Prasad v Kumar [2016] FJHC 565; HPP06.2010 (27 June 2016)

In the High Court of Fiji at Suva
Probate Jurisdiction

HPP Action No. 06 of 2010

1. Ram Raji Prasad
2. Arun Kumar
3. Adit Kumar
4. Rohini Devi
5. Lalika Latika Devi
6. Keshni Chandra
7. Nalini Prahalad

Plaintiffs

And:

Anoop Kumar
Defendant

Appearances: Mr Anand Singh for the plaintiffs
Mr R. Singh for the defendant

Date of hearing: 10^th June,2016

JUDGMENT

1. By notice of motion dated 23^rd March, 2016, the plaintiffs,pursuant to leave granted on 18^thMarch, 2016,move that the defendant be committed to prison for:
   1. his contempt in not paying obedience to the judgment of this Honourable Court delivered on 15^th July, 2015 Ordering inter alia.
      • (i) The Defendant shall provide the Plaintiffs with full and complete accounts of the income and expenditure on the farm and all monies received on the sale of land within 14 days of this Judgment.
      • (ii) The distribution of the balance of the estate to the beneficiaries shall be completed within three(3)months from the date of Judgment.
   2. Alternatively, that the above-named applications be at liberty to issue a Writ of Attachment against the above-named Anoop Kumar for his contempt aforesaid...
      
2. The hearing of the motion took place on 10^th June,2016.Counsel for the parties presented their arguments.
   
3. Mr R.Singh counsel for the defendant took issue that the affidavit filed with the application for leave for the order of committalwas sworn to by a legal executive of the solicitors for the plaintiffs,who had not been authorised by the plaintiffs to depose to the affidavit.He pointed out that another legal executive of that firm has been so authorised, as stated in theaffidavit and a letter from the plaintiffs as attached to the affidavit.
   
4. Mr A. Singh counsel for the plaintiff submitted in reply that his law firm was authorised by the plaintiffs to do so, as stated in the affidavit.
   
5. The determination
6. On 15^th July,2015, I delivered Judgment in this matter and made orders as follows:
   • (a) The defendant shall provide the plaintiffs with full and complete accounts of the income and expenditure on the farm and all monies received on the sale of land within 14 days of this judgment.
   • (b) The distribution of the balance of the estate to the beneficiaries shall be completed within three months from the date of this judgment.
   • (c) I decline all the other reliefs sought by the plaintiffs .
   • (d) The second and third plaintiffs shall pay the defendant a sum of $ 1000 as costs summarily assessed.
   • (e) The matter to be called for review on 25^thAugust,2015.
     
7. In an affidavit in support of leave for order of committal, Unaisi Sigabonuya, Legal Executive in the firm of SINGH & SINGH Lawyers states as follows:
   • “The firm are the solicitors for the above-named plaintiffs Adit Kumar and Arun Kumar. The law firm has been authorised to make this affidavit on behalf of the Plaintiffs. I have been authorised by the law firm and the plaintiff to make this affidavit on their behalf. That I annexed hereunto and mark as “US 1” an authorisation from the plaintiffs. The authorisation is for Vandani Devi who has now left her employment with the solicitors firm. I am equally conversant with the matters and proceed to act on the plaintiff’s authority.”(emphasis added)
   • The plaintiffs live in Australia.
   • The plaintiffs and the principal of the law firm informed her that the defendants have not complied with the Judgment of the Court delivered on 15^th July, 2015.
     
8. Unaisi Sigabonuya, Legal Executive in the firm of Singh &Singh, Solicitorsstates that the “authorisation is for Vandani Devi who has now left her employment with the solicitors firm”. She has attached a letter dated 12^th February,2016, addressed to the High Court signed by Arun Kumar and Adit Kumar, the second and third plaintiffs stating that they have authorised Vandani Devi to swear to the affidavit.
   
9. In my view, the second and third plaintiffs, by their letter of 12^th February,2016, have expressly only authorised Vandani Devi to swear the affidavit. Clearly, Unaisi Sigabonuyadoes nothave authority to depose to the affidavit on behalf of the second and third plaintiffs nor the other plaintiffs.
   
10. Unaisi Sigabonuya’s assertion in her affidavit that she is “equally conversant with the matters and proceed to act on the plaintiff’s authority” is unacceptable.
    
11. Or 52, r 2titled “Application for order of committal“states;
    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 settling out the name and descriptionof 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.

(emphasis added)

12. In my judgment, the plaintiff’s application for leave is not in conformity with Or 52, r2(2),as the affidavit in support filed with the application for leave is defective .
    
13. The law is settled. In committal proceedings, there must be strict compliance with the rules of procedure.
    
14. In [2005] FJCA 46 Scott JA said :

As is wels well understood, the standard of proof iil contempt is proof beyond reasonable doubt (Re Brambleamblevale Ltd [1970] 1 Ch128). Gordon v. Gordon [1946] P9i> (emphasis asis adde added)

15. Lord Denning MR in McIl v. Grady, <160; [1968] 1 QB 468 at 477B st

N>N's li is to be taken aken away unless every requirement of the lthe law has been strictly complied with"

16. Lord Greene MR In Gordon vs Gordon, 1946 PD 99 at page 103 said:

Attachment and committal are very technical matters, and as orders for committal or attachment affect the liberty of the subject, the rules as exist in relation to them must be strictly obeyed.

17. I set aside my ex parte order of18^th March, 2016, granting the plaintiffs leave to apply for an order of committal for the reason that the affidavit in support filed with the application for leave is defective.
    
18. Orders
    • (a) The order of this Court of 18^th March, 2016, is set aside.
    • (b) The plaintiffs’notice of motion dated 23^rd March, 2016, is declined.
    • (c) The plaintiffs shall pay the defendant costs in a sum of $ 1000 summarily assessed within 14 days of this judgment.
      

27^th June,2016 A.L.B.Brito-Mutunayagam

Judge