3) &nnbsp; &nnbsp; &nbp; &nbp; &nCosts against the the 2nd Defendant to be taxed if not agreed.p claoNormyle="n-topmargitom: 1">
4) &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp; &&nsp;;&nsp; 1pan>1st
In the original order issued on 17th April 2000, the word “forthwith” is written by hand. With the consent of counsel a clarification was sought from the Nausori Magistrates
Court, as to who wrote this word on the order. The Court confirmed that the learned Magistrate Mr Jitend Singh himself wrote the
word in his own handwriting.
The Applicant claims that the order was executed on the Respondents by the Deputy Sheriff, Nausori on 20thndup>nd Respondent refused to comply with it.
This application for Contempt of Court committal was then filed in the High Court on 26th April 2000. On the same day, tspondents applied for stay stay of the order before the learned Nausori Magistrate. He refused the
application.
On 30th May 2001, I ruled that Vijay Kumar could bring contempt proceedings on behalfis father’s estate, as his intended executor. On 31stst
May 2001 by consent, leave was granted to the Applicant to issue contempt proceedings and a previous part-hearing conducted on the
basis that Byrne J had already granted leave, was declared null and void.
The hearing proceeded on 3rd July 2001 in open couhe grounds for the application are set out in the Amended Statement filed on 8th/sup> May 2001, and are inter alia, as follows:
(ii) & p; That on 17thth
April 2000, the Plaintiff applied for the writ of poss possession for the vacant possession of topertpan>
(iii) &nbbsp; That onat on 20th April at about 6am Mr Bir Chand, Deputy Sheriff executed the writ of possession and the 2nd Defendant vacated the property.
p class=MsoNormaNormal style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (iv) Thaer the exenutiothof aid said writ of possession, the 2nd Defendant in defiance of the court order moved in the properain.p claoNormal style="text-indent: -34.9pt; margin-left: 70.9pt; mar; margin-tgin-top: 1op: 1; mar; margin-bottom: 1">
(v) ;&nbs that matermaterial tial time although the 1st Defendant assured the Deputy Sheriff that the 2nd Defendant would not be allowed inside the premises as she had moved out, but he is continuing to keep her inside the house as his
de facto wife.
(vi) &nbbsp; At all materiaterial times, the 1st Dant counselled, aided or abor abetted or procured and/or enabled the 2nd Defendant in defying the Court Order.
stndafendant and 2nd Defendant are are adamant in disobeying the Court Order and in that having or showing no respect for the Court Order.
Order 52 Rule 2 of the High Court Rules provides that the Order applies to contempt of court committed in connection with any proceeding
in the High Court or any proceedings in an inferior court. Order 52 Rule 5 provides that the hearing, after leave has been granted,
should normally be held in open court. The burden of proving that the Respondents have committed contempt of court is on the Applicant
and the standard is one of proof beyond reasonable doubt. In the case of disobedience to a court order, the Respondent must be shown
to have wilfully disobeyed the order. An unintentional act of disobedience is not enough (Steiner Products Ltd. -v- Willy Steiner Ltd. (1966) 1 WLR 986.)
What does “wilful” mean in relation to criminal conduct? It means, according to the House of Lords in R -v- Sheppard (1981) AC 394, either deliberately doing an act knowing that there is some risk of the consequences, or doing an act not caring about the risks
involved. In the context of a positive act (Sheppard was a case of Wilful Neglect of a Child), “wilful” is usually taken to mean “deliberate” or “intentional”.
The trial
The conduct of this case was much hampered by the question of legal representation of the Defendants/RespondeAlthough counsel originallynally
on the record was J.K.L. Maharaj & Associates, the Respondents were unrepresented at the first (aborted) hearing, Mr Maharaj
being involved in the Constitutional Review Commission. He withdrew as counsel on 22nd May 2001, and was replaced by Mr G. O’Driscoll of Messrs Khan & Associates. Mr O’Driscoll appeared until the end of the Applicant’s
case, and then asked for leave to withdraw. He was replaced by Mr D. Sharma of Messrs R. Patel & Company, who is now counsel
on the record.
The evidence commenced with the testimony of Bir Chaheriff Officer. He gave evidence that on 17th April 2000 he received writ of posf possession and an order from the Nausori Magistrates Court for execution. He was to visit the
Respondents and to explain the writ to them and to inform the Second Respondent to vacate the premises. He went to Wainibokasi, to
the Respondents’ residence on 20th April 2000, with the Applicant Vijay Kumar. He met the Second Respondent and explained his visit to her. He said he spoke to her
in Hindi and showed her a copy of the writ of possession. She asked him how the writ was prepared when she had been told by the Nausori
Magistrates Court the day before that the judgment was not ready. He told her that there was a court order for her to vacate the
house immediately. She said she would not move out as there was nowhere for her to go, saying “Shall I sit on the road?”
Mr Chand said that the First Respondent then came out of the house and that he then explained the and the order to him. Whilst talking,
the Second Respondenondent went inside, changed her clothes and left saying she was going to see her lawyer. She then left, driving
a car. The First Respondent then told Mr Chand that she had gone, and that he would not let her in. Mr Chand said that he had executed
the writ of possession because the Second Respondent had left the property and the First Respondent had assured him that he would
not allow her to return.
The second witness was the Applicant, Vijay Kumar. He gave evidence that the First Respondent is his younger brother. He said he isrenting
a house in Wainiboknibokasi because of problems between his brother and his de facto wife, and the rest of the family. He said that
his father had named him as the executor of his will, and was in the process of transferring the property to him, when he died. He
said that because of the problems at home, his father’s cremation was conducted from a neighbour’s home. He was then forced to move
out. After the execution of the writ of possession, he found that the Second Respondent was still staying in the house. At that time
he had his wife, three children, sister and mother with him. None of them was able to return to the house. His mother is now dead.
He said that the Respondents had now got tenants living in the house.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Under cross-examination, he said that his father had never given the Second Respondent permission to move in but she had moved in
anyway. way. He said that the property was partly owned by Tara Wati, his late father’s sister-in-law. He agreed that a caveat had
been lodged in respect of the grant of probate on the will. He agreed that he had been charged with assault in respect of their family
problems, and had been convicted.
In re-examination he said that the First Respondent was in contempt because he allowed the Second Respondent to re-enter the house.
He said that he could not move into the house because the Second Respondent was treating his children badly, and chased his visitors
away. He said that his father objected to the Second Respondent living with them because the First Respondent was already married
to someone else.
The third witness for the Applicant was Karalaini Mocelagi who gave ece that she had rented part of the house from the First and Second
Respondents. She said thid that they moved out after 5 months because the Second Respondent abused them. She said there were four
tenants in the house after she moved out, and that there was still a tenant in the house.
At the end of the Applicant’s case I found that twas a case for each Respondent to answer. Counsel then made an earnest attempt to
settle thle the matter between the Applicant and the Respondents. Counsel for the Respondents informed me that they had proposed
that the Second Respondent move out of the property until the estate dispute had been settled. The hearing was adjourned to give
her time to move out. On 6th August, Mr O’Driscoll said that the Second Respondent had moved out but had moved back in again. He withdrew as counsel and I proceeded
with the trial.
Mr D. Sharma then took over as counsel for the Respondents osup>st August 2001, and called the First Respondent to give evidence. He said that that the Statement of Claim filed in the Nausori Magistrates
Court was in respect of land described as “Nariokoko.” He said that the land on which he resides is freehold land known as “Nonokoko”
CT X1/05 Folio 200, and that the property is incorrectly described in the Magistrates Court Order sand the Statement filed in respect
of the contempt proceedings. He said that the property was formerly owned jointly by his late father Ram Harakh and his late uncle
Gobar Dhan. He said that he, the First Respondent had built the house in question, and that in error he had built in partially over
mataqali land. He said the mataqali land over which the house encroached is known as “Tikiniwai.” He said that the Second Respondent
had got written permission from the Turaga-ni-mataqali, Josua Rakabu, to stay on his part of the house. He tendered the letter granting
such permission. That letter is dated 6th July 2001 and purports to authorise Ainul Nisha f/n Nur Mohammed to permanently occupy land known as “Tikiniwai”. The First Respondent
said that he had arranged for a survey of the land and tendered a survey plan showing the “encroached” area as being 3.79 metres
by 3.81 metres of the dwelling house. He said that he lived in his part of the house and that his de facto spouse lived in the encroaching
part which she can enter without going onto the freehold land. He said that the Second Respondent did not enter his side of the house.
He said that the court order to forthwith vacate the land described as Nari, was not against him and that the Second Respondent is
nots not in breach of that order. He also said that half of the property belonged to Tara Wati, his late uncle’s wife, and that she
had given the Second Respondent authority to live in the house.
He said that he and the Second Respondent had appealed the decision of the Nausori Mrates Court but that the court record was never
made ready.eady.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Under cross-examination, he agreed that his counter-claim in the Magistrates Court had been dismissed. He said that there were four
houses on the property and that apart from the house in which he was staying, the others were occupied by his aunt Tara Wati, another
aunt and the aunt’s son. He agreed that Tara Wati’s husband, who had been co-owner of the property, had died without leaving a will
and agreed that Tara Wati had a one-sixth interest in her late husband’s estate.
He agreed that the property was not fully surveyed and that the survey plan did not show the whole of the property. He agreed the
Nausori court action was was about the land at Folio 200 and that it was the same land in respect of which the court order was made.
He agreed that he knew that the case was about the house in which he stayed with the Second Respondent and that the contempt proceedings
were in respect of that land. He said that the Turaga-ni-mataqali had put a fence across the property showing where the mataqali
land purportedly ran. He agreed that the issue of the encroaching land only arose after the contempt proceedings were brought.
He agreed that his alleged rights over the land had been dismisy the Nausori Magistrates Court. He agreed that his claim that he had
built the house was dwas dismissed by the Nausori Magistrates Court.
On being asked whether he let the Second Respondent stay on the propee said:
“I did not. I left it t. The discretion was hers.”
The next series of questions and answers aro relevant.
“Q: Explain to her?
A: She is an adult. She understands.
Q: Aware that ian offence to ignore court order?
A: Can’t answer.
Q: You?
A: I reserve mrve my comments.
Q: She was defying court order?
A: Probably not. That is her right.
Q: The court order stopped her?
A: Yes. If it was me, I would have obeyed.
A: Reserve my answer. She has to decide.”
He then said that Josua, the Turaga-ni-mataqali had moved int house after the last court hearing date, and that he now lived in the
house. He said he hahe had not consented to him moving in. He agreed that he and the mataqali had paid for the cost of survey and
that he had directed the survey including the extent of the encroaching area.
The Second Respondent also gave evidence. She said that ss in a de facto relationship with the First Respondent and that they have
a 4 year old son. son. She said that there was a court order issued against her and that the court order was never explained to her.
She agreed that the court bailiff came to her house to tell her that there was an order for her to move out. She went to see her
lawyer who told her not to move out because he had applied for stay of the order. She said she realised she had to vacate the house
after the judgment was read out in court by the Magistrate. She said that when the bailiff visited her a third time, she moved into
the back portion of the house and told the bailiff she was doing so. She said that she was obeying the court order, because that
part of the house belonged to the mataqali. She said that she continues to live there and honestly believes that she is complying
with the court order.
Under cross-examination, she said that Josua lived in the house too, but then said that she wassure whether he slept in the house
or not. She then said Joid Josua and his son did sleep there, taking turns, and sometimes cooked food there.
She said that the mataqali had discussed its claim over the land her, and that she knew about it at the time of the Magistrates Court
hearing. She agreed teed that after the last court hearing she had moved out but that she moved in again at night. She agreed that
they still had tenants in the house, and that the tenants paid $100 in rent.
The next witness was Josua Rakabu. He said that he was thega-ni-mataqali Valeikima. He said he has known the First Respondent since
he was a child. Hld. He said he had given the Second Respondent permission to live on his land, and that part of the house in question
was on his land. He said he knew about the encroachment for twenty years.
Under cross-examination he said he had never tried torce his rights over the house and agreed that he went to take over part of the
house in Augn August this year.
He said he has never lived in the house, and that his son only visited the house on occasion. He d threatening the Applicant at the
market, and admitted ered erecting a fence which in effect divided the house into two. He said that he had not got legal advice before
doing this and had paid for the survey plan himself.
The next witness was Tara Wati whose husband was previously co-owner of the property. She said she had consented e First and Second
Respondepondents staying on her land. Under cross-examination Tara Wati was unable to answer many of the questions and was argumentative
and hostile. It was clear that very little weight could be put on her evidence.
Counsel filed submissions and both submissions were helpful and clear. Counsel for the Applicant sait the evidence clearly showed
a proper execution of the coue court order and that the Respondents knew that the Second Respondent was to vacate the land in question
forthwith. He said that a refusal to obey a court order, and an aiding and abetting of disobedience of a court order were both contempt
of court. He said that the stay application was refused, and that the Respondents had to comply with the court order. He asked that
both Respondents be committed to prison.
Counsel for the Respondents said that because the order was defective in that it described the land incorrectly, the cpt proceedings
were misconcsconceived. He said there was no evidence of service of the writ of possession, and alternatively that there was no evidence
of contempt.
The Order
The order itself is inaccurate. It describes the land as “Nariokoko” at Certificate of Title Vol. Xfolio 2000. In fact the land is
Nonokoko at Vol X1/05 foliofolio 200.
However there was no doubt at all in the minds of both Respondents of the land to which the order referred. This was clear from their
evidence. The order was made after protracted civil proceedings and there was no dispute about the description of the land. There
was no other property which was the subject of the section 169 proceedings. In the circumstances I consider that the order while
technically inaccurate, was not null and void because of the misdescription. Nor did it render the contempt proceedings a nullity.
I am also satisfied beyond reasonable doubt, on the evidence of Bir Chand, tha writ of possession and the order were properly issued
and and executed. On the 20th of August 2000, both Respondents knew that the court had ordered the Second Respondent to move out of the house. I am satisfied that
both Respondents understood the contents of the order.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Contempt
The question is whether, in respect of the Second Respondent, she wilfully disobeyed the order and in re of the First Respondent,
hnt, he aided and abetted her in this disobedience. It is not in dispute that the Second Respondent said that she could not move
out because she had “nowhere to go”. In the course of the Applicant’s case, it was never put to any of the witnesses that the house
was partly on mataqali land. Nor did their counsel refer to this in the “settlement talks” after I found a case to answer.
The story of the encroachment arose for the first timeng the First Respondent’s evidence. Why was this not raised before? More importantly,
why wwhy was this never put to the Applicant when he gave evidence? Why was the Second Respondent’s alleged conversation with Bir
Chand about moving into the mataqali side of the house, never put to Bir Chand when he gave evidence? The evidence is that the barbed
wire fence dividing the house into two from underneath the house, was erected in the course of the trial, in August 2001.
The evidence of encroachment smacks of a planned afterthought, introduced to supply the Second Respondent with a defence an excuse
to remain in then the house. The encroachment was never raised before, and there were serious inconsistencies as to the evidence
of the use of the house by members of the mataqali. I do not believe the Second Respondent when she said that she honestly believed
that she was complying with the court order. Indeed her defence in the course of the trial changed from “I have nowhere else to go”,
to “I didn’t understand the order”, to “I am staying on mataqali land.”
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I am satisfied beyond reasonable doubt that she has remained on the property in question, in wilful disobedience ofcourt order, since
20tsup>th July 2000, when the writ of possession was duly executed. She is clearly in contempt of court.
The evidence of aiding and abetting in respect of the First Respondent is he is in a de facto relationship with the Second Respondenondent,
he told Bir Chand that he would not allow her to move in after she left the house on the 20th of April, and that he continues to live with her in the house. There is also the evidence that the Respondents together rented the
house out to tenants and liaised with the Turaga-ni-Mataqali, as to the survey of the alleged encroachment.
I am not impressed with the submission that because tcond Respondent is in a relationship with the First Respondent, that he therefore
has contrcontrol over her and her actions. As he rightly said in evidence, she is an adult and must take responsibility for her own
actions. She cannot be assumed to be obedient to her partner, and a mere act of tolerance and passive acceptance of her presence
in the house would not be sufficient to prove a wilful act of aiding and abetting. The House of Lords in Maxwell -v- Attorney-General for Northern Ireland (1969) 68 Cr. App. R. 128 said that an aider and abettor must know or contemplate the crime committed by the principal, and must intentionally lend his assistance
in order that such crime will be committed. Lord Scarman said at page 152:
“The guilt of an accessory springs, from the fact that he contemplahe commission of one (or more) of a number of crimes by they the
principal and he intentionally lends his assistances in order that such a crime will be committed. The relevant crime must be within
the contemplation of the accomplice, and only exceptionally would evidence be found to support the allegation that the accomplice
had given the principal a complete blank cheque.”
There must therefore be evidence of positive acts of assistance, acquiescence is nough.
The First Respondent certainly suggested to Bir Chand that he was in ition to prevent the Second Respondent from re-entering the house.
Furthermore, he was resp responsible, according to his own evidence, for organising the survey of the property which purported to
allow the Second Respondent to stay in the house on the ground that she was “on the mataqali side of the house”. Finally, he is clearly,
from the tenor of his evidence, still living with her in the house, renting out the house to tenants, with her, and is evidently
wilfully assisting her to disobey the court order with full knowledge of the consequences of their conduct. I am satisfied beyond
reasonable doubt that the First Respondent knowingly and wilfully is assisting the Second Respondent to disobey the Court Order of
17th April 2000, and is therefore guilty of aiding and abetting her contempt of court.
In all the circumstances I find both Respondents guilty as charged in the Amended Statement, and I convict them accordingly.
Nazhat Shameem
JUDGE
At Suva
19th September 2001
HBM0026J.00S
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2001/70.html
