IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

PROBATE ACTION NO. 36 OF 1999

Between:

SHALINI aka SALINI SANGEETA DEVI
f/n Chandrika Prasad
Plaintiff

and

1.	BASANTI
f/n Mohan Singh
as Executrix of the Estate of
Chandrika Prasad f/n Shiu Raj

2.	SANDHYA SUBHASHNI PRASAD
f/n Chandrika Prasad
Defendants

Ms. R. Morris for Mr. G. Prasad for the Plaintiff
Mr. A. Sen for the 1st Defendant

JUDGMENT

Pursuant to leave granted herein by this Court on 18 February 2003, by motion dated 20 February 2003 Shalini aka Salini Sangeeta Devi (the ‘plaintiff’) applies to Court to commit Basanti f/n Mohan Singh as executrix of the Estate of Chandrika Prasad f/n Shiu Raj (the ‘defendant’) to prison and/or be fined for contempt of Court under Order 52 Rule 2 and 3 of The High Court Rules 1988.

The hearing of the motion took place in open court on 27 March 2003 for Or.52 r.5(1) requires that except as provided in r5(1)(a) to (d), the application shall be heard in open court.

Background facts

Order for Accounts

On 26 June 2002 the parties appeared before the Acting Deputy Registrar when an Order for accounts by consent was made as follows:

IT IS THIS DAY ORDERED BY CONSENT as follows:

A.	That the 1st named Defendant forthwith furnish and verify the full accounts of the estate of her late husband, Chandrika Prasad (f/n Shiu Raj) since 6/1/99 to date.

B.	That the 1st named Defendant be restrained from proceeding further in any way whatsoever or taking any further steps in the administration of the estate of her late husband, Chandrika Prasad (f/n Shiu Raj) till the outcome of these Court proceedings.

C.	That the 1st named Defendant be restrained from transferring any estate funds to herself or to anyone and/or selling or disposing or parting or assigning or sub-leasing or transferring or in anyway dealing with any residential, agricultural or commercial lands and the building improvements thereon owned by her late husband and/or borrowing any monies from any person or bank or lending institution on the security of the properties in the estate of her late husband, Chandrika Prasad (f/n Shiu Raj) till the outcome of these Court proceedings.

D.	That in respect of all cheque, savings, access and term deposit accounts including, but not limited to, Account No. 92-605778-00 held by Chandrika Prasad (f/n Shiu Raj), the ANZ Banking Group Ltd, Labasa Branch provide and release forthwith documents, papers and information as set out in Schedule 1 annexed hereto to the Plaintiff and/or her solicitor, Giyannendra Prasad of Labasa.

E.	That in respect of all cheque, savings, access and term deposit accounts including, but not limited to, Account No. 5-516987-30-1 held by Chandrika Prasad (f/n Shiu Raj), the Bank of Baroda, Labasa Branch provide and release forthwith the documents, papers and information as set out in Schedule 1 annexed hereto to the Plaintiff and/or her solicitor, Giyannedra Prasad of Nasea, Labasa.

F.	That the Plaintiff be at liberty to obtain details of all accounts referred to in the Schedule 1 annexed hereto from Bank of Baroda and ANZ Banking Group Ltd in light of the 1st named Defendant’s failure and refusal to release, furnish and provide the necessary information and details to the Plaintiff.

G.	That the costs of this application be costs in the cause.

The plaintiff alleges that ‘she has been advised by’ her said ‘solicitor and verily believe that to date (8th January 2003) the 1st named Defendant has failed to furnish and verify the full accounts of the estate of the late husband, Chandrika Prasad f/n Shiu Raj in terms of the said Court Order.’ (plaintiff’s affidavit sworn 8 January 2003 – item 7).

It was on the above ground that Court granted leave to issue an Order of Committal.

Hearing of contempt proceedings

Ms Morris, counsel for the plaintiff, in her opening remarks submitted that the defendant has ‘failed to furnish and to verify the full accounts of the Estate’ as ordered.

She says that this is a clear breach of the said consent order and ‘demonstrates her disobedience, defiance and contempt’ for this Court. Hence this application is made for her committal for contempt.

Mr. Sen, for the defendant/respondent, took an issue on a point of law stating that the said Order dated 26 June 2002 is ‘not contemptible’. He said that in order for it to be ‘contemptible’, the applicant has to comply with Order 45 Rule 6(4)(a) of The High Court Rules 1988 which provides:

6. – (1) In this rule references to an order shall be construed as including references to a judgment.

(2)	…..

(3)	…..

(4)	There must be indorsed on the copy of an order served under this rule a notice informing the person on whom the copy is served –

(a)	in the case of service under paragraph (2), that if he neglects to obey the order within the time specified therein, or, if the order is to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it, and 

(b)	…..

(5)	…..

(6)	…..

(7)	…..
(emphasis added)

He said that the Penal Notice as required under Order 45 was not indorsed on the order. He said that this omission is fatal and referred the Court to the case of Penilope Postulka v George Postulka 34 FLR 82 (1984) which is a judgment of Fatiaki J (now Chief Justice). It was held: ‘that proceedings were penal in nature. The liberty of the subject is at stake. Therefore the Rules might strictly be complied with! 

Mr. Sen further submitted as his second argument that it was still open to Mr. Giyannendra Prasad, counsel for the plaintiff, to go and find out what the assets and liabilities of the estate were as well as financial statements of accounts pertaining to the estate according to the said consent order. In support of this proposition he also referred the Court to a statement by Lord Denning M.R. (as he then was) in Danchevsky v Danchevsky 175 Family Law Reports at 17 when he said:

“Whenever there is a reasonable alternative available instead of committal to prison, that alternative must be taken”.

Mr. Sen’s third ground is that accounts were supplied to Mr. Prasad after summons for leave to issue contempt proceedings were served on the defendant. He said that if need be he can give evidence on oath himself ‘after withdrawing as counsel for the defendant’. Mr. Prasad said that he will withdraw contempt proceedings thereafter but he did not, despite being told that the Order does not contain the ‘penal notice’.

On the committal proceedings before me the defendant/respondent was called to testify on oath. She testified that she had the accounts prepared by an accountant and gave them to her solicitor who supplied them to the plaintiff’s counsel Mr. Giyannendra Prasad. Mr. Sen said that he supplied the account on 12 February 2003. A copy of the said accounts is included as an annexure to the defendant’s summons which is dated 20 March 2003.

When cross-examined by Ms. Morris the defendant said that she did give the accounts to Mr. Sen but she could not say whether they ‘were verified or not to be true and correct’.

At the close of the hearing when asked by Court whether Ms. Morris agrees that accounts were supplied, she answered: ‘we agree that she has supplied something resembling accounts but not quite up to the standard that the order requires’.

Consideration of the motion

The application for leave to issue an order of committal was made by the plaintiff under Order 52 rules 1 and 2 of The High Court Rules 1988.

The ground on which the order was sought was that: ‘over six months have elapsed since the said Consent Order was served on the 1st Defendant and her solicitors but, she has failed to furnish and verify the full accounts of the estate’ and that ‘such failure is a clear breach of the Consent Order and demonstrates her flagrant disobedience, defiance and contempt’ for the Court.

At the hearing for committal for contempt evidence was given on oath by the defendant who testified that accounts were given to the solicitor for the plaintiff through her solicitor Mr. Sen.

There was no evidence adduced by the plaintiff to contradict the defendant’s sworn evidence in regard to the furnishing of account. In fact, if anything, Ms. Morris who appeared on instructions for Mr. Giyannendra Prasad for the plaintiff admitted to questions put to her by Court that accounts were supplied but not in the form required under the said Consent Order as it was not ‘verified’.

I hold that the manner in which the accounts were given by the defendant called for a rebuttal of the defendant’s evidence by Mr. Giyannendra Prasad. All the facts in relation to this matter was well within Mr. Prasad’s knowledge but Ms. Morris came completely unprepared to argue her case. Knowing very well that the matter was for hearing she should have been better armed with evidence in reply to the defendant’s evidence. Mr. Sen on the other hand came fully prepared to argue.

If Mr. Prasad was not satisfied with the form of the accounts as furnished then he should have pursued the matter with the defendant or her solicitor until he was satisfied. This evidently was not done but instead he proceeded with his application to commit the defendant to prison and/or be fined for contempt of the said Consent Order. He was very hasty, and this application I consider was made prematurely. It is unfortunate that he makes no mention in his application for committal that accounts were supplied although allegedly not in full compliance with the said order. This is unfortunate. It is no use him trying to explain his position to Court by letter which he sent after the hearing was over and after all the allegations had already been made in open Court by the defendant.

Disobedience to a Court order is always a serious matter for if proved the defendant could be committed to prison. As expected the defendant took it very seriously and came prepared to oppose the application and brought with her from Labasa a counsel (Mr. A. Sen) thus incurring considerable expense which could have been avoided if after accounts were furnished Mr. Prasad had not proceeded hastily to apply for committal to prison The fact that the accounts as furnished were not ‘verified’ does not on the facts of this case constitute disobedience to the said order.

The fact that Ms Morris admitted having received the accounts makes her application devoid of merits. 	The manner in which she conducted the case leaves much to be desired. Counsel should never find himself/herself in such a state of unpreparedness evincing complete lack of knowledge of practice and procedure of contempt proceedings.

Practice and procedure of contempt

The applicant applied pursuant to Or.52 for the committal of the respondent for her contempt allegedly for non-compliance with the said Consent Order. To enforce the order the applicant is relying on the provisions of Or.45 r6(a)(4) of The High Court Rules 1988 (supra).

The application could have been disposed off on the evidence before the Court but, since Mr. Sen has submitted that there are certain glaring defects in the procedure adopted by the applicant, I ought to outline the correct procedure to which counsel should pay attention.

(i)	Necessity for strict compliance with procedure 

The applicant must strictly comply with all procedural steps (Postulka, supra). It was held in Gordon v Gordon (1946 P.D. 99):

“that committal and attachment were very technical, but since they affected the liberty of the subject, the rules must be strictly complied with. Those rules having statutory force, the court had no power to dispense with them.

There is need for personal service and this was done in this case but without the indorsement of the ‘penal notice’.

(ii)	Penal Notice

It is also a strict requirement that the Order must be indorsed with an appropriate Penal Notice as required under Or 45 r 6(4)(a) (supra) in these terms:

“If you neglect to obey the Order within the time specified herein, or, if the Order is to abstain from doing an act, that if you disobey the Order, you are liable to process of execution to compel you to obey it.”

As stated by Luxmoore J in Iberian Trust, Limited v Founders Trust and Investment, Company limited (1932) 2 KB 87 at 97:

“The object of the indorsement is plain – namely, to call to the attention of the person ordered to do the act that the result of disobedience will be to subject him to penal consequences.”

Is it a requirement to prominently display the ‘warning’? In Moerman-Lenglet and Anor v Henshaw (The Time Law Reports 1992 at 555) it is stated that:

“there had to be prominently displayed on the front of the copy of that order served upon that individual a warning that disobedience would be a contempt of court, punishable by imprisonment”.

I agree with Gates J of our High Court (in a paper presented to the Judges as part of Continuing Legal Education on 28 March 2003) that the rule is not as strict in Fiji as in the United Kingdom in that the Penal Notice does not have to be ‘prominently displayed’. His Lordship said that there is a Practice Direction No. 3 of 2000 at High Court, Lautoka on ‘Settling of Orders for Sealing,’ where it was suggested that the penal indorsement “be presented in a box at the end of the order, in order that the warning notice be drawn fairly to the attention of the litigant who is to obey the Order. The notice should not be in small print.”

The service in the case before me was clearly irregular as the order when served on the respondent had not indorsed upon it the ‘penal notice’ such as is required by the rule referred to hereabove.

The proceedings are penal, and the rules must be strictly observed and as Kennedy J said in Stockton Football Company v Gaston (1895) 1 QB 453 at 455:

“The service of the order on the defendant was irregular, and in my opinion, the irregularity is one which cannot be condoned.”

Conclusion

To sum up, I find that the Rules in regard to contempt proceedings have not been fully and strictly complied with by the applicant.

In a trial of contempt, the onus is on the mover of the motion, the standard is a criminal one of proof beyond reasonable doubt. The disobedience must be wilful. I find that the applicant has not discharged the burden of proof that lay upon her. Because the accounts have been furnished, although not in strict compliance with the order, it was not such a disobedience of the Consent Order to give rise to the institution of contempt proceedings.

It was fatal not to have the penal notice indorsed in the order at the time of service. This omission cannot be cured thus making the service irregular.

For these reasons the motion is dismissed as there is no proper foundation for a contempt order and/or fine with costs to the respondent’s counsel to be taxed if not agreed. Ms. Morris has agreed that if the application is dismissed the plaintiff will pay ‘air fares’, ‘taxi fares’ and ‘hotel expenses’ upon production of documents supporting such expenditure.

D. Pathik
Judge

At Labasa
27 August 2003