Carlton Brewery (Fiji) Ltd v Orange Bubble-Up Company [1991] FJHC 38; Hbc0150j.89s (27 May 1991)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 150 OF 1989

BETWEEN:

CARLTON BREWERY (FIJI) LIMITED
Plaintiff

AND

ORANGE BUBBLE UP COMPANY (a firm)
AND BUBBLE UP INDUSTRIES LIMITED
Defendants

Mr. S.J. Stanton and
Mr. F.S. Lateef: For the Plaintiff
Dr. M.S. Sahu Khan: For Saizad Ahmed Shah, Prem Prasad and
Sevolini Gata as persons named in a Motion for contempt of Court dated
16th November, 1989.

Dates of Hearing: 23rd and 24th April 1991
Date of Judgment: 27th May 1991

JUDGMENT

In the Statement of Claim annexed to the Writ of Summons herein which was issued on the 4th of May 1989 the Plaintiff claims against the Defendants that it is the registered proprietor of the Trade Mark in the form of a clover leaf devised with the letters "CBF" which is embossed on bottles used by it for over 30 years in the sale of beer and ales manufactured by it. It alleges that the Defendants who manufacture cordials and soft drinks have wrongfully acquired and converted to their own use and passed off as such numerous large quantities of the Plaintiff's bottles bearing its Trade Mark. Various relief is sought by the Plaintiff against the Defendants including a declaration that the Defendants are not entitled to acquire or deal in any way with the Plaintiff's bottles without its consent, an account of the number of the Plaintiff's bottles which the Defendants have acquired and damages for conversion or illegal detention of the Plaintiff's said bottles.

To date two Anton Piller Orders have been made by this Court against the Defendants, the first by Jesuratnam J. on the 3rd of May 1989 and the second by myself on the 18th of October 1989.

Presently before me is a Notice of Motion dated the 16th of November 1989 for committal for contempt of Court alleged by the Plaintiff against the three persons whom I have named above and for whom Dr. Khan is appearing. It appears that Mr. Shah is also known as Saizad Ali the name which he was most frequently called during these proceedings and I shall refer to him by that title in the rest of this judgment. The contempt alleged is a breach of the Anton Piller Order and Injunction which I made on the 18th of October 1989.

On the 12th of December 1989 the three alleged Contemnors Pleaded "Not Guilty" to the charges but before the hearing of the motion could begin, counsel for the Contemnors took a number of preliminary objections of a procedural character with which I must deal before I consider whether or not his clients are guilty of the alleged contempt. Some of these objections I consider to be of a technical nature and which I will deal with comparatively shortly but others appear to me to be of more substance and which I shall consider later. One of these I should say at the outset has caused me considerable difficulty and involves the construction of Order 52, Rule 2 of the Rules of this Court.

Technical objections have of course a legitimate place in the lawyer's armoury but because of their very nature, the Courts must always scrutinise them closely and be careful not to consider them in isolation but rather in relation to the whole of the evidence before the Court in a given case.

In performing this function in the present case I must remind myself that it is not only the three persons charged who have rights; so too does the Plaintiff and, consistent with the various authorities on the subject, I regard my duty as being to ensure that the Plaintiff is not thwarted in the prosecution of these charges by unnecessarily academic and legalistic arguments whose acceptance by me would unfairly hinder such prosecution.

Involved in this exercise must always be the paramount consideration of whether as a result of any technical failure to comply with the Rules of this Court the alleged Contemnors have suffered any prejudice. If I am satisfied beyond reasonable doubt that they have not, then in my judgment I can ignore such objections and proceed to the matters of more substance.

With those preliminary remarks I now turn to consider Dr. Khan's objections and the response from counsel for the Plaintiff to them. At the beginning it is relevant to set out Order 52, Rule 2, Sub-rules 1, 2 and 3 and Order 52, Rule 3, Sub-rules 1, 3 and 4. They are as follows:

O.52:

"2(1) No application for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

(2) An application for such leave must be made ex parte to a judge in chambers, and must be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

(3) The applicant must give notice of the application for leave not later than the preceding day to the Registry and must at the same time lodge at the Registry copies of the statement and affidavit.

3(1) When leave has been granted under rule 2 to apply for an order of committal, the application for the order must be made by motion and, unless the Court granting leave has otherwise directed, there must be at least 8 clear days between the service of motion and the day named therein for the hearing.

(3) Subject to paragraph (4), the notice of motion, accompanied by a copy of the statement and affidavit in support of the application for leave under rule 2, must be served personally on the person sought to be committed.

(4) Without prejudice to the powers of the court or judge under Order 65, rule 4, the Court or judge may dispense with service of the notice of motion under this rule if it or he thinks it just to do so."

The first objection taken by counsel for the Contemnors is that the Notice of Motion dated the 16th of November 1989 does not state in itself that I had granted the Plaintiff leave to abridge the time of service required by Order 52, Rule 3(1) from 8 clear days to 3 clear days, that leave being granted on the 14th of November 1989. According to counsel the motion should not only have referred to leave being granted to issue the present proceedings but should also have stated that leave had been granted to reduce the time. He relies on the case of Dawson v. Beeson (1883) 22 Ch. D.504, part of the Headnote of which reads:

"Where a party applies for special leave to serve short notice of motion, he must distinctly state to the Court the notice applied for is short; and the same fact must distinctly appear on the face of the notice served on the other party.

But in a case where short notice of a motion had been irregularly applied for and served, but the party served had not been injured by the irregularity, the Court exercised its discretion under Order LV., rule 1, and disregarded the irregularity and heard the motion on the merits."

I can not accept this objection because in this case the Contemnors have been served either personally or by substituted service with a copy of my Order abridging the time for service and, as such, I am satisfied they have suffered no prejudice. In this regard Lord Jessel, M.R. said at page 509 when referring to the then Order 59, the predecessor of our present Order 2 of the Rules of this Court:

"Nothing can be more distinct and valuable than the first rule of Order LIX., which enables the Court to do justice without regard to technicalities."

At page 510 Cotton, L.J. said:

"I am not myself inclined to allow a party to take advantage of technical objections when he has not been deprived of the opportunity of defending himself."

Again in their note to Order 2, r.1(2) the authors of the 1988 Supreme Court Practice say this:

"In most cases the way in which the Court exercises its powers under O.2, r.1(2) is likely to depend on whether it appears that the opposite party has suffered prejudice as a direct consequence of the irregularity, but the rule is so framed as to give the Court the widest possible power to do justice."

I therefore reject this first objection.

The next objection concerns service of the motion on Saizad Ali. It is argued that the return date on the motion was the 29th of November 1989 but that it was served by substituted service on the 30th of November 1989. The Order which I made on the 29th of November 1989 directed service on Saizad Ali by Registered Post and further ordered that "this matter is adjourned for mention on 8th December 1989 at 9.00 a.m." Counsel argues that this constitutes defective service because the Notice of Motion required Mr. Ali to appear on a date which had passed. What should have been done, argues Dr. Khan, was to amend the date on the Notice of Motion from the 29th of November to the 8th of December and so it is said Mr. Ali was unfairly prejudiced.

In actual fact Mr. Ali did not appear on the 8th of December but all three Contemnors did so on the 12th of December when Dr. Khan appeared for them and they pleaded not guilty.

During argument on this question I drew Dr. Khan's attention to the concluding words of my Order of the 29th November 1989 namely: "this matter is adjourned for mention on 8th December 1989 at 9.00 a.m." I suggested to Dr. Khan that this was surely sufficient notification to Saizad Ali that he was to appear on the 8th of December to answer the charge of contempt. Dr. Khan did not agree and said that the expression "this matter" was ambiguous in that it could mean the matter of substituted service or the matter for contempt.

I refused then and still refuse to believe that Mr. Ali could have been in any doubt in all the circumstances as to what the term "this matter" meant. My Order referred to the ex parte Notice of Motion for leave to serve committal proceedings on him by substituted service and the Order directed such service. I have no doubt that any reasonable person in the position of Mr. Ali would know that the matter referred to was the matter of substituted service on him and committal proceedings. Conscious as I am of the need to ensure that an alleged Contemnor knows clearly what is being alleged against him, I also consider that the Plaintiff and the Court are entitled to assume that Mr. Ali is a person of reasonable intelligence - nothing to the contrary has been shown. I have read the affidavit which he swore in these proceedings on the 19th of December 1990 in which he states in the first paragraph that the contents of the affidavit of Feroze Sharoff Lateef sworn on the 27th day of October 1989 and filed herein have been read and explained to him. Nowhere in that affidavit does Mr. Ali state that he does not understand Mr. Lateef's affidavit or indeed also the affidavits of Wayne Southwell and Apisalome Qica which he also mentions in his affidavit. He does say in paragraph 14 that he is confused as to the allegations against him but significantly in my view he does not say that he was under any misapprehension about the fact that he had to appear on the 8th of December to answer proceedings for contempt of Court. Furthermore, when I arraigned the three alleged Contemnors on the 12th of December 1989 I recall explaining to them the nature of the proceedings and I have no doubt that their pleas of not guilty were made at least partly in view of the explanation of the charges which I had given them.

In all matters the Courts must exercise common sense and I am satisfied that common sense as well as the fact that I consider no injustice has been done to either of the three Contemnors by the form of Notice of Motion requires me to reject this submission of Dr. Khan.

I now deal with the last of what I regard as Dr. Khan's technical objections. He submitted that the proper way to have served the Contemnors by way of substituted service was by pre-paid registered mail. He referred to Section 2(5) of the Interpretation Act, Cap. 7 which mentions pre-paying and posting, by registered post an envelope containing any document authorised by law to be served by post. Dr. Khan submitted that there was no evidence that this sub-section had been complied with by the Plaintiff in that the only evidence of service by post on the Contemnor was the registered slip issued by the Post Office at the time of posting.

I reject this submission because I am satisfied that service on the Contemnors has been made in accordance with Section 2(5). In my view this objection has no merit whatever.

Dr. Khan also argued that in any event insufficient reasons had been shown for making any order for substituted service. He referred me to the Guide-lines stated by the Supreme Court Practice in the note to Order 65/4/7 as relevant to the circumstances in which Orders for substituted service will normally be made.

As to these guide-lines I can only say that each case must be decided on its own facts and here there was strong prima facie evidence that the Contemnors were deliberately evading normal personal service of the documents herein. I accordingly also reject this submission.

That then leaves the two remaining objections made by counsel for the Contemnors. These concern the affidavit and statement relied on by the Plaintiff in support of the motion for committal and the service of such affidavit and statement on the Contemnors, Prem Prasad and Sevolini Gata. Both these objections in my view carry considerable weight but that taken under Order 52, Rule 2(2) has caused me the most difficulty. The objection is simply that Order 52/2/2 requires that the affidavit stipulated by the rule must refer to the facts in the statement also required by the rule. It is submitted that one can only verify the facts as they appear in the statement upon which the grounds on which committal is sought are based. In the instant case counsel points out that this has not been done because the affidavit of Feroze Sharoff Lateef used in support of the motion was sworn on the 27th of October 1989 whereas the statement required by Rule 2 was not dated until the 2nd of November 1989. Counsel argues that accordingly it was impossible for Mr. Lateef to verify by affidavit a statement which had not yet been made on the date on which he swore his affidavit and that consequently this has not complied with Order 52, Rule 2, thus rendering the whole application before me a nullity. In reply Mr. Stanton for the Plaintiff submits that the affidavit required by Rule 2 need not refer in any way to the statement also required by the rule. He says that it is a matter purely of construction of the rule and that all that is necessary in any application for contempt of Court is for the person moving the motion to file in the Court at any time before the application is actually made, an affidavit verifying the facts relied on in that affidavit. I observe here, however, that under Order 52, Rule 2(3) copies of the statement and affidavit must be lodged in the Registry no later than the day before which the application is to be made.

Dr. Khan refers to the Procedural Table 1 in Atkin's Court Forms, 2nd Edition, Vol. 12, where the author summarises the steps to be taken by an applicant for committal. Paragraphs 1 and 2 are relevant here and I shall set them out because of the view I have formed on this objection. They read as follows:

"1. Applicant prepares statement requesting leave to apply for order of committal (a).

The statement must set out the name and description of the Applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought (b).

Time: As promptly as possible (c).

2. Applicant or his solicitor swears affidavit in support.

The affidavit must verify specifically the facts relied on, and will be insufficient if it merely deposes that the facts alleged in the statement are true (d)."

From these two paragraphs counsel submits that the authors of this authoritative treatise obviously have no doubt that the affidavit under Rule 2 must refer to and verify specifically the facts relied on in the statement.

On the other hand counsel for the Plaintiff states that the learned authors of Atkins do not refer to an affidavit that says or even adduces or refers to by the slightest of implication that the statement is true and correct.

Initially I was very attracted by Mr. Stanton's submission but in the end I have come to the conclusion that it is not correct although as a matter of pure interpretation it seems to me to have considerable force.

On careful reflection however I have come to the view that Dr. Khan's submission carries more conviction. The clear inference I draw from the two paragraphs is that the affidavit must verify specifically the facts alleged in the statement.

In this view I derive some support from the remarks of Cross J., as he then was, In re B. (J.A.) (An Infant), (1965) 1 Ch. 1112 at page 1120. In that case the Court had to consider a number of preliminary objections to a motion to commit for contempt of Court, one of these being as to the form of affidavits used in the matter and His Lordship commented on an affidavit in this case by the Contemnor in answer to those filed in support of the motion. Part of the Contemnor's affidavit read:

"Save where otherwise therein appears I depose to the matters set out in my said statement of facts of my own knowledge."

As to this Mr. Justice Cross said:

"I do not think that either form is very satisfactory. To my mind it is better to say that "the statements in the exhibited "statements are to my knowledge true" but I certainly do not regard the form used as so defective as to make the affidavits in any way bad."

I read that passage as indicating that in the view of Mr. Justice Cross the affidavit, admittedly in answer, should refer to the statement also filed by the Contemnor.

In coming to this conclusion I observe as does Mr. Justice Cross that committal is a very serious matter. As His Lordship said earlier at page 1117, the Courts must proceed very carefully before they make an order to commit to prison. The liberty of the subject is involved and consequently, a great degree of strictness must be exercised when a Court is interpreting a rule where as in the present case its proper construction raises reasonable doubts. It is surprising that neither counsel were able to cite to me any case in which the interpretation of Rule 2(2) has been argued. This is possibly because in all previous cases except perhaps the present one the affidavit and statement have always been contemporaneous; certainly that has been my own experience.

Accordingly because of the doubts I have as to whether the interpretation suggested by the Plaintiff is correct, I must give the benefit of those doubts to the Contemnors and uphold their objection on this point.

The last objection taken by Dr. Khan relates to service of the Statement on Prem Prasad and Sevolini Gata. These persons were not served with the statement, and then only by substituted service, until the 2nd day of August 1990 pursuant to leave which I gave on the 1st of August 1990. The reason for this late service is not clear but presumably it was due to an over-sight by the Plaintiff's solicitors. The affidavit of Jack Laddie Pickering sworn on the 1st of August 1990 in support of the motion for substituted service refers to the difficulties experienced by the Plaintiff in making personal service of documents and execution of the Anton Piller Order impossible. Nevertheless Order 52, Rule 3(3) makes it clear that service of the Notice of Motion must be accompanied by a copy of the statement and an affidavit in support of the application for leave under Rule 2 unless service has been dispensed with or substituted service under Order 65, Rule 4 has been ordered. In my judgment, even if as here substituted service was directed, this must mean substituted service of the statement at the same time as the Notice of Motion and an affidavit in support. Mr. Stanton stated during his submission that the reason for late service of the statement on Prasad and Gata was that rather than have the proceedings thrown out, the parties consented to an application for leave to serve the statement and leave was so given inter-partes. Unfortunately for the Plaintiff this claim does not accord with my own recollection of events.

On the 1st of August 1990 at 1.00 p.m. I heard two ex-parte urgent motions by the Plaintiff. The first related to the substantive proceedings herein and is not relevant for present purposes but the second was for leave to serve a copy of the statement dated the 2nd of November 1989 by registered post on Sevolini Gata and Prem Prasad.

The fact that leave was granted as it was in all the ex-parte motions with which I have dealt so far in this case does not preclude the Contemnors making their objections to the motion for committal on the hearing of that motion. This is because they could not make their objections earlier and they thus cannot be taken as having waived their right to object previously or even by their earlier appearance in the matter. It is not hard to imagine the reason for Order 52, Rule 3, namely that any alleged Contemnor is entitled to know immediately and not days or even months later as here the reason why an application for his committal is being made. This is obviously because of the serious nature of the proceedings and the fact that, as said earlier, the liberty of the subject is in issue. In my judgment the failure by the Plaintiff to comply with Order 52, Rule 3(3) is also fatal to this motion in so far as it concerns Prem Prasad and Sevolini Gata.

In my judgment the last two objections taken by Dr. Khan must be upheld because I am not satisfied beyond any reasonable doubt that the Contemnors could not in some way have been prejudiced by the Plaintiff's failure to comply with the rules I have just discussed. They should not be liable to be imprisoned without good cause, that is cause shown according to law.

Accordingly I dismiss the present motion. I have given careful thought to the question of costs but in all the circumstances of this case consider that the proper course is to make no order.

John E. Byrne
JUDGE

HBC0150J.89S