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Credit Corporation (Fiji) Ltd v Qamer [2015] FJHC 995; HBC89.2013 (9 December 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 89 of 2013

BETWEEN :

CREDIT CORPORATION (FIJI) LIMITED
PLAINTIFF

AND :

MOHAMMED IMRAN QAMER
DEFENDANT

COUNSEL : Mr. T. Tuitoga for the Plaintiff.
Mr. I. Romanu for the Defendant

Date of Ruling : 09th December, 2015

RULING.

[1] The plaintiff instituted these proceedings seeking the orders as mentioned in the statement of claim dated 18th March 2013. The defendant has obtained a loan from the defendant and it was secured by a mortgage. The items mortgaged were the land mentioned in the statement of claim and also bills of sale over motor vehicles bearing registration No. CY 361, DF 079, and EC 222.

[2] On 19th April 2013 the Court made the following orders which were sealed on 25th April 2013;

1. The Plaintiff and/or its servants agents/employees/bailiffs to take immediate possession of motor vehicle registration number DF 079 together with all the other parts/tools and/or accessories with the assistance of Police and or Land Transport Authority Officers.
   
2. An order requiring the Defendant whether by himself, his servants and/or agents to immediately release the custody of motor vehicle registration number DF 079 together with all the other parts/tools and/or accessories to the Plaintiff and or its servants agents/employees/bailiffs.
   
3. An injunction restraining the Defendant whether by himself, his servants and/or agents from interfering with or obstructing or stopping the Plaintiff and/or its servants agents/employees/bailiffs from taking possession and custody of motor vehicle registration number DF 079 together with all the other parts/tools and/or accessories.
   
4. The Defendant, whether by himself, his servants and/or agents be restrained from interfering with the Plaintiff's possession and disposal of motor vehicle registration number DF 079 together with all the other parts/tools and/or accessories.
   
5. That the Plaintiff dispose motor vehicle registration number DF 079 together with all other parts/tools and/or accessories in accordance with the bill of sale dated 31 January 2012 upon repossession.
   
6. That the Police and/or Land Transport Authority officers assist the plaintiff in enforcing the above Orders and to maintain peace.
   

[3] The sealed order was served on the defendant on 8th May 2013 and the defendant by his letter dated 14th May 2013 acknowledged the receipt of the sealed order. Since there was no response from the defendant, the plaintiff wrote a letter informing him that if he fails to deliver the vehicle in question, it would issue committal proceedings in terms of the above orders of the Court.

[4] On 04th June 2013 the plaintiff filed an application by way of ex-parte summons seeking leave to issue committal order and on 04th July 2013 the Court granted leave. On 15th November 2013 the plaintiff filed an ex-parte notice of motion seeking to have the Notice of Motion for the order of committal reinstated to the cause list.

[5] On 10th December 2013 The Court made the following orders.

(a) Notice of motion for an order for committal dated 10th July 2013 and filed on 17th July 2013 to be filed in fresh and the plaintiff take steps to serve the said Notice of Motion on the defendant within thirty (30) days of this order.

(b) The leave granted by this court on 4th July 2013 to issue committal proceedings is extended for thirty (30) days from this judgment and during such period the Plaintiff should take steps as detailed in paragraph (a) above.

(c) Applicant to dispense with the service of the Notice of Motion for an order for committal dated 10 July 2013 filed on 17 July 2013 on the Defendant is refused.

(d) No order as to costs.

[6] The affidavit of service of the order for committal was filed and when the matter was mentioned thereafter on 25th March 2014 the learned counsel for the defendant sought time to file the affidavit in opposition which was filed on 15th April 2014.

[7] The defendant does not deny that he did not hand over the vehicle in question nor does he challenge the decision of the Court directing him to hand over the vehicle to the plaintiff. In fact he has admitted in paragraph 15 of his affidavit in reply dated 15th April 2014 filed on the same day that the vehicle bearing registration number DF 079 was to be delivered to the plaintiff.

[8] The defendant avers in the affidavit that grave injustice has been caused to him by obtaining orders from the Court on ex-parte summons. However, this cannot be a reason for the defendant not to honour the decision of the Court. Once a decision is given by a Court of Law it is valid and in force and must be obeyed by the parties concerned until it is set aside by a Court of competent jurisdiction.

[9] In the case of Hadkinson v Hadkinson [1952] 2 All ER 567 at page 569 where Romer LJ made the following observations;

It is 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 the 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.

[10] In the same judgment the following observations of Lord Cottenham LC in Chuck v Cremer (1 Coop temp Cott 342) were cited by the Court of Appeal;

A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order is null or valid—whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That a course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.

[11] Romer LJ also observed as follows;

Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt.

[12] The Court made order on the 19th April 2013 directing the defendant to handover the vehicle bearing number DF 079 to the plaintiff which the defendant has failed to comply. So far, the defendant has failed to explain to Court the reason for his failure to comply with its order.

[13] The only grounds urged by the defendant are found in paragraphs 38 of his affidavit dated 15th April 2014 which reads as follows;

That I am adamant and cannot understand that the plaintiff had obtained Court Orders at different times under Ex-Parte Summons which is a great injustice to me with only one purpose to deny me a fair trial which was discriminatory from the commencement of this matter.

[14] In view of the decision in Hadkinson v Hadkinson (supra) these matters cannot be taken into consideration unless and until the defendant complies with the judgment of the Court entered against him.

[15] For the reasons aforementioned I hold that the defendant is in contempt of the Court and make the following orders.

ORDERS.

1. A fine of $ 10,000.00 is imposed on the defendant and he is directed to pay the said fine within two (2) months from the date of this ruling.
   
2. In the event the defendant defaults the payment within the period prescribed above he is sentenced to prison for Two (2) months.
   
3. The defendant shall pay the plaintiff $ 1000.00 as costs (summarily assessed) of these proceedings.
   

Lyone Seneviratne.
JUDGE