IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 245 of 2008L

BETWEEN:

KAMLESH KUMAR
Plaintiff

AND:

DINESH KUMAR and PARMESH KUMAR
First Defendants

AND:

DIRECTOR OF LANDS
Nominal Second Defendant

JUDGMENT ON AN APPLICATION FOR ORDER OF COMMITTAL

Judgment of: Inoke J.

Counsel Appearing: Mr R Singh (Plaintiff)
Self represented 1st Defendants

Solicitors: Patel & Sharma (Plaintiff)
Unrepresented 1st and 2nd Defendants
A-G Chambers for the 3rd Defendant

Dates of Hearing: 22 November 2011; written submissions filed 25 November 2011.

Date of Judgment: 8 December 2011

INTRODUCTION

[1]	This is a dispute between three brothers over a cane farm left to them by their grandfather. Their grandfather willed the farm to his son (the plaintiff's and the first defendants' father) and his grandchildren (the plaintiff and the first defendants). There was a fourth grandson but he is not a party to these proceedings, having died before this dispute arose.

[2]	The plaintiff, the youngest of the three brothers, migrated in 1991 and now lives in Australia and the first defendants live on the farm in Nadi. Their father was the sole executor and trustee of the grandfather's estate. After their father died on 28 January 1991, the two older brothers obtained letters of administration de bonis non for their grandfather's will on 8 July 1991. They subdivided the farm and sold off two blocks without their younger brother's knowledge. He was not satisfied with the way his older brothers' managed their grandfather's estate. He filed an originating summons in this Court on 28 November 2008 seeking orders for accounts and proper distribution of their grandfather's estate. The matter lingered in this Court with the brothers changing solicitors several times and many Court appearances and consent orders having been made until 19 July 2010 when they came to a final settlement and I made orders pursuant to those terms of settlement.

[3]	One of the terms of settlement was that the older brothers would pay to the younger brother $3,500 costs by 7 September 2010 and upon payment he would withdraw committal proceedings which he had filed against his other brothers in October 2009. The costs were not paid on time or at all so the younger brother now wants an order of committal against his older brothers. This is my judgment after hearing his application.

CASE HISTORY

[4]	The ex-parte motion for leave to apply for an order of committal pursuant to O 52 r 2(1) of the High Court Rules was filed and granted on 20 October 2009. The alleged breach was for orders made by Datt J on 5 December 2008 which were sealed on 27 March 2009 and served on the first defendants on 28 March 2009. Directions were given for the filing of affidavits in reply but the first defendants did not file any such affidavits at the time. Both the substantive matter and the contempt application were set down for hearing on several occasions and adjourned for settlement eventually coming to what was effectively the end of the substantive matter on 19 July 2010. But because final settlement was dependent on payment of costs in return for the plaintiff withdrawing his committal proceedings, and payment having not been made, the committal proceedings resurfaced and the dispute lingers on.

THE APPLICATION FOR ORDER OF COMMITTAL

[5]	I will start from the final terms of settlement and orders of 19 July 2010 which, so far as relevant to this application, was:

5. THAT the 1st Defendants shall pay the amount of $3,500 being the costs ordered against the 1st Defendants in this matter by 7th September 2010 and upon such payment the Plaintiff shall withdraw the committal proceedings filed herein.

[6]	The $3,500 costs ordered on 8 July 2010 were the costs thrown away when the trial could not proceed because the first defendants were not ready but had not given prior notice. I gave the parties and their counsels time on the morning of the hearing to pursue settlement but to no avail. Indeed, on that morning Mr Haroon Shah who represented the first defendants asked for leave to withdraw as counsel, which I granted, because his clients were not listening to his advice. The plaintiff had flown in specifically from Sydney for this case and had his witnesses present and ready. He asked for $7,000 costs to cover his airfares and accommodation expenses. I granted costs of $3,500 only.

[7]	The orders for which the plaintiff sought to have the first defendants' committed were those made by Datt J on 5 December 2008 which were as follows:

That an injunction against the first defendants be restrained (sic) from disposing or assigning or transferring any estate property whatsoever, until further orders of the Court.

[8]	The order was poorly drafted but I think its meaning is clear.

[9]	The plaintiff deposed in his affidavit in support that the first defendants, despite being present in Court and being served with the Court order entered into a sale and purchase agreement five days later on 10 December 2008 for the sale of a portion of the farm for $10,000 and collected instalment payments from the purchaser between 20 January 2009 and May 2009.

[10]	Although in such applications evidence is normally given viva voce, because the first defendants were unrepresented I directed that the evidence be given by affidavits instead and also to give them more time to prepare and an opportunity for them to get assistance if they wished. They appear to have done that because I note from the affidavit which they filed that they were ably assisted by a human rights advocate with some legal training. The second defendant, who was joined simply because the farm was State land for which it was landlord, took no part in this application.

CONSIDERATION OF THE APPLICATION

[11]	The plaintiff applicant has the onus of proof and the standard is beyond reasonable doubt: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 46; ABU0011&ABU0011A.2004L (22 April 2005); Shalini v Basanti [2003] FJHC 63; HPP0036j.1999s (27 August 2003).

[12]	Furthermore, the power is discretionary and it is to be exercised sparingly: Bokini v State [1999] FJCA 60; [1999] 45 FLR 273 (12 November 1999); Shamdasani v King-Emperor [1945] AC 264, 270 (PC).

[13]	Prima facie, the first defendants breached the order of Datt J made on 5 December 2008. That is not sufficient, however. The breach has to be wilful in the sense that it was deliberate and intentional: Ali v Chaudhary [2004] FJHC 189; HBC0061J.2001L (29 March 2004).

[14]	The order was not sealed until 27 March 2009 and served on the defendants on the next day but the sale and purchase agreement had already been entered into by them on 10 December 2008 and several payments have been made to them. They continued to collect payments until May 2009 totalling one third of the contract price. It is true the older brothers were present in Court on 5 December 2008, but they were simple farmers not represented by counsel and may not have appreciated that they were leaving themselves open to committal proceedings by entering into the sale and purchase until they were served with the sealed order on 28 March 2009 which contained the penal notice. I give them the benefit of doubt. There was no evidence that further payments were collected after May 2009. I think the present case can be distinguished on these facts from Husson v Husson [1962] 3 All E R 1056. I am not satisfied that the plaintiff has proven beyond reasonable doubt that his brothers deliberately breached the order of Datt J. The element of mens rea was not present: Ali v Chaudhary [2004] FJHC 189; HBC0061J.2001L (29 March 2004).

[15]	I think there is one other matter which persuades me against making an order of committal. It is this. After Datt J made the order of 5 December 2008, the brothers have tried to come to an amicable settlement which was eventually achieved on 19 July 2010 and due credit must be given to them and their legal advisers for that achievement. The terms of settlement made no issue about or reference to the sale and purchase agreement which the first defendants entered into on 10 December 2008. I take it from this that the issue had been subsumed in the terms of settlement and that the committal proceedings were intended to be used only as leverage for payment. In other words, it is nothing more than a contractual term between the parties, breach of which was intended to give rise to a claim for damages only and not automatically give rise to an order of committal.

[16]	Further, the plaintiff has certain obligations under the terms of settlement. He has not deposed that he has complied with his obligations fully. The particular order which he says his brothers have breached form part of the overall settlement. I do not think it is open to him to seek compliance until he himself has fully complied with his obligations.

[17]	Finally, this is a family matter between brothers not involving any harm or detriment to anyone but themselves. I do not think granting an order of committal is appropriate. I therefor refuse to grant the orders sought in this application including an order for costs.

COSTS

[18]	There is no order as to costs for the reasons given above.

ORDERS

[19]	I therefore make the following orders:

(a)	The plaintiff's application for an order of committal is refused.

(b)	There is no order as to costs.

Sosefo Inoke
Judge