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Panisi v Matezama [2019] SBCA 22; SICOA-CAC 49 of 2017 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
Panisi v Matezama


Citation:


Decision date:
18 October 2019


Nature of Jurisdiction
Appeal from Judgment of The High Court of Solomon Islands (Maina J)


Court File Number(s):
49 of 2017


Parties:
Ernest Regho Panisi, Annette Duri and Leslie Ofu v Isaac Matezama


Hearing date(s):
9 October 2019


Place of delivery:



Judge(s):
Goldsbrough P
Lunabek JA
Gavara-Nanu JA


Representation:
Mr. B Upwe for the Appellant
Mr. G Fa’aitoa for the Respondent


Catchwords:



Words and phrases:


Legislation cited:
Civil Procedure Rule 2007


Cases cited:
Tubara v James [1998] 94, Gaskell v Gaskell [2001], Russell Islands Plantation Ltd v Kagovai [2005] SBHC, Bishop v Bishop Bros Engineering Pty Ltd [1988] PGSC 8, Yoe v Iromea [2018] SBCA 6


ExTempore/Reserved:
Reserved


Allowed/Dismissed:
Allowed


Pages:
1-8

JUDGMENT OF THE COURT

  1. On 7 December, 2017, the appellants were found to be in contempt of Court by the High Court following an application by the respondent. The respondent sought orders that the appellants be punished for failing to comply with the orders made by the High Court on 3 April, 2013.
  2. The orders of 3 April 2013 restrained the 1st appellant, his family, relatives, associates, servants, and or any person acting under his authority or upon his instruction from entering onto Sasakolo customary land and or removing any logs and or timbers belonging to and stored by the Claimant clan. The orders were to remain until the issue of the ownership of the customary land was fully determined by the court.
  3. Beside the above orders, the appellant, his family, relatives, associates, servants and any person acting under his authority were also restrained from entering onto the leather turtle conservation area on the customary land until the issue of ownership of the customary land was resolved. The appellants were also restrained from getting within 50 meters of the land they were also restrained from removing the timbers they previously milled and stored on the land.
  4. The appellants said they had been living on the land from time immemorial and they were living on the land on April, 2013, when the restraining orders were made. Therefore, they said they were not disobeying the court orders by living on the land. The appellants had houses, gardens, coconut plantations and other fruit trees on the land, therefore they could not be said to have disobeyed orders by living on the land. They said they occupied the land and lived there all their lives.
  5. The appellants were found to be in contempt of court for not complying with the orders of 3 April, 2017 and were each ordered to pay fines. The orders were in following terms:
    1. The defendants be punished for contempt of court by paying fines:
      • (i) Ernest Regho Panisis is fined $4,000.00
      • (ii) Ms Anette Duri is fined $4,000.00
      • (iii) Leslie Ofu is fined $4,000.00
    2. Pay fines within two weeks in default of payment three months imprisonment
    3. Costs are to the Claimant
  6. The appellants have raised 3 grounds of appeal, they are as follows:
    1. The learned trial judge erred in law in holding the 1st and 2nd appellants were in contempt of court in the case before His Lordship in Civil Case No. 212 of 2012 when there is no intention, deliberate or repeated acts on the part of the 1st and 2nd appellants.
    2. The learned trial judge erred in law in holding the 1st and 2nd appellants in contempt when there is not enough evidence to satisfy His Lordship beyond reasonable doubt being the criminal standard applicable in the contempt proceeding.
    3. The learned trial judge erred in law and in fact in holding that the 2nd appellant admitted being in occupation of the disputed land enjoying customary rights they have therein.
  7. The appellants seek the following relief:
    1. The appeal be allowed and the orders appealed be set aside.
    2. The application for contempt of Court in Civil Case No. 212 of 2012 be reinstated and remitted back to the High Court for rehearing before a different judge.
    3. The respondent to pay the costs of the appeal.
  8. A civil contempt is quasi-criminal and is punishable by penalties of criminal nature such as a fine and or imprisonment, viz; penal sanctions therefore it must be proved according to the criminal standard of proof beyond all reasonable doubt. See, Tubara v. James [1998] SBHC 94; HCSI-CC 356 of 1996. Contempt must be intentional or deliberate. See, Gaskell v. Gaskell [2011] SBHC 104; HCSI-CC 403 of 2008 (5 October, 2011) and Re Sheppard and Sheppard (1976) DLR (3rd) 592. In Russel Islands Plantation Ltd v. Kagovai [2005] SBHC 71; HCSI-CC 197 of 2005, Brown J stated the principles this way:
  9. These authorities say that for an alleged contemnor to found guilty of contempt, evidence must clearly establish that disobedience of a court order by the alleged contemnor was deliberate and intentional. This is an essential requirement which must be satisfied in order to prove contempt beyond all reasonable doubt. Furthermore, because a civil contempt may carry penal sanctions the alleged contemnor must have full protection of the law. In Bishop v. Bishop Bros Engineering Pty Ltd [1988] PGSC 8; [1988-89] PNGLR 533, Barnett J, in discussing s. 37 of the Constitution which provides that persons, especially those charged with criminal offences, including persons charged with civil contempt are entitled to the full protection of the law, said:
  10. The right of the persons charged with civil contempt to have full protection of the law in our view entails giving the alleged contemnor right to give or call oral evidence and cross-examine thus giving the alleged contemnor fair and proper hearing. This will require the court to have full regard to the requirements of Rule 23.11 and 12 of the Civil Procedure Rules, 2007. Under these Rules the alleged contemnor is entitled to be personally served with a sworn statement by the person alleging contempt against the alleged contemnor. Such statement must give details of the alleged contempt so that the alleged contemnor is fully informed of the nature of the alleged contempt. At his trial the court must explain to the alleged contemnor the nature of allegations and the court must allow the alleged contemnor to give an explanation regarding the alleged contempt. The court must also give the alleged contemnor opportunity to give his reasons why he should not be punished. These are mandatory requirements which must be complied by the court. The significance of these requirements is the penal sanctions which may be imposed on the alleged contemnor if found guilty.
  11. We note that the contempt proceedings before the High Court were heard only on sworn statements. The use of a sworn statement in a proceeding is governed and regulated by Rules 13.5 to 13.10 of the Civil Procedure Rules. These Rules provide as follows:

Use of Sworn statement in proceedings

13.6 A sworn statement, including any annexure, that is tendered in court or included in the bundle of agreed documents becomes evidence in the proceeding unless the court has rule it inadmissible in whole or part - when that part is inadmissible does not become evidence.
13.7 The sworn statement need not be read aloud during the trial unless the court orders, but before the sworn statement is tendered (unless no notice is given under Rule 13,9) the witness shall be required to confirm at trial, on oath or affirmation, the truth of the sworn statement and may clarify any matter contained in it.
13.8 A witness may be cross-examined and re-examined on the contents of the witness’s statement.
13.9 A party who wishes to cross-examine a witness must give the other party notice of this:
13.10 Another party may require that the original of a document annexed to a sworn statement be produced in court and must give the other party notice of this:
  1. These Rules apply equally in contempt proceedings. It can be seen from these Rules that the sworn statements become evidence when tendered in court unless the court rules them inadmissible. The Rules also give the opposing parties discretion whether to cross-examine the deponents of the sworn statements. If they decide to do so, they are required to give notice 7 clear days before the trial. Whilst the decision whether to cross-examine is given to the parties, the discretion must be exercised properly and according to proper principles. The exercise of discretion must be to do justice in the case. It is important to bear in mind that the Rules are intended to serve the ends of justice. See, Yeo v. Iromea [2018] SBCA 6; SICOA-CAC 13 of 2017 (11 May, 2018). They are not an end in themselves. They are intended to provide a means by which an aggrieved person may obtain redress for a wrong which he claims has been done to him, or a means by which a person may defend himself against a claim made against him. The Rules have been made or designed in accordance with the basic concepts of jurisprudence, including natural justice, fairness and equity and they are intended to operate according to established principles. It is only by looking at the Rules in the light of those principles and as part of the general law which govern the process of litigation that they can be seen and used by the parties in their true perspective and their proper function appreciated and understood. It is equally important to bear in mind the clear distinction between the roles and functions of the parties and the roles and functions of the court. The parties issue proceedings or defend them. The parties determine and define the issues of fact or law which are to be decided by the court. The parties investigate the facts and present them before the court by way of evidence. It is then the function of the court to determine the issues presented by the parties on the evidence adduced by the parties.
  2. That said, it is equally important to bear in mind that the court has supervisory and inherent powers to ensure that justice is done in the case. This may include issuing directions to parties to do certain things, especially where legal requirements have not been met or complied with thus making sure that the parties comply with them. For example, ensuring in contempt proceedings that the rights of the alleged contemnor prescribed under Rule 23.11 and 12 are fully accorded to him or her.
  3. In this instance, those rights were not given to the alleged contemnors and given that the alleged contempt carried penal sanctions, the court below could have exercised its powers to direct that oral evidence be given besides the sworn statements to assist the court in making its decision.
  4. For these reasons we allow the appeal and set aside the orders given by the learned trial judge. We remit the matter back to the High Court before another judge for re-hearing.
  5. Consequently, the Orders of the Court are as follows:
    1. Appeal is allowed.
    2. Orders of the learned trial judge given on 3 April, 2017 are set aside.
    3. The case is remitted back to the High Court for re-hearing before another judge.
    4. Costs to follow the event.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu J
Member

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