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Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227 (3 July 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 227 - Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau 

[1987] PNGLR 227

SC340

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

YAP

V

TAN AND B & T ENGINEERING PTY LTD

AND WONG

AND BAPTISTE

AND TAU

Waigani

Hinchliffe J

26 May 1987

28 May 1987

1-4 June 1987

2-3 July 1987

CONTEMPT- Contempt of Court - Disobedience of court order - What constitutes contempt - Order directing delivery up of property to receiver manager - Belief that order stayed pending appeal - Obligation to obey order until discharged - Contempt made out.

CONTEMPT - Civil contempt - Disobedience of court order - Standard of proof - Beyond reasonable doubt.

CONTEMPT- Civil contempt - Punishment - Powers of - Scope of - Failure to deliver property to receiver manager pursuant to order -Fine of K5,000 for each charge proved.

The Court appointed a receiver and manager of the property of a company and made, inter alia, orders for the delivery up of certain property of the company to the receiver manager. In proceedings for punishment for contempt of Court in failing to comply with the directions in the order,

Held

(1)      It is a civil contempt of Court to refuse or neglect to do an act required by a judgment or order, or to disobey a judgment or order requiring a person to abstain from doing a specified act.

Helmore v Smith [1887] UKLawRpCh 70; (1887) 35 Ch D 436, followed.

(2)      Where an order is made by a court of competent jurisdiction it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the order believes it to be irregular or even void.

Hadkinson v Hadkinson [1952] All ER 567 and Chuck v Cremer [1846] EngR 924; (1846) 47 ER 820, adopted and applied.

(3)      The onus of proof in proceedings for civil contempt is proof beyond reasonable doubt.

Re Bramblevale [1970] Ch 128, adopted and applied.

(4)      The powers of the Court to punish for civil contempt include, sequestration of the estate of the contemnor, committal to prison, a fine and or ancillary orders, for example, an injunction.

(5)      In the circumstances and notwithstanding that the alleged contemnor believed that the orders of the Court were ineffective and/or had been stayed by the Court pending an appeal, three of the charges had been proved beyond reasonable doubt and the contempt being a serious one, fines of K5,000 should be imposed in each case.

Cases Cited

Brambervale, Re [1970] Ch 128.

Chuck v Cremer [1846] EngR 924; (1846) 1 Coop T Cott 205; 47 ER 205.

Hadkinson v Hadkinson [1952] P 285; 2 All ER 567.

Helmore v Smith [1887] UKLawRpCh 70; (1887) 35 Ch D 436,

Public Prosecutor v Rooney (No 2) [1979] PNGLR 448.

Application for Punishment for Contempt

These were proceedings in which the receiver manager of a company applied to the Court to have punished for contempt of court a person who had failed to comply with the terms of the orders made by the Court.

Counsel

P Wright, for the receiver manager.

M White and N Kirriwom, for the defendant/contemnor.

N Roberts, for the defendant.

Cur adv vult

3 July 1987

HINCHLIFFE J: This is a notice of motion dated 17 February for application for punishment for contempt of court. A contempt of court is an act or omission calculated to interfere with the due administration of justice: see Bowen LJ in Helmore v Smith [1887] UKLawRpCh 70; (1887) 35 Ch D 436 and 455. It is a civil contempt of court to refuse or neglect to do an act required by a judgment or order, or to disobey a judgment or order requiring a person to abstain from doing a specified act, or to act in breach of an undertaking given to the court by a person, on the faith of which the court sanctions a particular course of action or inaction.

The statement of charges annexed to the notice of motion is as follows:

“1.      That between 10 December 1986 and 19 December 1986 the first defendant Tin Siew Tan did wilfully interfere with the receiver Robert G Goslin by removing dealing with and disposing of assets and stock of B & T Engineering Pty Ltd.

2.       That between 19 December and 21 January 1987 the defendant Tin Siew Tan did wilfully disobey the order of this Court dated 19 December 1986 by removing dealing with and disposing of assets and stock of B & T Engineering Pty Ltd.

3.       That on 6 January 1987 and 21 January 1987 the first defendant Tin Siew Tan did wilfully remove from the possession and control of Robert G Goslin one white truck Registered Number AEQ-990.

4.       That between 6 January 1987 and 21 January 1987 the first defendant Tin Siew Tan did wilfully conceal by his servants and agents a white truck registration number AEQ-990 from the receiver manager G Goslin.

5.       That between 6 January 1987 and 21 January 1987 the first defendant Tin Siew Tan did steal from the receiver of B & T Engineering Pty Ltd, Robert G Goslin, one white truck registration number AEQ-990 value approximately K8,000 (Eight Thousand Kina).

6.       That between 19 December 1986 and 21 January 1987 the first defendant did wilfully breach the said order dated December 1986 of this Honourable Court by dismissing workers of B & T Engineering Pty Ltd who were subject to the authority and control of Robert G Goslin the receiver manager of B & T Engineering Pty Ltd.

7.       That on 19 December 1986 the first defendant Tin Siew Tan did wilfully breach the said order dated 19 December 1986 of this Honourable Court by directing workers of B & T Engineering Pty Ltd who were subject to the authority and control of Robert G Goslin the receiver manager of B & T Engineering Pty Ltd to take holidays for two weeks and cease to work.

8.       At the time of filing this motion, the defendant Tin Siew Tan wilfully failed to obey the order of 9 February 1987 personally delivered to him by Mr John Gawi on 9 February 1987.

9.       On 15 February at the Boroko site, Tin Siew Tan wilfully disobeyed a lawful instruction of the receiver in that he refused to deliver over the motor vehicle and air conditioners as described in the order of 9 February 1987.

10.     On 20 January 1987 at Boroko, Tin Siew Tan wilfully refused to deliver to Robert G Goslin motor vehicle AEQ-990 such vehicle being the property of B & T Engineering Pty Ltd and at the time under the control of Robert G Goslin.”

The said orders of 19 December 1986 and 9 February 1987 were orders of Wilson J sitting as a Judge of the Supreme Court. There were numerous submissions put in the course of the hearing suggesting that it was never quite clear as to which court his Honour was sitting in when he made the said orders. I have no hesitation in finding that his Honour was sitting as a Judge of the Supreme Court. It is clear from his notation on the court file and I also accept the submission of Mr Roberts who was present at the time that particular point was considered by Wilson J. It seems to me that if there was any misunderstanding by Mr Tin Siew Tan’s present Lawyers then it arose from the time the Lawyers received the file from the Lawyer who previously appeared for Mr Tin Siew Tan. As far as this Court is concerned there never was and there never should have been any misunderstanding after 19 December 1986.

The order of Wilson J on 19 December 1986 was as follows:

“1.      Robert G Goslin be forthwith appointed as Receiver Manager of the business affairs of B & T Engineering Pty Ltd subject only to Paragraph 2 of this Order.

2.       If by agreement in writing signed by both Lawyers on behalf of the parties they agree to substitute the name of an alternative Receiver Manager then this Order shall thereupon be amended to delete the name of Robert G Goslin and substitute the agreed name and in all other respects this Order shall be effective.

3.       The costs and expenses of the Receiver Manager be reserved and in the event Supreme Court Appeal No 54 of 1986 does not proceed there be liberty to apply on seven days notice to all parties.

4.       Lawyers for the plaintiff and defendant herein shall attend the callover to obtain an early Hearing date of hearing of the Appeal in the first sittings as a special fixture.

5.       All steps shall be taken by the appellant and his Lawyers to obtain transcript, prepare books and indexes and be ready at the date of callover.

6.       Until further Order the Registrar of Companies be restrained from accepting for lodging or registration in respect of B & T Engineering Pty Ltd any special resolution changing the share structure or class of shares or any return or allotment of shares until further Order.

7.       The Receiver Manager be directed as follows until the hearing of the Appeal:

(a)      In any official capacity he shall describe himself only as a Manager.

(b)      He shall open separate bank accounts to identify his transactions.

(c)      He shall use the letterhead of B & T Engineering Pty Ltd so long as he discloses thereon his name and that he is the Manager.

(d)      The Receiver Manager is authorised to draw on Company funds to pay workers and continue insurances.

(e)      Not to sell property without the Court’s direction.

(f)      He is directed to carry on the business, preserve the assets and equipment according to business skill and practice.

(g)      Any financial reports will be made to Tin Siew Tan and Phillip S K Yap and the Court.

8.       Liberty to all parties to apply generally to the Court on seven days written notice to other parties.

9.       The Registrar enter and settle this Order forthwith.

10.     Each party pay its own costs of this day.”

And again on 9 February 1987 Wilson J ordered as follows:

“1.      That the accounts and reports of Robert G Goslin be received and approved by the Court and he is hereby discharged of his duties and his personal liability.

2.       That Tin Siew Tan forthwith deliver up to Robert G Goslin a Nissan Truck registered No AEQ.990 and 8 Air Conditioning Compressor Units presently on site at corner of Kaubebe St, Boroko which site is formerly under the control of the Receiver Robert G Goslin.

3.       Pursuant to Order 14 Rule 19 the following remuneration is approved for the Receiver,

4.       That the Receiver Manager file accounts for the work done up to the date of this Order for Approval.

5.       That the Receiver Managers appointment is terminated as at the date of this Order.

6.       That Robert G Goslin is appointed the Receiver of the assets of B & T Engineering Pty Ltd until the appeal herein is determined or until further order.

7.       That to provide security for the costs of the Receiver he shall retain the assets and question of liability as to the person liable to pay such costs determined once the appeal herein is completed or on further order.

8.       That there be liberty to all parties and the Receiver to apply.

9.       That the Registrar be directed to order and enter this order forthwith.”

There were submissions in this case as to the validity of the said orders of Wilson J. That is, it was submitted, if the orders were invalid then Mr Tin Siew Tan was not obliged to obey them. I disagreed with those submissions and for the purposes of this judgment I repeat what I said during the hearing on 2 June:

“In regard to the orders of Wilson J on 19 December and 9 February 1987 I rule that there are to be no further submissions relating to the nullity of those orders. I rule that such submissions are irrelevant to these proceedings.

In Hadkinson v Hadkinson [1952] 2 All ER 567 at 569, Romer LJ, in the Court of Appeal, said:

‘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. Lord Cottenham LC, said in Chuck v Cremer [1846] EngR 924; (1846) 1 Coop T Cott 205; 47 ER 820: “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 was 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 the 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.’ “

I agree with their Lordships in both of the abovementioned cases and I see no reason why their views should not be followed in Papua New Guinea.

It seems therefore, that Mr Tin Siew Tan has disobeyed par 2 of the said order of 9 February 1987. There is no dispute that the motor vehicle registered No AEQ.990 and eight air conditioning compressor units were not delivered up to Mr Goslin after 9 February 1987. Indeed to this day they still have not been delivered up to Mr Goslin.

It also seems to me that any argument submitted now by Mr Tan that the said motor vehicle air conditioning units are not the property of him or B & T Engineering becomes somewhat irrelevant on reading the actual words of the said par 2 together with Hadkinson v Hadkinson.

Mr Tin Siew Tan was present at court for at least some of the day on 9 February 1987 and he certainly was represented by a lawyer.

Wilson J was careful enough in par 8 to grant all parties and the receiver liberty to apply. Mr Tin Siew Tan did not apply and no adequate explanation has been given as to why the application was not made.

In an effort to effect par 2 of the said order of 9 February, Mr Goslin approached Mr Tin Siew Tan on 15 February 1987. In par 26 of his affidavit dated 27 February 1987, Mr Goslin said that:

“On the 15th February 1987, I went personally to the Pelton site at Boroko. On this occasion Tin Siew Tan was there. I reminded him of the Court Order of the 9th February, 1987 and told him that I wanted him to deliver to me the motor vehicle concerned and the air conditioners described in that Order. He absolutely refused saying the words ‘I will not do it as it seems uncertain what the Court really wants. All these matters will be ultimately resolved when the appeal is heard’. I reminded him the appeal would not in any way resolve these matters and as he was obliged to obey the Order to secure the Receiver’s cost and he was in Court at the time he has absolutely no excuse.”

Mr Tin Siew Tan, in his affidavit, dated 1 June 1987, stated at par 28.20 as follows:

“As to par 26 of Mr Goslin’s Affidavit I say that I have no knowledge whatsoever of having any discussion at all either at the Pelton site or anywhere in regard to the Order of the 15th February, 1987.”

Mr Tin Siew Tan in effect would have me believe that Mr Goslin fabricated the whole of the said conversation on 15 February 1987.

I do not accept that because I found Mr Goslin to be an honest, forthright witness who gave me no reason whatsoever to suspect that he was telling lies. I find that the said conversation did occur on 15 February 1987 and I further find that either Mr Tin Siew Tan has had a lapse of memory or that he is telling an untruth.

I find that par 9 of the said statement of charges has been proved beyond reasonable doubt which is the standard of proof necessary in contempt proceedings whether criminal or civil: see Re Bramblevale [1970] Ch 128.

During the hearing and in his said affidavit Mr Tin Siew Tan stated that the said motor vehicle registered No AEQ.990 was in fact not the property of B & T Engineering Pty Ltd.

He went to great lengths in par 28.18 of his said affidavit describing how the said motor vehicle was owned by TST Trading. He mentions such matters as finance agreements and insurance. He then goes on to say that:

“The registration of the vehicle however changed to B & T Engineering Pty Ltd in June 1986 because B & T Engineering was using the vehicle since November 1985 and when the registration expired in June 1986 it was therefore registered under B & T Engineering.”

That explanation is quite unsatisfactory. The immediate question in reply would be, “Why wasn’t it kept in the name of TST Trading even though B & T Engineering was using the vehicle?” There seems no reason whatsoever to register the vehicle in the name of B & T Engineering Pty Ltd in June 1986, unless B & T Engineering Pty Ltd had become the owner of it. I find that from at least June 1986, the said motor vehicle was owned by B & T Engineering Pty Ltd.

A copy of the registration certificate in the name of B & T Engineering Pty Ltd is annexure “F” to the said affidavit of Robert G Goslin. To accept Mr Tin Siew Tan’s account of the ownership would to my mind be parting company with reality and also be setting a very dangerous precedent for the future.

An incident occurred on 20 January 1987 which is the subject of the 10th charge of the said statement of charges. Differing accounts have been given as to what occurred on that day and because of what I have previously stated, I accept the account given by Mr Goslin. In fact Mr Tin Siew Tan does not deny what happened on that day. Brian Thomas William Hawker also gave an account of events in par 3 and par 4 of his affidavit of 29 May 1987. Mr Hawker also gave verbal evidence. In his said affidavit he would have the Court believe that the incident was relatively calm and that Mr Goslin and Mr Tin Siew Tan were at peace with each other. I do not accept that and it would appear that Mr Tan would not accept it either.

At par 24 of his said affidavit, Mr Goslin said inter alia, that:

“On the 20th January 1987, I personally attended at the Pelton Boroko Site. ... I demanded the key to the motor truck AEQ.990 which was parked out the front of the Pelton Site at about 8.15 am on that day. ... Then Mr Tin Siew Tan arrived and in front of the Constable (Police) and other witnesses I demanded the keys to the truck from Mr Tin Siew Tan as I wanted to remove the remaining equipment from the site to preserve it because it was gradually disappearing and some of it was being affixed to the site. ... Mr Tin Siew Tan refused to give me the keys in front of the Constable saying by way of an excuse that he had paid for the truck and B & T Engineering Pty Ltd had not repaid him. I informed him that payment was immaterial all it would show is unsecured debts. I informed him that I had already been provided with all the books of accounts and records and that there was no indication at all that he had paid for the truck and it was registered in the name of B & T Engineering Pty Ltd. I again demanded the truck and he refused outright to give me the keys. As I did not have a tow truck there, I was unable to move the truck because it has a steering lock when the key is removed from the ignition.”

I have already made my findings in relation to ownership of the truck and do not need to say anything further. I am satisfied that in refusing to hand over the said truck Mr Tan was in breach of the order of Wilson J of 19 December 1986. I also note that he did not apply to the court pursuant to par 8 of the said order of 19 December 1986. I would have thought that he would have done so had he had a genuine grievance. I am satisfied that charge 10 of the statement of charges has been proved beyond reasonable doubt.

The eighth charge in the said statement of charges does not in effect appear to be an actual charge. If it is intended to be a charge then I find that it is far too wide and it is therefore dismissed.

The seventh charge in the said statement of charges relates to Mr Tin Siew Tan directing workers to take two weeks holidays which was in breach of the said order of Wilson J of 19 December 1986.

At par 9 of his said affidavit, Mr Goslin said, inter alia, that:

“... I verily believe that Mr Tin Siew Tan on 19th December 1986, told the employees of B & T Engineering Pty Ltd to take two (2) weeks holiday from 24th December 1986. I visited the site and verified that that is in fact what had happened and I countermanded that directive and laid off all of the workers as of the 24th December 1986. Payment of wages for the 21st, 22nd and 23rd December 1986 was made. ... I am informed by him and verily believe he was in Court when the Order of 19th December 1986 was made.”

And in par 10:

“I was unable to reverse the directive of Mr Tin Siew Tan to take two weeks holiday and accordingly the directive by him giving two weeks holidays was a direct voluntary act by him in conflict with my powers as Receiver and in direct contradiction of my directions, instructions and advice of my Powers and Authority directly to him.”

Mr David Mea, in his affidavit of 2 June 1987 states at par 5:

“At no stage just before Christmas ie around 23rd or 24th December, 1986, did Mr Tan tell me or any other worker on site of which I am aware that they should take 2 weeks holiday. ...”

I found Mr Mea not to be a reliable witness. When he gave evidence in court I found at times that he was confused. Even to the extent that at times he was not really certain as to which Tin Siew Tan associated company he was employed by. He struck me as a man who would support Mr Tan in every way he could. Perhaps he should be looked upon as a devoted employee. Unfortunately his devotion, at times, dulled the true picture.

I accept the account of events given by Mr Goslin. To not accept his account would mean that I would have to find that he has told untruths. I am not prepared to so find as I am satisfied that Mr Goslin was a good and honest witness. He impressed me with what he had to say to the Court.

I am therefore satisfied that charge number seven has been proved beyond reasonable doubt.

It is clear that during the course of the hearing, the matter of ownership of stock and assets by B & T Engineering Pty Ltd became extremely relevant. Generally speaking the first defendant claims that most of the stock and assets at the Pelton Boroko site were not owned by B & T Engineering Pty Ltd but were in fact owned by TST Trading Pty Ltd, another Tin Siew Tan associated company.

A list of stock and assets relating to charges one and two of the said statement of charges was presented to the Court although it appears that that list was in fact prepared on 10 December 1986 — nine days prior to the said order of Wilson J on 19 December 1986. It seems that there was never a conference between the receiver and B & T Engineering Pty Ltd as to the actual ownership of each item. There also appears to be considerable uncertainty as to what was actually on site on 19 December 1986. I have no doubt that many items on site on 10 December 1986 subsequently were removed. I am not satisfied beyond reasonable doubt as to who shifted them, where they went to and who in fact was the actual owner. I do say this although I considered Mr Tin Siew Tan’s evidence in relation to this point to be most unsatisfactory. There is a strong probability that several of the companies that he has an interest in were having goods purchased for them by TST Trading Pty Ltd. I also have considerable doubt as to whether a theft ever occurred at the Pelton Boroko site. I would find it difficult to accept the evidence of Mr Mea or Mr Tin Siew Tan in regard to the alleged theft. Needless to say the onus is on the receiver to prove beyond reasonable doubt charges one and two of the said statement of charges and I am not satisfied that the onus has been discharged. Therefore charges one and two are dismissed. I should also say that Mr Roberts indicated only a slight interest in the events leading up to 19 December 1986 and in effect did not pursue the first charge with any great determination.

In relation to charge 3 of the said statement of charges, I am not satisfied, on the evidence, that the charge has been proved beyond reasonable doubt in that there is not adequate proof that Tin Siew Tan did wilfully remove from the possession and control of Robert Goslin the truck registered No AEQ.990. It certainly appears that the said truck was not in the possession of Mr Goslin.

Similarly, I dismiss charge 4 of the statement of charges. Wilful concealment has not been proved and because of that alone the charge must fail.

Charge 5 of the statement of charges is similar to charge 3 the difference being that charge 5 refers to “stealing” and charge 3 refers to “wilfully removing from the possession and control ...”. I am not satisfied, on the evidence, that the elements of stealing have been proved beyond reasonable doubt and the charge is therefore dismissed.

The final charge is charge six of the said statement of charges which refers to Mr Tin Siew Tan dismissing workers of B & T Engineering Pty Ltd on 19 December 1986. I have read my notes thoroughly and the documentary material in this matter and I was unable to find anywhere therein the allegation that Mr Tin Siew Tan dismissed workers on 19 December 1986. In fact I could not find any allegation that Mr Tin Siew Tan dismissed B & T Engineering Pty Ltd workers. I therefore dismiss charge six.

As previously stated I find charges seven, nine and 10 of the statement of charges proved beyond reasonable doubt.

Finally, on 2 June 1987 after hearing submissions from Mr Wright and Mr White I was satisfied that the matter of the receivers expenses should not be dealt with in these contempt of court proceedings.

I was of the mind that the issue before the Court was whether there was a contempt and if so what is the appropriate penalty.

The powers of the court to punish for contempt are:

1.       Sequestration of the estate of the contemnor.

2.       Committal to prison.

3.       A fine.

4.       Ancillary orders eg an injunction.

See, Halsbury’s Laws of England (4th ed), Vol 9 pars 87, 101, 102, 103, 104, 105.

The notice of motion is headed:

“Notice of Motion for Application for Punishment for Contempt.”

It is clear that the Court is being asked to charge and deal with Mr Tin Siew Tan for contempt.

I have considered the various submissions and I am unable to find any other powers in dealing with a contempt.

I agree with Mr White’s submission that under s 155(4) of our Constitution the Court has no power to give the substantive relief claimed: ie to order one citizen to pay money to the other where there is no action between them.

SENTENCE

3 JULY 1987

Tin Siew Tan it has been found proved:

(1)      That on 19 December 1986 you did wilfully breach an order dated 19 December 1986 of this Honourable Court by directing workers of B & T Engineering Pty Ltd who were subject to the authority and control of Robert G Goslin the receiver manager of B & T Engineering Pty Ltd to take holidays for two weeks and cease to work.

(2)      On 20 January 1987 at Boroko, you wilfully refused to deliver to Robert G Goslin motor vehicle AEQ-990 such vehicle being the property of B & T Engineering Pty Ltd and at the time under the control of Robert G Goslin.

(3)      On 15 February 1987 at the Boroko site, you did wilfully disobey a lawful instruction of the Receiver in that you refused to deliver over the motor vehicle and air conditioners as described in the order of 9 February of this Honourable Court.

There is no doubt whatsoever that contempt of court is an extremely serious matter. I am told by the Lawyers that this is the first civil contempt of court to come before the Supreme Court. Of course criminal contempt of court is not new and probably the most memorable case in that area is Public Prosecutor v Rooney (No 2) [1979] PNGLR 448.

Your Lawyer has asked me to consider your history as set out in the first part of your affidavit dated 1 June 1987. You are a naturalised citizen of this country but you were originally from Malaysia. In 1960 you migrated from Malaysia to Australia to pursue your education at High School and afterwards at the University of New South Wales.

You did not complete your University studies and left in 1963. In 1967 you and your wife and three sons came to Papua New Guinea and in that year your fourth son was born. You worked in the Public Service for about 10 years and since then you have been working in the private sector in various businesses. It seems that you have been a highly successful businessman and I have no doubt that you have been a hard worker.

I have also been asked to consider a number of past cases and several texts touching on contempt of court. I have done this and they certainly confirm my view that contempt of court must be treated seriously.

Even though civil contempt is regarded in a different light to criminal contempt, it seems to me that the time is drawing near when it would be better to regard all types of contempt as criminal. Certainly it appears that contumacious contempts now cover the vast majority of civil contempts.

Mr Kirriwom has in effect asked me not to treat this as a contumacious contempt because:

1.       You thought that the orders of the Court had been stayed by the order of the Deputy Chief Justice.

2.       You thought that pending an appeal against the trial judge any order touching the appointment of a receiver was not effective.

3.       There was a real doubt and confusion about the role of a receiver and manager in these circumstances.

4.       These factors (and others) showed there was no intent to defy the authority of the court.

It is clear from my findings in this matter last Wednesday that I cannot agree with Mr Kirriwom in regard to those four points.

It was also submitted and supported with case law that the order appointing the receiver and manager probably should not have been made and this is a factor to be taken into account in all the circumstances.

From what I heard I certainly would not agree that the order appointing the receiver and manager should not have been made and as I understand it the review of that order is still pending.

As I indicated yesterday I would consider the penalty overnight as I obviously needed to consider whether a term of imprisonment was appropriate. There is no doubt that you have disobeyed orders of a Supreme Court Judge. On both occasions in December and February you were present at court and you were represented by a lawyer. You are a well educated person and a successful businessman and there is little excuse for your actions. Legal process is an essential part of the democratic process. Legal process is subject to democratic control by defined, orderly ways which themselves are part of law. There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.

The receiver in this instance was a court appointment and that to my mind aggravates the matter even further. Also there is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity.

After taking all the matters into consideration including your age and seemingly prior good behaviour and the fact that it is unlikely that you would breach any further orders of the Court I have decided that a term of imprisonment on this occasion would be inappropriate. Your Lawyer has submitted that my order today should be as to costs only or at the most a small fine. With that I disagree. A substantial fine is necessary.

In relation to each of the three charges you are convicted and fined K5,000 on each charge. That is a total of K15,000. In default of payment you are to be imprisoned for a period of 12 months in hard labour on each charge. I further order that you have 21 days to pay the fine.

As I indicated yesterday it seems to me that the order of Wilson J of 9 February 1987 is still in force and any further disobeyance of that order, I would have thought, could invite further contempt proceedings.

I also remind you that any appeal in this matter does not operate as a stay in relation to the payment of the fines. That is, the fines must be paid, no matter what, within 21 days.

Finally I order that you are to pay the costs of the receiver in these proceedings.

Verdict and sentence accordingly

Lawyer for the plaintiff: Warner Shand Wilson Donigi Reiner.

Lawyer for the defendants: Narakobi Kirriwom Mosoro & Enda.