Bank South Pacific Limited v Kaua [2012] SBHC 44; HCSI-CC 225 of 2010 (9 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 225 of 2010.

BETWEEN:

BANK SOUTH PACIFIC LIMITED
Claimant.

AND:

ALICE KAUA.
Defendant.

Date of Hearing: 4th May, 2012
Date of Ruling: 9th May, 2012.

Mr A. Radcliffe for the Claimant.
Mr J. Iroga for the Defendant.

RULING ON APPLICATION FOR ENFORCEMENT OF CONTEMPT ORDER.

Faukona J: This application was filed by the Claimant on 7th November 2011, pursuant to Rule 23.11, seeking the Court to enforce the orders imposed by this Court on 4th May, 2011, and punish the Defendant for contempt of Court.

2. The Claimant relies on the facts in the application itself, and a sworn statement made by Mr Radcliffe filed on 7th November, 2011, in support of this application.

3. This case concerns a parcel of land No. 191-006-149 within which the Claimant owns a house. The house is located at the top of the cliff at Tavio ridge overlooking the kindergarten School own by the Defendant at Tanadai Highway. It would appear that the lands own by the parties have one common boundary at one end.

4. The standard of prove in a civil contempt is a well settled law in this jurisdiction. In the case of Tuhara v James[1] Kabui J stated at page 2;

"This case concern civil contempt. As such is quasi-criminal in nature. In Comet Products v Hawkes Plastics (1972) 2 WLR at 360-365, Lord Denning MR, had this to say. "A criminal contempt is one which takes place in the face of the Court, or which prejudices are 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 takes of the nature or 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 proceedings. I see that in Cross J in Yianni v Yiani (1996) 1 WLR 120 so decided; and a further more we ourselves in this Court. In re Bramblevale Ltd (1970) I Ch. 128,137, said that it must be proved with same degree of satisfaction as in criminal charge. This passage by Lord Denning covers all the elements in a criminal charge"

5. The same view is expressed in Russell Islands Plantation Ltd v Kangovai[2], by Brown J at page 18 stated;

"The White Book speaks thus about O.52 r 1 (in similar terms to our High Court Rules O.62 Division 3) as it was then at 52/1/3. It is an essential prerequisite to a finding of contempt that the factual basis shall be proved beyond all reasonable doubt and that there shall have been mens rea on the part of the alleged contemnor Re Supply of Ready Mixed Concrete (1991) 3 WLR 708, C.A".

6. From the authorities there can be no question that the standard of prove in civil contempt correspond to the criminal standard, that is prove beyond all reasonable doubt. I am legally persuaded and oblige to apply that standard in this particular case.

7. On 4th May, 2011, consent orders were made by this Court. Consent orders are orders negotiated by the parties themselves in their prior consultations. And having agreed in principle that they would comply with the terms of the orders, and then the orders were jointly presented to the Court for signing and sealing and thereafter becomes an order of the Court.

8. Order one is in the term that judgment is entered for the Claimant against the Defendant. Order two is a permanent restraining order restraining the Defendant, her servants or agents from interfering with Claimant's land except for preventing further damage to the Claimant's land and from excavating ground within a distance of three meters from the common boundary.

9. Order three actually directed the Defendant to carry out such remedial work necessary to protect the Claimant's land including, but not limited, the construction of retaining walls and other appropriate safety measures. That the plan for such remedial work be submitted to the Claimant for consideration before the work commences. That the work should be carried out within three months or such other period the parties shall agree.

10. After the orders were made there were a number of correspondences exchanged between the Counsels. One of which a report by a purported civil engineer in relation to the progress of the propose construction of earth retaining wall. The report was undated however; it suggested that it was ideal that construction work of the retaining walls must begin after school holidays when the classroom and grounds were cleared off children.

11. The proposal suggesting timeline seemed to be accepted by the Claimant contemplating work to commence in December, 2011. However, the Claimant's concern is that there is no reference made to the effectiveness of the retaining wall, ensuring that the Claimant's property is adequately protected.

12. Despite new developments and proposal to start work in December, 2011, there was nothing done within the three months as agreed upon in the order. By November 2011, when this application was filed there was nothing yet seen physically started.

13. This Court proceeds on the basis that Rule 23.11 has fully complied with in particular Rule 23.11(b) which require the application be served on the Defendant personally.

14. That rule presumably must have been complied with because on the last four occasions since 1st December, 2011, Counsel representing the Defendant did appear in Court. In this occasion the Defendant fail to appear personally in Court but her Counsel does and attempt to fulfil Rule 23.12 explaining the Defendant's situation.

15. Counsel for the Defendant objects the application and invites the Court to look at options available under Rule 23.4 (c) and (d) and exercise its powers accordingly.

16. He further submits by way of explanation that lately the husband of the Defendant died and she was faced with financial difficulties. He also point out that after the orders were made excavation had been ceased from the area close to the boundary of the Claimant's land. Recent excavation work was done within some distance away from the Claimant's land. He submits a new survey must be done.

17. It appears from Mr Radcliffe's submission that the death of the Defendant's husband is understood and may be a fact contributing delay to comply with the orders. However, that explanation given is from the bar table. There is no evidence by way of sworn statement to support or explain the Defendant's situation or difficulties.

18. I agree that the Defendant has failed to comply with the orders. The explanation submitted by the Defendant's Counsel is not evidence, and at the same time does not convince the Court to exercise its discretionary powers to make any order pursuant to Rule 23.4 (c) or (d).

19. Whilst I sympathise with the Defendant, breaching of Court orders is a serious matter. In this case she agreed through her Solicitor for consent orders be made and that she would commence work within three months. Those orders demanded her to start comply immediately. Within those three months she failed, there was no work started or done. Again from the engineers' report the Claimant anticipated that work should start in December 2011. Nothing was done. Almost a year has gone and still the work on the retaining wall has yet to kick off.

20. From evidence this is a clear case of deliberate breach of the Court orders which mean contempt of Court. As such, the option available to the Court to exercise its powers pursuant to Rule 23.13 is to impose a fine or imprisonment for not more than three months.

21. Mr Iroga submits that a new survey be carried out and anticipated that the Court should give direction or make another order. This is objected to by Mr Radcliffe.

22. A survey report is a document to assist the Court determines a judgment and orders. We have by passed that stage. There is nothing more left to do. We are at the compliance stage, complying with the orders of the Court which had already been made. To reverse to that stage is perceived as buying unnecessary time.

23. I find there is evidence to prove beyond reasonable doubt the Defendant has deliberately fails to comply with the orders of the Court, and that is Court contempt.

24. I decide a fine is more appropriate in this case. Imprisonment is not in the best interest of all. I noted that Mr Radcliffe submits that an ongoing fine be paid until the Defendant construct the retaining wall. I have done some research to affirm if there is provision in law for that. Unfortunately I could not find any authority.

25. Punishing a Defendant in civil contempt case is not common in this country. However, this cause of action is taken to uphold the integrity and respect for the Courts. Its orders have to be respected and complied with. Anyone who plays down the orders of the Court demeans himself and cannot be tolerated by the Courts. The penalty impose by this Court will remind parties in any civil proceedings that it is a honourable thing to do by simply obeying the Court orders. Any actions to defy will definitely bring mischief to you. I therefore impose a financial penalty against the Defendant.

Orders:

1. Defendant is fined $2,500.00. Payable by Wednesday 16th May, 2012; in default of payment of fine, 2 months imprisonment. Fine is to be paid into High Court Registry.

2. Cost is to be paid to the Claimant to be taxed if not agreed.

The Court.

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^[1] [1998] SBHC 95; HCSI – CC 356 of 1996.
^[2] [2005] SBHC 7; HCSI- CC 197 of 2005.