N5280
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 183 OF 2011

KEVEN MANASE
Appellant

V

THOMAS OPA
First Respondent/Applicant

NEWMAN SAI
Second Respondent

JOHN MAI
Third Respondent

TONY MAI
Fourth Respondent

Waigani: Cannings J
2013: 24, 31 July

CONTEMPT – disobedience contempt – alleged disobedience by appellant of National Court order requiring delivering up possession of a block of land – elements of offence.

The National Court dismissed an appeal on a land matter from an order of the District Court and ordered that the appellant (referred to in these proceedings as the contemnor) deliver up possession of the land and vacate it within one month. The first respondent then filed a notice of motion charging the contemnor with contempt of court for disobeying the order of the National Court.

Held:

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

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

(2)	The order was clear and unambiguous, the order was served on the contemnor and he deliberately failed to comply with it. The contemnor was found guilty.

Cases cited

The following cases are cited in the judgment:

Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763
Moses Vua v Francis Mavu (2008) N3294
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Peter Luga v Richard Sikani and The State (2002) N2286
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572

NOTICE OF MOTION

This is a ruling on a motion under which a party to civil proceedings was charged with contempt of court.

Counsel

K Manase, the appellant, in person
J N Tandawai, for the first respondent

31 July, 2013 

1. CANNINGS J: The first respondent, Thomas Opa, has charged the appellant, Keven Manase, with contempt of court and this is the court's ruling – the verdict – on whether the appellant (hereafter referred to as 'the contemnor', being a person charged with contempt) is guilty.

2. The contempt charge arises out of civil proceedings, DC No 1130 of 2010, the contemnor commenced against the first respondent in the Port Moresby District Court regarding ownership of a block of land at Nine Mile, National Capital District. On 29 August 2011 the District Court rejected the contemnor's complaint and ruled that the block belongs to Mr Opa and amongst other things ordered the contemnor to vacate the block. The contemnor appealed to the National Court and on 24 September 2012 Justice Kirriwom dismissed the appeal and made the following order:

1 The appeal is incompetent as being filed out of time and therefore dismissed.

2 The District Court orders of 24th [sic] August 2011 are reaffirmed.

3 The appellant shall cease any activities on the land in question and vacate the block by delivering possession of the block to the first respondent within one month from the date of this Order.

4 Costs in favour of the first respondent.

THE CHARGE

3. It is the alleged disobedience of the National Court order of 24 September 2012 which is at the centre of this case. By an amended notice of motion and statement of charge filed on 15 May 2013 Mr Opa charges the contemnor with contempt of court for failing without lawful justification or excuse to cease activities on the block and failing to vacate the block within the one-month period allowed by the Court.

PLEA

4. The contemnor concedes that he has not complied with the order but says that there are good reasons for this. He pleaded not guilty to the charge. 

EVIDENCE

5. The Court heard evidence from both sides as to the background of the matter. Mr Opa testified that he purchased the block in 2010 for the sum of K8,000.00 but when the contemnor complained that the land was his, the matter went before the Village Court, which decided in Mr Opa's favour on 26 May 2010. Mr Opa says that the District Court order of 29 August 2011 was the result of an appeal by the contemnor against the order of the Village Court.

6. The contemnor's evidence as to the procedural history is a little different. He states that the District Court order of 29 August 2011 was not the result of his appeal against the Village Court order but the result of a complaint that he filed in the District Court to try to clarify that the land was his. He states that the Village Court order had already been quashed by the District Court on 27 August 2010 and that that order was the result of his appeal.

7. On this issue of fact I find that the contemnor's version of events is the correct one. The District Court order of 29 August 2011 did not emanate from the contemnor's appeal to the District Court but from his complaint to the District Court. However, I consider that this finding of fact does not have any bearing on the status of the order of the National Court of 24 September 2012 that is now at the centre of the charge of contempt.

ELEMENTS

8. Proceedings for contempt are criminal in nature. For the contemnor to be found guilty of this sort of disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence:

(a)	the order was clear;
(b)	it was properly served; and
(c)	there was a deliberate failure to comply.

(See Peter Luga v Richard Sikani and The State (2002) N2286, Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447, Moses Vua v Francis Mavu (2008) N3294, Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763.)

(a)	Clear and unambiguous?

9. I accept Mr Tandawai's submission that the order was clear and unambiguous in that it unequivocally required the contemnor to, within one month of the date of the order, ie by 24 October 2012:

•	cease any activities on the land; and
•	vacate the block by delivering possession of the block of land to the first respondent, Mr Opa.

(b)	Properly served?

10. It appears that after the date that the order was pronounced in court numerous attempts to serve the written order on the contemnor failed. However I am satisfied beyond reasonable doubt that the order was served on him on 12 November 2012 (even though he failed to acknowledge its receipt). It is also relevant that the contemnor was in the courtroom when the order was pronounced by Justice Kirriwom and that a copy of the order has been served on the contemnor's lawyer, the Public Solicitor. The second element of the offence has been proven.

(c)	Deliberate failure to comply?

11. As I suggested in Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572 this element of a disobedience type of contempt charge gives rise to three issues:

•	Was there a failure to comply?
•	Who failed to comply?
•	Was it deliberate?

12. I find that there is undisputed evidence that the appellant is still living of the block of land. There has been and continues to be a failure to comply. Clearly the contemnor is the person who has failed to comply with the order. As to the third issue, it is apparent that Mr Manase still genuinely believes that the land is his as he paid for it. He believes that he has been done an injustice by the Village Court, the District Court and the National Court and that is why he feels justified, despite his full knowledge of the order, in not complying with the order of 24 September 2012. As I indicated in Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447 all that needs to be proven is that the act of non-compliance with the order was deliberate. I am satisfied beyond reasonable doubt that the contemnor has deliberately not complied with the Court's orders. The third element of the offence is proven. A guilty verdict must follow.

VERDICT

(1)	The contemnor, Keven Manase, is adjudged guilty of contempt of court, as charged in paragraphs 1 and 2 of the statement of charge filed on 15 May 2013 and is convicted of that charge and shall be punished.

(2)	The question of costs of the proceedings is reserved.

Verdict accordingly.
_________________________________________
Leo Lawyers: Lawyers for the First Respondent