Matezama v Panisis [2017] SBHC 55; HCSI-CC 212 of 2012 (7 December 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 212 of 2012

BETWEEN: ISAAC MATEZAMA - Applicant/Claimant

AND: ERNEST REGHO PANISIS - 1^st Defendants/Respondent

AND: ANNETTE DURI & LESLIE OFU - 2^nd Defendants/Respondent

Date of Ruling: 7^th December 2017

Mr. Faiatoa G for Applicant/Claimant
Mr. Upwe B for Respondent/Defendant

RULING ON APPLICATION FOR CONTEMPT

Maina PJ:

Introduction

This is an application for contempt to the High Court orders of the court. The application was filed following an order of the court on 3^rd April 2013.

The order restrained the 1^st Defendant, 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 the any logs and or timbers belong to the and stored by the Claimant clan. The orders was to remain until the issue of ownership of the said land has been duly determined by the local court.

The Applicant sought a relief to penalise the 1^st and 2^nd Respondents for failure to comply with Orders.

Beside the restraining order of the said land, there are other reliefs sought not to enter onto the leather turtles conservation area on the said land until the issue of land ownership is sorted out, getting within 50 metres of the Claimant and or any member of the family or clan and Claimant and his family to remove the timbers they have previously milled and stored on the land.

The Law

Rules 23.7 to 23.13 Civil Procedure 2007 provides that any person alleged to have deliberately or repeatedly fails to comply with an order of Court. Rule 23.12 (b) is allowed to make an explanation or the Defendants to come to Court with that explanation of their position supported by a number of sworn statements and exhibits attached.

Whoever breaches an order of the court or contempt, the relief is punish and the standard of proof though of civil concerned, is as in criminal cases. Kabui J (as he was then) in the case Tubara V James [1998] SBHC 94; HCSI CC 356 of 1996 (8 June 1998) adopted the case of Comet V Hawkex

“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 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. In re Bramblevale Ltd (1970) 1 Ch. 128, 137, said that it must be proved with the same degree of satisfaction as in criminal charge. This passage by Lord Denning covers all the elements in a criminal charge”

Brown J in the case Russel Islands Plantation Ltd V Kangovai [2005) SBHC 7; HC SI – CC 197 of 2005 also adopted the same degree of satisfaction as in criminal charge when he said:

“The White Book speaks thus about O.52 r.l (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 apart of the alleged contemnor (Re Supply of Ready Mix Concrete (1991) 3 W.L.R 708 C.A).

The Applicant’s case

The sworn statement of the Applicant to support this contempt filed in court on 13^th May 2015 stated the order was served by PC Desmond Habu on or about 2oth April 2013 at Kia Village Ysabel Province.

The Applicant in his sworn statment alleges that:

1. On or about 31^st May 2013 the Defendant’s kinsmen and associates namely Godfrey Rumane, Philip Lulua with Fafale and Raga from Malaita had stayed on the land and for some while,
   
2. On or about 4^th June 2013, Defendant’s daughter Ms Annette Duri confronted the Claimant’s daughter and her husband immediately after the church service at Kia Village. She said the High Court order was invalid,
   
3. On or about 17^th June 2013 Ms Annette Duri with his spouse travelled to the land in dispute and stayed in the conservation area,
   
4. On or about 24^th June 2013 Ellison Lamana – Defendant’s kinsmen spent time on the land- Log Pond B. They brought milled timbers with the lucas mill operated by four Malaita men brought the Defendant’s daughter Ms Annette Duri and his spouse Leslie Ofu from Malaita; and
   
5. On or about 1^st August 2013 a lucas mill was assembled or set up by the Defendants on the land.
   

The Defendant’s kinsmen and associates had fell trees on the disputed land and there were 473 pieces of timbers removed from the pile stacked up in 2011.

Police Constable Desmond Habu in his sworn statement filed on 13^th May 2014 stated that he was posted at Kia Police post since 1997 and he is familiar with the community of Kia village. He served the court order of 3^rd April 2013 to the 1^st Defendant on 20^th April 2013 in an envelope. On or about 2^nd August 2013 he travelled to Sasakolo land and met Godfrey Rumane with two Malaita men associated with the Defendants. He also met a man from Western Province and Malaysian with the logging company operation there. The officer explained to them the orders of the court which he served to the Defendants.

In the response to this contempt and joint Sworn statement of Ms Annette Duri and his spouse Leslie Ofu filed on 29^th May 2015 both admitted the members of the Defendant’s family.

Both did not response the alleged contempt against them. But they denied the alleged claims of the Claimant as they were operating on the Defendant’s land or they were doing activities on their registered land.

With the service of the order the counsel questioned the credibility of the service and they denied receiving or served with the order of 3^rd April 2013. But I would say it was served to the Defendant and by the order and the fact Ms Annette Duri is the daughter of the Defendant with his spouse Leslie Ofu, they are legally subject to the orders.

With court orders whether you intended to breach or not it is against those who are named as the 1^st Defendant, 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 the any logs and or timbers belong to the and stored by the claimant clan.

In simple term, you both of you are liable unless you satisfy the court with the requirements or in proviso of Rule 23.13 Civil Procedure 2007. In all respect that has not been done on all the parts of the Respondent in this application of orders of Contempt.

I hold the 1^st and 2^nd Defendants contempt of the order of the court of 3^rd April 2013.

ORDER

1. The Defendants be punished for contempt of Court by paying fines:
   
   • (i) Ernest Regho Panisis is fined $4,000.00
     
   • (ii) Ms Annette Duri is fined $4,000.00
     
   • (iii) Leslie Ofu is fined $4,000.00
     
2. Pay within two weeks in default of payment three months imprisonment.
   
3. Pay the fines within two weeks in default of the payment three months imprisonment.
   
4. Costs are paid to the Claimant
   

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge