SC807

PAPUA NEW GUINEA
[Supreme Court of Justice]

SCA 79 of 2002

BETWEEN

RICHARD CHARLES SIKANI
First Appellant

AND

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Appellant

AND

PETER LUGA
Respondent

Waigani : Amet, CJ; Los, J; Sevua, J
2003	:	22 April, 15 August
2005	:	22 September

CONTEMPT – Contempt of Court – Nature of contempt – Whether penalty for contempt a sanction or criminal penalty – Findings of non-compliance with order by first appellant – Whether such findings supported by evidence – Whether trial Judge erred in convicting first appellant of contempt.

Cases cited in judgment
Hillindon London Borough Council (1968) 1 QB 124
Queen v The Justices Berkshire (1879) 4 QBD 469
Stancomb v. Trowbudge District Council (1910) Ch Div 190
Ome Forests Ltd v. Ray Cheong & Ors, OS 81 of 2001, unnumbered, 8th October 2002
Nombri Ambre v. The State [1995] PNGLR 453
Re. Bramblevale Ltd [1970] Ch 178
Knight v. Clifton [1971] Ch 700 at 707; [1971] 2 All ER 378 at 381
Dean v. Dean [1987] 1 FLR 517 at 521
Yap v. Tan [1987] PNGLR 227
Hadkinson v. Hadkinson [1952] P 285 at 288
Banbury Board of Health (1865) LR 1 Eq 42 at 48
Harding v. Tingey (1864) 12 WR 684
Howitt Transport v. Transport and General Workers Union [1973] ICR 1 at 10
Re Swan River – The Pas Transfer Ltd (1975) 51 DLR (3d) 292 at 308
Northwest Territories Public Service Association v. Commissioner of the Northwest Territories (1980) 97 DLR (3d) 202 at 233

C Makail for Appellants
A Baniyamai for Respondent

AMET, CJ & LOS, J: The First Appellant is the Commissioner of Correctional Institutions Services in Papua New Guinea. He was charged for contempt of Court on the 23rd of May 2002 for failing to comply with the court order of 1st May 2002.The order commanded him to restore the First Respondent, Peter Luga, to the Corrective Institution Services with full salaries and conditions. He was found guilty on two counts of contempt and sentenced to six months imprisonment in hard labour on 4th October 2002.

On the same date an appeal was lodged and he applied for bail, which was granted. The appeal contained eight grounds. They were -

a) The learned trial judge erred in law and in fact in finding the First Appellant guilty of contempt when there was insufficient evidence to suffice of finding of guilt.

b) The learned trial judge erred in law and in fact in returning a verdict of guilty against the First Appellant for contempt when the First Appellant within his administrative capabilities complied with the orders of the National Court dated 22nd April 2002 within the appeal period.

c) the trial judge erred in law in allowing evidence after closure of trial.

d) The trial judge erred in law and in fact in finding the First Appellant guilty of contempt when the evidence relied on by the court to convict the First Appellant was by a letter written by the First Respondent’s Lawyers demonstrative of willful neglect to obey orders when in fact such was not the case.

e) The trial judge erred in law and in fact in finding the First Respondent guilty of contempt in allowing evidence into court against the rule in Brown and Dunn.

f) The trial judge erred in law and in fact in finding the First Appellant guilty of contempt in totally disregarding the evidence through affidavits and oral testimony by the First Appellant and his witnesses when such evidence were credible and capable of suggesting an alternative finding

g) The trial judge erred in law and in fact in pronouncing a judgment that was calculated at critically describing and attacking the First Appellant, senior officers of the corrective institutional services, and the first Appellant’s Lawyer when such conduct is seen to be bias and one sided.

h) The penalty of six months imprisonment is harsh and oppressive under the circumstances and does not correspond to the offence the First Appellant was found guilty and convicted of.

Immediately the Respondent filed an objection to competency of the appeal on following grounds:

(a) Ground 3(h) of the Notice of Appeal is a ground against sentence which is not fixed by law and thus leave is required pursuant to section 22(d) of the Supreme Court Act. The Appellant had failed to seek leave under section 17 of the Supreme Court Act.

(b) The Respondent Peter Luga should not have been named and joined to these proceedings as the appellant has been convicted and is a state prisoner on bail. The Independent Sate of Papua New Guinea should have been named as the Respondent.

(c) The Independent State of Papua New Guinea should have not been named as an appellant because the contempt proceedings and the statement of charges were preferred against the first appellant alone.

Subsequently only the first ground of the objection was retained. That is ground number one of the objection. On this ground the Respondent argues that the appellant cannot appeal against the sentences on contempt unless leave has been applied for and granted under section 22(d) of the Supreme Court Act. This is because contempt of court is not a criminal offence defined by or falling within the ambit of sections 2 and 3 of the criminal code. That is no leave had been sought and that none was granted within the 40 days requirement after the date of conviction as required under section 29 of the Supreme Court Act. It was argued therefore the appeal was incompetent.

The appellant contends to the contrary on two basis. Firstly, leave is not required because conviction and sentence for contempt is exempted from the requirement of sections 22 of the Supreme Court Act. Secondly as the appeal against conviction is already before the court and it cannot be separated, the appeal court must deal with both issues as one. 

We deal here with the first part of the issue. There is no issue on what section 29 says as to the period within which an appeal or leave to appeal may be lodged or sought. But the issue raised by the respondent is whether a leave is needed as condition precedent to an appeal from finding of guilt, conviction and sentence for contempt. The appellant argues on the other hand that leave requirement under section 22 does not apply to an appeal from finding against and imposition of a penalty. That is because a penalty imposed on a contemnor is a sanction and not a criminal punishment as such. We accept this argument. But for more reason that in this case the thrust and the base of the appeal is that whether the appellant committed any acts of contempt at all. That question has now dragged the whole issue of finding of ‘guilt’ and ‘punishment’ before the Supreme Court.

The appellant does not dispute the existence of the Court Order of 22nd April 2002. But he disputes non-compliance. His first argument is that his lawyer, solicitor General might have been served with the order earlier, but he himself had not been aware until he was served on 8th May 2002. That was two weeks after the decision.

The second point he raises is that as the contempt of court is against a person individually, in this case the appellant as the head of CIS, before he could be guilty it must be shown that the commissioner himself had known about the order and hat he personally had failed to comply with the court order. In this case therefore there was no evidence of any wilful disobedience.

In this case when the appellant did receive the court order of the 22nd April 2002, he immediately gave verbal directions to his subordinates as is normal practice in the government services i.e. Executive Officer to implement it. That is confirmed in the evidence of the assistant commissioner Personnel Management and Training, Mr. Baltahasa, and Mrs. Daton, officer in charge of Salaries. The latter said in evidence that she had come across a court order on 16th May 2002.

The respondent’s counsel stressed that the appellant had done very little or nothing at all to comply with the order. He referred to two English cases to support the argument. They were Hillindon London Burrough Council (1968) 1 QB 124 and the Queen v The Justices Berkshire(1879) 4 QBD 469. We consider on the other hand the more appropriate meaning in the circumstances of this case is within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished. The Commissioner was not running a family Store or a car yard. He was running a part of Public employment system in the country. The system has been designed to ensure that public finance is managed under the checks and balance system. Each part of the finance transaction mechanism relating to employment was entrusted to different officers. True the commissioner could get up, move through each step himself but the point is that he was found guilty not because he was slow and irritable but because he had deliberately not complied with the court order. Comparatively he did not act as it was done by the Police Commissioner, Wakon in Gari Baki's case where Baki was reinstated by the court in the Police Force. When he turned up to report for duty, instead of complying with the court order the commissioner landed on him fresh serious charges intentionally to keep him out of the police force. 

With respect in CIS Commissioners case here there was absolutely no evidence to support such a finding that he was refusing or avoiding compliance with the order. The counsel has referred to Stancomb v. Trowbudge District Council (1910) Ch Div 190. We consider the facts in that case different and so the decision has little relevance. Also placed before us was some dissertation by Kandakasi J in an unnumbered decision in OS No 81 of 2001 Ome Forests Ltd v. Ray Cheong and Others of 8th October 2002 dealing with lack of knowledge of the existence of any court order and a whole host of issues in the law of contempt. Reference was also made to a decision by Injia J in Nombri Ambre v. the State (1995) PNGLR 453 on personal liability of an incumbent head under Claims By and Against the State Act and not agent or employee. 

In this case, in our view and we so conclude, with respect, the trial judge had made an error. True, as head of the institution the appellant could have moved and sidestepped all bureaucratic requirements and proper financial checks to reinstate the Respondent and pay him immediately. However, like every public sector institution, CIS has financial checks and balances that must be observed. The Commissioner had begun to comply with the court order without any sign of malice against the Respondent. A court should be slow, in our view, to become a tool for an attack between any antagonizing parties. We therefore uphold the appeal and quash the conviction and sentence.

SEVUA, J:	I have read the judgment of Los, J which Amet, CJ agrees with and beg to differ with thier views and conclusion. At the time the majority decision was delivered, my reasons were not ready and the decision was being hastened due to the imminent departure of the Chief Justice. I did undertake to provide my full reasons for disagreeing with the majority later, and I now do that, quite belatedly I should add.

The facts of the case and the grounds of appeal have already been set out in Los, J’s judgment therefore I need not canvass them in my judgment.

The respondent has raised objection to the competency of this appeal on the ground that leave was not sought by and granted to the appellant to appeal against sentence and this objection is based on s.22 of the Supreme Court Act. That provision deals with criminal appeals and states:

"A person convicted by the National Court may appeal to the Supreme Court –

(d)	with leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law."

I consider that this section is not restricted or limited to criminal convictions under the Criminal Code or any other legislation. There is nothing in it which excludes a conviction for contempt of court. The Court therefore cannot read into that section what the legislators have not intended. In my view, this section is wide enough to include any criminal conviction. To exclude contempt of court conviction, in my view, would amount to writing into the law what the legislature did not intend. This is neither the Court’s function nor duty.

Although this appeal stems from a civil case, and it is in fact a civil contempt, it is trite law that the punishment for contempt whether civil or criminal is always criminal in nature. It follows therefore in my view that, since the conviction is criminal in nature the right to appeal must necessarily follow the requirements and procedures in the Supreme Court Act and the Supreme Court Rules. With respect, I do not agree that the penalty in a contempt case is merely a "sanction" and not a criminal punishment. Punishment by a term of imprisonment or imposition of a fine is a criminal penalty, not a sanction. In my view, the Court does not "sanction" a person to jail or pay a fine for breaking the law, but punishes him for his bad criminal conduct. "Sanction" merely means, authorise, allow, approve, endorse, support or permit, and so forth, see: Collins Paperback Thesaurus Major New Edition dictionary, 1995. I take the view, contrary to that taken by the majority that the imposition of a prison term or a fine on a contemnor is not a criminal penalty, but a "sanction".

My view is fortified by what Lord Denning MR expressed in Re. Bramblevale Ltd [1970] Ch 178. That was a case where a Managing Director of a company being wound up was summonsed by the liquidator following his failure to comply with an order made by a Registrar to produce certain books of the company. The Court did not believe his story that the books had been thrown away when soaked with petrol in a car accident a year earlier. The contemnor was committed indefinitely. He applied for a release but the Court refused the application. He then appealed to the Court of Appeal and although the facts are not relevant for our purpose, the judgment of Lord Denning is. In my view, what Lord Denning said supports my view. At 137, the Master of the Roll said:

‘A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time – honoured phrase, it must be proved beyond all reasonable doubt……….

The Court must be satisfied beyond reasonable doubt ………… (my emphasis).

In a subsequent English case, Knight v. Clifton [1971] Ch 700 at 707; [1971] 2 All ER 378 at 381; also a decision of the Court of Appeal, Russell LJ said:

Contempt of Court, even of the type that consists in breach of an instruction or undertaking, is something that may carry a penal consequence, even loss of liberty, and the evidence required to establish it must be appropriately cogent

(my own emphasis).

Credence is placed on those principles by another Court of Appeal decision in Dean v. Dean [1987] 1 FLR 517 at 521 where Dillon, LJ said:

I have no doubt that the procedure in contempt is of a criminal nature and that the case against the alleged contemnor must be proved to the criminal standard of proof. That was not a mater for decision in Khawaja………. the matter rests on long established practice, probably well before the Bramblevale case……. and certainly repeated many times since in this Court……………….

The upshot of these English cases is that a contempt of court is of a criminal nature, proof of which, rests on the criminal standard of proof. The penalty is criminal in nature too. Depriving a suspect of his liberty by imprisoning him is no mere sanction, it must be a criminal penalty. With respect, I conclude that the penalty, be it imprisonment or a fine imposed by a Court in a contempt case is criminal punishment. The English cases I have cited are authorities and are of persuasive value that there is no reason for not adopting these principles in this jurisdiction by virtue of Schedule 2.2 Constitution, especially those cases prior to Papua New Guinea’s Independence.

The issue of whether the appellant committed a contempt or not is one that I have serious misgivings about over the decision of the majority, with great respect. Having read the decision of the trial Judge, I find it quite absurd and abusive to hold that there was no evidence to support his findings. It becomes necessary therefore, for my part, to raise one fundamental question here and in this judgment. Should the departure of the President of the Court in the present case be a determining factor in rushing the judgment of the Court when there are two members of the Court left to make a decision? Given the fact that there was no conferral to gauge the view of all three Judges, it becomes unfair and unjust when the decision is being rushed to fulfil one’s obligation and not necessarily for doing justice in this case.

Let me make it clear that I do not criticise the senior members of this Court, however, it concerns me that a day before the President departed, I am asked whether or not I agree with a draft opinion of the Court without being given ample time to consider the draft judgment. I do not consider this as fair at all, and my concerns stemmed from that fact. Had the draft, which eventually formed the majority opinion, been circulated well in advance, I would not have been placed in this unfortunate predicament. At the end of the day, it becomes a question of whether or not justice is being done to the respondent.

Having said that, let me emphasise that the trial Judge’s judgment ran to some 37 pages whilst his judgment on sentence comprised 24 pages. With respect, I am of the view that a lot of time and man hours have been rendered in reassessing and subsequently producing the judgment on verdict. It was not as if the trial Judge dealt with the contempt proceedings in a day or two or even three, thereby rushing his reasons. The trial itself took four days and the judgment was delivered after a little over three months. Considering the period of time and attention rendered to this case, it behoves this Court to take time in carefully studying the reasons and conclusion reached by the trial Judge before a decision on appeal is reached.

It is my opinion that the evidence in the trial were adequately canvassed by the trial Judge. With respect, His Honour had canvassed the evidence in this trial from bottom of page 19 to top of page 31. His Honour found that as a matter of law, the appellant’s consent to the affidavit evidence filed by the respondent were accepted by the Court as unchallenged and incontrovertible evidence. Commencing with the omission by the appellant, the trial Judge found, on the basis of uncontroverted evidence before him that the orders were duly served on the appellant on 8th May 2002 following entry on 1st May 2002 and subsequently on the appellant’s lawyer on 2nd May 2005. There is no dispute that the appellant was aware of the order.

From the evidence before the trial Judge, again uncontroverted and undisputed, the appellant was written several letters by the respondent’s lawyers requesting him to "give effect to the terms of the orders." They were acknowledged by the appellant’s counsel at the trial, Mr. Kua. The respondent also wrote to the appellant’s lawyer, the Solicitor General, in which counsel, Mr. Kua, was directly involved in the trial, and alerted him to the fact of non-compliance by the appellant.

If the appellant had not known about the Court order, as is being suggested, why did he write to the respondent’s lawyers on 24th May 2002? The trial Judge found from the evidence before him that the appellant had, on that date, written to the plaintiff’s lawyers responding in a way that he was deliberately failing to give effect to the orders. His attitude and reasons is demonstrated by his own letter on 24th May 2002 where he said, "I have read through the Court Order and decided that we have immense evidence to make an application for "stay of the Court order" and further go back to the National Court for substantive hearing".

The appellant, having received the order and perused it, had the legal duty to give effect to such order. The order was valid and effective for all purposes and intents until set aside on appeal. Such cases like Yap v. Tan [1987] PNGLR 227 establishes that principle. There, Hinchliffe, J held that (head notes):

Where an order is made by a Court of competent jurisdiction it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the orders believes it to be irregular or even void.

The position is same at common law. Cases in England have enunciated the same principles. For instance, in Hadkinson v. Hadkinson [1952] P 285 at 288, Romer LJ said:

It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.

In essence that principle was adopted and applied in Yap v. Tan (supra) and I note too that Re. Bramblevale (supra) was also adopted and applied in that case in so far as it relates to the correct standard of proof in contempt cases.

In Spokes v. Banbury Board of Health (1865) LR 1 Eq 42 at 48; Wood VC said:

"the simple and only view is that an order must be obeyed, that those who wish to get rid of that order must do so by the proper course, an appeal. So long as it exists, the order must be obeyed, and obeyed to the letter….."

In Harding v. Tingey (1864) 12 WR 684, Kindersley VC said; it is of the:

"greatest importance that either an order for an injunction or an interim order should be implicitly observed, and every diligence exercised to observe it."

In Howitt Transport v. Transport and General Workers Union [1973] ICR 1 at 10; Sir John Donaldson said:

"orders of any Court must be complied with strictly in accordance with their terms. It is not sufficient by way of answer to an allegation that a court order has not been complied with for the person concerned to say that he "did his best". But if a court order requires a certain state of affairs to be achieved the only way in which the order can be complied with is by achieving that state of affairs."

See also the Canadian cases of Re Swan River - The Pas Transfer Ltd (1975) 51 DLR (3d) 292 at 308 (Manitoba Court of Appeal) and Northwest Territories Public Service Association v. Commissioner of the Northwest Territories (1980) 97 DLR (3d) 202 at 233.

Did the appellant in the present case know about the order? The answer is undoubtedly, yes. Did he personally fail to comply with the order? The answer is best demonstrated by the trial Judge’s findings at bottom of p.21, where His Honour said:

The first point to note, as demonstrated by the Commissioner’s general attitude to the entire matter, is his deliberate omission to acknowledge due personal service of the Court orders on him (as required by law), as the authority responsible for the obedience or and compliance with the orders (he only admits personal service in his 28th May 2002 affidavit, paragraph 2). The second point to make in this respect is the absence of any reference to giving effect to the orders of the Court. The preoccupation with ways and ideas to evade and avoid the due practical enforcement or implementation of the orders (that are directed at him) is well demonstrated in the letter (my emphasis).

I have noted that the letter alluded to here is produced at pages 22 and 23 of the judgment. The trial Judge also found that the appellant’s "attitude was one suggestive or indicative of delay and procrastination, if not complete indifference to the seriousness of his obligation".

I am satisfied from the findings of the trial Judge that the appellant, not only knew of the order which was served on him, but was aware of its terms because as he admitted in his affidavit (letter of 24th May 2002), he had "read through the Court order".

The National Court order of 22nd April 2002 is in pages 97 and 98 of the appeal book. Order 1 states:

"The decision of the first defendant to cease the plaintiff’s salary on the 29th January 2001 is quashed and the defendants shall restore the plaintiff to the Correctional Services payroll forthwith".

For the sake of clarity, the first defendant in WS 504 of 2001 was Richard Sikani, Correctional Service Commissioner, the appellant herein, whilst the State was the second defendant. The trial Judge found, and counsel for the appellant at the trial agreed, that the order was clear and unambiguous. While the order was directed at both appellants, the first appellant, Richard Sikani, was the party who is Head of Correctional Services and he is legally responsible for the overall administration and management of the Correctional Services. He is the Officer who was responsible, legally to give effect to the order.

I consider that the first appellant’s evidence that he went on a tour with the Minister to New Guinea Islands was a lame excuse for sidestepping his legal responsibility and passing the buck to junior officers. In any event, the trial Judge found that the first appellant’s witness lied on oath and His Honour had rejected evidence from some of these witnesses. I do not, and cannot see, how the trial Judge could have erred in his findings because the evidence of Mrs. Sibona Daton, OIC Salaries of Correctional Services conflicted with that of the first appellant, Richard Sikani. In fact the trial Judge found from the evidence before him that both Assistant Commissioner Balthasar and OIC Pay Unit Mrs. Daton became aware of the Orders on 21st May 2002, and the trial Judge found as a fact that Balthasar had directed Daton to "wait for the Commissioner’s approval." On this aspect of the evidence, the trial Judge said, "So we have a situation where the Commissioner to whom the Court orders were directed for implementation of the terms of those orders has to give his approval. The National Court, a Court of competent jurisdiction under the country’s law, the Constitution, is subject to the approval of the Commissioner in relation to its orders and directions? Where does this come from? Where is the legal and Constitutional basis for this?"

It appears evident to me and I so find, that the trial Judge did not err at all. The first appellant and his witness, Superintendent Phillip Eka had given the impression that the first appellant had given instructions to carry out the order on 8th May 2002 when he received the order. However, on 21st May 2002, Assistant Commissioner Balthasar and Mrs. Daton had to wait for the "approval" by the Commissioner, the first appellant, Richard Sikani.

It is interesting to note in the trial Judge’s judgment, that His Honour found that the appellant’s witnesses were concocting their evidence, especially Charlie Ferari and Phillip Eka, and to a certain extent, Mrs. Daton. In fact His Honour found that Charlie Ferari lied on oath in Court on matters he had deposed to in his affidavit sworn on 24th June 2002. Deputy Commissioner (Operations) Kelly Karella also gave conflicting evidence in relation to suspension with or without pay. I have no reason to dissuade my mind from the findings of the learned trial Judge. He was the trial Judge who had assessed these witnesses’ credibility and demeanor. How can the appellate Court intervene in this respect?

In my opinion, the trial Judge had carefully analysed all the evidence before him. His findings and conclusions were based entirely on the evidence before him. I find it quite difficult to reach any other conclusion than that reached by the trial Judge. With respect, I do not see where the trial Judge erred. A careful perusal of the 37 pages judgment revealed to me that the trial Judge had carefully assessed and analysed all the evidence before him prior to him making conclusions on issues of fact and law.

I reiterate that there is sufficient evidence of wilful disobedience by Sikani. The evidence of Balthasar that Mrs. Daton had to wait for "approval" of the Commissioner is undisputed. So how could we find that the Commissioner (first appellant) had issued immediate directions on 8th May 2002 when he took possession of the Court order? His reaction and response as indicated by his letter of 24th May 2005 clearly demonstrated his wilful conduct. I consider his response to be obstructive to the course of justice and the worst form of arrogance by the most senior office of the Correctional Services who is legally obliged to comply with the order of the Court.

Instead of giving effect to the terms of the order, he was talking about returning to the National Court to seek a stay order. On what basis? His whole attitude, response and actions were quite indicative of his wilful non-compliance of the order, quite contrary to law. His cause of action, if he were to challenge the orders, was by way of an appeal to the Supreme Court, not to seek a stay order in the National Court. Can he do that when the trial was inter parties and orders made were regular? This was nothing more than pure arrogance by Sikani, in my view.

In his conclusion, the trial Judge referred to the undisputed evidence before him and the fact that this was readily acknowledged by and on behalf of the first defendant (Sikani), the first appellant in this appeal. His Honour concluded that even though the orders were served on the first appellant (evidence of this was undisputed), he took no positive action to give effect to the orders. The trial Judge, found that the first appellant, only "responded in a limited way after the respondent’s lawyers had commenced contempt proceedings against him" (first appellant). The trial Judge also found that the first appellant was "concerned with avoiding, evading and challenging the validity of the Court orders". The Court did not believe the evidence of his witnesses, Phillip Eka and Balthasar because they contradicted each other. In the face of all the evidence that the trial Judge referred to, which I have alluded to, how could this Court say that there was no evidence to support the finding of guilt on contempt?

From the discussion of all the evidence before the trial Judge and his findings, I am of the opinion that the first appellant was indeed wilfully or deliberately refusing and avoiding the order. His own evidence was contradicted by that of his officers so the findings and conclusion of the trial Judge were based on evidence before him. To say otherwise, or to say that there was absolutely no evidence to support such a finding is quite erroneous, unjustified and a travesty of justice in this case. I am satisfied that there was more than sufficient evidence before the trial Judge which enabled him to make the findings he made, and reach the conclusion he did. One needs only to study the full judgment carefully to arrive at that concurrence.

With respect, the question of adhering to the bureaucratic requirements is a non issue in this appeal. I do not suggest for one moment that it is not important or that senior public officers and heads of departments should flout the Public Service management standards. However, the bucks stops at Commissioner Sikani (first appellant). I do not think it is worth hiding behind the cloak of an administrative system and the bureaucracy to flout the authority of the National Court and its orders. Of course, proper procedures and management practice must be followed. But the Commissioner (first appellant) was ordered to "restore the appellant to the Correctional Service payroll forthwith", and he failed to give effect to that order forthwith due to his arrogance and self promoted image as someone above the law.

My view is that, in practical terms, the first appellant should have directed the OIC Payroll Unit to immediately restore the respondent to the Corrective Institution Service Payroll. Of course there was no way, the respondent would have been paid forthwith, that was just impossible. However, the first appellant failed to give effect to that order forthwith. If he had given such a direction, the procedure of putting him back on the payroll, salary advices etc would fall in line with the normal cumbersome and bureaucratic red tape procedure that is all too common in the public service system in this country. All he needed to do was to order or direct subordinate officers to put the respondent’s name back to the Correctional Service payroll. He failed to do that therefore he was in contempt. In my view, there could be no other finding and verdict then those that the learned trial Judge arrived at. His findings and conclusion were supported by evidence.

Surely, it would not have taken a day or 21 days, not even half a day for the first appellant to issue such a direction. But his failure to give effect to the Court orders was evident in the manner in which the whole enforcement of the order was carried out.

The Court order did not direct that the respondent be restored to the payroll after 21 days, or after the first appellant had given his "approval", or after all the bureaucratic requirements have been followed. The term of the order was mandatory and the requirement was to be restored "forthwith". In my view, forthwith was as soon as can be done, or as soon as practicable. The order did not direct immediate payment of salary, etc. As a matter of procedure in the government payroll system, the respondent’s name has to be imput into the Correctional Service payroll before he is paid his salary. That was what the order was about, but the first appellant failed to give effect to it.

Generally, the word "forthwith" means, at once, immediately, instantly, quickly, right away, straight away. See: Collins Paperback Thesaurus Major New Edition dictionary. I would have accepted the position that the first appellant had started to comply with the order without any sign of malice against the respondent as held by the majority. However, here the evidence does not support that view. The first appellant’s evidence and that of his Executive Officer were contradicted by the two officers – Balthasar and Daton who, on 16th May 2002, were still waiting for the Commissioner’s "approval". Who is he to approve the legitimate orders of the National Court, a Court of competent jurisdiction empowered by the Constitution of the nation?

With due respect, I do not share the majority view that "a Court should be slow in becoming a tool for an attack between any antagonizing parties". This is not what the Court was asked to do in the trial. The Court was to deal with a contempt of its orders and it was not a forum to be used as a tool for an attack between the appellants and the respondent. There is undisputed evidence that the officer who initially suspended the respondent had no legal authority to do so. So that is all the more reason to act swiftly in giving effect to the order without procrastination and taking trips and finding all the excuses under the sun to sidestep the implementation of the order. After all, the order was mandatory to be effected forthwith, which in the ordinary meaning of the word means, immediately or right away.

I maintain the view that there was no error by the trial Judge. I find that the findings and conclusion of the trial Judge were based on evidence, most of which were undisputed, and which were available to him in the trial. The trial Judge, with respect, analyzed and evaluated all the evidence before him then carefully canvassed the evidence in arriving at the conclusion reached. I am satisfied that there was ample evidence to support his findings and conclusion therefore I am not persuaded otherwise than to dismiss the appeal as having no merits.

For these reasons, I would dismiss the appeal and confirm the conviction and sentence of the National Court. I order the appellants to pay the respondent’s costs of the appeal.

Lawyers for the First & Second Appellants 		:	O’Briens Lawyers
Lawyers for the Respondent				:	Stevens Lawyers