Narayan v Nokaiya [2015] FJHC 216; HPP11.2011 (25 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

HPP Action No. 11 of 2011/
Probate No. 48213

BETWEEN :

DENIS NARAYAN of 419 Moreland Road, Pascoevale South, Melbourne, Victoria, Australia 3044, Lift Mechanic and NATHAN RAM NAIDU of 419 Moreland Road, Pascoevale South, Melbourne, Victoria, Australia 3044.
Applicants

AND:

NOKAIYA of Rakiraki, Occupation not known to the Applicants and JAGAN NATH of Lot 33, Nasilivata Street, Nadera, Nasinu, Occupation not known to the Applicants.
Respondents

Appearance : Mr O'Driscoll of O'Driscoll and Co. for the Applicants
Ms Vasiti M of Nands Law for the Respondents

Date of Judgment : 25 March 2015

JUDGMENT

[1] The Judgment delivered by Hon. Justice Hettiarachchi on 22 June 2012 was sealed on 18 July 2012 and the Orders made:

"(i) THAT the Respondents shall forthwith provides a full accounts of the estate of late Ramaiya Naidu both real and personal to the Solicitors of the beneficiaries and also a copy to be filed in this action;

(ii) THAT on the above premise Order in terms of the originating summons granted;

(iii) THAT costs is summarily assessed in the sum of $750.00".

[2] The sealed Order of the Judgment was personally served on the 2nd Respondent on 21 August 2012 and Affidavit of Service dated 21 November 2012 was filed on 22 November 2012.

[3] The Defendants failed to comply with the Orders made and the Applicants sought Leave to issue committal proceedings pursuant to Order 52 Rule 2 of the High Court Rules.

[4] The Notice of Motion dated 10 January 2013 was taken up for hearing on 25 February 2013 and Leave was granted to issue committal proceedings against the 2nd named Respondent Jagan Nath.

[5] On 25 February 2013, affidavit under the heading of "Inventory" was filed by the 2nd named Respondent inter-alia stated in the paragraph 4 of the said affidavit:

"4 That the following constitutes a true account and inventory of the state of RAMAIYA (f/n Hirasamy) late of Toorak, Suva, Deceased showing all items of which he was possessed, or was entitled to at the time of his death come to the hands or knowledge of the being one of Administrators of the deceased namely:

(a) Household goods and furniture and fittings valued approximately in a sum of $3,000.00;

(b) Freehold property comprised in CT No. 10451 being Lot 14 of DP 2018;

(c) Freehold property comprised in CT No. 17804 being Lot 33 on DP 4257;

(d) Sum of $454,977.90 received from Parshotam Lawyers on or about 7 July 2010;

(e) 1 only immobile Mazda vehicle Registration No. not known;

(f) Sum of $186,000.00 held in Unit Trust of Fiji".

[6] When the matter was taken up on 20 March 2013 and consideration of the inventory filed on 25 February 2013, prima-facie this court found the inventory was not in compliance with the Orders made in the Judgment delivered by the Hon. Justice Hettiarachchi on 22 June 2012 specifically the Respondents have failed to provide full account and default in payment of cost of $750.00 and this court concluded and made order to proceed with the committal proceedings.

[7] The 2nd named Respondent Jagan Nath filed an Affidavit dated 10 April 2013 in reply to the Statement requesting Leave to issue committal proceedings dated 10 January 2013 and the Affidavit in Support dated 6 December 2012 and stated inter-alia. I now analyse the affidavit evidence of the 2nd named Respondent in this case.

7.1 The 2nd named Respondent admitted the orders were made on 22 June 2012 and the orders were served on him and denied he did not comply.

7.2 Jagan Nath the second named Respondent (hereinafter referred to as Jagan Nath) stated there was a delay in complying with the terms of the Orders since his solicitor Mr H A Shah advised him, he was struck off from the Fiji Bar and he is appealing against the said Judgment after his appeal is heard and determined, he will then file an account of the estate of the late Ramaiya. I note there is no mention of the date of Mr Shah being struck off from practice and Jagan Nath failed to divulge whether the appeal being made by Mr Shah. However, this cannot be taken as a justifiable reason for Jagan Nath not to comply with the Orders. He would have sought advice from another counsel at this stage and this court cannot see any merit of this reasoning for the default.

7.3 In the paragraph 7 of the affidavit of Jagan Nath claims there was a Writ of Summons filed on 20 April 2012 by H A Shah to get the Letters of Administration already issued to be revoked and the said Writ of Summons was annexed to the affidavit marked as 'J1'. I find that the Writ of Summons was filed after Hon. Justice Hettiarachchi had fixed this case for Judgment on Notice on 20 March 2012. It clearly shows pending the said judgment Jagan Nath had filed the Writ of Summons to avoid the Orders if any made against Jagan Nath by Hon. Justice Hettiarachchi in this case. Jagan Nath failed to provide when and on what circumstances the Will was found in his Statement of Claim dated 16 April 2012 ('J1'). I conclude the said Writ of Summons filed does not warrant the 2nd named Defendant to avoid the compliance of the Judgment of Hon. Justice Hettiarachchi. The 2nd named Respondent and his solicitor Mr H A Shah had attempted to avoid the compliance of the orders by filing Writ of Summons marked 'J1'. I further conclude the 2nd named Respondent Jagan Nath and his solicitor had abused the process of this court, to circumvent the orders made by this court.

7.4 Jagan Nath had stated he appointed the present Solicitors on 15 January n2013 ('J2') and he was advised by Nands Law to comply with the Orders. He refers to the document marked 'J3' which was referred by me in the preceding paragraph (5) of this Judgment and stated it is the Inventory and the Accounts. I have already determined on 20 March 2013 that the said document (Inventory marked 'J3') was not in compliance of the orders of this court and as such decided to proceed with the committal proceedings. By swearing the affidavit on 10 April 2013 the 2nd named Respondent had again attempted to mislead this court by canvassing an order already made by this court on 20 March 2013, to support his contention.

7.5 All other matters stated in the affidavit of Jagan Nath do not give any justification for non compliance of the court order. The fact remains that Jagan Nath and the 1st named Respondent were the Administrators of the Estate of Ramaiya since 3rd March 2009 and failed and neglected to abide by the court orders.

[8] 8.1 When the matter was taken up for hearing the counsel for the Applicant submitted that the inventory was filed after the committal proceedings and failed to submit the full accounts before the court and the Respondents should be found guilty for contempt and up to the date of hearing the Respondent failed to submit the full accounts. The Respondents failed to give any justifiable reason for the default of the court orders. I agree with the counsel for the Applicant.

8.2 The Respondents' counsel submitted the reasons for not complying with the orders which were stated in the affidavit of Jagan Nath which I had already dealt with in paragraph 7 of this Judgment and made my conclusion. The Respondent also filed written submissions which I have taken into consideration.

[9] The 2nd named Respondent's Written Submissions

9.1 The Respondent referred to Blackstone's Civil Practice 2011 pp 1229-1230 and cited the following paragraph:

"..........punishment for a civil contempt of court is not in itself a remedy; it is a means of enforcing a remedy. A civil contempt of court is prosecuted as a matter between parties to proceedings and punishable primarily in order to enforce compliance with an order of the court; for the benefit of the party who obtained the order".

The statement support my conclusions already made. Court orders were for the benefit of the Applicant which was not adhered to by the Respondent. As such the Respondent should be punished for contempt.

9.2 The Respondent also cited the statement in the case of Res (A child) (Contact Dispute: Committal) [2004] EWCA Civ 1790 which states:

"All that said, however, the judge's order must be upheld. Respect for the rule of law is an essential element of our civil society and that necessitates obedience to the orders of the court. The judge's orders must be upheld".

As I determined in the preceding paragraphs, the Respondent not only did not comply with the orders of the court but no justifiable reason is given for such disobedience. As stated in the above case, Respondent's conduct is disrespect for the court order and it is against the rule of law. Accordingly, the Respondent fails and I hold in favour of the Applicant.

9.3 In Fiji case of Penelope Postulka vs George Postulka 34 FLR 82 Fatiaki J cited Hadkinson vs. Hadkinson (1952) P. 285 at p. 288 Romer L. J. stated:

"It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that orders is discharged. The uncompromising nature of tills obligations is shown by the fact that it extends even to cases where the person affected by an order believes it be irregular (unfair) or even void".

The said case extends its scope even the irregular order made by the court should be obeyed. In other words, complying with the court order is a must. In this case Respondents have violated terms of the orders and even failed to remorse on his disobedience and I find the 2nd named Respondent guilty for contempt.

9.4 The 2nd named Respondent had submitted the standard of proof is beyond reasonable doubt and cited cases of Natural Waters of Viti Limited vs. Crystal Clear Mineral Waters (Fiji) Ltd [2005] ABU 0011 of 2004 (unreported decided on 22 April 2005) and Ali vs. Chaudry Civil Action No. HBC 0061 of 2001L (unreported – decided on 22 March 2004) whilst agreeing on the standard of proof beyond reasonable doubt, I state in this case prima facie, at the time of filing of the committal proceedings none of the orders were complied with by the Respondents. It was prima facie disobedience to the court. As stated earlier, even the Inventory (although this court concluded that the inventory was not a proper Account) was filed on 23 January 2013 after committal proceedings were initiated. The order was served on the Respondents on 21 August 2012. As such it is evidence that the 2nd named Respondent did not complied with the orders and the reasons for not producing the full accounts did not carry any merits for consideration. Even the Respondents failed to pay the costs of $750.00 to the Applicants and I conclude the Applicants had met the standard of proof with regard to contempt.

I also cite Gates J. (as then he was) statement from Ali vs. Chaudry:

"In these cases, casual or accidental and unintentional disobedience to an order of the court is not enough to justify either sequestration or committal; the court must be satisfied that a contempt of court has been committed in other words, that its order has been contumaciously disregarded."

The conclusions made by me after analyzing the affidavit filed by the Respondents it is crystal clear the Respondents had contumaciously disregarded the orders of the court. It is willful and malafide and his conduct do not warrant any sympathy by this court and find the 2nd named Respondent guilty for contempt of court.

I further state that the orders of the court should be strictly complied by the parties to the case and in default without reasonable explanation the court should use its discretion to impose severe sanction on the defaulting party. If the strict approach is applied consistently across the board, it will lead to more certainty during court proceedings to maintain the rule of law.

Accordingly, I make the following Orders:

(1) A fine of $5,000.00 is imposed on the 2nd named Respondent in default of the payment of the said fine, the 2nd named Respondent is committed to prison for 3 months. The said order is suspended for one month from the date of this Judgment (until 25 April 2015) under Order 52 Rule 6 of the High Court Rules, pertaining the 2nd named Respondent to comply with all the orders of the Hon. Justice Hettiarachchi's Judgment made on 22 June 2012 and sealed on 18 July 2012 (before 25 April 2015).

(2) If the 2nd named Respondent fails to comply with the orders made in the sealed orders dated 18 July 2012 on or before 25 April 2015, the said fine of $5,000.00 and the imprisonment of three months shall come into effect..

(3) The Respondent is ordered to pay the Plaintiff $1,500.00 costs summarily assessed within 14 days of this Judgment.

Delivered at Suva this 25th Day of March 2015.

...........................
C. KOTIGALAGE
JUDGE