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Nondi v Powi [2023] PGNC 499; N10666 (8 December 2023)

N10666

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 106 OF 2023

BETWEEN
WAMBI NONDI, LASA MAINU, GIBS SIRI
& PETER YAMUNA
Plaintiffs

AND
HON. WILLIAM POWI - GOVERNOR FOR
SOUTHERN HIGHLANDS PROVINCE
First Defendant

AND
JOSEPH KUNUKUNU, JACK KIPOI,
FRANCIS WALIPA, JACOB IKI
Second Defendants

AND
LEO VALI – SOUTHERN HIGHLANDS
PROVINCIAL ASSEMBLY CLERK
Third Defendant

AND
JERRY DAVID – ADMINISTRATOR,
SOUTHERN HIGHLANDS PROVINCE
Fourth Defendant

Mt Hagen: Toliken J
2023: 08^th December

PRACTICE AND PROCEDURE – Contempt of court – Application to reopen and adduce additional evidence and make further submission – principles for reopening case considered – evidence sought to be admitted always available to plaintiffs – not fresh evidence - motion denied and dismissed – National Court Rules, Order 12 Rule 1, Order 14 Rules 41, 42, 43, 44.

PRACTICE AND PROCEDURE – Contempt of court – application to dismiss proceedings for not disclosing a reasonable cause of action, frivolity, vexatiousness, and abuse of process – reasonable cause of action disclosed by Originating Summons and Statement of Charge – facts alleged to constitute contempt clear and unambiguous – motion to dismiss denied – National Court Rules, Order 12 Rule 40 (1).

Cases Cited:

Papua New Guinean Cases
Rabaul Shipping Ltd. -v- Hossin (2014) N5527
Streets (PNG) Pty Ltd -v- Branfill Investments Ltd [1988] PNGLR 239
Top Brat Trading Ltd -v- PNG Toner and Ink Supplies Ltd (2022) N9814

Overseas Cases.
Reid v Brett (2005) VSC 18

Counsel
D Gonol, for the Plaintiffs
A Baniyamai, for the First, Third & Fourth Defendants
L Tangua, for the Second Defendants

JUDGMENT

08th December 2023

1. TOLIKEN J: This is my short ruling on two motions filed separately by the Defendants and the Plaintiffs in respect of proceedings filed by the Plaintiffs to punish the Defendants for contempt of court pursuant to Order 14 Rules 41, 42, 43, 44 of the National Court Rules.
   
2. The contempt proceedings stem from orders by Makail J dated the 4^th of November 2019 in OS (EP) No. 2 of 2019 between Samson Wereh, District Administrator and CEO for Ialibu Pangia District and Joseph Cajetan, Acting Provincial Administrator for Southern Highlands, and the Southern Highlands Provincial Government. The case was over the elections of two separate groups of Presidents for the various Local Level Governments (LLGs) within the Ialibu/Pangia District. One group was elected in Ialibu in a meeting chaired by Mr. Wereh in his capacity as District Administrator on 7^th August 2019. The other group of Presidents were elected in Mendi on 14 August 2019 in a meeting convened and charged by Mr. Cajetan in his capacity as Acting Provincial Administrator.
   

3. His Honour Makail J ordered that (1) the meeting conducted in Mendi was illegal, null and void ab initio for being inconsistent with Section 12 (1) (a) and (b) of Local-Level Government Administration Act and contrary to a Ministerial Directive of the Minister for Inter-Government Relations, (2) The suspension of Mr. Wereh by Mr. Cajetan on 5^th August 2019 was illegal, null and void ab initio for being in direct breach of Section 234 of the Organic Law on Provincial and Local-Level Governments and Ministerial instructions, (3) that Mr. Wereh shall in accordance with Circular Instruction No. 2 of 2019 conduct the election of presidents in Ialibu-Pangia Electorate in accordance with Section 23 of the Local-Level Government Administration Act, and (4) that Mr. Cajetan’s Circular Instructions of 5^th August 2019 for the first meeting to be held on Mendi was inconsistent with Section 12 and Section 23 of the Local-Level Government Administration Act and therefore null, void and of no effect.

4. The Defendants in the instant case filed a Notice of Motion on 13^th September 2023 to have the Plaintiffs’ proceedings dismissed for not disclosing a reasonable cause of action, being frivolous, vexatious and an abuse of process pursuant to Order 12 Rule 40 (1) of the National Court Rules (NCR).

5. I heard full arguments on this motion on 25^th October 2023 and reserved to 10 November 2023. I, was, however, unable to make a ruling on that date and adjourned to 23^rd November 2023.

6. In the meantime, on 1 November 2023 the Plaintiffs filed a Motion to re-open the hearing to enable them to introduce fresh evidence and make further submissions.

7. I heard the Plaintiffs’ motion and adjourned to today.

8. I will decide on the Plaintiffs’ motion first and then proceed to the Defendants’ motion.

Motion to Re-open

9. The National Court has inherent power to re-open a case pursuant to Order 12 Rule 1 of the National Court Rules. (See Rabaul Shipping Ltd. -v- Hossin (2014) N5527).

10. The Court in its discretion may reopen a case to introduce fresh evidence where –

1) The fresh evidence, if valued would probably affect the result.

2. The fresh evidence could not with reasonable diligence have been adduced before.

3) It was not omitted by inadvertence.
4) It was not omitted by deliberate election.

5. The effect of the fresh evidence on the state of the case when it was made would have been different.
6. The fresh evidence is not merely a conformation of the Plaintiffs’ case and,
7. The fresh evidence has to be admitted in the interest of justice. (Streets (PNG) Pty Ltd -v- Branfill Investments Ltd [1988] PNGLR 239; Top Brat Trading Ltd -v- PNG Toner and Ink Supplies Ltd (2022) N9814.
   

11. The case of Reid v Brett (2005) VSC 18 (though persuasive only) cited to me by Mr. Gonol states the requirements this way:

(1) The new evidence is so significant that it needs to be included and presented and it is in the interest of justice to do so.

(2) If the new evidence were to be accepted, it would most probably affect the result of the case.

(3) The new evidence would not have been reasonably discovered earlier.

(4) The other party would not be prejudiced by the late admission of the new evidence.

12. The Plaintiffs sought the following orders in their Notice of Motion of

1^st November 2023:

1. That the hearing of the Defendants’ principal motion filed on 12 September 2023 be re-opened.
2. That the Plaintiffs be allowed to introduce fresh but relevant evidence which were not before the Court on 25 October 2023.
3. The Plaintiffs be allowed to make further submissions, both oral and written in addition to the oral submissions made on 25 October 2023.
   

13. Now, have the plaintiffs met the requirements to re-open and introduce fresh evidence? This question ought to be considered in the context of what was before me on 25 October 2023 which was the Defendants’ motion to dismiss the Plaintiffs’ proceedings under Order 12 Rule 40 (1) of the National Court Rules for frivolity, vexatiousness, and abuse of process and for non-disclosure of a cause of action. This was not a hearing into the merits of the case but rather an exercise on the part of the court to ascertain whether the Plaintiffs’ substantive proceedings are competent to progress to the hearing on the merits. If the originating process does not disclose a reasonable course of action (one that the court is seised of jurisdiction) or is frivolous, vexatious or an abuse of process then the proceedings will be dismissed. If not, then the matter will proceed to trial where all relevant evidence will have to be filed or adduced.

14. So, what exactly is the fresh and further evidence that require to be introduced to warrant the case to be re-opened?

15. In support of their motion the Plaintiffs filed the following:

(i) An affidavit in support by David Gonol – Counsel for the Plaintiff filed 1^st November 2023

(ii) Affidavit in support by Samson Wereh filed on 1^st November 2023

(iii) Affidavit in support by Wambi Nondi filed 1^st November 2023.

16. It must be noted that the Plaintiffs, particularly Messrs. Wambi Nondi, Laisa Mainu, Gibs Siri and Peter Yamuna, filed affidavits in support of the alleged contempt on 11^th May 2023. Mr. Wereh did not dispute the fact that he was the plaintiff in the proceedings from which these contempt proceedings emanated.

17. Mr. Gonol does not point me to any relevant facts in the supporting affidavits to support the Plaintiffs’ motion to re-open firstly, and secondly, what fresh evidence the Plaintiffs want the Court to admit in order to assist it in making a decision in respect of the Defendants’ motion to dismiss. The Plaintiffs should not expect the court shift through the voluminous materials in their supporting affidavits, which, if I may say, are relevant to the substantive but not so for the Defendants’ motion to dismiss.

18. Furthermore, was this evidence available to the Plaintiffs at the time they filed their affidavits in support of the alleged contempt? Mr. Gonol does not address this point in his submission. With due diligence as submitted by Mr. Baniyamai, the materials or evidence sought to be admitted are not in my opinion fresh. They were easily available to the Plaintiffs and counsel. Mr. Wereh was always available and would and should have disposed to an affidavit at the first instance. I am also certain that the numerous annexures to his affidavit were similarly available to him. And the same would apply to Mr. Wambi Nondi. I am of the view also that the so-called fresh evidence – whatever it is – was omitted by inadvertence and that they would merely be a confirmation of what was already before the court.

19. As to the requirements of interest of justice and prejudice, I do not think these requirements have any utility or relevance at this stage because we are not dealing with the merits of the case at all.

20. Finally, regarding the claim by Mr. Gonol that he was caught by surprise, I am of the view that this is only half true. Half true – because the Defendant’s Notice of Motion was filed on 13^th September 2023. He was therefore not unaware of the course the Defendants were going to take. And I do agree that submissions by the Defendants were handed up in Court during hearing of the Motion on 25^th October 2023 but Counsel ought to have anticipated the arguments that his friends were going to advance. If he did not, then that was a lapse on his part.

21. I am therefore not satisfied that the Plaintiffs have discharged the requirements necessary for me to re-open or admit fresh evidence.

Motion to Dismiss

22. I now moved to the Defendants’ motion to dismiss the Plaintiffs’ suit for not disclosing a reasonable cause of action, frivolity and vexatiousness, and abuse of process.

23. I must say at the outset that the proceedings are not frivolous or vexatious, nor do they not disclose a reasonable cause of action. These proceedings relate to the very important business of electing Presidents of Local-Level Governments who shall in turn be members of the Provincial Assembly. Some may even become members of the Provincial Executive Council.

24. There is therefore no question in my mind that there is a reasonable cause of action.

25. However, this not your normal run of the mill case. Rather these are contempt proceedings which are criminal in nature and attract severe penalties including imprisonment.

26. It must be noted that Contempt of Court is the only offence for which the law does not prescribe a penalty (Section 37 (2) of the Constitution) unless Parliament legislates for the offence and provides penalties as it has done in some subordinate legislation such as the District Court Act, s 277.

27. Because of this, a charge for Contempt must be couched in clear and unambiguous terms. The facts relied upon by the Plaintiffs must alert the contemnor (s) as to what exactly he is being accused of for him to prepare his defence and enter a plea.

28. These proceedings are for alleged contempt not in connection with proceedings in the Court. Hence, they are properly commenced under Order 14 Rule 42 (2) of the National Court Rules, that is by Originating Summons. A Statement of Charge is also filed with the originating summons hence complying with Order 14 Rule 43 which provides that a Statement of Charge can either be filed with the Originating Summons or subscribed to the Originating Summons.

29. The question at this point, however, is not whether the proceedings are procedurally correct but whether the facts alleged to constitute the contempt have been stated in clear and unambiguous terms. If they are not then it ought to be dismissed, struck out or an order for amendment can be made.

30. I must say at this point that I am not concerned about the merits of the case and whether the affidavits filed to date support the alleged contempt. These are matters for the proper trial.

31. Having perused the Originating Summons I do find that the facts alleged to constitute the contempt by the Defendants are sufficiently and succinctly stated.

32. They are not ambiguous nor is there any uncertainty in what is being alleged. The defendants are clearly and sufficiently alerted to those facts to enable them to prepare their defence.

33. What about the arguments that the Statement of Charge is insufficient and ambiguous?

34. To that I say this. The Statement of Charge in my respectful view is analogous to supporting facts to an indictment in a criminal trial. It provides the material facts but not the evidence to support the charge for contempt which is found in the Originating Summons itself.

35. My perusal of the Statement of Charge shows that those basic necessary facts which support the charge, and which will be put to the Defendants, are clear and unambiguous.

36. The Defendants can discern and understand from the Originating Summons and the Statement of Charge what is being alleged against them and enter a plea when the charge is put to them.

37. Questions of whether the orders in question were served on the defendants are matters for the trial proper and evidence to that will be addressed at the trial.

38. In conclusion I rule therefore that these proceedings do disclose a reasonable cause of action, are not frivolous, vexatious or an abuse of process.

39. My Orders therefore are these:

1. The Notice of Moton by the Plaintiffs to reopen and admit fresh evidence filed on 1^st November 2023 is dismissed with costs to the Defendants which shall be taxed if not agreed upon.
   
2. The Notice of Motion to dismiss the proceedings filed by the Defendants on 13^th September 2023 for non-disclosure of a reasonable cause of action, frivolity, vexatiousness, and abuse of process is dismissed with costs to Plaintiffs which will be taxed if not agreed upon.
   
3. The matter is listed for directions on Friday 23^rd February 2024 at 9:30am
   

Ordered accordingly.
__________________________________________________________________
Danny Gonol Lawyers: Lawyers for the Plaintiffs
Baniyamai Lawyers: Lawyers for the First, Third & Fourth Defendants
Tangua Lawyers: Lawyers for Second Defendant