Kumar v Wati [2022] FJHC 18; LABCA20.2000 (20 January 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. 20 of 2000

BETWEEN:

RAJENDRA KUMAR of Qarawalu, Taveuni, Cultivator.

PLAINTIFF

AND:

MAYA WATI of Qarawalu, Taveuni, Cultivator.

DEFENDANT

Before:

Hon. Mr Justice Vishwa Datt Sharma

Counsels:

Mr. Kohli A - for the Plaintiff

Ms. Naidu S – for the Defendant

Date of Decision:

Thursday, 20^th January, 2022 @ 10am

DECISION

[COMMITTAL PROCEEDINGS PURSUANT TO ORDER 52 RULE 3 OF THE HIGH COURT RULES 1988]

INTRODUCTION

[1] The Plaintiff filed an Ex-parte Notice of Motion on 26^th January 2021 seeking an Order for Leave to issue Committal Proceedings against the Defendant, Maya Wati, upon the grounds set forth in the Affidavit of Rajendra Kumar filed herein.

[2] Leave was granted on 10^th February 2021 for the Plaintiff to issue Committal Proceedings against the Defendant, Maya Wati.

[3] The Notice of Motion for Committal is seeking for an Order that the Defendant be committed to prison for her Contempt. In that the Defendant, Maya Wati failed to obey the Orders of the Honourable Court made on 04^th November 2011 and 18^th March 2015 in the current action in that-

1. The Defendant failed to instruct Surveyors and attend to subdivision;
2. The Defendant failed to pay costs of this action in the sum of $3,400;

100. The Defendant failed to pay half the costs for the survey and subdivision; and

4. The Defendant on her own accord is sending a Notice to Vacate to the Plaintiff and continues to interfere with the Plaintiff’s possession and cultivation of land.
   

AND that the said Defendant, Maya Wati do pay to the Plaintiff his costs of and incidental to this application and also of the issuing and execution of any Order to be made therein.

[4] The application is made in support of the Affidavit of Rajendra Kumar deposed on 19^th January 2021 together with the Amended Statement accompanying the Application for Leave to move for an Order for Committal filed on 09^th February 2021.

[5] The defendant did not file any responses to counter the Plaintiff’s application. However, furnished Court with written submissions instead.

THE LAW

[6] Application for order after leave to apply granted (O.52, r.3)

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 the notice of motion and the day named therein for the hearing.

(2) Unless within 14 days after such leave was granted the motion is entered for hearing the leave shall lapse.

(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.

Plaintiff’s Contention

[7] The Defendant has failed to obey the Orders of Court made on 04^th November 2011 and 18^th March 2015 respectively.

[8] On 08^th August 2018, once again a second committal proceedings was filed against the Defendant.

[9] On 19^th January 2018, the Defendant deposed and filed an Affidavit stating that she understood the Orders and was ready to comply with the same.

[10] The Defendant was represented on 19^th January 2018 and handed over the Certificate of Title No. 26454 to the Plaintiff’s Solicitors in the Courtroom.

[11] The Defendant’s Solicitors wrote to Kohli & Singh Labasa on the 16th of January 2019 agreeing to subdivide the land as per the Orders of the Court stating:-

"According to the judgment 2/3 of 34 acres is to be transferred to Rajendra Kumar, your Client. Therefore, it would be reasonable to begin the process to transfer the 2/3 of 34 acres which is 22.6 acres to Rajendra Kumar and Maya Wati will retain the remainder 11.4 plus 20 acres. Kindly notify this is in order. We understand you already have the original duplicate title and that a surveyor will need to be engaged with the costs split equally between our clients to put this into place so that your client gets a separate title. "

[12] Kohli & Singh Labasa replied to this letter instantly and agreed that the land be subdivided together with costs of surveying be borne equally by both parties and further stated; -

"We are in possession of the original title and are ready to attend to the transfer of the 2/3 of 34 acres to our client. The land has to be subdivided and the cost of survey has to be borne equally by the parties. We need to identify a surveyor and instruct him. Our client is ready and willing to pay his share of the costs. Please let us know whether your client is ready and willing to pay her share so that we may proceed to instruct a surveyor."

[13] On 6^th January 2020 the Plaintiff’s Solicitors wrote to the Defendant's Solicitors seeking a reply to their letter dated 16^th January 2019.

[14] The Defendant stopped instructing her Solicitors as well as continued to avoid compliance of the Orders of the Court.

[15] Due to the Defendant's non-compliance of the Orders, the Plaintiff has not been able to get a separate title of his share of the land and has not been able to obtain a loan to further develop the land and as such continues to suffer losses.

[16] The Defendant has also been harassing the Plaintiff by sending a letter to vacate the land and has been sending police to his home.

Defendant’s Contention

[17] The Plaintiff obtained an Order for committal against the Defendant due to her non-compliance with the Court Orders on two occasions and asking Defendant to be committed to prison.

[18] The basis of the application is that the Defendant did not pay for Surveyors fees and fines handed down by Court.

[19] The Plaintiff is yet to give the Defendant a quote on Surveyors fees.

[20] The Defendant must be given an opportunity to seek another opinion on the fees for cheaper options to make.

[21] Without that opportunity, the Defendant cannot be said to be deliberately not carrying out the required Orders of the Court.

[22] The Court Orders were not specific.

[23] The title has been given to the Plaintiff’s Lawyers.

[24] The Plaintiff should proceed to survey the land as per the Court Orders.

[25] This is not a deliberate attempt to not follow the Court Orders; the Plaintiff must first make the attempt to show that he has attempted to act in accordance with the Court Orders.

DETERMINATION

[26] The issue for this Court to determine is “whether the Defendant Is in Contempt of the Orders made by the Court on 04^th November 2011 And 18th March 2015 respectively?”

[27] The onus of proof in such proceedings rests with the Plaintiff.

[28] The proof is to be established to that standard applied in the criminal courts, namely proof beyond reasonable doubt: Barclays de Zoete Wedd Securities Ltd and Others v Nadir [1992] TLR 141; Dean v Dean [1987] FLR 517 CA; Vijay Kumar v Shiu Ram & Anor. (unreported) Suva High Court Action No. HBM0026.00S, 19 September 2001, Shameem J.

[29] It was further stated in the case of Re Supply of Ready Mixed Concrete [1991] 3 WLR 707 at p276 by Lord Donaldson of Lymington MR:

1. “The fundamental purpose of the contempt jurisdiction of the court in the context of disobedience of court orders is to uphold the supremacy of the rule of law and the court's authority to administer it. It is punitive in character. That it may provide an enforcement remedy for third parties is incidental.”

2. “It is an essential prerequisite to a finding of contempt that the factual basis shall have been proved beyond all reasonable doubt and that there shall have been mens rea on the part of the alleged contemnor. Mens rea in this context does not mean a wilful intention to disobey the court's order, but an intention to do the act which constitutes the disobedience with knowledge of the terms of the order, although not necessarily an understanding that the act is prohibited."

[30] For the Plaintiff to succeed in this action, he must establish that there is a deliberate or wilful breach of a Court Order beyond reasonable doubt. Reference is made to the case of Deborah Building Equipment v Scaffco (1936) The Times November 5.

[31] The Plaintiff had obtained the Orders against the Defendant on 04^th November 2011 and 18th March 2015 respectively and the Defendant was to comply with these Orders.

[32] On 4th of November, 2011, a Judgment was delivered against the Defendant in the substantive proceedings with the following Orders to comply:-

1. Specific performance of the agreement dated 11 February 1993 as varied by the agreement dated 14th July 1997;
2. Costs of survey and division to be met jointly by the Plaintiff and the Defendant;

100. The Defendant and/or her agents, servants and employees are restrained from interfering with the Plaintiffs possession and cultivation of the said land;

4. Counterclaim is dismissed; and
5. Defendant to pay to the Plaintiff the costs of the action which was fixed summarily in the sum of $1,900.00.
   

[33] The Defendant failed to obey the Orders of the Court of 04^th November 2011.

[34] On 08th March 2013, Leave to issue the first Committal Proceedings was filed and granted against the Defendant for non-compliance of the Order of 04th November 2011.

[35] On 18th March 2015, on the application for Committal Proceedings, the Court made the following Orders against the Defendant:-

"The Defendant having no acceptable reason not to abide by the court orders is committed for her contempt and fined a sum of $1,500.00 (One Thousand Five Hundred Dollars). The execution of the committal order is suspended pursuant to Order 52 Rule 6 subject to the following:-

a) The Defendant abides by the order on judgment filed on 20'" June, 2012;

b) To perform the order.-

i. The defendant shall forward the original title 26454 to the solicitors for the plaintiff on or before the 25'" of March 2015.

ii. The Defendant shall execute and return to the Plaintiff's solicitors within 14 days of receipt of any documents necessary for the performance of the order from the Plaintiff's solicitors;

iii. All other orders in the order on judgment dated on 20^th June 2012 should be adhered to and fulfilled by the Defendant.

The Defendant shall be discharged from the committal proceedings only on fulfillment of all the orders made in the judgment on orders dated on 20'11 of June 2012 and the above orders made for the full performance of the order made in this case."

[36] The Defendant once again did not comply with any of the above Orders made by the Court on 04^th November 2011 and 18^th March 2015 respectively.

[37] On 08^th August 2018, for the second time the Committal Proceedings was filed against the Defendant. On 19th of January, 2018 the Defendant deposed an Affidavit stating that she understood the Orders and was ready to comply with the same-

"That I now understand the Orders of the Judge made on the 4^th November 2011 and state that I will comply with any orders made. I apologise for the inconvenience caused made regarding the non-compliance and am willing to sign any documents required of me. That I may add that I did not deliberately act in contempt of the Court Order but I did not understand and was not correctly advised of the implications of non-compliance with the Orders"

[38] The matter was scheduled before the Court on 19th January 2018. The Defendant was represented wherein she agreed to comply with the Court Orders and handed over the Certificate of Title No. 26454 to the Plaintiff’s Solicitors in the Courtroom. The application for contempt was withdrawn and stuck off without costs.

[39] The Court Order made on 18^th March 2015 quite specifically stated “that the Defendant is committed to contempt and fined a sum of $1,500”. “The execution of the Committal Order is suspended pursuant to O.52 r.6 subject to the Defendant abides by the Orders of the Judgment filed on 20^th June 2012 and to perform the Orders of 18^th March 2015 as enumerated therein at paragraph b-(iii) inclusive”.

[40] The Defendant has so far only complied with the first Order of 18^th March 2015 at paragraph b-(i) wherein she has handed over the Certificate of Title No. 26454 to the Plaintiff’s Solicitors. The remaining Orders as enumerated therein remains to be complied with.

[41] Further, there is a cost of $1,900 ordered to be paid on 04^th November 2011 and a fine of $1,500 imposed which also remains unpaid to date.

[42] On 08^th August 2018, once again a Committal Proceedings was filed by the Plaintiff against the Defendant.

[43] On 19^th January 2018, the Defendant deposed and filed an Affidavit that she understood the Orders of the Court and was ready to comply with the same.

[44] To date, the Defendant has failed to honour and carry out the Court Orders of 04^th November 2011 that she was supposed to do so. Further, the Defendant has also not obeyed and carried out the Court Orders of 18^th March 2015 except for the fact the Order at b-(i) that she has handed over the Certificate of Title No. 26454 to the Plaintiff’s Counsel.

[45] So far in terms of the submissions made before this Court, it can be ascertained that-

1. The Defendant failed to instruct Surveyors and attend to subdivision;
2. The Defendant failed to pay costs of this action in the sum of $3,400;

100. The Defendant failed to pay half the costs for the survey and subdivision; and

4. The Defendant on her own accord is sending a Notice to Vacate to the Plaintiff and continues to interfere with the Plaintiff’s possession and cultivation of land.
   

[46] The Defendant will recall that on 09^th January 2012 the Plaintiff’s Counsel wrote a letter reminding the Defendant of the Court Orders that have been made by the Court on 04^th November 2011. This letter is annexed to the Affidavit in Support deposed by the Plaintiff on 12^th December 2012. The letter read-

“On 04^th November 2011 Court had ordered as follows-

1. Specific Performance of the Agreement dated 11^th February 1993 as varied by the Agreement dated 14^th July 1997.
2. Costs of survey and division to be met jointly by the Plaintiff and the Defendant.
3. The Defendant and/or her agents, servants and employees are restrained from interfering with the Plaintiff’s possession and cultivation of the said land.
4. Counterclaim is dismissed.
5. Defendant to pay the Plaintiff the costs of the action which are fixed summarily in the sum of $1,900”
   

Please note that should you fail to attend to the above within next 7 days our instructions are to enforce the Judgment. This will unnecessarily incur further costs.

We suggest you contact your Solicitors and seek advice.”

[47] The Defendant failed to adhere to and act accordingly to the reminder given by the Plaintiff’s Counsel which resulted in the Plaintiff instituting Committal Proceedings on 12^th December 2012.

[48] Upon the perusal of the Court file, it reveals that the Plaintiff had to institute Committal Proceedings against the Defendant time and again on at least three occasions for non-compliance of the Court Orders of 04^th November 2011 and 18^th March 2015 respectively.

[49] This is an indication of the fact that almost ten (10) years has passed by since the Court first made the Court Orders against the Defendant to comply which she has failed to do so to date.

According to the Plaintiff, it is due to the Plaintiff’s non-compliance of the Court Orders, the Plaintiff has not been able to get a separate title to his share of the land and has not been able to obtain a loan to further develop the land as such continues to suffer losses.

Further, the Defendant has also been harassing the Plaintiff by sending a letter to vacate the land and has been sending the police to the Plaintiff’s home.

[50] The Defendant submitted that the Court Orders were not specific; the Plaintiff is yet to give the Defendant a quote on Surveyors fees, the Defendant must be given an opportunity to seek another opinion on the fees for cheaper options to make and that without that opportunity, the Defendant cannot be said to be deliberately not carrying out the required Orders of the Court.

[51] The Defendant’s Solicitors wrote to Kohli & Singh Labasa on the 16th of January 2019 agreeing to subdivide the land as per the Orders of the Court stating:-

"According to the judgment 2/3 of 34 acres is to be transferred to Rajendra Kumar, your Client. Therefore, it would be reasonable to begin the process to transfer the 2/3 of 34 acres which is 22.6 acres to Rajendra Kumar and Maya Wati will retain the remainder 11.4 plus 20 acres. Kindly notify this is in order. We understand you already have the original duplicate title and that a surveyor will need to be engaged with the costs split equally between our clients to put this into place so that your client gets a separate title. "

[52] Solicitors Kohli & Singh Labasa replied to this letter instantly and agreed that the land be subdivided together with costs of surveying be borne equally by both parties and further stated; -

"We are in possession of the original title and are ready to attend to the transfer of the 2/3 of 34 acres to our client. The land has to be subdivided and the cost of survey has to be borne equally by the parties. We need to identify a surveyor and instruct him. Our client is ready and willing to pay his share of the costs. Please let us know whether your client is ready and willing to pay her share so that we may proceed to instruct a surveyor."

[53] Further, on 19^th January 2018, the Defendant deposed and filed an Affidavit into court that she understood the Orders of the Court and was ready to comply with the same. The Defendant was represented on 19^th January 2018 and handed over the Certificate of Title No. 26454 to the Plaintiff’s Solicitors in the Courtroom.
[54] Court Orders are made against a party to the proceedings which must be complied with by that particular party or the parties and the failure to do so would risk a Contempt action.

[55] In the current case, I reiterate that the court record and the evidence before this court establishes that the Defendant has not complied with the court orders made by the court on 04^th November, 2011 and 18^th March ,2015 respectively with the exception of handing over the Certificate of Title No. 26454 to the Plaintiff’s Counsel.

[56] I find that the Defendant has not explained any acceptable reasons not to abide by and carry out the court orders of 04^th November 2011 and 18^th March 2015 respectively.

[57] The Defendant is found guilty of contempt of court orders of 04^th November 2011 and 18^th March 2015 respectively and accordingly convicted of the same.

ORDERS

[i] The Defendant is found Guilty of Contempt of Court orders of 04^th November 2011 and 18^th March 2015 respectively and accordingly convicted of the same.

[ii] The matter will now be adjourned for mitigation and sentence accordingly.

[iii] The question of Costs of 20^th January 2022 to be determined appropriately.

DATED at SUVA this Thursday, 20^th January 2022.

VISHWA DATT SHARMA
JUDGE

cc: Messrs. Kohli & Singh, Labasa.

M. Sadiq, Labasa.