Home | Databases | WorldLII | Search | Feedback Papua New Guinea Law Reports

Salo v Gerari [2005] PGLawRp 33; [2005] PNGLR 16 (7 November 2005)

[NATIONAL COURT OF JUSTICE]

KALIP SALO

V

PETER TERRY GERARI

WAIGANI: SEVUA J

20 October & 7 November 2005

CONTEMPT – Contempt of Court – Disobedience of Court order – No satisfactory explanation – Plea of guilty – Public apology and public interest consideration – Need to punish contemnors.

Facts

The plaintiff by originating summons claimed certain declaratory orders and other orders in respect of certain royalty monies derived from the harvest and sale of timber from their land under a valid timber permit.

The court granted interim orders generally restraining the contemnors, first defendents herein, from claiming these royalty monies and from using a sum of K500,000.00 being such monies obtained and deposited into the contemners' bank account. Further the contemners were ordered to transfer and deposit these monies into the National Court Trust Account.

The contemners failed to comply with the orders and pleaded guilty to the charge of contempt of court.

Held

1. The contemners were found guilty as charged.

2. In an ordered and civilized community courts were established for the pacific settlement of disputes and for the maintenance of law and order. Public policy and public interest demand that the authority of the courts should not be imperiled and that recourse to them should not be subject to unjustified interference. Attorney General v Times Newspaper [1974] AC 273, and The Public Prosecutor v Nahau Rooney (No. 2) [1979] PNGLR 448, both applied.

3. In respect of penalty for civil contempt, as in criminal cases, the imposition of penalties is at the discretion of the court. The court may impose a fine or a term of imprisonment depending on whether or not the disobedience was contumacious. Peter Luga v Richard Sikani & The State (2001), unreported, N2286 dated 4 October 2001, applied.

4. The contemners' disobedience of the court order was wilfully aggravated by their failure to apologise to the court when they had the opportunity to do so.... Accordingly a term of imprisonment is justified.

Papua New Guinea cases cited

Allan Robinson v The State [1986] PNGLR 307.
Attorney General & Ors v Dr. Pirous Hamidian-Rad (1999) unreported and unnumbered.
Bewa Tou v PNG Forest Authority & 2 Ors; Re: Valentine Kambori; unreported N2490 11 December 2003.
John Rumet Kaputin v The State [1979] PNGLR 559.
Peter Luga v Richard Sikani & The State; (2001) unreported, N.2286, 4 October 2001.
Passingan Taru [1982] PNGLR 292.
The Public Prosecutor v Nahau Rooney (No. 2) [1979] PNGLR 448.
The State v Mark Taua Awaita [1985] PNGLR 179.
Yap v Tan [1987] PNGLR 227.
The State v Foxy Kia Tala Re: Conrney Winjan [1995] PNGLR 303.
The State v Lucas Sasoruo (1996) N1494 26 September 1996.
The State v Raymond Tupundu (1996) unreported N1536 30 May 1996.

Other cases cited

Attorney General v Times Newspapers [1974] AC 273.

Counsel

F Alua, for plaintiffs.
T Cooper, for first defendant/contemnors.

7 November 2005

Sevua j. The contemnors who are the first defendants herein pleaded guilty to a charge of Contempt of Court on 20 October 2005 and sentence was reserved to today. I have had the liberty of considering the appropriate penalty in this case after a careful consideration of the contemnors' counsel's address and the contemnors' statements in allocutus.

To appreciate the nature of the contempt proceedings, I consider that it is necessary to traverse for a moment to refer to the nature of the substantive proceedings as that gave rise to the charge of contempt.

The plaintiffs' originating summons claims certain declaratory orders and other orders in respect of royalty monies derived from the harvest and export of timber logs from Mussau Island in New Ireland Province under Timber Permit No. 16-41 later consolidated to Timber Permit No. 16-29. It appears evident from various affidavits and documents in the Court file that the contemnors have been claiming royalty monies from the National Forest Authority on the basis that they had held themselves out as legitimate representatives of the landowners and agents of the second plaintiff, Mussau Timber Development Limited, which I understand to be the umbrella company comprising individuals, clans and Business Groups in Mussau Island who are shareholders of the second defendant company.

For example, in the affidavit of Kalip Salo sworn on 7 December 2004 and filed on the same day (Document No. 16), in support of the plaintiff's claim, he deposed to the fact that the contemnors, in a letter dated 24 June 2004 to David Nelson, then Managing Director of Papua New Guinea Forest Authority, claimed a total sum of K13,757,185.00 for loss of business and costs relating to the Mussau Timber Project for various tasks undertaken by them. From that amount, the sum of K8,897,933.00 was claimed by Peter Terry Gerari while the balance of K4,859,252.00 was claimed by Lawrence Job Polain. That claim was lodged by Girewan Limited of P.O. Box 104, Gordons, National Capital District and signed by Peter Terry Gerari as Managing Director. There is no evidence that Gerawan Limited is a shareholder of the second defendant company, Mussau Timber Development Limited.

Another example deposed is a claim for K22,434,924.00 which Peter Terry Gerari had submitted to David Nelson at Papua New Guinea Forest Authority on 10 December 2002, which claim was for outstanding timber royalties for the Mussau Timber Project area. That claim was on the letterhead of Girewan Limited and signed by Peter Terry Gerari as Managing Director. There are other sums of money which the contemnors have been claiming from State institutions purportedly for the benefit of the landowners in the Mussau Timber Project area, however both contemnors have provided no evidence at all as to the proper and legitimate disbursements of such royalties to the landowners, nor have they provided evidence that they are the lawful representatives of the second defendant or its shareholders.

These are questions pertaining to the substantive issues, however they are being raised to highlight the conduct of the contemnors in showing that their claims were fraudulent. This Court cannot rule out the possibility of corruption involving officers of the Papua New Guinea Forest Authority, Department of Finance and other people of Mussau Island.

There is uncontested evidence that the sum of K500,000.00 was obtained fraudulently by the contemnors on 8 September 2004 from the Department of Finance through a Bank of Papua New Guinea cheque no. 789611. In annexure "H" of the affidavit of Kalip Salo sworn on 19 October 2004 and filed on 22 October 2004, that cheque was paid to the personal names of the contemnors, Peter Terry Gerari and Lawrence Job Polain. The question is, if the contemnors are the true representatives of the landowners at Mussau Island, why wasn't the cheque paid to the second plaintiff for distribution to the various landowner groups and individual shareholders? Why was it that the contemnors had secured that payment for themselves? Where is the evidence that they have disbursed the half a million Kina to the landowners of Mussau Island?

I understand that these proceedings were instituted after the contemnors obtained the above payment through fraudulent misrepresentation and that is confirmed by the terms of the order of the Court, the subject of this contempt of court charge, which returns me to the actual charge of contempt of court.

Therefore the contempt of court charge arose from the non-compliance of the orders issued by the National Court on 3 November 2004. The relevant orders are as follows:-

2. An order pursuant to Order 14 Rule 10 that the first and second defendants be restrained from transacting with and in particular withdrawing of the Five Hundred Thousand Kina (K500,000.00) in a Bank South Pacific Account No. 1001001642 opened and operated by the first defendant until the substantive proceedings are heard and determined or such other orders of the Court.

3. An order that the second defendant pay the K500,000.00 held in the first defendant's account into the National Court pending the determination of the substantive proceedings.

6. An order that the first defendant produce and provide to the Court and the first and second plaintiffs all relevant information, accounts and records in relation to the K500,000.00 Cheque No. 789611 dated 8th September 2004 and such other timber royalty monies belonging to the plaintiffs and the landowners that was paid to and received by the first defendant within fourteen (14) days of these orders.

As the Court alluded to at the outset, the contemnors pleaded guilty to the charge of contempt initiated by the plaintiffs by way of a notice of motion and a statement of charge, both filed on 10 February 2005. Mr. Alua, counsel for the plaintiffs informed the Court that the charge relates to Orders No. 3 and 6, however as it turned out, the Court found the contemnors not guilty of contempt in respect of Order No. 3, and acquitted them, but found both contemnors guilty of contempt in respect of Order No. 6. Perhaps, counsel intended that the contemnors should be charged in relation to Order 2 as well. However that was not sought in the statement of charge and no application for amendment was made at the hearing of this application. I think Order 2 is relevant too, but it was not pursued therefore it is not before this Court for determination.

At this juncture, let me deviate and briefly address what I consider to be a tactic of delay by the contemnors in the due process of law in this case, in particular, the contempt proceedings.

On 4 October 2005, this matter went before His Honour Salika, J who set it down for hearing before me on 20 October 2005 as a special fixture because it was a contested motion. At that time I was out of the country therefore I had no input in the process of fixing this matter for hearing. When the matter came before me on the said date, Mr. Cooper, counsel for the first defendant/contemnors made an oral application to withdraw from representing the first defendant/contemnors. From the bar table, he informed the Court that he had discussed his withdrawal with his clients who had no objection, and also with Mr. Alua. He therefore sought an adjournment to enable the contemnors to seek other legal representation.

The Court refused to grant an order for withdrawal firstly, because, this was a eleventh hour withdrawal. No formal application for withdrawal supported by affidavit evidence had been filed prior to 20 October 2005. Secondly, the plaintiff's notice of motion had been fixed for hearing sixteen days prior to hearing and the first defendant's lawyer had had ample time to file a formal application for withdrawal. Judicial time and resources had been allocated to this special fixture and the Court could not accede to this application for withdrawal at the eleventh hour. In any event, no satisfactory reason was advanced for such withdrawal. This kind of eleventh hour withdrawal by lawyers must not be permitted with impunity.

The Court therefore refused the oral application and directed Mr. Cooper to continue to represent the first defendant until such time a formal application was filed and affidavit in support of such application also filed and an order is granted.

I raise this issue because it is occurring much more frequently now. Lawyers think they can circumvent the judicial administration of cases after judicial time has been committed to a case, and in the present case especially, when this was a special fixture. Furthermore, the first defendant's lawyers did not comply with Order 2 Rule 39 National Court Rules which regulate withdrawal by lawyers. In any event, as I alluded to, no satisfactory reasons were advanced for counsel's withdrawal therefore the Court considered this to be another of the first defendant's tactic to delay the proceedings thereby delaying the administration of justice in this case.

In respect of penalty for civil contempt, there are many cases which have come before the National Court and the Court constituted by different Judges have imposed varying penalties following conviction of contemnors for contempt. I intend to refer to some of these cases to highlight the fact that the imposition of penalties in contempt cases is at the discretion of the Court, as in criminal cases. Because the nature of the proceedings for contempt of court is criminal, it follows that the penalty is also criminal in nature. The Court has powers to either order a fine or imprisonment. An alternative penalty, if the contemnor is a corporation is an order for sequestration of properties. However, as the learned trial Judge in Peter Luga v Richard Sikani & The State; (2001) unreported, N.2286, 4 October 2001, said in citing Law Reform Commission (Australia) Report No. 35, P314; and I consider it appropriate to quote what His Honour said at p.16 of his judgment.

Traditionally, the sentencing options available to a Court at common law depended upon whether or not the disobedience was contumacious. 'Mere' disobedience attracted the sentence of open-handed imprisonment or sequestration of assets, whereas contumacious disobedience was punishable by fixed term imprisonment. A fine was not considered to be an appropriate sanction for any form of civil contempt.

A helpful and authoritative exposition cited by Sakora, J in the above case at 16 and 17 is in Halsbury's Laws of England, Vol. 9, 1974, para. 2:

Contempt consists of disobedience to the judgments, orders or other process of the Court and involving a private injury. (Explanation in the Notes: Although civil contempt is essentially a wrong done to the person who is entitled to the benefit of the order or judgment concerned, it also involves an obstruction of the fair administration of justice and may be punished in the same manner as a criminal contempt).

Speaking of contumacy in this case, the Court notes that from the date of the orders on 3 November 2004, the subject of this contempt proceeding, to the date of hearing of the charge, the first defendant has had almost a year to comply with the orders of the Court. Their counsel submitted that the contemnors could not comply because it was not possible as there has been a freeze of their account at the Bank South Pacific. However, I consider this to be a lame excuse to justify the contemnor's wilful disobedience of the Court order. The sum of K500,000.00 was obtained on 8 September 2004. The orders were issued on 3 November 2004. Surely the contemnors would have the bank statements for the months of September and October 2004. In any event, I consider that they were in a position to know and provide details of the amount, the date of the deposit of this money, and how much they had drawn from that account. These are matters of simple fact that they were in a position to depose to in affidavits, yet they deliberately disobeyed the order, perhaps thinking that nothing would happen to them. One does not need an accounting degree, an economics degree or a law degree to provide these simple facts. The fact that the contemnors have not done anything for almost a year, even to the date of hearing this charge, constitutes wilful disobedience of the Court order, and in my view, this amounts to contumacious disobedience.

Both contemnors have filed affidavits in these proceedings as well, however, I do not think they have really addressed the substance of the orders issued against them. I am quite amazed that the contemnors, holding themselves out as consultants and operating a company to lodge claims for timber royalties could be so naïve in giving the impression that they did not know what they were doing. Rather, I am of the view that they were so dishonest and corrupt that not even the details of disbursements of the sum of K500,000.00 to the Mussau Island people, if any, had been provided to the Court and the plaintiffs as ordered.

I have listened to them in allocutus and I have heard what their counsel has briefly submitted, and I say it's quite pathetic to say the least, that counsel's submissions were so brief that they did not even provide the personal antecedents of the contemnors. This Court is not going to do counsel's job, and if counsel fails to properly address the Court on relevant matters, that is a matter between him and his clients.

It is my opinion that there are aggravating circumstances in this case, which call for severe penalties. As the contempt charge stemmed from proceedings relating to landowners' timber royalties, it is necessary to state that the National Court in Waigani is inundated with this kind of action. People claiming to be landowner representatives in forestry operations in several parts of the country and the oil and gas projects in the Southern Highlands Province have come to Court in similar fashion. Needless to say, it is the legitimate landowners back in the villages who are being cheated out of their royalties. This case is no different to timber royalties in Sandaun Province, West New Britain, Gulf and Western Provinces. It is also no different to oil and gas royalties in the Southern Highlands, and yet conmen and dishonest people like the two contemnors in the present proceedings, have the audacity, with corrupt and dishonest minds and intention, to cheat their own people from the benefits of their forest resources.

I consider that this is a very serious case. Half a million kina in timber royalties for the people of Mussau Island, which is a huge amount of money, has not been accounted for. Despite a legitimate Court order that the two contemnors account for that money, they have wilfully refused to comply. If they are the legitimate representatives of the Mussau people and the second plaintiff business, why are they scared of revealing the truth about the use of the royalty money? It would seem that there are other people who were part of a conspiracy to deprive the members of the second plaintiff what appears to be rightfully theirs, and I intend to name these individuals with the necessary recommendation so that relevant authorities can investigate their involvement because it seems obvious that there are other people who benefited from the half a million kina, and they are not the legal beneficiaries.

But at this juncture, I wish to refer to the various company documents that are in the court file because I consider that some of those materials form part of the aggravating features of this case.

In the second plaintiff's company records in these proceedings, the first plaintiffs are the directors of the second plaintiff. There is no evidence that the two contemnors are directors of the second plaintiff, nor are they the majority shareholders of the second plaintiff. So how do they claim to be agents or representatives of the second plaintiff or its shareholders in claiming royalties from National Forest Authority and the Department of Finance? There is no evidence at all to show this. Therefore fraudulent and corrupt dealings add to the aggravating circumstances of this case.

For instance, in the affidavit of contemnor Peter Terry Gerari, sworn or signed on an unknown date, but filed on 22 November 2004, there are individual people and landowner groups or Business Groups who have major shares in the second plaintiff. In Annnexure "A" which is a Historical Extract of the Mussau Timber Development Limited in the Registrar of Companies records, the individuals who hold 100 shares in the second plaintiff company are shown as Rini One Balang, Samuel Nau, Rintwo Blanca, Norman Iona, Phllip Lapai, David Oge and Seth Pulao. Those holding 120 shares are Worim Batomu and Asekorori Seah. Donny Tutea holds 300 shares and there are others who hold 10, 20, 50, 55 and 66 shares each respectively.

Furthermore, there are landowner groups who also hold a hundred or more shares in the second plaintiff company. Kotapolue Business Group Inc. holds 100 shares; Lotaba Business Group Inc. holds 120 shares, Eatuko Business Group Inc. holds 100 shares; Loma Kunauru Rubber Development Business Group Inc. holds 120 shares and Massai Business Group Inc. holds 100 shares.

The significance of making reference to those information is that the contemnors are not shown as major shareholders or directors of the second plaintiff company. In fact, Peter Terry Gerari was previously a director, however, he no longer is one now. Thus the basis in which the contemnors have held themselves out as agents or representatives of the second plaintiff or the people of Mussau can only be by fraud and corruption. In my view, that adds to their degree of culpability which must reflect on the penalty to be imposed.

As to punishment, between 1979 and 2003 the National Court has imposed fines and sentences at its discretion as will be demonstrated by looking at the level of imprisonment terms imposed as punishment for contempt in the following cases:

The Public Prosecutor v Nahau Rooney (No. 2) [1979] PNGLR 448 – 8 months imprisonment with light labour.

John Rumet Kaputin v The State [1979] PNGLR 559 – 10 weeks imprisonment with hard labour substituted with K500.00 fine in default 10 weeks imprisonment on appeal.

Re Passingan Taru [1982] PNGLR 292 – K50 fine in default 5 days imprisonment with hard labour.

The State v Mark Taua Awaita [1985] PNGLR 179 – K1,000.00 fine plus an order barring him from the Court precincts.

Allan Robinson v The State [1986] PNGLR 307 – Fine of K100.00.

Yap v Tan [1987] PNGLR 227 – Fine of K5,000.00 per charge totalling K15,000.00 in default 12 months imprisonment per charge.

The State v Foxy Kia Tala Re: Conrney Winjan [1995] PNGLR 303 – 6 months imprisonment suspended with conditions.

The State v Lucas Sasoruo (1996) unreported, N1494, 26 September 1996 – Fine of K500.00 in default 3 months imprisonment with hard labour.

The State v. Raymond Tupundu (1996) unreported, N.1536, 30 May 1996 – Fine of K600.00 in default 60 days imprisonment with hard labour.

Attorney General & Ors v Dr Pirous Hamidian-Rad (1999) unreported and unnumbered – 3 months imprisonment. Judgment on sentence not located, so this may be incorrect.

Peter Luga v Richard Sikani, Commissioner Correctional Services & The State; unreported, N. 2286, 4 October 2002 – 6 months imprisonment with hard labour. Supreme Court overturned decision on appeal by a majority of two to one.

Bewa Tou v PNG Forest Authority & 2 Ors; Re: Valentine Kambori; unreported, N.2490, 11 December 2003, 6 months imprisonment with hard labour. Supreme Court overturned decision on appeal.

It can be seen that the kind of penalties imposed in those cases have involved the exercise of the discretion of the Court, inherent in its nature by virtue of the Constitution therefore, it must be noted that the imposition of a fine or a term of imprisonment is at the discretion of the Court. As I alluded to, for my part, the penalty for contempt of court in respect of wilful disobedience of a Court order must be stern and decisive so that people like the contemnors in the present case cannot and must not be allowed to trample on the authority of the Court. In my view, if we are to treat contemnors with leniency, it will add to the mockery of the authority of the Court and the administration of justice by the Court in judicial proceedings as well as the due process of law. I consider that people must never be allowed to flout the judicial process and make a mockery of it otherwise they will think that they will get away freely from punishment if convicted of contempt of court.

In my view, the penalty to be considered in this case is not only for justice to the Mussau people who are forest resource owners and shareholders of the second plaintiff, Mussau Timber Development Limited, but as a matter of public policy and public interest, the Court must show that deliberate interference of its orders or judgments must be justly punished. It is for that reason that the English common law principles which have been part of the underlying law in this country by constitutional reception must be taken into account, and I will refer to one of the famous common law authorities to illustrate and emphasize the law on contempt.

In Attorney General v Times Newspapers [1974] AC 273 at 302, Lord Morris summarized the law in the following manner:

"In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustified interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibility of administering justice are concerned with their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted and their authority wanes and is supplanted."

In the same case, Lord Diplock had this to say at pages 307 and 308:

"One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a "civil contempt". The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was chooses not to insist on its enforcement criminal contempt of court resembles many ordinary criminal offences, such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large ."

These statements of law are imperative in every contempt cases and they emphasize the importance of the obedience of court orders. It is not so much for the protection of Judges who make such orders, however as we have seen in these very persuasive principles, it is the public policy and public interest of the court's authority that we are concerned about. These statements, which I adopt with respect, are quite appropriate and applicable to the present case and any other contempt of court proceedings for that matter.

If we need to have an orderly society premised on a vibrant democracy with a strong independent and impartial judiciary, people must learn to respect the Courts and their authority. The rule of law is a central theme in a democratic society and this accord with the sentiments expressed by His Honour Justice Saldanha in The Public Prosecutor v Nahau Rooney (No. 2) (supra). At 482 His Honour said:

I have shown earlier how necessary it is for an ordered society to observe the rule of law and maintain the authority of the courts and judges. The stand taken by judges against contemptuous remarks and statements is not out of a tender regard for their own feelings and because they have false idea of their own dignity. The rule of law is central to a democratic way of life.

I adopt these principles in the present case because I believe in the value that these legal principles represent in a democratic society where we have the Courts established by the nation's Constitution to adjudicate on disputes between parties. It is for public policy and public interest considerations that the Court's authority is not flouted, trampled on, interfered with or hijacked by litigants. In the legal process before a Court such as this, if the Court can respect and permit an audience with litigants, the litigants must reciprocate by respecting the authority of the Court. They have both a legal and moral obligation to respect the authority of the Court by giving effect to its orders or judgments.

I concur with what my learned brother Justice Sakora said in his judgment on sentence in Peter Luga v Richard Sikani Commissioner Correctional Services and The State; (supra) at pages 12 and 13. Although His Honour's decision has been overturned on appeal, I wish to quote that excerpt because it is relevant to the issue of public policy and public interest. His Honour said:

This case raised question of disobedience by a party to a civil action of specific orders of a court of competent jurisdiction. It is in circumstances such as these that the element of public interest in the due administration of justice becomes a matter of vital importance. It is here that questions of public policy which require a balancing of conflicting interest arise.

In the present case, the Court has not been informed of any reason the contemnors did not comply with the orders given on 3 November 2004. Their counsel attempted to say that the contemnors were unable to comply because there had been a freeze of their bank account at Bank South Pacific, however I have earlier rejected this as a weak excuse because I consider that they were in a position to provide some of the relevant records, the subject of that order. In any event, there is no evidence before the Court of any attempt by them to comply, or that their efforts were unsuccessful because they were prevented by the bank. In my view, the contemnor's overall conduct in this matter is one of disrespect and wilful disobedience of a legitimate order of the National Court. They have shown by their conduct and by offering no reasonable and satisfactory explanation that they could not care less about the authority of the Court and therefore, in my opinion they must be punished for their contemptuous conduct.

This Court, which is a court of competent jurisdiction and a superior court of record by virtue of Constitution, s155 should not allow litigants to flout its authority. It has an obligation to protect its authority and where litigants abuse this authority by non compliance of its orders or failing to give effect to such orders, the Court must act decisively and sternly in punishing litigants for their contemptuous conduct so that, that not only deters the contemnors personally, but the punishment also acts as a general deterrence to the public at large. In that way, the public at large will be able to realize the public policy and public interest considerations behind such a punishment for contempt.

The Court has considered the contemnor's statement in allocutus and their counsel's brief submissions on penalty. As I adverted to earlier, there is nothing on the personal antecedents of the two contemnors before this Court.

However, in the absence of any evidence to the contrary, I will accept that this is the first time for them to be convicted of contempt of court and that they have not been convicted of and punished for any criminal offences before.

Their counsel said they are family men although, once again, no details of the contemnors' marriage or families have been provided to the Court, and this Court is not going to do counsel's job. Their plea of guilty has also been duly considered.

However, my view is that the basis of the order, and the subsequent contempt, are very serious because the order involves a huge sum of money, namely half a million kina, which has not gone to the landowners who are shareholders of Mussau Timber Development Limited. Sadly, for the people of Mussau Island, who are legally entitled to this royalty money, they are not the only ones who are being swindled of their funds by so called consultants, and my experience with this kind of cases has been that the so called consultants are nothing but crooks, dishonest and corrupt citizens, who do not deserve to live in an orderly and democratic society. This country is a Christian nation by constitutional definition and yet when I see the contemnors conduct in stealing from their own people, it makes me wonder whether the Christian principles and value that are so entrenched in a main stream religion like the Seventh Day Adventist Church, which many of these people are members, are really what the Adventists who are Christians really accept and practice.

In saying that, I now return to what I alluded to earlier in this judgment and that is the fact that there are others who are suspected of either collaborating with these two contemnors, or have conspired with them in unlawfully obtaining the half a million kina, or have been part of the misappropriation of that royalty money, and who should be investigated by the Police Fraud Squad with the view of laying criminal charges against them.

The various Court documents in the Court file reveal the identity of the following people apart from the contemnors. Dicks Thomas; Edward Kenas; Freddy Nenek; David Nelson, former Managing Director of the fifth defendant herein; Peter Pokarop, whom I personally know from Solang Village, Lou Island in Manus Province, and who must be asked why he is meddling with the royalty funds belonging to Mussau Island people; an unnamed Asian, and an unnamed Highlander, all of whom were present in a meeting at Edward Kenas' residence on 3 November 2004 when the police went to serve the contemnors who were also in that meeting, with court documents in this case. One aspect of this case is that Peter Pokarop has his name in company documents lodged at the Registrar of Companies office when he is neither a lawyer, or accountant, or a director or shareholder of the second plaintiff to lodge the statutory forms for and on behalf of the Mussau Timber Development Limited.

I believe it is reasonable to think that all these people, either as a group, or as individuals, have misappropriated the half a million kina royalty monies which should have gone to the Mussau Island people who are landowners, and therefore legally entitled to this money. It is up to the contemnors to be honest and tell the truth about what has happened to this huge amount of money and who has benefited from it because certainly the people of Mussau have not either, otherwise the directors and the company (the plaintiffs) would not have filed proceedings and come to Court in the first place. I therefore recommend to the Police Commissioner that all these people including the two contemnors, be investigated with the view of charging them with misappropriation of the sum of K500, 000.00, and or conspiracy to pervert the course of justice and with any criminal offences that may be supported by evidence during the investigation.

Of particular concern to this Court is the fact that there is evidence that these people including the contemnors acted with hostility towards the process servers and harassed the police officers who went to effect service of the court documents on the contemnors, as a result of which they had to return to Boroko Police Station to get reinforcement. In fact, Senior Sergeant Sioni Papi deposed to that incident and said they were "literally chased out of the yard" of Edward Kenas' residence. Refer to his statement dated and sworn on 9 November 2004; affidavit of Jonathan Salo sworn on 24 November 2004 and filed on 25 November 2004 and the statement of Constable Rex Wosae on 3 November 2004. The sergeant specifically mentioned Dicks Thomas, Edward Kenas and Freddy Nenek who were uncooperative with the police and told police they were having a meeting and the police should wait. So, again we see these arrogant people who were prepared, and did in fact, gone to the extreme of showing no respect for law enforcement agencies, and chased the police officers away. These three men should be arrested and charged for perverting the course of justice in interfering with the due process of law. I recommend that they be arrested and charged forthwith. If they could behaved like this and show contempt in the due process of law then they ought to be removed into a prison where they can be subject to strict disciplinary enforcement.

Of course these persons are not the contemnors, but the basis for referring to them and others is that the conduct of the contemnors goes to show how they had manipulated their cohorts to oppose the legal process, and it also goes to show the culpability of the contemnors, which I consider relevant in sentencing. To my mind, this proves one point, and that is, the two contemnors were not alone in dealing with the half a million kina royalty monies belonging to the Mussau Island people who are still waiting for their money back in their villages.

Here, we have a situation where two individuals have held themselves out to be consultants and legal representatives of the majority of Mussau Island villagers back home, used their purported standing and designation as referred to, and obtained half a million kina in royalty funds belonging to the Mussau landowners and have paid nothing to the village people. They have refused to provide the accounts and records of this money in their bank account so the villagers of Mussau Island continue to suffer whilst the contemnors enjoy city life in the nation's capital. Is there no morality involve in all these? How can the contemnors, together with their cronies including Dicks Thomas, Edward Kenas, Freddy Nenek, Peter Pokarop and others justify their conduct at the expense and sufferings of the village landowners of Mussau Island? My view is that their conduct, which is tantamount to fraud and corruption, must be condemned in the strongest possible term, not only by this Court, but by every sane Mussau Islander whether in Port Moresby or at Mussau Island. If the contemnors could not care less, so has this Court.

For these reasons, it is the judgment of this Court that the level of the contemnors' culpability in the whole saga is high therefore they must be punished for their act of contempt when viewed in the circumstances of the whole case.

The contemnors have even seen fit not to offer an apology to the Court for disobedience to its orders when they had the opportunity to do so during allocutus. This reflects their overall attitude, arrogance and general behaviour that they could not care about the Court and its authority. Let me remind them, and all those who have an interest in this case that this court case is about royalty monies and the unjust distribution of it to the landowners of Mussau Island under the umbrella of their company, Mussau Timber Development Limited. It is not about land ownership as I have seen in the affidavit of Lawrence Job Polain. This Court has no jurisdiction over issues of customary land ownership, thus it is a misconceived and spurious mind to bring that issue before this Court.

Accordingly, it is the order of the Court that each contemnor is sentenced to imprisonment with hard labour for 18 months. In respect of their cash bail, I order that it be transferred and/or paid into the National Court Trust Account in the name of Mussau Timber Development Limited on the basis that the company has a claim over the monies being held by the contemnors therefore the cash bail of K5, 000.00 is to be held in Trust until the substantive proceedings are completed.

I hand down the sealed warrants of commitment for the contemnors to assist in their conveyance from the Court premises to Bomana Corrective Institution.

Orders accordingly.

Lawyers for plaintiffs: Harricknen Lawyers.
Lawyers for first defendant: Korowi Lawyers.