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Russell Islands Plantation Estate Ltd v Norris [2015] SBHC 14; HCSI-CC 173 of 2014 (24 February 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 173 of 2014

BETWEEN:

RUSSELL ISLANDS PLANTATION
ESTATE LIMITED
1st Claimants

AND:

LEVERS SOLOMONS LIMITED
2nd Claimants

AND:

LESLIE NORRIS
1st Defendant

AND:

SEVEV LAND TRUST BOARD (INC)
2nd Defendant

AND:

THE SHIP "MV NUTOLI"
3rd Defendant

AND:

ATTORNEY GENERAL
4th Defendant

AND:

RUDOLF HENRY DORAH
5th Defendant

AND:

PACIFIC FARM HOLDINGS LIMITE D
6th Defendant

Date of Hearing: 13th February 2015
Date of Ruling: 24th February 2015

Mr. Nimepo for the Claimants

RULING

Maina J:

An application for Court Contempt on allegations of non-compliance of the Ex-parte orders granted by this Court on 20th June 2014. The allegation is that the 3rd, 5th and 6th Defendants had breach the said Court order.

A sworn statement of John Whiteside, General Manager and an alternate Director for the 1st and 2nd Claimants was filed in the Court to support the application for Court Contempt.

Brief Background

The 1st and 2nd Claimants are the owners and operators of coconut and cocoa plantations situated on Russell Islands. On 20th June 2014, the Claimants obtained Ex-parte orders from this Court. Among the Ex-parte orders are:

1. Arrest and seize of all coconut, copra and cocoa transported from Russell Islands to Honiara on board the third Defendant vessel or arrest and seizure of the unloaded coconut, copra and cocoa by the 1st, second and the third Defendants to any buyer, including the 5th and 6th Defendants in Honiara and elsewhere,
   
2. All seized coconut, copra and cocoa be sold by the 1st Claimant and the proceeds of the sale are to be deposited in the trust account operated by the High Court of Solomon Islands, pending any application to the Court for payment out,
   
3. That the application be listed for inter partes within 21 days,
   
4. That penal notice to be attached to these orders.
   
5. The production of all coconuts, copra and cocoa purchased records by the 1st and 2nd Defendants showing coconut and copra purchased from the first Claimants estates, Pepesala, West Bay and Somata, in Russell Islands and shipped to Honiara since May 1st 2014 and production of all coconut purchased record by the 5th and 6th Defendants since May 1, 2014 and,
   
6. The production of shipping manifests by the 3rd Defendant showing coconut and copra shipped to Honiara from Russell Islands since May 1, 2014.
   

The Ex-parte orders with other documents were served on the 3rd Defendant on 21st June 2014 but the Defendant continued to trespass and aid and abet others in lawfully carrying away the Claimant's properties i.e. coconut, copra and cocoa for shipment to and sale in Honiara.

The 5th Defendant is the owner of the 6th Defendant and at that time when the order sought concerning the coconut and copra was in possession or held in the premises of the 5th and 6th Defendants. On the afternoon of 20th June 2014, the Ex-parte order were served on them.

The 3rd, 5th and 6th Defendants fail to appear in Court and Clement Jimmy Natei for the Claimant made oral evidence that he had personally served the notice of this application to show cause to the Defendant. He also tendered to the Court a copy of endorsement signatures of the Defendants as receivers of the notice. I accept the serves of notice to the 3rd, 5th and 6th Defendants.

The Issue

Whether the 3rd, 5th and 6th Defendants were aware of the orders and had breached the order?

The Law

Rules 23.1 with 23.2 and 23.3 of the Civil Procedures Rules 2007 provides for the application and benefit and require non-compliance party to show cause why an order should not be made against him and Rules 23.4 and 23.5 of the Rules sets out principles to apply when determining whether or not a Court order is not complied with and the benefits.

By Rule 23.1 and 23.4 there appear to be two considerations, a simple breach and another is deliberate and sustained failure. The later does not limit the powers of the Court to punish under rule 23.5.

And Brown J in the cases Nathaniel Waena v Casper Maetoha and Others (2001) HCSI.CC No. 55 of 2001 set a guideline or matters to be considered when he said in page one paragraph 5;

"There are two matters for my consideration. The first is whether this man's conduct can be said to be contumelious or insolent and second whether it is such on the face of the order of 12 June (which had attached a notice warning breach will be Contempt of Court punishable by imprisonment). Of course knowledge of the order is imperative before I can be satisfied that breach of any can be said to be in the face of the order".

I also noted the case laws referred to by counsel Nimepo but briefly for the purpose under Rule 23.1 Rule 23.2 and Rule 23.4, a non-compliance party to show cause why an order should not be made against him.

The orders purportedly direct the Defendants to surrender the coconuts, copra and cocoa transported from Russell Islands to Honiara on board the third Defendant vessel to the Claimant. They were to be sold by the 1st Claimant and the proceeds of the sale are to be deposited in the trust account operated by the High Court of Solomon Islands, pending any application to the Court for payment out. Also the Defendants to account purchase and the shipping manifesto of the coconuts and copra from Russell Islands to Honiara.

However the Claimant alleges a breach of all orders and or deliberately not complied with and made an application for the 3rd, 5th and 6th Defendants to show cause to the alleged breach the said Court order.

For the alleged breach the evidences before shows that:

1. An Ex-parte order against the 3rd, 5th and 6th Defendants was obtained from this Court on 20th June 2014.
   
2. The Ex parte orders was served on the 3rd Defendant on 21st June 2014.
   
3. The Ex parte orders were served on the 5th Defendant and 6th Defendant on the afternoon of 20th June 2014.
   
4. That there are knowledge or and upon the orders served on them they are aware of it.
   
5. There is wilful disobedience of the orders.
   

There is the Ex-parte orders that were made on 20th June 2014 and 3rd, 5th and 6th Defendants are aware of the hearing as they served with notice of the hearing but they all fail to appear to show of the alleged breach on the parts.

The Defendants were aware of the order is an issue essentially important when considering this type of application. There is a need for the Claimant to show in evidence that the Defendants have knowledge of the order. If a service of the order was made that would show that the Defendant were made aware of the Ex parte order of 20th June 2014.

The sworn statement of John Whiteside filed on 23rd January 2015 shows the services of the Ex parte order to 3rd Defendant on 21st June 2014 and 5th and 6th Defendants on the afternoon of 20th June 2014. That establishes evidence of effective service of orders and so I rule that they all have knowledge of the Ex parte orders made on 20th June 2014.

With the wilful disobedience it is clear from the evidence the Ex Parte Orders were effectively served on the date the order was granted to 5th and 6th Defendants; and to the 3rd Defendant on the next day. This effectively establishes that they are aware or have knowledge of order. For not complying with the order cannot be an excuse for not complying with it. Worse so even served with notice of this application they are not able to come and defend the allegation of Court contempt against them.

There is no evidence to suggest any complying or attempt to comply although the orders are very clear. The entire orders was not complied with and that itself is a breach of orders.

I am satisfied on the evidence adduce by Claimants beyond reasonable doubt that the Defendants did breach the Ex-parte Orders granted on 3rd, 4th and 6th Defendants and they are to be punished for their actions. I find them all guilty from breaching the Court order.

For 3rd Defendant, I cannot enter any guilty as it is a ship or boat; owners or directors of the company who owns the ship "MV Nutoli" should named but no evidence to suggest that.
There are no specific punishments imposed with the orders but only the penal notice attached to them.

Any violation of any Court order is a serious offence, which the Courts would not tolerate. The penalties imposed here reflect that view and the importance of Court orders.

ORDERS:

1. Rudolt Henry Dorah – 5th Defendant is fined $10,000.00
   
2. Pacific Farm Holdings Limited – 6th Defendant is fined of $10,000.00
   
3. Fines to be paid within seven days upon the services of this order to 5th and 6th Defendants and in-default, six months imprisonment each.
   
4. Rudolt Henry Dorah as the owner and director of Pacific Farm Holdings Limited and on that capacity he is liable for company's fine and is in-default.
   
5. Ex-parte orders granted on 20th June 2014 to continue to have effect.
   
6. Cost on indemnity basis.
   

.................................................................
Justice Leonard R Maina
Puisne Judge