Tubara v James [1998] SBHC 94; HCSI-CC 356 of 1996 (8 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 356 of 1996

DANIEL TUBARA

-v-

LESTER JAMES

High Court of Solomon Islands
(Kabui J.)
Civil Case No. 356 of 1996

Hearing: 3/6/98
Judgment: 8/6/98

Andrew Radclyffe for the Plaintiff
Andrew Nori for the Defendant

JUDGMENT

KABUI J.: The Plaintiff sought leave of the High Court by an exparte summons filed on 27th November, 1996 to issue a writ of attachment against the Defendant for Contempt of Court for trespass upon Vulamao Land. That leave was granted by the High Court on 3rd December 1996. By Notice of Motion filed on that same day, the Plaintiff now applies for an order of attachment for Contempt of Court against the Defendant.

The facts are these. The Plaintiff and the Defendant were parties to a customary land dispute over the ownership of Vulamao Land in the Guadalcanal Local Court. The Plaintiff was the successful party in the Local Court. The Defendant appealed against the decision of the Local Court to the Customary Land Appeal Court. The Defendant was the successful party in that appeal. Not being satisfied with that decision, the Plaintiff appealed to the High Court. The ruling by the High Court was that the appeal be allowed and the matter be returned and heard afresh by a differently constituted Customary Land Appeal Court. The matter has not yet been heard by any differently constituted Customary Land Appeal Court. This is the problem. The Local Court decision stands until it is overturned by another Customary Land Appeal Court.

The Plaintiff’s Case.

The allegation of contempt of court made by the Plaintiff is based upon facts deposed to by the Plaintiff in his affidavit of 27th of November, 1996. In paragraph 4 of that affidavit, he says that the Defendant and his relatives or agents have on several occasions wrongfully entered upon the said Vulamao Land since the High Court decision on 11th May, 1994. He says on one occasion in mid 1995, they stole his timber on his land and sold it. In paragraph 5 of the same affidavit, he refers to a copy of a letter written to him by the Defendant in language marked DT1 and later translated in to English marked DT2.

The case for the Plaintiff is argued by Mr. Radclyffe, his lawyer. Mr. Radclyffe’s position is that the High Court decision on 11th May, 1994 quashed the decision of the Guadalcanal Customary Land Appeal Court made on 29th October, 1993. This means that, he says, one must look to the Guadalcanal Local Court decision as binding upon both the Plaintiff and the Defendant until the matter is heard again by another Customary Land Appeal Court. He refers to the affidavit of the Plaintiff above and cites paragraphs 4 and 5 thereof in support of the Plaintiffs case. He says the remarks made in the letter by the Defendant to the Plaintiff referred to in paragraph 5 of the Plaintiff’s affidavit above, marked DT1 and DT2 are disrespectful of the High Court decision. To say that the High Court decision was a worthless piece of paper is nothing more than a clear contempt of court. He says the Defendant and his relatives or agents have no right to enter upon the Plaintiffs land and remove his timber thereby causing him damage. Mr. Radclyffe concludes by saying that there being clear contempt of court, the Defendant should be ordered to undertake not to enter upon the plaintiff’s land in default of which the Defendant should be sent to prison for contempt of a court order. Also, the Defendant can only purge the contempt by compensating the value of timber removed from the plaintiff’s land.

The Defendant’s Case.

Mr. Nori for the Defendant argues that the allegation of contempt of court against the Defendant assumes that the Defendant has disobeyed a court order. He says there is nothing both in the High Court and Local Court decisions which specifies that the Defendant are not to enter upon the land in dispute. He says in contempt cases, the Court should adopt the policy that unless there are specific court orders against which there have been contempt, the court should refuse contempt proceedings in other cases. He says there were other options available to the Plaintiff in this case other than contempt of court proceedings. For example, he says, the Plaintiff could have asked the Court for an injunction against the Defendant pending the hearing of the matter by another Customary Land Appeal Court or, the Plaintiff could have sued for trespass. He presses the point that it is unsafe for the Court to find contempt upon generally worded court judgment without there being specific orders against which contempt may be alleged. Furthermore, he says there is no conclusive evidence to show that the Defendant and his relatives or agents had entered upon Vulamoa Land and stolen the Plaintiffs timber therefrom. This he says, is important because the Defendant has spoken of Komumakanu area in DT1 and DT2 in his affidavit above. It appears from the judgment of the Local Court that there are other areas of land outside Vulamoa Land. It is possible that Komumakanu area is one of them. Mr. Nori makes the point that without a sketch map produced in Court it is not certain that the Defendant did enter upon the Plaintiff’s land and removed the Plaintiff’s timber therefrom. Komumakanu area may well be outside the boundaries of the Plaintiff’s land.

The Law and its Application.

This case concerns civil contempt. As such it is quasi-criminal in nature. In Comet Products -v- Hawkex Plastics [1971] 2 WLR 361 at 364-365, Lord Denning, MR had this to say – “A criminal contempt is one which takes place in the face of the Court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the Court in a civil action. Although this is a civil contempt, it partakes of the nature of a criminal charge. The Defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J. in Yianni -v- Yianni [1966] 1 W.L.R. 120 so decided; and furthermore we ourselves in this Court in In re Bramblevale Ltd. [1970] 1 Ch. 128, 137, said that it must be proved with the same degree of satisfaction as in a criminal charge”. This passage by Lord Denning covers all the elements in a criminal charge.

Applying this to the facts of this case, can it be said that the alleged contempt of court has been proved beyond reasonable doubt as in a criminal charge? The only evidence of proof in this case are paragraphs 4 and 5 of the Plaintiffs affidavit sworn on 5th November, 1996 and filed on 27th of that same month of the same year. These two paragraphs are as follows -

“4 The Respondent and his relatives or agents have on several occasions wrongfully entered onto Vulamao Land without my permission since the 11th May 1994. On one occasion in mid 1995 they stole timber which I had cut on my land and sold it. I have reported these incidents to the Tetere Police but no action has been taken.

“5 The Respondent wrote to me in language on or about 10th January 1995. A copy of the letter in language and an english translation are attached hereto marked DT1 and DT2 respectively. I was cross with the Respondent so I destroyed the original letter in language. The Respondent does not accept the Local Court’s decision that I am the owner of Vulamao Land and I believe he and his relatives will continue to trespass onto my land unless prevented by Court from so doing.”

There is no other evidence in support of the Plaintiffs affidavit. It is significant to note that in DT1 and DT2, the Defendant refers to another area of land called Komumakanu area. There is no evidence to show that the Plaintiff and the Defendant are talking about the same land. In the absence of any evidence confirming that, it is possible that Komumakanu area may not be Vulamao Land and therefore the Defendant cannot be guilty of any contempt of court. Paragraphs 4 and 5 of the Plaintiffs affidavit are nothing more than bare allegations of trespass without further proof beyond reasonable doubt. (See Tagotada -v- Reinunu [1984] S.I.L.R. 1 at 24). Civil contempt is a serious matter and the courts are not easily swayed by it if it can be avoided. This attitude by the courts towards contempt proceedings can be found in Seaward -v- Paterson [1897] UKLawRpCh 22; [1897] 1 Ch 545 at 553 where LINDLEY L.J. said – “I agree with counsel for the appellant that this case is of importance, and that the Court ought to be very chary in committing people for contempt, particularly in cases of fanciful contempt. The Court, unless it is to become useless, must deal with such questions in the interest of the public, bearing in mind that the greater the power it possess the more caution it is necessary to use in exercising it”. In my view, the Plaintiff in this case has failed to prove the contempt he alleges against the Respondent.

Furthermore, the law on civil contempt does seem to say that for a civil contempt to arise, there must be neglect, refusal or disobedience of a judgment or order of the Court requiring an act to be done within a specified time. Examples of specific civil contempts are varied but examples nearer to the facts of this case are breaches of an injunction or an undertaking or disobedience to a judgment or order of the Court to do an act within a specified time (see Halsbury’s Laws of England, Fourth Edition, Vol. 9 at 33). The important facts to look for are that there is an injunction or an undertaking and such has been breached by the party whose obligation it is to observe and honour such injunction or undertaking or that there is a judgment or order of the Court requiring an act to be done within a specified time has been disobeyed or neglected by the party upon whom that judgment or order is binding. An order of the Court the terms of which are ambiguous cannot be enforced by the Court. In Iberian Trust Limited -v- Founders Trust and Investment Company Limited [1932J 2 K.B. 87 at 95-96, LUXMOORE J said “From this it appears that in order to constitute a contempt of court for which the directors may be punished there must be wilful disobedience either by the Company or its servants or directors to do something which it has been ordered to do. If the Court is to punish anyone for not carrying out its order the order must be in unambiguous terms direct what is to be done. Here, the order does not even provide that the defendant company shall return the shares. What it says is “that the plaintiffs do have a return of the said shares within fourteen days”. Personally, I do not think that even an order on the Defendant company to return the shares would be sufficiently definite to be enforced by penal provisions. But the actual order is far more ambiguous than that; the order is no more than an order to do an act than an order that the Plaintiff is to recover something from the Defendant is an order upon the Defendant to do an act”. The reason being that this rule is akin to that which governs the interpretation of penal statutes. That is, the accused must always have the benefit of the doubt in the case of criminal liabilities under penal statutes. There is no doubt in this case that there is a Local Court decision in place. However, apart from the right of appeal being explained, the Court said nothing else. There is no order requiring the Defendant to do anything or abstain from doing anything. There is no injunction against the Defendant nor an undertaking not to commit trespass upon Vulamoa Land. The rights of both the Plaintiff and the Respondent are hanging on the scale currently tipped in favour of the Plaintiff pending a hearing by another Customary Land Appeal Court. It is now 4 years and no hearing has yet taken place. The wheels of justice are grindingly slow in bringing about finality to the land dispute between the Plaintiff and the Defendant. In the Plaintiffs Notice of Motion filed on 3rd December, 1996, he asks for an order that a writ of attachment be issued against the Defendant for contempt of court. There is no such thing as contempt of court generally under Order 61, rule 21, of the High Court (Civil Procedure) Rules 1964. In terms of Order 61, rule 21(2) (b), the contempt must consist of disobedience to an order of the Court. There being no order made by the Local Court at the time of its decision, the Plaintiffs application must fail. The Court is well aware of the judgment in Tagotada -v- Reinunu cited above in which the High Court, found contempt against Reinunu for carrying out further development on Tagotada’s land awarded by a Customary Land Appeal Court which decision had not been appealed. I think the better approach in these land cases is for the winning party to sue for trespass and at the same time seek an injunction against the other party. If that injunction is breached by the other party, contempt proceeding may then commence to vindicate the rights of the winning party. The other party will obviously have been in breach of a Court order. However, there is another aspect of Mr. Radclyffe’s argument which comes within the ambit of criminal contempt of court. In the content of DT1 and DT2 are words of the Defendant which shows disrespect to the High Court in respect of its decision on 11th May, 1994. This decision is described as a “useless paper it has no power”. In The Law of Contempt by Anthony Arlidge David Eady, 1982 at 156, the authors have this to say “It is contempt to publish matter which scandalises the court. Broadly speaking what is prohibited is scurrilous abuse of a judge as a judge or a court and attacks upon the integrity or impartiality of a judge or court. Proceedings for contempt of this kind are rare, the courts preferring to ignore attacks upon them. Many cases stress that the jurisdiction should not be used to stifle legitimate criticism”. At page 58 they say “Scandalous matter is that which is so defamatory of a judge or court as to raise real risk of interference with the due administration of justice by seriously lowering the authority of the judge or court. It is not sufficient that the publication libels a judge for the jurisdiction exists not for the protection of an individual judge but for the protection of the court”. However, at page 162 they do point that “Reviewing these decisions it is not altogether easy to categorise the part of publication which the court will regard as scandalous. The cases seem confined to instances of criticism of judges”. Clearly, each case would largely depend on its own facts. In this case, it is significant to note that the remarks made by the Defendant in DT1 and DT2 about the said High Court decision must be understood in the context of his letter. In other words, his letter must be read as a whole to understand his line of argument in that letter. In my view, what was being said in that letter was that the said High Court decision did not apply to Komumakanu area of land and therefore was useless having no authority over Kamumakanu area on which the Respondent was planting his cocoa trees. I therefore do not think a criminal contempt has been made out by the Plaintiff. The Plaintiffs case therefore fails. The Plaintiffs application is refused.

Respondent costs awarded.

Frank O. Kabui
JUDGE