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Markham Realty Development Ltd v Maliaki [2023] PGNC 12; N10101 (12 January 2023)

N10101

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S NO. 94 OF 2022

BETWEEN:

MARKHAM REALTY DEVELOPMENT LIMITED
-Plaintiff-

AND
MICHAEL MALIAKI
- First Defendant-

AND
MALIAKI MICHAEL
-Second Defendant-

AND
JOHN MOARU
-Third Defendant-

AND
KEPI MICHAEL
-Fourth Defendant-

AND
SASA MICHAL
-Fifth Defendant-

AND
YAZOM MICHAEL
-Sixth Defendant-

Lae: Dowa J
2023: 12^th January

CONTEMPT OF COURT – decision on sentence – contemnors pleaded guilty to the charge of contempt of court -nature of contempt is disobeying a lawful order of the National Court - contemnors early guilty plea considered – disobeying a court order is a serious contemptuous offence – first defendant given suspended sentence on condition he pays fine – second to sixth defendants ordered to pay fine as form of punishment

Counsel:

R. Melis, for the Plaintiff
R. Geoctau, for the Defendants

JUDGMENT ON SENTENCE

12^th January, 2023

1. DOWA J. This is a decision on sentence for contempt of court. The contemnors pleaded guilty to a charge of contempt of court for disobeying an order of the National Court made on 14^th August 2020.
   
2. The contemnors come from Nadzab, Morobe Province. They are all Defendants in the civil proceedings-OS No.63 of 2018- Markham Realty Development Limited-v-Orognaron Land Group Inc, Michael Maliaki & Others.
   
3. On 14^th August 2020, the National Court in proceedings OS 63 of 2018, made the following interlocutory injunctive orders against the Defendants in the following terms:
   

“2. An interlocutory injunction is granted restraining the defendants severally and jointly and their servants and agents howsoever from dealing in any manner whatsoever with, including leasing or sub leasing, selling, sub dividing into allotments for the purpose of selling, leasing or sub-leasing, licensing, or giving permission of any kind for the occupation or partial occupation of, the whole of the NAIER land comprised in: -

1. The state lease volume 17 Folio 112 issued on 14/08/2009: and
2. The certificate of title Volume 1, Folio 23 issued on 20/12/2016
   

each respectively being Portion 78C containing an area of 862.44 hectares or thereabouts as delineated on the registered survey plan rural class 4 catalogued No.31/1374 of the Surveyor General Register of Surveys at the Department of Lands and Physical Planning, Waigani National Capital District, Papua New Guinea. (The land Portion 78C) until further orders of the court or final determination of the action herein.

3. An interlocutory injunction is granted restraining all other persons or entities, their agents, and servants howsoever from constructing of any works by land excavation of any kind, erection or construction of any buildings, fences, structures of any kind whatsoever and any other such related works upon or in connection with the said the Land Portion 78C until further orders of the court or final determination of the action herein”.
   
4. The Orders of 14^th August 2020 were served on the contemnors on or about 18^th August 2020. It is alleged that the contemnors breached the terms of the restraining orders. The details or particulars of the breach are contained in two affidavits of Jenny Seth filed in the proceedings OS No.63 of 2018 where she deposes that despite the orders of the court, Michael Maliaki proceeded to deal with the Land Portion 78C by selling portions of the subject land to Noel Dupi, Kuima Security Services Ltd and Jack Bukuwai and block No. 13 to some West New Britain people and to other settlers.
   
5. Michael Miliaki filed an affidavit in response to the contempt proceedings. He deposes he sold patches of land in Portion 78C to Noel Dupi, Kuima Security Services Ltd and Jack Bukawa and other settlers in 2017, prior to the issuance of the injunctive orders of 14^th August 2020.
   

Guilty Plea

6. Despite the denials, the contemnors including Michael Maliaki pleaded guilty to the contempt charges and did not contest the charges. The contemnors were represented by counsel who confirm the guilty plea and were convicted accordingly.
   

Issues

7. The main issue is: What is the appropriate penalty to be imposed on each of the contemnors.
   

Law

8. Section 37 subsection (2) of the Constitution provides that 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.
   
9. Order 14 of the National Court Rules make provision for contempt of court proceedings. The contempt proceedings are prosecuted under Order 14, Rule 42 (2) of the National Court Rules. Rule 49 which prescribes punishment reads:
   

“49 Punishment. (55/13)

(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to prison or fine or both.

(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.

(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.”

Submissions of the Parties

10. Mr. Melis, the Managing Director for the Plaintiff submits that the contemnors deliberately ignored the orders of the court and should be given custodial sentence.
    
11. Mr. Geoctau, counsel for the contemnors, submits that the Court impose a noncustodial sentence with an order for costs of K 5,000.00. The reasons offered for mitigation are that a) the alleged offences were committed before the orders were issued, b) the contemnors were not represented by a lawyer and the orders were not explained to them, c) the delay in the decision in OS No, 63 of 2018 and d) it is a civil contempt as opposed to a criminal contempt.
    
12. In my view, Mr. Geoctau’s submissions on leniency lacks weight and sincerity. There is evidence that the offences were committed after the orders were issued. The contemnors have voluntarily pleaded guilty, and it was confirmed by counsel in court. They had the chance to change their plea which they did not. Their contention that they did not understand the terms of the orders are inexcusable. The contemnors were represented by counsel and the orders were explained the second time in open court to the contemnors on 16^th July 2021. The contention that the delay in the decision in OS No. 63of 2018 contributed to the contemptuous actions is not a lawful excuse for the defying the court orders. Finally, to argue that non-custodial sentence be considered because the proceedings arise out of a civil contempt is a misconception.
    
13. Disobeying a court order is a serious matter. The contemnor and the community must learn to obey and respect the rule of law. Without it there will be lawlessness and disorder. The community at large takes comfort and is at peace where justice administration functions well and those who bring disrepute to judicial authority should be justly punished. The rules of Court make provision for punishment for those who disobey the orders issued by the Court.
    
14. In Tengere v Sixth Estate Limited & others (2022) SC 2303 the Supreme Court expressed the importance for compliance of court orders by litigants. The Court said this at paragraph 25 of the judgment:
    

“25. Noncompliance of court directions is a serious matter. Directional orders set in motion a schedule of activities geared towards speedy resolution of the dispute between the parties. Any such noncompliance of the directional orders is a setback and demonstrates a lack of respect for the Court. There is a plethora of judicial pronouncements by this Court and the National Court that litigants must not treat directional orders lightly. This is because provision is made by the Rules of Court to penalize those who fail to comply to protect the interests of the innocent parties and the interest of administration of justice. Refer Korak Yasona v Casten Maibawa & Electoral Commission (1998) SC598, Tasman Building Company v Kilroy Genia & others (2011) N4412, Rambe v Trappe, (2012) N4924, Gend V Mangre(2019) N8090, Kave v Yakasa (2014) N5692 and Lucas v Unido (2020) N8487. ”

15. There is no written law imposing maximum penalty for the offence contempt of court. However, it is settled law especially in criminal law on sentence that the maximum penalty should be reserved for the worse type of category of cases. Since there is no maximum penalty prescribed, the court shall have regard to other comparable cases.
    
16. In Padura-v-Valakvi (2012) N4894, Cannings J sets out a useful table of comparable cases at page 16 of the judgment: Which is adopted for comparison and application.
    

“PUNISHMENT FOR DISOBEDIENCE CONTEMPT BY INDIVIDUALS

17. It appears the approach taken by both the National and Supreme Court in this jurisdiction is to impose imprisonment terms for defiant behavior especially for deliberate failure to comply with an order of the court. However, the court has a discretion depending on the circumstances of each case.
    
18. In the present case the contemnors are jointly charged. The evidence is not clear on the degree of culpability of each of the contemnors. Counsel did not make any submissions on this. I will impose a penalty that is appropriate and fitting reflecting the extent of their participation considering any mitigating circumstances.
    

Michael Maliki

19. Michael Miliaki is the principal contemnor. He is the father of Miliaki Michael, Kepi Michael, Saza Michael and Yasom Michael uncle of John Moaru. He is principal landowner and Chairman of Orognaron Land Group Inc. The evidence shows, he is the decision maker who led his sons in making land deals. The evidence shows he was in Court when he was reminded of the court orders. He understood or would have understood from his lawyers of the terms of the injunctive orders.
    
20. For mitigation, the court notes the following in his favour:
    
    1. guilty plea which saved time and cost.
    2. No prior convictions
    100. Old age- about 75-80 years old.
         
21. In my view, the case is serious enough to warrant a custodial sentence. The most appropriate sentence is 6 months imprisonment and a court fine of K5,000.00. Given his early guilty plea and advanced in his years, the entire imprisonment term/sentence is suspended. He will pay the fine of K5,000.00 only. If he defaults in paying the fine, he will serve a prison term of three (3) months.
    

Other Contemnors

22. The contemnors, Maliaki Michael, John Moaru, Kepi Michael and Yazom Michael are children of Michael Maliaki. There are no specific allegations against them. They are jointly charged with Michal Maliaki as children who lend support to their father. They have pleaded guilty and there is no record any prior convictions. The most appropriate penalty is a fine of K2,000 each and in default, a prison term of two months.

Costs

22. In addition to the penalty imposed, the contemnors will pay the costs of this proceedings.
    

ORDERS

23. The court orders that:

1. The contemnor Michael Maliaki is sentenced to 6 months imprisonment and to pay a fine of K5,000.00 and in default a prison term of 3 months.
   
2. The sentence of 6 months imprisonment is suspended unconditionally.
   
3. The contemnors Maliaki Michael, John Moaru, Kepi Michael, Saza Michael and Yasom Michael shall each pay a fine of K2,000.00 totaling K 10,000.00 and in default, a prison term of 3 months.
   
4. The contemnors shall have fourteen (14) days to pay the fine and produce copies of the receipt to court within the said fourteen (14) days.
   
5. The contemnors, apart from the court fines, shall pay the Plaintiff’s costs of the proceedings to be taxed, if not agreed.
   
6. Time be abridged.
   

Ordered accordingly
________________________________________________________________
R. Melis: Lawyer for the Plaintiff
Roger Geoctau: Lawyer for the Defendants