Pius Mark for and on behalf of the Council of the Mount Hagen Technical College v Korali Iki [1995] PNGLR 116

• Jurisdiction: Papua New Guinea
• Judge: Akuram AJ
• Judgment Date: 08 September 1995
• Citation: [1995] PNGLR 116
• Court: National Court
• Year: 1995
• Judgement Number: N1364

Full Title: Pius Mark for and on behalf of the Council of the Mount Hagen Technical College v Korali Iki [1995] PNGLR 116

National Court: Akuram AJ

Judgment Delivered: 8 September 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PIUS MARK FOR AND ON BEHALF OF THE COUNCIL OF THE MT. HAGEN TECHNICAL COLLEGE

V

KORALI IKI

Mount Hagen

Akuram AJ

25 August 1995

5 September 1995

8 September 1995

CONTEMPT — Contempt of Court — Disobedience of District Court — Power of National Court to punish for contempt of order of District Court — Appropriate punishment for contempt.

Facts:

The District Court ordered the defendant to vacat ethe plaintiff's premises within 14 days from receipt of it's order and to remove or destroy any improvements on the plaintiff's land effected by the defendant. The plaintiff brought proceedings for contempt in the National Court when the defendant failed to comply with the District Court order. The Court addressed two issues: whether the National Court can hear and determine contempt of an order of a District Court, and the appropriate penalty for contempt of an order of a District Court.

Held:

1. The National Court, like the Queens Bench Division of the Supreme Court of England and Wales has an inherent power to watch over the proceedings of inferior courts to, inter alia, prevent persons from interfering with the course of justice in inferior courts. The power of the National Court derives from the unlimited jurisdiction conferred upon it by the Constitution.

2. On sentence, the defendant having taken no action to comply with the order of the District Court for 11 months, an appropriate penalty was a suspended sentence of imprisonment of 12 months, and placing the defendant on a good behaviour bond on conditions relating to removal of the improvements from the plaintiff's property and requiring him to refrain from entering the property for a period of 2 years.

Cases Cited:

Papua New Guinea cases cited:

Bishop v Bishop Brothers Engineering (1988-89) PNGLR 553

Public Prosecutor v Rooney (No.2) (1979) PNGLR 448

Yap v Tan (1987) PNGLR 227

Other cases cited:

Hadkinson v Hadkinson (1952) 2 ALL ER 567

Counsel

Kopunye for the plaintiff

Defendant in person

8 September 1995

AKURAM AJ: This is a contempt of a court order proceedings. The Mt. Hagen District Court ordered the defendant on the 10/8/94 to vacate the college grounds after a lengthy trial. The defendant who was an employee of the college for over 15 years has been dismissed but has certain improvements on the land such as bush material houses, piggery, kaukau gardens, chicken, coffee, pineapples, etc. and is still living on the College grounds looking after the same.

The proceedings are by way of an originating summons filed and issued on the 7 August 1995 (O.14 R.42 (2) ) supported by a statement of the charge for contempt of Court (O.14, R.43) also filed on the 7 August 1995. The evidence was in affidavit form of three witness (Harry Kupi affidavit of Service of O.S. and Statement, Notice of Motion, Affidavit of P. Kopunye, and Affidavit of Pius Mark; Affidavit of Pius Mark; Affidavit of Bran Kewa). An order was sought and granted by this court on the 11 August 1995 ordering the defendant to appear on the 25 August 1995 to answer the charge. Failure to appear a warrant of arrest will be issued.

Following this Order, the Defendant appeared before me on the 25th August 1995. The following contempt charge was then put to the Defendant:

"You are charged that you have wilfully and intentionally failed to comply with the Orders of the Mt Hagen District Court dated 10 August 1994 in that you together with your friends, assignees, relatives and family continue to live in the premises of the Mt Hagen Technical College without any right, authority or permission."

The court order for which he is charged for disobeying reads:

"Order:

1. Judgment entered in favour of the Mount Hagen Technical College.

2. That the defendant be evicted within 14 days of the receipt of this Order.

3. That he remove the properties and any of his own interested rights or destroys them at his will within 3 weeks after eviction." (emphasis added)

This order was dated 10 August 1994 and served on the defendant on 15 September 1994 as defendant was not present when the District Court pronounced its order. After putting or reading the charge to him, I also said in conclusion:

"Have you got any reasonable grounds for disobeying the court order" to which he explained thus, amongst other things:

"I got a lawyer to defend me in dtrict court proceedings. The decision was made on 10/8/94. At the time of decision, I was not present, neither my lawyer. I was served the Court Order on 15 September 1994 by Mt. Hagen Technical College. I was surprised.

At the time of the case I told court I said I was claiming compensation for improvements and for 15 years I was in the college. Had I been present I would have appealed. I told court for compensation of coffee and three (3) houses."

I then asked defendant:

"Can you give reasons why you did not move out?"

He answered:

"College had paid me one time with K500 and another time K600 — a total of K1,100. I did not receive the money. So I am still claiming for the K1,100. Also I was waiting for the decision to be made in my presence but I was surprised to be served Court Order."

I then asked defendant:

"Are you going to move out of the premises?"

He answered:

"I have moved out and now at Police Barracks."

I asked him:

"Have you removed your property or properties?"

He answered:

"There is no person in the house. Only coffee and garden."

I asked him:

"Do you go back to harvest what is on the land such as coffee, pineapples, bananas etc.."

He answered:

"I go back to get food and things in the garden."

I finally asked:

"When exactly did you move out?"

He answered:

"About 2 months ago.

Although the defendant says he moved out 2 months ago, the affidavit of service of one Harry Kupi dated 10 August 1995 says that:

"1. I am an employee of the Mt. Hagen Technical College.

2. I have on the 9 August 1995 at 3.15 pm at the premises occupied by Korali Iki within the college boundary delivered and personally handed over to Korali Iki in the presence of the other person Pora Genap the following:

(a) original letter from Kopunye Lawyers dated 09 August 1995, and

(b) all the documents that were attached to the said letter from Kopunye Lawyers.

3. The annexure marked with the letter "A" is a copy of Kopunye Lawyers dated 9th August 1995."

And the affidavit evidence of one Bras Kewa, a security in the employment of Hagen Technical College says:

"1. I am a Security in the employment of Hagen Technical College.

2. I have on 23 August 1995 at 8.00 am at the premises occupied by Korali Iki within the college ground personally delivered to him the following in the presence of the other security Willy Kori:

1. Original letter from Kopunye Lawyers dated 16 August 1995: and

2. Order of the Mt Hagen National Court.

3. The annexure marked with letters "A" and "B" are respectively the documents referred to above.

4. At the time of my visit to the premises occupied by Korali Iki I note that: Korali Iki continues to have his residence house, his large pineapple garden, kaukau mounds and coffee trees."

These two witnesses clearly say that the defendant is still on the college premises even though he says he has left about two (2) months ago, which would have been about June 1995. Furthermore, he said himself that he was served the court orders on 15 September 1994 which is eleven (11) months ago and he still has not moved out nor destroyed the properties or improvements he had on the college grounds. I then asked him about the evidence given by the above witnesses:

"Q. You said you left 2 months ago and now the affidavits of two witnesses say you are still there."

He answered:

"I use to sleep at police barracks and go to get food at the College."

There was further affidavit evidence of Peter Kopunye, the lawyer for the college in the District Court proceedings and in these proceedings deposing that:

"1. I am the principal of the firm "Kopunye Lawyers" and as such have the carriage of this matter.

2. I acted for the Mt Hagen Technical College and instituted proceedings at the District Court Hagen in 1992 against the defendant.

3. I am familiar with the facts of this case.

4. The defendant was represented by Warner Shand Lawyers in the District Court proceedings.

5. The District Court by its judgment handed down on 10 August 1994 ordered the defendant to vacate the premises.

6. The annexure marked with the letter "A" is a copy of the judgment.

7. I am instructed and varily believe that the defendant has not moved out of the college premises and he continues to reside at the premises and continue to grow economic crops like coffee, kaukau, peanut and pineapples.

8. The defendant is simply ignoring the Orders of the Court.

9. I am...