N6583
	PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

EP NO02OF 2014

BETWEEN

PETER CHARLES YAMA 
Petitioner

AND

NIXON PHILLIP DUBAN 
First Respondent

AND

ADOLF DUANGHA 
RETURNING OFFICER 
Second Respondent

AND

ANDREW TRAWEN 
PNG ELECTORAL COMMISSIONER
Third Respondent

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail J
2016: 20th& 21st December 

ELECTION PETITIONS – PRACTICE & PROCEDURE – Contempt of Court – Motion for contempt – Alleged contempt arising from an election petition – Order for recount of votes – Alleged breach of order – Organic Law on National and Local-level Government Elections – Section 212 (1) (k) – National Court Rules – Order 14, rule 42 (1)

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Competency of motion for contempt – Grounds of – Power of Court to punish contempt – Jurisdiction of – Wrong jurisdictional basis pleaded –Vague, ambiguous and lack of facts pleaded in statement of charge – Service of Court order – Service of motion for contempt –Organic Law on National and Local-level Government Elections – Sections212 (1) (k) – National Court Rules – Order 14, rules 42 (1), 43, 44 & 45

Cases cited:

Andrew Kwimberi v. The State (1998) SC545
Elizabeth MandusWukawa v. Christine Gawi&The State (2015) N6024
Gaman Holdings Pty Ltd v. Labu Holdings Pty Ltd (2000) N2016
Ian Augerea v. Augustine Koroma& 13 Ors (2013) N5434
Ian Augerea v. Anton Yagama MP (2013) N5437

Counsel:

Mr.B. Lomai, for Applicant/Petitioner 
Mr. P. Mawa, for First Respondent
Mr. J. Simbala, for First and Second Contemnors
Mr. A. Kongri, for Third Contemnor

RULING ON OBJECTION TO COMPETENCY

21st December, 2016

1.	MAKAIL J: By a notice of motion filed on 25th October 2016 the contemnors, the Returning Officer, Mr. Simon Sinai, the then Electoral Commissioner, Sir Andrew Trawen and their counsel, Mr. Harvey Nii (“Objectors”) objected to the competency of a notice of motion for contempt (“motion for contempt”) filed by the petitioner/applicant.  The objection arises from an election petition commenced by the applicant which disputed the election of the first respondent as Member for Madang Open Electorate following a by-election.  On 6th August 2014 the National Court at Madang upheld the petition and ordered a recount of votes for the 2013 Madang Open Electorate by-election.  

2.	It was also the order of the Court that the recount shall include 6,116 ballot-papers found at a grave yard at the Madang Cemetery on or about 18th December 2013.  Mr. Sinai was appointed Returning Officer for the purpose of the recount of votes.  After an extension of time, on 30th September 2014 the recount was completed.  On 7th October, a report of the result of the recount was presented to the Court.  On the next day, 8th October the National Court accepted the result of the recount and declared the first respondent as duly elected Member for Madang Open Electorate.  

3.	It should also be stated that the motion for contempt against Mr. Sinai was filed on 25th September 2014 and in the case of Sir Andrew and Mr.Nii, on 26th September 2014.  The prosecution of the contempt charge against each contemnor was delayed because the applicant had sought a review of the decision of the National Court, which review was dismissed on 1st July 2015 by the Supreme Court for want of prosecution.  A subsequent application for leave to make a slip-rule application was made and refused on 17th December 2015. 

4.	The grounds of objection are these:

4.1.	The motion for contempt cites a wrong jurisdictional basis of the Court to punish the contemnors for contempt.  That is, rather than relying on Order 14, rule 42 of the National Court Rules, the applicant has relied on section 212 (1) (k) & (3) of the Organic Law on National and Local-level Government Elections (“Organic Law”) which states that “In addition to any matter under this part the National Court shall sit as an open court and may, amongst other things - …… punish contempt of its authority by fine or imprisonment.”and “The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.”

4.2.	Non-existence of order of 18th August 2014 which was alleged to have been breached by the contemnors. 	

4.3.	Conflicting orders allegedly breached by the contemnors.  That is, the motion for contempt refers to the order of 18th August 2014, which does not exist, and the statement of charge refers to an order of 12th August 2014.
4.4.	Failure to plead in the motion for contempt the specific duty imposed by the order of 6th August 2014 which the contemnors breached.

4.5.	Allegations of fact in the statement of charge of each alleged contemnor are vague, ambiguous and too general.  In addition, they are lacking in particulars, conflicting and confusing.

	4.6.	Lack of service of orders allegedly breached on by the contemnors.

4.7.	Lack of service of motion for contempt and statement of charge on each alleged contemnor.	

5.	I have heard submissions, read the written submissions of counsel for the contemnors and the materials for and against the objection.  I rule as follows:

Jurisdictional Basis of Motion for Contempt

6.	First, it must be stated at the outset that the question of jurisdiction is different from the question of practice and procedure for punishing contempt of Court.  The former concerns the power of the Court to punish contempt and the other, the process by which the punishment for contempt is dealt with.  

7.	In this case the objection is based on both questions.  The objectors object on the ground that the applicant has invoked the wrong law being section 212 (1) (k) & (3) of the Organic Law (supra) instead of Order 14, rule 42 of the National Court Rules as the jurisdictional basis for the motion for contempt.  

8.	However, the Court’s jurisdiction and exercise of power to punish contempt is derived from section 37 (2) of the Constitution which provides for the offence of contempt of Court but not defined by law.  And with respect, in my view section 212 (1) (k) of the Organic Law is a further provision which confers power or jurisdiction on the National Court in an election petition case to “punish contempt of its authority by fine or imprisonment.”This view is reinforced by subsection (3) which states that “The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.”

9.	However, apart from section 212 (1) (k), there are no other provisions in the Organic Law which provide for the procedure for commencing and prosecuting a motion or charge of contempt of Court.  The National Court Election Petitions Rules, 2002 (as amended) (“Election Petition Rules”) is neither helpful because it makes no provision for contempt of Court.

10.	In the absence of any expressed provision in the Election Petition Rules this is where Order 14, rules 37 to 50 of the National Court Rules become handy.  They provide an applicant with the necessary steps to invoke the Court’s power to punish contempt of Court.  For further discussions see Andrew Kwimberi v. The State (1998) SC545.  And there have been contempt proceedings commenced in election petition cases which adopted the procedure in Order 14 of the National Court Rules.  Some examples are Ian Augerea v. Augustine Koroma& 13 Ors (2013) N5434 per Cannings J and Ian Augerea v. Anton Yagama MP (2013) N5437 per Cannings J.

11.	In this case there is no dispute that the applicant has filed a notice of motion.  This complies with Order 14, rule 42 (1) (Procedure generally). Likewise, he has filed a statement of charge for each contemnor incompliance with Order 14, rule 43 (Statement of charge).  He has also filed affidavits in compliance with Order 14, rule 44 (Evidence).

12.	From these requisite documents filed pursuant to Order 14 (supra) the Court is now sitting as an open Court to hear the motion for contempt against each contemnor pursuant to section 212 (1) (k) & (3) of the Organic Law.

13.	It follows that the motion for contempt brought pursuant to section 212 (1) (k) & (3) of the Organic Law is well grounded and there cannot be any misunderstanding as to the Court’s jurisdiction to deal with the motion for contempt.  This power is in addition to the power of the Court to punish contempt under section 37 (2) of the Constitution.

14.	This ground of objection is accordingly, dismissed.

Non-existence of order of 18th August 2014

15.	The objectors’ submission that the motion for contempt must be dismissed because it is based on an order (order of 18th August 2014) that does not exist must fail because as submitted by the applicant’s counsel and I accept, it was an error.  That is, while there is no order of 18th August 2014, the correct order that should be referred to and subject of the motion for contempt is the order of 12th August 2014.

16.	This ground of objection is accordingly, dismissed.

Conflicting orders

17.	As to the submission by the objectors that the alleged contempt was based on conflicting orders, that is, the motion for contempt refers to the order of 18th August 2014 while the statement of charge in the case of each alleged contemnor refers to an order of 12th August 2014, hence contradictory and confusing, I accept the applicant’s submission that it was an error that the motion for contempt referred to the order of 18th August 2014.  As correctly conceded by the objectors, the only order in existence is the order of 12th August 2014.  This is the order which the applicant refers to in the statement of charge.

18.	This being the case, I am not satisfied that the error resulting in the conflicting orders and confusion is a serious defective in the pleading which seriously prejudices the objectors in their defence of the motion for contempt.

19.	This further ground of objection is dismissed.	

Failure to plead duty imposed by order

20.	The objectors’ submission that the order of 6th August 2014 did not set out the specific duty imposed on them and which was alleged to have been breached.  Thus, they could not be guilty of breaching it.  This submission suggests that the order is vague and ambiguous.  As the applicant’s counsel has submitted and I accept, the question of clarity and compliance are intertwined and can be a defence to the contempt charge (s).  The question is appropriately considered at trial after all the evidence has been adduced.

21.	This ground is accordingly, dismissed.

Vague, ambiguous lack of, conflicting and confusing pleading of allegations of fact in the statement of charge

22.	As to the objection on the grounds that the pleading of the allegations of fact in the statement of charge are vague, ambiguous and too general, I note the case of Gaman Holdings Pty Ltd v. Labu Holdings Pty Ltd (2000) N2016 per Injia DCJ (as he then was) stressed the importance of pleadings and what should be pleaded in the statement of charge.  He said that there must be a clear statement of relevant facts and grounds constituting the alleged contempt must be pleaded in the statement of charge and these includes the full name, description and address of the applicant, full name and description of the contemnor, and if a breach of an earlier Court order is relied upon a constituting the alleged contempt, it should set out clearly and precisely the terms of that Court order and the relevant facts alleged as constituting a break of that order.  

23.	A more liberal approach was taken by the Court in Elizabeth MandusWukawa v. Christine Gawi&The State (2015) N6024 where it was held that “There are no Rules of Court specifying the manner of drafting of a charge of contempt of court. Provided the charge, given all the circumstances in which it is drafted, served and set down for trial, conveys the gist of the alleged contempt and the contemnor understands the charge and the elements of the charge are clear, the charge will usually be regarded as adequate.”

24.	I prefer to take the middle line.  It is preferable but not necessary to plead the full name, description and address of the applicant.  Failure to plead them is not fatal and a ground sufficient to dismiss the charge because the statement of charge itself should sufficiently indicate the applicant as the complainant.  As for the contemnor, it is necessary to plead the name and description and preferably the address.  This is for the purpose of identifying the correct person or entity subject of the contempt charge.  Failure to plead them should be a basis for dismissal of the charge.

25.	Finally, I agree that relevant facts and grounds constituting the alleged contempt must be clearly set out in the statement of charge.  I would be looking for chronology of events short and concisely set out in the statement of charge and the description of the acts or omissions which constitute a breach of the Court order.  However, it may or may not be necessary to plead or restate by quoting the precise terms of the Court order.  If it is pleaded, it is sufficient.  If it is not, then as long as there is reference to the terms of the Court order and what the Court order required, that the contemnor act or desist from a particular conduct is, in my view, sufficient. While this is not under estimating or giving less prominence to the importance of contempt, I agree with Cannings J’s view that if the statement of charge “conveys the gist of the alleged contempt and the contemnor understands the charge and the elements of the charge are clear, the charge will usually be regarded as adequate.”

26.	I have considered each statement of charge apart from not stating the name, description and address of the applicant which I think are not necessary as there is sufficient reference to the applicant lawyers signing the charge on behalf of the applicant, I am satisfied that the information puts the contemnors on notice that the applicant is the complainant.  And it conveys the gist of the charge to the contemnors.  

27.	The way I see it is this, as to Mr. Sinai, the gist of the charge is that he failed to include the ballot-papers that were found at the Madang Cemetery in the recount as ordered by the Court on 6th August 2014 and further clarified on 12th August 2014.As to Sir Andrew, he failed to ensure that Mr. Sinai complied with the order of 6th and 12th August 2014.  In the case of Mr.Nii, he failed to advise Mr. Sinai and electoral officers involved in the recount to count the ballot-papers that were found at the Madang Cemetery during the recount of votes and further, derailing the recount process by filing numerous applications in the Supreme Court to challenge the National Court decision.  Those allegations to me are neither vague, nor ambiguous, too general and lacking but sufficiently clear for the contemnors to understand and respond at trial.

28.	As to the ground on conflicting and confusing pleadings, as I have found there is no order of 18th August 2014 and as correctly conceded by the contemnors, there is an order of 12th August 2014.  It was one of the orders that the applicant alleges was breached by the contemnors.  I am not satisfied that this ground is made out.  It is accordingly, dismissed.

Lack of service of orders allegedly breached by the contemnors

29.	As found the two orders subject of the motion for contempt are 6th and 12th August 2014.   The objectors contend that the motion for contempt should be dismissed because the applicant failed to personally serve the orders on them.  However, this contention is unsupported by evidence because none of them deposed in their affidavits that the applicant did not serve the orders on them.  On the other hand, the evidence acknowledges the existence of the orders and further that they were aware of them.  The orders directed the Electoral Commission to conduct a recount of votes and based on this, a recount was done.  And while there may be no proof that they were served the orders, there is no evidence from the contemnors denying being served the orders.

30.	I am not satisfied that this ground is made out.  It is accordingly, dismissed.

Lack of service of motion for contempt and statement of charge on each contemnor

31.	This ground must fail because there is evidence by way of an affidavit of service by the applicant sworn and filed on 19th December 2016 showing that he served the motion for contempt and statement of charge on Mr. Sinai on 27th September 2014 at the Madang Airport, same documents were served on Mr.Nii on 26th September 2014 at the Waigani National Court precincts and same for Sir Andrew at his office on the same date as Mr.Nii. This ground is dismissed.

Conclusion

32.	All the grounds of objections have been dismissed.  It follows the objection must also be dismissed.

Order

33.	The orders of the Court are:

1.	The objection to competency of the motion for contempt is dismissed.

2.	The petition shall proceed to trial on a date and time to be fixed.

3.	The first, second and third contemnors shall pay the costs of the objection, to be taxed, if not agreed.

______________________________________________________

Lomai&Lomai Attorneys:	Lawyers for Applicant/Petitioner
Paul Mawa Lawyers:		Lawyers for First Respondent
Harvey Nii Lawyers:		Lawyers for Contemnors