IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
MISCELLANEOUS ACTION NO. HBM 04 OF 2018

BETWEEN:			SURESH CHAND
APPLICANT

AND:				 SANT RAM AND SHIU RAM

RESPONDENT

Appearance:	Applicant 	-	 Mr.  H. Robinson
		Respondent	- 	 Ms. Lutu I. K.

Date of Hearing 	:	21st January, 2019
Date of Judgment 	:	23rd January, 2019

JUDGMENT

Introduction
[1]	This is an action filed for committal for non-compliance of a consent orders entered 	in the Magistrate’s Court. Both parties relied on the affidavits they filed they did not 	adduce any oral evidence. Defendant raised preliminary objections to the application 	regarding the 	non-compliance of Order 52 rule 2(2), Order 52 rule 3(3) and Order 52 	rule 3(2) of the High Court Rules of 1988.
Facts
[2]	The Plaintiff filed this action for committal on 6.7.2018 by way of ex parte notice of 	motion seeking leave for committal.
[3]	The application for seeking leave contained statement of facts and affidavit in 	support and the motion seeking leave of the court.
[4]	Further supplementary affidavits were filed and leave was granted by a judge on 	14.9.2018
[5]	The sealing of the Order granting leave was filed on 24.8.2018 and it was sealed on 	24.8.2018 
[6]	The Notice of Motion for Order of Committal was filed on 25.8.2018 along with an 	affidavit of support.
The affidavit of service states that ‘true copy of the within Notice of Motion for Order of Committal together with the Affidavit in support in this action which appeared to me have been regularly issued out of the High Court of Fiji at Labasa against the within named Respondents and which was dated the 25th day of September 2018. A copy whereof of the said Notice of Motion for Order of Committal and the Affidavit in Support are annexed hereto and marked “A” and “B” respectively’ was personally served to the Defendants.(emphasis added)
[7]	There are no annexed documents to the affidavit of service.
[8] 	In the affidavit in support of the motion for committal inter alia stated
	i.	The  Plaintiff   filed  an  action  in  Magistrate’s  Court  for  the  transfer  of 		subdivision of 	land comprised in CT 21230 situated in Savusavu.
	ii.	The Defendants consented on 15.8.2014 to transfer the above-mentioned 		land to the Plaintiff without a further payment of money.
	iii.	The Plaintiff had transferred the same to a third party in violation of consent 		order of 15.08.2014.
[9]	In the affidavit in opposition, inter alia stated,
i.	Only sale and purchase agreement was executed with a party who had allegedly given Plaintiff the land, and due to default of the said party, the agreement had come to an end.
ii.	Admitted the transfer of the land after consent order was entered.
iii.	Steps were taken in 2018, to set aside the consent order entered in the Magistrate’s Court after committal proceedings were instituted.
Analysis
[9]	It is mandatory requirement to obtain leave for committal through ex parte 	application which the Plaintiff obtained on 14.9.2018.
[10] 	Once the leave is obtained the Plaintiff must file a motion for entering the matter 	for hearing and it should also be served personally to the person or persons against 	whom the committal is sought along with copy of statement and affidavit in support 	of the application for leave.
[11] 	The Supreme Court Practice (UK)(1999) (White Book) at p887 deals with the issue of 	personal service and states;
	‘Personal service- No order will normally be issued for the committal of 	a   person   unless   he  has   been   personally  served   with   the   order, 	disobedience  to  which  is  said  to  constitute  the  contempt, or,  if  the	owner  is   directed  to   a  group   of   persons  or  a   corporation,  some 	appropriate  member  has   been  personally  served.   Furthermore  the 	prosecutor must give each person sought to be committed  the fullest 	notice  that an application is being made for his committal (R v Poplar 	Borough Council (No. 2) [1922] 1 K.B. 95) – e.g. by inserting his name in 	the  notice  of  motion  and  serving  personally upon him a copy of the 	notice   and  of   the  affidavit  in   support,  showing  what   is  alleged 	against 	him.  Personal  service  of  the  notice  of motion, enjoined by 	the rule, requires  not  merely  the  personal  service o f a copy, but an 	opportunity of inspecting the original (see Parker v Burgess (1834) 3N. 	& M.  36). But the Court may dispense with personal service  where  the 	respondent  is  evading  service.  Service   may  be  dispensed  with  only	where there is  no  other course available to uphold the authority of the 	Court and protect  the  applicant; the  dispensation should  be recorded 	in   the  committal  order  (Wright v Jess  [1987]  1 W. L.R. 1076;  [1987] 	2 All E.R. 1067, CA).
	Failure to comply with a proper procedure, such as personal service, is 	not necessarily fatal to the lawfulness of a contempt order.  The court 	has complete discretion, under s. 13 (3) of A.J.A. 1960 to perfect an 	invalid committal order in a contempt case, but that power should only 	be used in exceptional cases and should be dictated by the need to do 	justice having regard to the interests of the contemnor, the victim of 	the contempt and other court users. Where a contemnor has not 	suffered any injustice by the failure to follow the proper procedures 	(such as service) the committal order could stand subject to variation 	to take account of any technical or procedural defects (M v P 	(Contempt of Court: Committal Order, Butler v Butler) [1992] 3 W.L.R. 	813; [1992] 4 All E.R. 833 (Lord Donaldson of Lymington M.R. Nolan 	and Scott L.JJ.).
	Where a new or adjourned date is fixed for the hearing of the notice of 	motion, 	personal service ought to be effected of notification of the 	date (Phonographic Performance Ltd v Tsang (1985) 82 L.S. Gaz. 2331, 	CA).
[11]	Though the counsel for the Defendants stated that no personal service was effected, 	there is no evidence to support it in the affidavit in opposition. So, it is a stamen 	from the counsel and cannot be part of evidence. In contrast, in the affidavit of 	service there is a sworn statement that personal service was affected. In the 	circumstances on the 	balance of probability there is evidence of personal service, 	and the preliminary objection for that is overruled.
[12] 	In the affidavit of service that is filed there are no annexed documents as stated 	therein, hence it is incomplete and there is no evidence of the compliance with 	Order 52 rule 3(3) which states as ;
	‘(3) Subject to paragraph(4), the notice of motion , accompanied by a 	copy of the statement and affidavit in support of the application for 	leave under rule 2, must be served personally on the person sought to 	be committed.’
[12] 	The affidavit of service does not state that statement of facts and affidavit in 	support of the application seeking leave was served to the Defendants. Since I do not 	have the benefit of perusing the copy of documents served there is no proof of that 	fact.
[13] 	Since the application for leave was sought ex parte the particulars stated in the said 	application needs to be served to the Defendant. This is a mandatory requirement 	and Plaintiff must comply with that and failure to do so is fatal.
[13]	 Order 52 rule 3(2) of the High Court Rules of 1988 states as follow:
	“Unless within 14 days after such leave was granted the motion is 	entered for hearing the leave shall lapse”
[14] 	The motion seeking committal after obtaining the leave was filed on 25.9.2018 and it 	was listed for hearing on 23.10.2018, and by that time the leave that was granted 	had lapsed.
[15] 	In the written submission the counsel for the Plaintiff argue that till the order is 	sealed 14 day time period will not be effective. I do not agree with that 	interpretation. Why they waited for 10 days to file orders for sealing of the order 	granting leave was not explained. Since there was a requirement of 8 days’ notice to 	the Defendant in committal proceedings the Plaintiff knew that when they 	submitted orders to be sealed on 24.9.2018 that  leave will lapse when the matter is 	entered for hearing, due to insufficient time.
[16] 	The argument that there is no civil judge sitting in Labasa cannot be considered as a 	relevant factor. When the Plaintiff filed the motion seeking hearing of the committal 	on 25.9.2018 already 11 days have lapsed and it is impossible to list it before a judge 	within 14 days since at least 8 day time period is required from service to the hearing 	of the said motion. 
[15]	If a judge is not physically  available there are sufficient means and facilities at the 	dispense of the Registry to obtain a listing before a judge in order to comply with the 	requirements contained in the High Court Rules of 1988. Even an injunction can be 	obtained using telephone and this is still done in UK, too. (See Douglas and others v 	Hello! Ltd[2001] 2 All ER 289; Holder v Law Society [2003] 3 All ER 62) In such a 	scenario the argument that 	compliance of order 52 rule 3(2) the High Court 	Rules of 1988 cannot be complied due to non-availability  physical presence of a 	judge in High Court (Civil) all the time, cannot be accepted.
 [16]	The need to enter  the hearing of contempt within 14 days   indicate the urgency of 	dealing with the contempt and if a party seeking contempt is not keen and diligent , 	the leave will lapse before the entering of the matter for hearing, as happened in 	this case.
Conclusion
[16] 	Due to the non-compliance of Order 52 rule 3(2) the leave granted by a judge on 	14.9.2018 had lapsed before entering of the motion for hearing of the committal. 	Lack of evidence of compliance of mandatory provision of Oder 52 rule 3(3) is  	fatal, for this application. The action for committal is dismissed in limine.  	Considering the circumstances of the case I will not award any costs.
Final Orders
a.	The Motion seeking committal is struck off.
b.	No costs.

					Deepthi Amaratunga
						Judge