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Boga v Yama [2021] PGNC 94; N8848 (31 May 2021)

N8848

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 939 OF 2019

BETWEEN:
Dr FIGA BOGA, MD, RAMU DEVELOPMENT FOUNDATION LIMITED
Plaintiff

AND:
HON. PETER YAMA as GOVERNOR OF MADANG PROVINCE
First Contemnor/Defendant

AND:
MADANG PROVINCIAL GOVERNMENT
Second Contemnor/Defendant

Madang: Narokobi J
2020 : 17^th December
2021: 31^st May

CONTEMPT – disobedience contempt – alleged failure to comply with court order: failure to reinstate the Plaintiff as a director of a company – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate.

The Plaintiff is a director of a company owned by the Second Defendant/Contemnor, the Madang Provincial Government. He was removed as a director by the agents of the Second Defendant/Contemnor in the company records at the Investment Promotion Authority. The court ordered that he be reinstated, amongst other orders and the records reflect the status quo. The order was not complied with by the time required for compliance and the Plaintiff issued contempt proceedings. The Defendants/Contemnors pleaded not guilty.

Held:

(1) Proceedings for contempt are criminal in nature and the court must be satisfied beyond reasonable doubt that the three elements of the offence have been proven to exist:

• the order was clear and unambiguous;
• it was properly served; and
• there was a deliberate failure to comply.
  

(2) The first element was satisfied in that the order was clear and unambiguous: it required the Defendants/Contemnors to reverse their decision of 17 September 2017.

(3) The second element was not satisfied because the order was not properly served on the First and Second Defendants/Contemnors. Orders which required subjects of the order to perform a positive act must be personally served so that they are aware of the precise terms and nature of the order.

(4) Since the second element was not made out, the third element of deliberate failure naturally and consequently was not proven.

(5) Accordingly, the Defendants/Contemnors were found not guilty.

Cases Cited:
Papua New Guinea Cases

Independent Public Business Corporation of Papua New Guinea v Motor
Kelola v Augerea [2019] PGSC 52; SC1829
Peter Luga v Richard Sikani and The State (2002) N2286
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303
Tutuman Development Ltd v Growmax (PNG) Ltd (2015) SC1407
Vehicles Insurance Ltd [2015] PGNC 200; N6101

Overseas Cases

Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381

This is a ruling on a proceeding for contempt of court.
Counsel

B Lai and D Dusava, for the Plaintiff
T M Ilaisa and B Lomai, for the Defendants/Contemnors

JUDGEMENT

31 May, 2021

1. NAROKOBI J: This is the court’s judgement on a contempt proceeding initiated by Dr Boga Figa, the Managing Director of Ramu Development Foundation Ltd (hereafter the Plaintiff) against Honourable Peter Yama, Governor of Madang Province (First Defendant/Contemnor) and Madang Provincial Government (Second Defendant/Contemnor).
   
2. The Second Defendant/Contemnor is represented by Mr. Marcus Kachau the Acting Provincial Administrator of Madang Provincial Government.
   

A BACKGROUND

3. The background of the case can be seen from reading the Statement of Charge which contains the following charge against the two defendants/contemnors:
   

“The First Contemnor Honourable Peter Yama, Governor of Madang is charged that:

a) He was always fully aware of the existence of the National Court Orders of 27th March 2018 and 23rd November 2019 in the Plaintiff’s proceeding under O.S. No. 954 of 2017 of which he is the First Defendant, more particularly paragraphs 1, 2 and 3 of the said Court Order of 23rd November 2019 which order that he comply with the earlier order of the same Court made on 27th March 2018 by 12 noon 5th December 2019 as follows:

1. Defendants shall comply with order 3 of 27th March 2018 by 12 noon on 5th December 2019.

2. The Defendants shall by 12 noon December 2019, reinstate all persons including the Plaintiff to their respective positions occupied prior to the decision of the Madang Provincial Executive Council (MPEC) dated 1st September 2017.

3. The Defendants shall take all steps necessary to ensure that by 12 noon on 5th December 2019, the official records of Ramu Development Foundation Limited in the Office of the Registrar of Companies shall show the re-instatement of the Plaintiff and the Board of Directors as ordered by this Court Order on 27th March 2018.

b) He knowingly or being fully aware of the existence of both Orders of 27th March 2018 and 23rd November 2019 and the requirement to comply with he said terms of both Court Orders and by not taking any active steps to comply with the said Orders in particular the Order of 23rd November 2019 has demonstrated utter contempt of the said Orders in the form of disobedience contempt.

c) He knowingly and with the intention to disobey the Court Order of 23rd November 2019 took no active steps to comply with paragraphs 1, 2 and 3 of the said Court Order by the date for compliance on 12 noon 5th December 2019 which demonstrates utter contempt and lack of respect for the court process and the requirement to obey Court Orders.

d) He has intentionally disobeyed the Court Order of 23rd November 2019 without just cause or lawful excuse.

e) He has interfered with the administration of justice by disobeying the Court Order of 23rd November 2019 which has frustrated the observance of the Court Order of 27th March 2018.

f) He is the chairman of the Madang Provincial Executive Council (MPEC) and as such occupies the official position of the political head of the Provincial Government and thus is responsible for ensuring that the Court Order of 23rd November 2019, is fully complied with which he has failed to do.

g) He has thereby committed Contempt of Court contrary to Section 155 (6) of the Constitution of Papua New Guinea and the powers of the Court generally; and

h) As such by reason thereof, he be found guilty of Contempt of Court and be punished according to law.

The Second Contemnor Madang Provincial Government is charged that:

i) It was fully aware of the existence of the National Court Orders of 27th March 2018 and 23rd November 2019 in the Plaintiff’s proceeding under O.S. No. 954 of 2017 of which it is the First Defendant, more particularly paragraphs 1, 2 and 3 of the said Court Order of 23rd November 2019, which ordered that it comply with the earlier order of the same Court made on 27th March 2018 by 12 noon 5th December 2019 as follows:

4. Defendants shall comply with order 3 of 27th March 2018 by 12 noon on 5th December 2019.

5. The Defendants shall by 12 noon December 2019, reinstate all persons including the Plaintiff to their respective positions occupied prior to the decision of the Madang Provincial Executive (MPEC) dated 1st September 2017.

6. The Defendants shall take all steps necessary to ensure that by 12 noon on 5th December 2019, the official records of Ramu Development Foundation Limited in the Office of the Registrar of Companies shall show the re-instatement of the Plaintiff and the Board of Directors as ordered by this Court Order on 27th March 2018.

j) It knowingly or being fully aware of the existence of both Orders of 27th March 2018 and 23rd November 2019 and the requirement to comply with the said terms of both Court Orders and by not taking any active steps to comply with the said Orders in particular the Order of 23rd November 2019 has demonstrated utter contempt of the said Orders in the form of disobedience contempt.

k) It knowingly and with the intention to disobey the Court order of 23rd November 2019 took no active steps to comply with paragraphs 1, 2 and 3 of the said Court Order by the date for compliance on 12 noon 5th December 2019 which demonstrates utter contempt and lack of respect for the court process and the requirement to obey Court Orders.

l) It has intentionally disobeyed the Court Order of 23rd November 2019 without just cause or lawful excuse.

m) It has interfered with the administration of justice by disobeying the Court Order of 23rd November 2019 which has frustrated the observance of the Court Order of 27th March 2018.

n) It has thereby committed Contempt of Court contrary to Section 155 (6) of the Constitution of Papua New Guinea and the powers of the Court generally; and

o) By reason thereof, it be found guilty of Contempt of Court and be punished according to law.”

4. On 30 November 2021 a hearing was conducted. The Contemnors were arraigned by having the charge read to them. They understood the charge. I asked them whether they pleaded guilty to the charge or not. They pleaded not guilty.
   
5. This is a civil proceeding, but it is criminal in nature, and the accused rights under Section 37 of the Constitution are observed (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533). The plaintiff therefore has the burden of proof and it must be discharged beyond reasonable doubt that is the standard of proof. Each of the elements of the offence of contempt of court must be proven beyond reasonable doubt through tendered evidence admissible in court.
   

B ISSUES

6. The main issue is, “whether the Defendants/Contemnors have committed disobedience contempt of court? The issue will be answered by considering whether each of the elements of disobedience contempt have been proven by the Plaintiff to the requisite standard.
   
7. There are various types of contempt proceedings. Contempt of court proceeding in this particular case, known as “disobedience contempt,” carries three elements:
   
   1. The order was clear and unambiguous;
   2. The order was properly served; and
   3. There was a deliberate failure to comply with the order.
      
8. These elements have been established in a number of cases in this jurisdiction, the one most often relied on is the case of Bishop v Bishop.
   
   

C EVIDENCE

1. Plaintiff’s Evidence
   
9. To prove its case, the Plaintiff relied on his own affidavit filed on 23 December 2019. I disallowed a further affidavit tendered by the Plaintiff as it was not included in the notice issued under Section 35 of the Evidence Act 1975, and its reliance and use was also objected to by the Contemnors.
   
10. The Plaintiff says the following in his affidavit filed on 23 December 2019, which I summarise now.
    
11. On 27 March 2018, the National Court made the following orders to determine the proceedings styled as OS 954 of 2017 between the same parties:
    

1. The relief sought in paragraph 1 of the originating summons is refused.

2. The relief sought in paragraph 2 of the originating summons is partially granted in that it is declared, subject to this order, that the decision of the Madang Provincial Executive Council (MPEC) of 1st September 2017, to the extent that it revoked the appointment of Daniel Aloi and other members of the board of directors and management of Madang Development Foundation Limited, including the plaintiff, was unlawful by virtue of the decision not being made in accordance with the Companies Act and in particular the procedures in that Act for removal of directors.

3. The relief sought in paragraph 3 of the originating summons is substantively granted in that it is ordered that all persons including the plaintiff whose appointment were revoked by the decision of the Madang Provincial Executive Council of 1st September 2017 shall be reinstated with effect from 12 noon on 5th April 2018.

4. The relief sought in paragraph 4 of the originating summons is refused.

5. For the avoidance of doubt this order takes effect at 12 noon on 5th April 2018.

6. The proceedings will be called for mentioned on 6th April 2018 at 9.00am to check compliance with this order and amongst other things hear the parties on the question of costs and any other unresolved issues.

12. Then on 23 November 2019, the National Court in Madang ordered that the orders made on 27 March 2018 should be complied with by 12pm on 5 December 2019. The orders were:
    

1. The Defendants shall comply with Order 3 of 27th March 2018 by 12 noon on 5th December 2019.

2. The Defendants shall by 12 noon on 5th December 2019, reinstate all persons including the Plaintiff to their respective positions occupied prior to the decision of the Madang Provincial Executive (MPEC) dated 1st September 2017.

3. The Defendants shall take all steps necessary to ensure that by 12 noon on 5th December 2019, the official records of Ramu Development Foundation Limited in the Office of the Registrar of Companies shall show the re-instatement of the Plaintiff and the Board of Directors as ordered by this Court Order on 27th March 2018.

4. The Defendants shall pay the plaintiff’s costs of the entire proceedings including the proceedings of today on a party-party basis which shall if not agreed be taxed.

5. The proceedings shall return to check compliance with these Orders on 11th December 2019 at 9.00am.

6. Time for the entry of the order is abridged.

13. The Plaintiff says at paragraph five (5) of his affidavit, and I quote:
    

“The above orders was made in the presence of Mr. Thomas More Ilaisa who was personally in attendance on 23^rd November, 2019. The Court order has also been served on the office of the Defendant’s lawyers, Thomas More Ilaisa Lawyers.”

14. The case was mentioned on 11 December 2019 to check for compliance. The Plaintiff says that the order was not complied with by then. He further says that there was no attendance by Mr. Ilaisa in court on 11 December 2019. This led the court to then order:
    
    1. It appears on the evidence presented that there has been non-compliance with the order of 23^rd November 2019.
    2. If the Plaintiff intends to bring any proceedings for contempt against the defendants, such proceedings shall be commenced by separate originating summons and if commenced by 31^st December 2019, it shall return for mention on 3^rd January, 2020 at 9:00am.
    3. These proceedings also return for mention on 3^rd January, 2020 at 9:00am for further compliance check and the hearing of any notice of motion by any of the parties filed in the interim.
       
15. The Plaintiff finally says that he believes that the Contemnors have no defence or lawful excuse for not complying with the orders issued to them on 23 November 2019 and are therefore guilty of contempt of court.
    
16. I refused their additional affidavit which sought to show that the decision was appealed on the basis that it was filed after the date required to file affidavits and no notice under Section 35 of the Evidence Act 1975 was given by the Plaintiff to the Defendants/Contemnors to rely on the affidavit. To be fair to the Plaintiff, I have taken judicial notice of the fact that the Defendants have appealed the National court orders of 23 November 2019.
    
    2. Defendants/Contemnor’s Evidence
       
17. In response the Defendants/Contemnors rely on their own evidence through the affidavits of Peter Charles Yama filed on 16 November 2020 and Markus Kachau filed on 19 November 2020.
    
18. Honourable Peter Yama says that he was never served the court order of 23 November 2019 in person and had no knowledge of the contempt proceedings until 13 November 2020 when he was briefed on some cases he had by Dr Ben Lomai his counsel. Apart from this, he has not been personally served any court orders issued in OS 954 of 2017.
    
19. Mr. Yama provides details of why the directors of Ramu Development Foundation Ltd was changed. It was done purely on commercial grounds.
    
20. Mr. Yama was cross-examined on his affidavit and he maintains that he was not served the orders.
    
21. Mr. Kachau, the Acting Provincial Administrator also says that he was not personally served with a sealed copy of the order that the plaintiff is alleging the Madang Provincial Government breached, that is the order of 23 November 2019. If he was served the order, he would have complied with it.

D. FINDINGS OF FACTS, THE LAW AND APPLICATION OF LAW TO THE ISSUES

22. I must now address my mind to what the facts and the law says in relation to the issues.
23. If I am satisfied that the orders are clear, I must then determine whether they were properly served. If they were properly served, the next consideration is whether their disobedience was wilful. The evidence must satisfy me beyond reasonable doubt that each of the elements of the offence have been made out.
    
24. I have little difficulty in finding beyond reasonable doubt that the terms of the order was clear and unambiguous. It simply required the Defendants to reverse the decision they made in their meeting of 17 September 2017 and reinstate the status quo. The orders sought in the Originating Summons in OS No 954 of 2017 reflected the Provincial Executive Council’s (PEC) resolution that was challenged. In any case, if the Defendants/Contemnors really did not understand the terms of the orders, the orders were served on their lawyers on record at that time and they should have sought clarification from the court if they were serious in complying with the court order. To now say that the order was not clear seems to me a convenient explanation for not complying with the order in the first place. On that basis, I am satisfied that, this element has been proven beyond reasonable doubt.
    
25. The second element is in relation to service. It is not disputed that the Defendants/Contemnors were not personally served the court orders. It is also not disputed that the orders were served on the Defendants/Contemnor’s lawyers on record at the time in OS 954 of 2017. The question I must settle is whether service on their lawyer is proper service to establish contempt against an alleged contemnor. It goes to the question of knowledge of the order and the intention of disobeying such orders.
    
26. In Bishop v. Bishop, Barnett J said at p545:
    

"To sustain an action for contempt of a court order there must be proof beyond reasonable doubt that it has been properly served "upon the alleged contemnor":.. Mere technical service will not be sufficient as the major element of the offence is that it must be a wilful refusal to obey the order."

27. In Luga v Sikani, Commissioner of Correctional Services (No 1) (2002) N2285, although it was overturned on appeal (Sikani v Luga (2005) SC807) the Contemnor was found guilty after the orders were personally served on him as well as on his lawyers and he did not comply with them.
    
28. Hartshorn J made the following useful observations on service of court orders, which relates to contempt by disobedience in Kelola v Augerea (2019) SC1829:
    

“68. I make reference in this regard to the requirement for a contemnor to be properly served with the order which he later is alleged to have breached: Bishop v. Bishop Bros [1988-89] PNGLR 533; Tutuman Development Ltd v. Growmax (PNG) Ltd (2015) SC1047; Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited and Ors (2015) N6101 and Geoffrey Vaki v. Matthew Damaru (2016) SC1523. As there was no evidence of the second appellant being properly served or at all before the National Court, I am satisfied that the appeal of the second appellant should be upheld.”

29. In Tutuman Development Ltd v Growmax (PNG) Ltd (2015) SC1407 the court explained:
    

“11. Further, one of the authorities that was followed by Barn]ett J, was Ronson Products Ltd v. Ronsen Furniture Ltd [1966] 1 Ch. 603. At p614, Stamp J in considering the distinction between an order to do an act and an order prohibiting an act stated that:

"If a man be ordered to do an act, so that his failure to do it may lead him to prison, justice requires that he know precisely what he has to do and by what time he has to do it,....."

"The practical difference between an order under which a positive act is to be done and one where an act is prohibited must lead to the conclusion that the former class of order ought not to be enforced against a director unless he has been served with it so that he, like the company, knows precisely what is to be done and the period during which it has to be done."

12. In this instance the 1/7/11 Order required amongst others, the return of vehicles, units and equipment. These are positive acts that are required to be performed. In our view, the comments of Barnett J, and Stamp J as to service upon a contemnor director, are apposite to the circumstances of this case.”

30. In Independent Public Business Corporation of Papua New Guinea v Motor Vehicles Insurance Ltd (2015) N6101, an order which was alleged to have been breached by the partners of a firm was served on their registered office. Hartshorn J in that case followed the Supreme Court in Tutumang and said:

“15. As to the contention of the plaintiff that some if not all of the contemnors were aware of the restraining order, it may be that a contemnor is aware that an order has been made particularly if he is a party to the proceeding in which the order is made. Similarly, it will likely be the case that a defendant will be aware generally of claim to be made against him before he is personally served with either a writ of summons, originating summons or petition. Being aware of an order made, is not however, the same as being put on notice of the precise terms of an order, that if breached could result in serious consequences, such as imprisonment. It is in this context in my view, that the statement of Barnett J in Bishop (supra) as to proper service upon a contemnor should be read.”

31. This would address the contention that even if I accept the Plaintiff’s submission that the Defendants/Contemnors were aware of the orders because they filed an appeal, it does not address the pertinent point that Hartshorn J made, that it is “not however, the same as being put on notice of the precise terms of an order, that if breached could result in serious consequences, such as imprisonment.” Personal service is required where a positive act is required to be done, due to the serious consequences for not following the order.
    
32. In this case, the Defendants/Contemnors were required to perform a positive act – they were to rectify the records of the Investment Promotion Authority by a certain date and time and therefore it is important that they are personally served before the time for the performance of the order expires so that the Defendants/Contemnors are made aware of the precise terms of the order and will prepare the appropriate documentation to be sent to IPA to rectify their records. Wilful disobedience can then be attributed to the Defendants/Contemnors as they knew of the existence of the order and did not act on it within the required time. Such requirement was established in the English case of Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381 which the Supreme Court followed in Bishop v Bishop.
    
33. There may have been a failure by the Defendants/Contemnor’s lawyers to communicate the terms of the order to them after they received the orders. Or he could have brought it to their attention? I do not know. The Defendants/Contemnors say that this is not adequate service on them. They would have complied with the orders if the orders were brought to their attention. Should I find that there was “constructive knowledge of the order” as it was served on the lawyers on record? Since the standard of proof is higher than in a civil matter, I would be assuming that the lawyers have brought the order to his client’s attention and they understood the precise terms of the order. Such an assumption in the face of denial by the Defendants/Contemnors would be unsafe for me to rely on to return a verdict of guilt. It may be safe to take this course where the standard of proof is on the balance of probability, but here it is one of proof beyond reasonable doubt. I will therefore give the benefit of the doubt to the Defendants/Contemnors and absolve them from the charge on the basis of their evidence that they were not personally served and therefore not aware of the precise terms of the order.
    
34. It is therefore not necessary for me to consider the final element of the charge as to whether the failure to comply with the order was deliberate.
    
35. In light of the foregoing, I return a verdict of not guilty on the charges for both the First and Second Defendants/Contemnors.
    

E. CONCLUSION AND COSTS

36. To conclude, I say in passing that a court of competent jurisdiction has made an order, and it has not been set aside, varied, stayed or quashed by the Supreme Court through an appeal or review, at least in so as far as I am aware and it is therefore incumbent upon the parties to ensure compliance with the order. If the terms of the order are not understood than it is the duty of the party who is unsure of the terms of the order to seek clarification from the court as soon as it is practicable, but preferably before the expiry of the time stipulated by the order for the act to be done by.
    
37. Since the order was actually served on the Defendants/Contemnor’s lawyers, they should have brought it to the attention of their clients as they are required to do, I will order that the Defendants/Contemnors bear the costs of this proceedings to be taxed if not agreed.
    

F. ORDERS

38. Consequently, the orders I make are:
    

(1) The First and Second Defendants/Contemnors are found not guilty of the contempt charges against them.

(2) The Defendants/Contemnors shall pay the Plaintiff’s costs of and incidental to the proceedings in relation to the contempt charges, to be taxed if not agreed.

(3) The proceedings are determined and the file is closed.

________________________________________________________________

B.S Lai Lawyers: Lawyers for the Plaintiff

Thomas More Ilaisa Lawyers: Lawyers for the First and Second Defendants/Contemnors