Waena v Maetoha [2006] SBHC 23; HCSI-CC 055 of 2001 (23 June 2006)

HIGH COURT OF SOLOMON ISLANDS

NATHANIEL WAENA AND OTHERS

-v-

CASPER MAETOHA AND OTHERS

High Court of Solomon Islands
(Brown, P.J)

Civil Case No. 055 of 2001

Date of Hearing: 23rd June 2006

Date of Ruling: 23rd June 2006

Mr. Andrew Radclyffe for the Plaintiffs
Mr. Baker for the Defendant

RULING

Brown, J: The HC Rules O.60 provide for punishment for contempt of court Order 60.

The law relating to contempt of court orders is derived from adopted English common law and can be found in the White Book; the Supreme Court Practice.

The 3rd defendant Mr. Moffat Pehowa has pleaded not guilty to a charge that alleged contempt of this court’s order of the 12 June 2001 for that (in breach of the injunction preventing interference with the operation of the airfield on Ulawa Island), Mr. Moffat Pehowa caused the airfield to close for a number of days during April 2005 and thereby "interfered with the operations of the airfield".

There has in fact been no argument about the airport closure for when called upon to make his defence (after I was satisfied there was a prima facie case to answer) Mr Moffat Pehowa admitted closing the airport. The issue is whether he was aware of the court order given by my brother judge Kabui PJ (who has not taken carriage of these proceedings for he has just recently retired from the bench after very many years of loyal service) before the acts of closure for which he admit responsibility. For while the closure may be seen as reprehensible in the circumstances (since the land on which the airport has been erected is registered land in the name of trustees, one of whom is the complainant in these proceedings and currently our Governor-General, and has been so registered since January 1990) it is the fact that this man’s conduct need be shown to be contumelious in the face of the order that will be contemptuous.

There are, then two matters for my consideration. The first is whether this man’s conduct can be said to be contumelious or insolent and the second, whether it is such in the face of the order of the 12 June (which had attached a notice warning breach will be contempt of court punishable by imprisonment). Of course knowledge of the order is imperative before I can be satisfied that breach of any can be said to be "in the face of the order". (I should say that the order was in form a permanent injunction).

While no order for contempt would normally issue without personal service, (to prove "knowledge"), once satisfied of "knowledge of the order" in Mr. Moffat Pehowa, I have complete discretion to find contempt or not, taking into account the interests of the contemnor, the victim of the contempt (the trustee or trustees) but my discretion should only be exercised in exceptional, cases where personal service of the court order has not been effected on the person sought to be charged.

I am satisfied such is an exceptional case for continuing. While the contemnor may not have had personal service of the order on him, his letters acknowledge his awareness of the order. His wife had been given the order of Kabui PJ by Jim Sautehi (whom he knew personally). He had been told of the orders when he collected his wife in his canoe to take her to the 3 Sisters Island.

For Jim Sautehi gave the order to Kate Pehowa to pass on to her husband on the 17 June 2001.

There was re examination by Mr. Baker who asked Mr. Pehowa when his wife had told him of the paper she had received. He said "she told me after she came to 3 Sisters Island. He was asked, "after you closed the airport or before".

Answer "I closed the airport and I went and took her in the canoe – I sent a "canoe to pick her up"

Again he was asked

Q after you’d closed the airport?

Answer – yes".

These answers clearly relate to some time after 3 April 2005.

The re examination related to Mr. Raclyffe’s cross examination of Mr. Pehowa about the paper, the court order, given his wife by Jim Sautehi in 2001. He acknowledged his wife had said "copies of the court had been given to Martin". Martin, his brother had since passed away and the file was with him.

I am satisfied beyond reasonable doubt he was conversant with the terms of the court order for since his brother Martin had died, Mr. Moffat Pehowa had (despite his denial in cross examination, whether he thought to find out about the papers, whether they were important) knowledge of the court order.

His reference to it in his letter of the 4 May 2005 (para 4 and penultimate para – clause 4) leaves me in no doubt he had knowledge of the order when that letter is read with the plaintiffs’ letter of the 1 April 2005. Sir Nathaniel’s letter of the 1st April was addressed to the Permanent Secretary, Department of Aviation and copied to amongst others, Mr. Moffat Pehowa. It contained a copy of Kabui, PJ.’s order made earlier in June 2001.

It is that letter which Mr. Baker, for Mr. Pehowa relies upon as proof that Mr. Pehowa’s action in closing the airstrip on at least the 2nd April 2005, could not be treated as contempt in face of the order, for it cannot be said Mr. Pehowa had knowledge of that letter dated 1st April with its enclosed copy order, by the 2nd June 2005, for Mr. Baker pointed to the evidence of Mr. Pehowa given in re-examination. That may be so but that is not the issues. He had knowledge of the order of Kabui PJ long since, for it came to his notice after his wife brought it to his attention in 2001.

I am accordingly satisfied extra ordinary circumstances exist to warrant exercising my discretion to proceed not with standing absence of personal service, for despite clear awareness of the court under (evidenced by his correspondence) the defendant had taken no steps to dispute its efficacy since 2001. Yet he evinced an awareness of legal principles throughout.

When I read all the material it is clear his contempt is contumelious.

His notice of closure message of the 31 March 2005 is signed by him. His letter of the 4 May 2005 repudiates the restraining order. He says he trusts (Justice Kabui’s order) "was not mistake – empowering – Harold Keke to cripple our nation’s political and economical system".

His insinuation that the judge may have acted mistakenly for the effect of the order may have empowered Harold Keke a notorious person at the time, is contemptuous, when the defendant closed the airport in breach of Justice Kabui’s order.

Harold Keke was on Guadalcanal, not Ulawa Island, where the airport is situated.

The plaintiff has title to the land. It is not customary land. The defendant may be mistaken as to the effect of registration but his actions in closing the air port is in breach of the order. I am satisfied because of the history of his actions, detailed in the plaintiffs’ material leading from the time of the orders in 2001 to the enclosure of the strip in 2005, that his action in closing the airstrip is contumelious. It was done in knowledge of the HC order of Kabui PJ.

It amounts to contempt.

The defendant is convicted:

After submissions by Mr. Baker for the contemnor, a sentence of 7 days imprisonment was imposed. Mr. Baker sought suspension and the court ordered suspension once the contemnor executed an acknowledgement of his wrong doing to purge his contempt

The contemnor shall pay the applicants costs.

The contemnor’s acknowledgement

Civil Case 055 of 2001
Waena & Others – Plaintiff
Moffat Pehowa – Defendants & Others

I Moffat Pehowa acknowledge that Orders were made by the High Court at Honiara restraining all eight defendants from interfering with the operation of the airfield on Ulawa Island.

I admit my actions in closing the airport on 2nd and 3rd April 2005 were in breach of these Orders and that I was in contempt of the Orders.

I admit that my action were unlawful and apology to the Court and plaintiffs for my action of closing the airport.

I will adhere by the Orders of 12 June 2001 in the future.

Moffat Pehowa
27th June 2006

THE COURT