Kumar v Ram [2001] FJHC 70; Hbm0026j.2000s (19 September 2001)

Fiji Islands - Kumar v Ram - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO: HBM0026 OF 2000S

BETWEEN:

VIJAY KUMAR

f/n Ram Harakh

Applicant

AND:

SHIU RAM

f/n Ram Harakh

First Respondent

AND:

AINUL NISHA

a.k.a. ROSE MERRY

Second Respondent

Mr A. Singh for Applicant

Mr D. Sharma for Respondents

Hearing: 21^st August 2001

Judgment: 19^th September 2001

JUDGMENT

This is an application to punish for contempt of court, one Ainul Nisha, and to punish, for aiding and abetting her contempt, her de facto husband Shiu Ram. The undisputed background to the case is that property described either as Nariokoko or as Nokonoko, registered as CT Vol X1/05, Folio 200, in the district of Nakelo in Viti Levu, was owned by Ram Harakh and his brother Gobardhan since 1964. The 1^st Respondent, Shiu Ram and the Applicant Vijay Kumar were sons of Ram Harakh.

On 18^th September 1998, Ram Harakh filed a writ of summons in the Nausori Magistrates Court, against the Respondents. On 3^rd March 2000, Ram Harakh died, before judgment on the vacant possession application had been delivered in the Magistrates Court. He left a will, purporting to appoint his son, Vijay Kumar as his executor. The will is disputed by the 1^st Respondent and a caveat has been lodged in respect of any grant of probate under it.

On 12^th April 2000, the Nausori Magistrate ordered vacant possession in respect of the 2^nd Respondent only. The order for vacant possession was sealed and a copy served on counsel for the Respondents. The order, which is disputed, reads inter alia, that:

“IT IS HEREBY ORDERED THAT

1) The Plaintiff’s claim against the 1^st Defendant is dismissed with costs to be taxed if not agreed.

2) The 2^nd Defendant forthwith to vacate the Plaintiff’s premises situated at the freehold land known as Nariokoko comprised in Certificate of Title X1/05 folio 2000.

3) Costs against the 2^nd Defendant to be taxed if not agreed.

4) 1^st Defendant’s counter claim is dismissed with costs.”

In the original order issued on 17^th April 2000, the word “forthwith” is written by hand. With the consent of counsel a clarification was sought from the Nausori Magistrates Court, as to who wrote this word on the order. The Court confirmed that the learned Magistrate Mr Jitend Singh himself wrote the word in his own handwriting.

The Applicant claims that the order was executed on the Respondents by the Deputy Sheriff, Nausori on 20^th April, but that the 2^nd Respondent refused to comply with it.

This application for Contempt of Court committal was then filed in the High Court on 26^th April 2000. On the same day, the Respondents applied for stay of the order before the learned Nausori Magistrate. He refused the application.

On 30^th May 2001, I ruled that Vijay Kumar could bring contempt proceedings on behalf of his father’s estate, as his intended executor. On 31^st May 2001 by consent, leave was granted to the Applicant to issue contempt proceedings and a previous part-hearing conducted on the basis that Byrne J had already granted leave, was declared null and void.

The hearing proceeded on 3^rd July 2001 in open court. The grounds for the application are set out in the Amended Statement filed on 8^th May 2001, and are inter alia, as follows:

(ii) That on 17^th April 2000, the Plaintiff applied for the writ of possession for the vacant possession of the property.

(iii) That on 20^th April at about 6am Mr Bir Chand, Deputy Sheriff executed the writ of possession and the 2^nd Defendant vacated the property.

(iv) That after the execution of the said writ of possession, the 2^nd Defendant in defiance of the court order moved in the property again.

(v) At that material time although the 1^st Defendant assured the Deputy Sheriff that the 2^nd Defendant would not be allowed inside the premises as she had moved out, but he is continuing to keep her inside the house as his de facto wife.

(vi) At all material times, the 1^st Defendant counselled, aided or abetted or procured and/or enabled the 2^nd Defendant in defying the Court Order.

(vii) That the 1^st Defendant and 2^nd Defendant are adamant in disobeying the Court Order and in that having or showing no respect for the Court Order.

Order 52 Rule 2 of the High Court Rules provides that the Order applies to contempt of court committed in connection with any proceeding in the High Court or any proceedings in an inferior court. Order 52 Rule 5 provides that the hearing, after leave has been granted, should normally be held in open court. The burden of proving that the Respondents have committed contempt of court is on the Applicant and the standard is one of proof beyond reasonable doubt. In the case of disobedience to a court order, the Respondent must be shown to have wilfully disobeyed the order. An unintentional act of disobedience is not enough (Steiner Products Ltd. -v- Willy Steiner Ltd. (1966) 1 WLR 986.)

What does “wilful” mean in relation to criminal conduct? It means, according to the House of Lords in R -v- Sheppard (1981) AC 394, either deliberately doing an act knowing that there is some risk of the consequences, or doing an act not caring about the risks involved. In the context of a positive act (Sheppard was a case of Wilful Neglect of a Child), “wilful” is usually taken to mean “deliberate” or “intentional”.

The trial

The conduct of this case was much hampered by the question of legal representation of the Defendants/Respondents. Although counsel originally on the record was J.K.L. Maharaj & Associates, the Respondents were unrepresented at the first (aborted) hearing, Mr Maharaj being involved in the Constitutional Review Commission. He withdrew as counsel on 22^nd May 2001, and was replaced by Mr G. O’Driscoll of Messrs Khan & Associates. Mr O’Driscoll appeared until the end of the Applicant’s case, and then asked for leave to withdraw. He was replaced by Mr D. Sharma of Messrs R. Patel & Company, who is now counsel on the record.

The evidence commenced with the testimony of Bir Chand, Sheriff Officer. He gave evidence that on 17^th April 2000 he received writ of possession and an order from the Nausori Magistrates Court for execution. He was to visit the Respondents and to explain the writ to them and to inform the Second Respondent to vacate the premises. He went to Wainibokasi, to the Respondents’ residence on 20^th April 2000, with the Applicant Vijay Kumar. He met the Second Respondent and explained his visit to her. He said he spoke to her in Hindi and showed her a copy of the writ of possession. She asked him how the writ was prepared when she had been told by the Nausori Magistrates Court the day before that the judgment was not ready. He told her that there was a court order for her to vacate the house immediately. She said she would not move out as there was nowhere for her to go, saying “Shall I sit on the road?”

Mr Chand said that the First Respondent then came out of the house and that he then explained the writ and the order to him. Whilst talking, the Second Respondent went inside, changed her clothes and left saying she was going to see her lawyer. She then left, driving a car. The First Respondent then told Mr Chand that she had gone, and that he would not let her in. Mr Chand said that he had executed the writ of possession because the Second Respondent had left the property and the First Respondent had assured him that he would not allow her to return.

The second witness was the Applicant, Vijay Kumar. He gave evidence that the First Respondent is his younger brother. He said he is now renting a house in Wainibokasi because of problems between his brother and his de facto wife, and the rest of the family. He said that his father had named him as the executor of his will, and was in the process of transferring the property to him, when he died. He said that because of the problems at home, his father’s cremation was conducted from a neighbour’s home. He was then forced to move out. After the execution of the writ of possession, he found that the Second Respondent was still staying in the house. At that time he had his wife, three children, sister and mother with him. None of them was able to return to the house. His mother is now dead. He said that the Respondents had now got tenants living in the house.

Under cross-examination, he said that his father had never given the Second Respondent permission to move in but that she had moved in anyway. He said that the property was partly owned by Tara Wati, his late father’s sister-in-law. He agreed that a caveat had been lodged in respect of the grant of probate on the will. He agreed that he had been charged with assault in respect of their family problems, and had been convicted.

In re-examination he said that the First Respondent was in contempt because he allowed the Second Respondent to re-enter the house. He said that he could not move into the house because the Second Respondent was treating his children badly, and chased his visitors away. He said that his father objected to the Second Respondent living with them because the First Respondent was already married to someone else.

The third witness for the Applicant was Karalaini Mocelagi who gave evidence that she had rented part of the house from the First and Second Respondents. She said that they moved out after 5 months because the Second Respondent abused them. She said there were four tenants in the house after she moved out, and that there was still a tenant in the house.

At the end of the Applicant’s case I found that there was a case for each Respondent to answer. Counsel then made an earnest attempt to settle the matter between the Applicant and the Respondents. Counsel for the Respondents informed me that they had proposed that the Second Respondent move out of the property until the estate dispute had been settled. The hearing was adjourned to give her time to move out. On 6^th August, Mr O’Driscoll said that the Second Respondent had moved out but had moved back in again. He withdrew as counsel and I proceeded with the trial.

Mr D. Sharma then took over as counsel for the Respondents on 21^st August 2001, and called the First Respondent to give evidence. He said that the Statement of Claim filed in the Nausori Magistrates Court was in respect of land described as “Nariokoko.” He said that the land on which he resides is freehold land known as “Nonokoko” CT X1/05 Folio 200, and that the property is incorrectly described in the Magistrates Court Order sand the Statement filed in respect of the contempt proceedings. He said that the property was formerly owned jointly by his late father Ram Harakh and his late uncle Gobar Dhan. He said that he, the First Respondent had built the house in question, and that in error he had built in partially over mataqali land. He said the mataqali land over which the house encroached is known as “Tikiniwai.” He said that the Second Respondent had got written permission from the Turaga-ni-mataqali, Josua Rakabu, to stay on his part of the house. He tendered the letter granting such permission. That letter is dated 6^th July 2001 and purports to authorise Ainul Nisha f/n Nur Mohammed to permanently occupy land known as “Tikiniwai”. The First Respondent said that he had arranged for a survey of the land and tendered a survey plan showing the “encroached” area as being 3.79 metres by 3.81 metres of the dwelling house. He said that he lived in his part of the house and that his de facto spouse lived in the encroaching part which she can enter without going onto the freehold land. He said that the Second Respondent did not enter his side of the house.

He said that the court order to forthwith vacate the land described as Nariokoko, was not against him and that the Second Respondent is not in breach of that order. He also said that half of the property belonged to Tara Wati, his late uncle’s wife, and that she had given the Second Respondent authority to live in the house.

He said that he and the Second Respondent had appealed the decision of the Nausori Magistrates Court but that the court record was never made ready.

Under cross-examination, he agreed that his counter-claim in the Magistrates Court had been dismissed. He said that there were four houses on the property and that apart from the house in which he was staying, the others were occupied by his aunt Tara Wati, another aunt and the aunt’s son. He agreed that Tara Wati’s husband, who had been co-owner of the property, had died without leaving a will and agreed that Tara Wati had a one-sixth interest in her late husband’s estate.

He agreed that the property was not fully surveyed and that the survey plan did not show the whole of the property. He agreed that the Nausori court action was about the land at Folio 200 and that it was the same land in respect of which the court order was made. He agreed that he knew that the case was about the house in which he stayed with the Second Respondent and that the contempt proceedings were in respect of that land. He said that the Turaga-ni-mataqali had put a fence across the property showing where the mataqali land purportedly ran. He agreed that the issue of the encroaching land only arose after the contempt proceedings were brought.

He agreed that his alleged rights over the land had been dismissed by the Nausori Magistrates Court. He agreed that his claim that he had built the house was dismissed by the Nausori Magistrates Court.

On being asked whether he let the Second Respondent stay on the property he said:

“I did not. I left it to her. The discretion was hers.”

The next series of questions and answers are also relevant.

“Q: Explain to her?

A: She is an adult. She understands.

Q: Aware that it is an offence to ignore court order?

A: Can’t answer.

Q: You?

A: I reserve my comments.

Q: She was defying court order?

A: Probably not. That is her right.

Q: The court order stopped her?

A: Yes. If it was me, I would have obeyed.

Q: Ainul Nisha?

A: Reserve my answer. She has to decide.”

He then said that Josua, the Turaga-ni-mataqali had moved into the house after the last court hearing date, and that he now lived in the house. He said he had not consented to him moving in. He agreed that he and the mataqali had paid for the cost of survey and that he had directed the survey including the extent of the encroaching area.

The Second Respondent also gave evidence. She said that she was in a de facto relationship with the First Respondent and that they have a 4 year old son. She said that there was a court order issued against her and that the court order was never explained to her. She agreed that the court bailiff came to her house to tell her that there was an order for her to move out. She went to see her lawyer who told her not to move out because he had applied for stay of the order. She said she realised she had to vacate the house after the judgment was read out in court by the Magistrate. She said that when the bailiff visited her a third time, she moved into the back portion of the house and told the bailiff she was doing so. She said that she was obeying the court order, because that part of the house belonged to the mataqali. She said that she continues to live there and honestly believes that she is complying with the court order.

Under cross-examination, she said that Josua lived in the house too, but then said that she was not sure whether he slept in the house or not. She then said Josua and his son did sleep there, taking turns, and sometimes cooked food there.

She said that the mataqali had discussed its claim over the land with her, and that she knew about it at the time of the Magistrates Court hearing. She agreed that after the last court hearing she had moved out but that she moved in again at night. She agreed that they still had tenants in the house, and that the tenants paid $100 in rent.

The next witness was Josua Rakabu. He said that he was the Turaga-ni-mataqali Valeikima. He said he has known the First Respondent since he was a child. He said he had given the Second Respondent permission to live on his land, and that part of the house in question was on his land. He said he knew about the encroachment for twenty years.

Under cross-examination he said he had never tried to enforce his rights over the house and agreed that he went to take over part of the house in August this year.

He said he has never lived in the house, and that his son only visited the house on occasion. He denied threatening the Applicant at the market, and admitted erecting a fence which in effect divided the house into two. He said that he had not got legal advice before doing this and had paid for the survey plan himself.

The next witness was Tara Wati whose husband was previously co-owner of the property. She said she had consented to the First and Second Respondents staying on her land. Under cross-examination Tara Wati was unable to answer many of the questions and was argumentative and hostile. It was clear that very little weight could be put on her evidence.

Counsel filed submissions and both submissions were helpful and clear. Counsel for the Applicant said that the evidence clearly showed a proper execution of the court order and that the Respondents knew that the Second Respondent was to vacate the land in question forthwith. He said that a refusal to obey a court order, and an aiding and abetting of disobedience of a court order were both contempt of court. He said that the stay application was refused, and that the Respondents had to comply with the court order. He asked that both Respondents be committed to prison.

Counsel for the Respondents said that because the order was defective in that it described the land incorrectly, the contempt proceedings were misconceived. He said there was no evidence of service of the writ of possession, and alternatively that there was no evidence of contempt.

The Order

The order itself is inaccurate. It describes the land as “Nariokoko” at Certificate of Title Vol. X1/05 folio 2000. In fact the land is Nonokoko at Vol X1/05 folio 200.

However there was no doubt at all in the minds of both Respondents of the land to which the order referred. This was clear from their evidence. The order was made after protracted civil proceedings and there was no dispute about the description of the land. There was no other property which was the subject of the section 169 proceedings. In the circumstances I consider that the order while technically inaccurate, was not null and void because of the misdescription. Nor did it render the contempt proceedings a nullity.

I am also satisfied beyond reasonable doubt, on the evidence of Bir Chand, that the writ of possession and the order were properly issued and executed. On the 20^th of August 2000, both Respondents knew that the court had ordered the Second Respondent to move out of the house. I am satisfied that both Respondents understood the contents of the order.

The Contempt

The question is whether, in respect of the Second Respondent, she wilfully disobeyed the order and in respect of the First Respondent, he aided and abetted her in this disobedience. It is not in dispute that the Second Respondent said that she could not move out because she had “nowhere to go”. In the course of the Applicant’s case, it was never put to any of the witnesses that the house was partly on mataqali land. Nor did their counsel refer to this in the “settlement talks” after I found a case to answer.

The story of the encroachment arose for the first time during the First Respondent’s evidence. Why was this not raised before? More importantly, why was this never put to the Applicant when he gave evidence? Why was the Second Respondent’s alleged conversation with Bir Chand about moving into the mataqali side of the house, never put to Bir Chand when he gave evidence? The evidence is that the barbed wire fence dividing the house into two from underneath the house, was erected in the course of the trial, in August 2001.

The evidence of encroachment smacks of a planned afterthought, introduced to supply the Second Respondent with a defence, and an excuse to remain in the house. The encroachment was never raised before, and there were serious inconsistencies as to the evidence of the use of the house by members of the mataqali. I do not believe the Second Respondent when she said that she honestly believed that she was complying with the court order. Indeed her defence in the course of the trial changed from “I have nowhere else to go”, to “I didn’t understand the order”, to “I am staying on mataqali land.”

I am satisfied beyond reasonable doubt that she has remained on the property in question, in wilful disobedience of the court order, since 20^th July 2000, when the writ of possession was duly executed. She is clearly in contempt of court.

The evidence of aiding and abetting in respect of the First Respondent is that he is in a de facto relationship with the Second Respondent, he told Bir Chand that he would not allow her to move in after she left the house on the 20^th of April, and that he continues to live with her in the house. There is also the evidence that the Respondents together rented the house out to tenants and liaised with the Turaga-ni-Mataqali, as to the survey of the alleged encroachment.

I am not impressed with the submission that because the Second Respondent is in a relationship with the First Respondent, that he therefore has control over her and her actions. As he rightly said in evidence, she is an adult and must take responsibility for her own actions. She cannot be assumed to be obedient to her partner, and a mere act of tolerance and passive acceptance of her presence in the house would not be sufficient to prove a wilful act of aiding and abetting. The House of Lords in Maxwell -v- Attorney-General for Northern Ireland (1969) 68 Cr. App. R. 128 said that an aider and abettor must know or contemplate the crime committed by the principal, and must intentionally lend his assistance in order that such crime will be committed. Lord Scarman said at page 152:

“The guilt of an accessory springs, from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal and he intentionally lends his assistances in order that such a crime will be committed. The relevant crime must be within the contemplation of the accomplice, and only exceptionally would evidence be found to support the allegation that the accomplice had given the principal a complete blank cheque.”

There must therefore be evidence of positive acts of assistance, acquiescence is not enough.

The First Respondent certainly suggested to Bir Chand that he was in a position to prevent the Second Respondent from re-entering the house. Furthermore, he was responsible, according to his own evidence, for organising the survey of the property which purported to allow the Second Respondent to stay in the house on the ground that she was “on the mataqali side of the house”. Finally, he is clearly, from the tenor of his evidence, still living with her in the house, renting out the house to tenants, with her, and is evidently wilfully assisting her to disobey the court order with full knowledge of the consequences of their conduct. I am satisfied beyond reasonable doubt that the First Respondent knowingly and wilfully is assisting the Second Respondent to disobey the Court Order of 17^th April 2000, and is therefore guilty of aiding and abetting her contempt of court.

In all the circumstances I find both Respondents guilty as charged in the Amended Statement, and I convict them accordingly.

Nazhat Shameem

JUDGE

At Suva

19^th September 2001

HBM0026J.00S