Way Christian Fellowship v Vivi [2006] TOSC 13; CV 714 2005 (6 April 2006)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV 714/05

BETWEEN:

THE WAY CHRISTIAN FELLOWSHIP
PLAINTIFF

AND:

1. SIAOSI VIVI
2. SIONE VEIKOSO NONU
DEFENDANTS

BEFORE THE HON CHIEF JUSTICE WEBSTER

Heard at Nuku’alofa on 30 & 31 March & 4 April 2006

Counsel: Plaintiff: Mr Tu’utafaiva
Defendants Mr Edwards

RESERVED DECISION GIVEN ON 6 APRIL 2006

Preliminary

This is an application by the Plaintiff for committal of the 2 Defendants, Mr Siaosi Vivi and Mr Sione Veikoso Nonu for contempt of court for breaching the ex parte Court Order dated 1 November 2005, as varied by the later order of 16 November 2005.

Evidence and submissions

For the Plaintiff, Pastor Anthony Banks and Pastor Jim Florian both submitted affidavits and gave oral evidence, when they were cross-examined on their affidavits. The 1st Defendant Mr Siaosi Vivi also submitted an affidavit and gave oral evidence, when he was cross-examined on his affidavit. The Defendants also submitted affidavits from the 2nd Defendant Mr Sione Veikoso Nonu and Mr Sione Veikoso Taukei, son of the 1st Defendant, but they did not give oral evidence.

I regret that I was unable to accept any of the witnesses who gave oral evidence as entirely credible and reliable. Pastor Banks did not give straight answers to questions in cross-examination; Pastor Florian was theatrical and appeared to be carried away in a trance rather than giving reliable evidence; and some of Mr Vivi’s answers were inherently improbable.

I also carried out a site view of the property at the town allotment of Mr Tevita Vea Kafovalu, the Defendants’ brother-in-law, at Sunia Akaveka Road, Hala’ovave, Kolomotu’a, where the building used as a church by the Plaintiff is situated.

I then heard submissions by each Counsel.

For reasons which are apparent below, I consider that in all the circumstances the hearing could have been completed in a much shorter time.

The orders

The important parts of the ex parte order of 1 November 2005 in relation to this application, which was drafted by the Plaintiff’s Counsel, are Paras 3 and 4, which provide:

3. The Defendants, their families, relatives, agents and/or employees are restrained from:
   
   1. Taking or removing any properties of the Plaintiff from the Plaintiffs possession or control.
      
   2. Using frightening and/or abusive language against the Plaintiff's Pastor Jim Florian and his family or other members of the Plaintiff.
      
   100. In any other manner harassing Pastor Jim Florian, his family and any other members of the Plaintiff
        
4. The Defendants, their families, agents and/or employees are restrained from in any other manner interfering with the operation by the Plaintiff of its church.
   

At the end of the order there was a Note:

To the Defendants: TAKE NOTICE that failure to comply with any of these Orders may result in your imprisonment for contempt of Court.

Although Mr Vivi at one stage appeared to deny that he had received this order, I was unable to accept that, especially as he and Mr Nonu had then instructed Counsel to seek revocation or variation of the order, so I was satisfied that the Defendants had proper notice of its terms. Mr Vivi also appeared to claim that he had difficulty understanding the English in the order, but overall I could not accept that. Nor could I accept his evidence that he thought the variation order of 16 November had revoked the whole order of 1 November.

After hearing the Defendants’ Counsel, on 16 November the ex parte order of 1 November was varied so that the Defendants were ordered to retain the properties listed in Paragraph 1 of the order on the town allotment at Kolomotu’a where the Plaintiff’s Church building is situated, and not to dispose of, destroy or damage any of those properties listed in Paragraph 1 which are in their possession and/or under their control.

Applicable law

The terms of an injunction must be strictly observed; and where an injunction is mandatory in its terms, it is the duty of the party bound by the injunction to discover the proper means of obeying the order: Halsbury’s Laws (4th Ed) Vol 9 para 66.

The administration of justice can obviously only be effective if it has the means to enforce court judgments or orders and it is in part upon the law of contempt that such enforcement depends. It is a contempt to disobey a judgment or order either to do a specified act within a specified time or to abstain from doing a specified act. It is also a contempt to break an undertaking given to the court, on the faith of which the court sanctions a particular course of action, or inaction. (Borrie & Lowe The Law of Contempt (3rd Ed) p 555)

Coercive orders made by the courts should be obeyed and undertakings formally given to the court should be honoured unless and until they are set aside. It is generally 2 no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course, if it is sought to challenge the order or undertaking is to apply to have it set aside. As Romer LJ put it in Hadkinson v Hadkinson [1952] 2 All ER 567 (CA):

'It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.'

(Borrie & Lowe p 555)

As Lord Donaldson MR said in Johnson v Walton [1990] 1 FLR 350,352 (CA):

'It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted or accepted in the first place.'

(Borrie & Lowe p 555-6)

Given that orders and undertakings are meant to be obeyed the motive for disobedience is irrelevant for the purposes of establishing a case of contempt. As Lord Sterndale MR said in R v Poplar Borough Council (No 2) [1921] All ER Rep 437 (CA)

'Unless and until the time comes when the law ... is that a person may disobey an order of the court or the laws as much as he likes if he does it conscientiously the question of motive is immaterial.'

Furthermore it is no defence to a finding of contempt that it is the defendant's first breach of the order in question; and as Leggatt LJ said in A v D (Contempt Committal) [1993] Fam Law 519 (CA):

'it is a heresy to think that in cases of injunctions to restrain domestic violence, for example, there is a concept of ‘one free breach’.'

(Borrie & Lowe p 556)

However the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper notice of the terms, and that breach of the injunction has been proved beyond reasonable doubt: Halsbury para 66.

The power to order committal for civil contempt is a power to be exercised with very great care; and the court will not order committal where the contempt is o£ a minor or technical nature. The order for committal for a civil contempt may be for a fixed period or for an unspecified term; if it is fixed, the length should be commensurate with the seriousness of the contempt and should not be too long, but may be suspended under common law: Halsbury paras 101 & 98, Borrie & Lowe p 627-8. The suspension should be for a specific time and should specify the terms and conditions of suspension, but if the terms are broken the court still retains a discretion to do what is just in the circumstances: Borrie & Lowe p 627-8.

Grounds of decision

While the terms of the original order of 1 November refer to the properties of the Plaintiff and the variation order of 16 November refer to the Plaintiff’s Church building, it became clear during this contempt hearing that whether or not the Plaintiff owns these properties to the exclusion of the Defendants is a matter of dispute. In particular the building referred to as the Plaintiff’s church building is built on the town allotment of the Defendants’ brother-in-law Tevita Vea Kafovalu without any formal or written tenancy agreement or lease: but this hearing was neither the time nor the place to attempt to reach a conclusion on that issue. The result is that it was not clear beyond reasonable doubt that the properties referred to by the Plaintiff as its properties were in fact its properties, so I was not in a position to make a finding of contempt in relation to any allegation relating directly to the alleged property of the Plaintiff.

Pastor Banks indicated in his evidence that he was not seeking committal of the Defendants in relation to their retention of the alleged properties of the Plaintiff covered by Order 1 of the original order of 1 November. In any event I would not have been prepared to make a committal in respect of these matters which had been overtaken by the variation order of 16 November; and I am not prepared to make a committal in respect of the events in late 2005, as it appears to me that these are now past and that any application for committal should have been made at the time, so that it would now amount to committal for a technicality, which is not appropriate.

I must also point out that although the order is directed to the Defendants, their families, relatives, agents and/or employees, this application for committal is only made for committal of the Defendants and I am not prepared to find a Defendant liable for contempt except in relation to his own personal actions. There is no question of a Defendant being found in effect vicariously liable to a criminal standard for the actions of some other person.

But having disposed of these aspects, it is equally clear that there have been very unfortunate events in February and in March, last month, and that to a greater or lesser extent these involved harassment of Pastor Florian and interference with the operation by the Plaintiff of its church, aspects of the order of 1 November which were clear and unambiguous.

As I indicated earlier, I did not consider either of the Plaintiff’s witnesses completely credible and reliable, so I am not prepared to make a finding of breach of the order beyond reasonable doubt except where it is absolutely clear to me on the whole evidence that there have been breaches. That is the case in relation to the disgraceful events of Sunday 12 March. While it is still an open question whether the Defendants have right of access to the building, on the evidence I formed the view that the service held by the Defendants in the building was done with the intention of harassing Pastor Florian and other members of the Plaintiff such as Pastor Banks, and with the intention of interfering with the operation by the Plaintiff of its church. Whether the Court orders were right or wrong, they must be obeyed or challenged in Court in the proper way. Both Defendants were present and participating on that occasion, even if they did not take part in physical violence, and so I find that they were in contempt of Paras 3.c and 4 of the Court’s order of 1 November 2005.

Very regrettably the reactions by Pastor Banks and Pastor Florian were equally intolerant and inflammatory and simply added to the vendetta between the parties. I am sorry to say I was shocked to find that there was little evidence of the Christian virtues of loving your neighbour or forgiveness by any of the parties – we pray in the Lord’s Prayer 'forgive us our trespasses, as we forgive them that trespass against us', but that does not seem to have been happening on either side.

Conclusion

It is of extreme importance in the interests of justice that orders of the Court are obeyed implicitly. I shall therefore commit both Defendants to prison for 1 month for that contempt of Court, but in all the circumstances I shall suspend that order for 6 months on condition that the Defendants strictly observe the terms of the Court orders, including a new order which I am going to make today.

Further orders

Until this dispute is resolved by the Court after a full hearing, I believe that the parties must exercise Christian tolerance and live side by side, although I accept that that cannot be easy when the building used as a Church and the 1st Defendant’s home are so closely adjacent. Given that it does not appear to be disputed that the building used a Church was built on the town allotment of the brother-in-law of both Defendants and that they and their families took part in erecting the building, I consider that it would be an important step forward in Christian tolerance if the Plaintiff, despite its differences with the Defendants, was to agree that the Defendants could use the building for worship at a set time at least once per week, but must keep away from it at other times. That might also reduce any liability of the Plaintiff for damages if it were eventually found that the Defendants had been wrongly excluded. I shall not make an order to that effect meantime, but I should like the parties and their Counsel to give it further consideration, as I believe acceptance of that would help to calm the strained relations between the parties.

Meantime to prevent further violence and disturbance, subject to any aspects raised by Counsel, I shall make an equivalent order restraining the Plaintiff and its pastors, members and their families, agents and/or employees from:

1. Using frightening and/or abusive or threatening language or gestures against the Defendants and their families;
   
2. In any manner harassing or engaging in any aggression or violence towards the Defendants or their families;
   
3. In any other manner interfering with the Defendants or their families.
   

I shall also order all parties and their members, adherents and families, as the case may be, to keep the peace at all times.

These orders are to be strictly observed and any breaches will be treated very seriously by the Court and may result in committal to prison.

No order for costs

Although I have made an order committing the Defendants for contempt, in the whole circumstances as narrated above I do not consider that it is appropriate to make any order for costs.

R M Webster
Chief Justice

6 April 2006