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Mango v Maneke [2019] PGNC 276; N8038 (11 October 2019)

N8038

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 494 OF 2019

BETWEEN:
HON. LAWRENCE MANGO, MPA in his capacity as DEPUTY & ACTING PROVINCIAL GOVERNOR
First Applicant

AND:
HON. JOSEPH LELANG, MP in his capacity as MEMBER FOR KANDRIAN GLOUCESTER OPEN
Second Applicant

AND:
HON. FRANCIS GALEA MANEKE, MP in his capacity as MEMBER FOR TALASEA
First Respondent

AND:
MR. SYDNEY NULI in his capacity as CABINET SECRETARY AND ACTING DIRECTOR FOR PARLIAMENTARY SERVICES
Second Respondent

AND:
PHILOMINA MANASAPLO in her capacity as CLERK OF THE PROVINCIAL ASSEMBLY
Third Respondent

AND:
JACKSON ENDO in his capacity as TOWN MAYOR, KIMBE URBAN LLG
Fourth Respondent

Waigani: Dingake J
2019: 3^rd September & 11^th October

Counsel:

Mr. M Saka, for the Applicants
Mr. M Tukuliya, for First & Second Respondent

11^th October, 2019

1. DINGAKE J: On the 3^rd of September, 2019, this Court was scheduled to hear contempt proceedings against the respondents brought by the applicants.

2. By way of background the first and second applicants filed and served upon thirteen (13) of the fourteen (14) respondents the following court documents pertaining to this contempt proceedings;

1. Originating Summons dated 22^nd July, 2019.
2. Statement for Charges for each of the fourteen (14) separately dated 22^nd July, 2019.
3. The Notice of Motion dated 25^th July, 2019.
4. Affidavit in support by the First Applicant, Hon. Lawrence Mango, MPA sworn, 12^th and filed 22^nd July, 2019.
5. Affidavit in support by the Second Applicant, Hon. Joseph Lelang, MP sworn and filed on 22^nd July, 2019.
6. Supplementary Affidavit by the Second Applicant, Hon. Joseph Lelang, MP sworn on 29^th and filed 31^st July, 2019.
   

3. The respondents, the alleged contemnors, did not appear notwithstanding evidence that thirteen (13) of them, save for Hon. Lucas Kurgi, MPA, were duly notified of the hearing scheduled for 3^rd of September, 2019.

4. In consequence of their failure to appear the applicants prayed the Court that a warrant of arrest pursuant to Order 14, Rule 48 should be issued against them so that they may be brought to Court to answer charges of contempt laid against them.

5. Earlier, in the course of an exchange between the bench and counsel for the applicants, I had expressed concern whether a Judge whose order was not disobeyed (held in contempt) can hear that contempt application. On reflection and having regard to the authorities supplied to me by counsel for the applicants, I am satisfied that this Court can hear the contempt proceedings as the allegation is that the respondents disobeyed the authority of the Court.

6. I have read Order 14, Rule 46 and 48 of the National Court Rules in the context of the application made by the applicants that the respondents be arrested for failure to appear for the hearing of the 3^rd of September, 2019.

7. Order 14, Rule 46 authorises the issuance of a warrant of arrest where it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court. This cannot be the relevant section for the present purposes because there is nothing before the Court that suggests that the contemnors are likely to abscond or otherwise withdraw themselves from the jurisdiction of the Court.

8. Learned Counsel for the applicants Mr. Korowi submitted that the correct section to issue the warrant is Order 14 Rule 48. In my mind, Order 14 Rule 48, does not specifically address the present situation in which the contemnors notwithstanding service have refused and or neglected to appear in Court.

9. Order 14, Rule 48, simply prescribes the form and provides to whom the warrant should be addressed and that it may be issued under the hand of the judge presiding in the Court directing arrest or detention. It does not seem to me to be an empowering provision.

10. Notwithstanding the above, I am clear in my mind that this Court pursuant to Section 155(4) of the Constitution has an inherent power to secure the attendance of the contemnors, by way of a warrant of arrest, if they cannot voluntarily surrender themselves to the Court as required by law.

11. Section 155(4) of the Constitution provides that:

“(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

12. In this case, it’s plain that the applicants, by their non appearance, are frustrating the due process of law and in all likelihood in contempt of Court.

13. However, I will refrain from being too quick to issue a warrant of their arrest. I would rather temper justice with mercy and give them another chance to appear.

14. In the result, I will issue the following orders:

1. The respondents are ordered to show cause, on the 13^th of February, 2020 at 9:30am why they should not be held in contempt of Court and be duly punished for their failure to appear in Court on the 3^rd of September, 2019.
   
2. The applicants are directed to serve the terms of this Order personally on all the respondents/contemnors within fourteen (14) Court days from today, the 10^th of October, 2019, and file proof of such service, within the said 14 days.
   

___________________________________________________________

Korowi Lawyers: Lawyers for the Applicants
Kumbari & Associate Lawyers: Lawyers for the Respondents