   
2. The Contemnors were Appellants in the original appeal. On 3^rd November 2016, the National Court dismissed the appeal and issued further orders for the Contemnors to give up vacant possession of the Applicant’s property.
   
3. The Applicants allege the Contemnors failed to comply with Orders of 3^rd November 2016 and have charged them for contempt of Court orders.
   
4. The Applicants have charged the Contemnors for contempt of court by Notice of Motion pursuant to Order 14 Rule 42(1) of the National Court Rules.
   
5. The matter was heard on 10^th September 2020 and final submissions of counsel were made on 6^th October 2020. I reserved my ruling which I now deliver.
   

Background Facts

6. The Contemnors are the original occupants of land described as Allotment 39 Section 86, Lae and a TRA area which later became Allotment 14 Section 86, Lae, Morobe Province.
   
7. Between 17^th May 2005 and 20/10/2014, the Applicants obtained titles over the said properties.
   
8. On 5^th January 2012, the District Court in Lae, made an eviction order against the Contemnors and other Settlers to vacate the said premises within one month. The full terms of the orders are set out below:

1. The Complainants Application for Interim Order filed 14/12/2011 and these entire proceedings D.C No. 931 of 2011 are both dismissed.
   
2. John Miamil and all the settlers and occupants and their servants and agents residing on the land described as Allotment 14, Section 86, Lae the subject of State Lease, Volume 12, Folio 211 and on land the subject of TRP 2/205 after one month from the date of this order, that is, by Saturday 4^th February 2012.
   
3. A Warrant issued to members of the Police Constabulary to remove, with force if necessary, John Miamil and all the settlers and occupants and their servants and agents that continue to reside on Allotment 14, Section 86, Lae the subject of State Lease, Volume 12, Folio 211 and on land the subject of TRP 2/205 after one month from the date of this order, that is, by Saturday 4^th February 2012.
   
4. Each Party bear their own costs.”
   
9. The Contemnors and other settlers appealed the decision to the National Court.
   
10. On 3^rd November 2016, the National Court dismissed the Appeal and made the following orders:

“1. The Appeal is Summarily determined and dismissed for Want of Prosecution.

2. John Miamil and all the Settlers of Salamanda occupying:-
   
   1. Lot. 14, Section 86, Lae, Volume 12, Folio 211, being the land mapped in Survey Plan Cat. No. 31/605; and
      
   2. Lot. 39, Section 86, Lae, Volume 22, Follo 5, being the land mapped in Survey Plan Cat. No. 31/1500, (together referred to herein as “the Land”).
      

By themselves, their families, servants and agents or howsoever shall vacate the Land before or by 30 days from the date of this order.

3. The members of the royal Papua New Guinea Police Constabulary shall enter upon the Land, with force if necessary and evict John Miamil; all the Settlers of Salamanda, their families, servants and agents or howsoever and give vacant possession of the Land to the Christina Outreach Centre, its servants and agents after 30 days from the date of this order.
   
4. The Appellants pay the Respondent’s costs of the Appeal and of this application.”
   
11. The Applicants allege the Contemnors did not give up vacant possession and have failed to comply with the Orders of 3^rd November 2016. The Contemnors are therefore charged with contempt of Court pursuant to Order 14 Rule 42 of the National Court Rules.
    
12. The alleged Contemnors were arraigned and have denied the charge.
    

Issues

13. The issue for consideration is whether the Contemnors are guilty as charged for contempt of court.
    

Law

14. Contempt of Court is an offence not prescribed and a penalty for which is not specifically prescribed. Section 37 (2) of the Constitution states:
    

“ Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”

15. Order 14 Rules 37 to 50 of the National Court Rules provide for the filing of contempt charges and sets out the procedure. Rule 42 (1) provides:
    

“Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.”

Burden of Proof

16. The contempt proceedings are Criminal in nature. The Applicants have the burden of proof and are required to discharge the same to the entire satisfaction of the Court.
    

Evidence

17. The Applicants rely on the following documents:
    

Notice of Motion filed 25/11/2019

Statement of Charge filed 25/11/2019

Affidavit of Pastor John filed 12/08/2013

Affidavit of Pastor John Garu filed 25/11/2019

Affidavit of Pastor John Garu filed 03/06/2020

18. In response, the alleged Contemnors filed the following affidavits in defence:
    

Affidavit of John Miamil filed 10/03/2020

Affidavit of John Miamil filed 20/03/2020

Affidavit of Hanson Simon filed 18/08/2020

Submissions of Counsels

19. The counsel for the parties have been helpful in providing submissions for their respective parties.
    

Mr. Berem for the Applicants submits that the orders of the District court given 5^th January 2012 and the National Court given 03/11/2015 clearly ordered the contemnors to give up vacant possession. The Contemnors were duly served the orders. In defiance of the Court orders, the Contemnors continued occupation of the said property. Mr. Berem submits that the Contemnors resisted eviction and failed to give up possession despite numerous attempts by the Applicants. Mr. Berem submits that the Applicants have discharged the burden of proof, and the Accused be found guilty and punished.

20. Mr. Simon, Counsel for the accused Contemnors submitted that the Contemnors are not guilty and therefore should not be found guilty. Mr. Simon based his submissions on the following grounds:
    
    1. the Applicants Notice of Motion made an error in naming the wrong trial Judge who made the orders of 3^rd November 2016
    2. the orders of 3^rd November 2016 were properly discharged.
    100. the orders of 3^rd November 2016 were not intentionally and or deliberately disobeyed.
         

Reasons for Decision

21. The history of these proceedings is that late 2011, the Contemnor John Miamil and other settlers instituted proceedings in the District Court against the current Applicants in proceedings titled DC 931 of 2011. In that proceeding John Miamil was seeking restraining orders against the Applicants from evicting him and the settlers.
    
22. On 5^th January 2012, the District Court dismissed John Miamil’s proceedings. The Court made further orders evicting John Miamil and the other settlers living on the subject land.
    
23. John Miamil and other settlers appealed the decision to the National Court.
    
24. On 3^rd November 2016, the Appeal was dismissed for want of prosecution by the National Court. The Court made a further order that John Miamil and the settlers vacate the property within one month.
    
25. The Orders of 3^rd November 2016 was served on John Miamil for himself and on behalf of the settlers on or about December 2016.
    
26. By May 2017, with the help of the Morobe Provincial Government and the Police, the majority of the settlers have since vacated the property.
    
27. The Contemnors John Miamil and Dominic Kaima and a few other settlers have been on the property despite the eviction orders.
    
28. There is overwhelming evidence that the Contemnors are aware of the eviction orders. There is no dispute that they have been served copies of the Court Orders. There is also evidence that the Contemnors have defied the orders of the Court.
    
29. The Contemnors’ main defence or response to the contempt charge is that the Applicants did not have a genuine or legitimate title to the two portions of land the subject of these proceedings. The Contemnors continue to assert that the titles produced by the Applicants are either fake, defective or subject to forfeiture notices from the Department of lands.
    
30. The evidence from Pastor John Garu filed 3^rd June 2020 provides a response to the allegations raised by the Contemnors.
    
31. On receipt of additional evidence from Pastor John Garu, I am satisfied that the Christian Outreach Centre is currently the registered owner of the properties described as Allotment 14 Section 86 Lae, and Allotment 39 Section 86 Lae.
    
32. However, I am not convinced that the charge for contempt is proven to my satisfaction. I note there are discrepancies in the way the terms of the orders were obtained, and the anomalies contained in the two titles. I take note of the reasons advanced by the Contemnors which create reasonable doubt on the guilt of the Contemnors. My reasons for decision are set out below.
    
33. Firstly, the initial order of the District Court given on 5^th January 2012, did not provide a description of one of the properties. The order described the first property as Allotment 14 Section 86 Lae, and the second property as “TRP2/205”, TRP 2/205 did not have a proper description, when the order was made.
    
34. The evidence shows “TRP 2/205” became “Allotment 39 Section 86 Lae” when a State lease was issued by the Lands Department on 20^th October 2014, that is more than three (3) years after the initial eviction order was granted 5^th January 2012.
    
35. Interestingly, the Orders of 3^rd November 2016 expressly contains the description of both properties. There is however no explanation of how the description of property Allotment 39 Section 86 Lae was allowed to find its way into the Court orders. When the initial orders were obtained, the Applicant was not registered as owner of the property Allotment 39 Section 86 Lae. It appears when the orders were drafted, the Applicants inserted the new description “allotment 39 section 86, Lae” onto the orders without any proper amendment or variation of the previous orders. To this end, the orders in my view did not correctly reflect the status of the properties the subject of the eviction orders.
    
36. The second anomaly I find relates to the area of the property, Allotment 14 Section 86, Lae. The State Lease or Title over this property was issued on 17^th May 2005. The owners copy of the original Title Deed contains an area of 0.221 hectares, that is 2210 square meters. I note the area was recently amended to read “2 hectares” or 20,000 square meters on 18^th March 2017. The change in the size of the property was done after the orders of both the National Court and the District Court. The entries column of the title deed is not produced or tendered into evidence. This makes it difficult for me to know whether the amendments were even entered on the official register of titles kept in the office of Registrar of Titles. This difference in the size of the land is substantial and far too big to ignore. It is not unreasonable to conclude that the Applicants land was only restricted to 2210 square meters, and not 2 hectares, when the eviction orders were made. In the circumstances, it is not safe to conclude that the Contemnors were residing inside the boundary of the Applicant’s property.
    
37. The orders were obtained before the amendment was made to the title deed to enlarge the area. Given this scenario, it is not just to find the Contemnors guilty for contempt of Court.
    
38. Further I note from evidence that the property Allotment 14 Section 86 Lae has been a subject of a forfeiture Notice from the Lands Department. Pastor Garu explained that the Forfeiture Notices were incorrectly issued, and the matter has since been resolved. That may be so, but the State Lease itself speaks volumes. The State Lease was issued on 17^th May 2005. It has an improvement clause that states that the property be improved to the minimum value of K15,000.00 within five (5) years. Five (5) years would have lapsed by May 2010. There is no evidence that the improvement covenant has been complied with. It is not surprising that the State has issued those forfeiture notices.
    
39. Given these discrepancies and for the reasons given, I am not satisfied that the Applicants have proven the charge of contempt of court against the Contemnors. I find the Contemnors not guilty of the charges.
    

The Future

40. A finding of not guilty does not end the proceedings. The Orders of 3^rd November 2016 remain in force and are effective. For clarity, the Applicants are now the registered owners of the properties Allotment 14 Section 86 Lae and Allotment 39 Section 86 Lae. The errors on title and matters of forfeiture are clarified by Pastor John Garu. If there are issues concerning the titles, it will be firstly a matter for the Lands Department to deal with. If the Contemnors take issue with the titles, it is a matter for them to take it up at appropriate forums to deal with. After today’s ruling there should not be any confusion or misunderstanding. The Contemnors must, if they are still on the subject properties, comply with the orders of court.
    

Cost

41. Generally, cost would follow the event, that is, the successful party is entitled to cost. In the present case, the prosecution of contempt of Court orders has been dismissed. The application is dismissed at the court’s discretion. There are good reasons to bring the application in the first place. In the circumstances, and in exercise of my discretion, I will make no order as to cost against any party.
    

Formal Orders

1. The Applicants application for contempt is dismissed.
2. The accused Contemnors be discharged.
3. The Orders of 3^rd November 2016 are extended for compliance by the Contemnors and other Settlers.
4. The Contemnors and other Settlers shall have until 31^st March 2021 to vacate the premises.
5. The Parties shall bear their own costs.
6. Time be abridged.
   

________________________________________________________________Henson Lawyers : Lawyers for the Appellant/contemnors

Berem Lawyers : Lawyers for the Respondents/Applicants