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Tikuye v Haines [2009] PGNC 259; N4434 (30 September 2009)

N4434

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1290 OF 2008

BETWEEN

LUCHYA MUSSA TIKUYE
Plaintiff

AND

PATRICK HAINES
Defendant

Mount Hagen: Makail, J
2009: 16th December & 2011: 30th September

CIVIL CONTEMPT - Contempt of court - Civil contempt - Disobedience of court order - Show cause - Explanation of - Defence of - Court order must be clear and unambiguous - Act of contempt must be wilful - National Court Rules - Order 14, rules 38, 39, & 42.

WORDS & PHRASES - "Determine" and "Determination" of application for contempt of court - Meaning and effect of.

Cases cited:

Papua New Guinea cases

Yap -v- Tan [1987] PNGLR 227
Nombri Waime Ambre -v- The State [1995] PNGLR 453
Andrew Kwimberi of Paulus Dowa Lawyers -v- The Independent State of Papua New Guinea (1998) SC545
Ross Bishop & Ors -v- Bishop Brothers Engineering Pty Ltd & Ors [1988-89] PNGLR 533
Peter Luga -v- Richard Sikani as Commissioner of Correctional Services & The State (2002) N2285
Roy Koroka -v- Michael Kapal & The State: OS No 834 of 2006 (Unnumbered & Unreported Judgment of 19th September 2011)
Ome Ome Forests Limited -v- Ray Cheong & Ors (2002) N2289

Overseas cases

Re Sheppard and Sheppard [1976] DLR (3d) 592
Stancomb -v- Trowbridge UDC [1910] 2 Ch 100

Other Reference & Texts:

Oxford Advanced Learners Dictionary, 7th ed, (2005) London, Oxford University Press
Osborn's Concise Law Dictionary, 9th ed, (2001) London, Sweet & Maxwell

Facts

The defendant, a British national was charged with contempt of Court and pending the determination of the application for contempt, the Court ordered him to surrender his passport to the Assistant Registrar of the National Court. He was subsequently found guilty of breaching or disobeying a Court order and was ordered by way of penalty to pay fine and further comply with the Court order, failing which there would be further monetary fines or imprisonment or both. It was alleged the defendant failed to comply with the order for punishment and left the jurisdiction. It was further alleged the two alleged contemnors facilitated the defendant's departure from the country to avoid compliance with the order for punishment.

The alleged contemnors were summoned before the Court to show cause why they should not be punished for contempt of the Court orders. They appeared and denied being in contempt of the Court orders. They explained, inter-alia, the application for contempt had been determined by the Court and there was nothing further for the Court to determine. Hence, the defendant was entitled to have his passport returned and leave the country.

Held:

1. The Court has inherent power to summon the alleged contemnors before the Court to show cause why they should not be punished for contempt of Court.
Nombri Waine Ambre -v- The State [1995] PNGLR 453 and Andrew Kwimberi of Paulus Dowa Lawyers -v- The Independent State of Papua New Guinea (1998) SC 545 referred to.

2. In civil contempt cases, the onus of proof is beyond reasonable doubt and it must be established that the defendant intended to disobey or flout the order of the Court. Ross Bishop & Ors -v- Bishop Brothers Engineering Pty Ltd & Ors [1988-89] PNGLR 533 and Peter Luga -v- Richard Sikani as Commissioner of Correctional Services & The State (2002) N2285 applied.

3. To succeed on a charge of contempt of a Court order, the Court order must be clear and unambiguous. Ross Bishop & Ors -v- Bishop Brothers Engineering Pty Ltd & Ors [1988-89] PNGLR 533 followed.

4. The application for contempt of Court was determined or concluded when the Court found the defendant guilty of contempt and ordered by way of punishment, various penalties including fine. As such, it has come to an end and there was nothing further for the Court to determine.

5. The order for punishment was vague and ambiguous, in that, term 1 of the Court order suggested that the defendant was automatically guilty of contempt of Court if he continued to disobey or failed to comply with the order for punishment and on the other hand, it suggested the plaintiff must file a fresh application for contempt against the defendant if the defendant continued to disobey or failed to comply with the order for punishment.

6. The plaintiff failed to establish beyond reasonable doubt that the alleged contemnors wilfully disobeyed the Court orders and the alleged contemnors were accordingly found not guilty of contempt of Court.

7. The application for contempt was accordingly dismissed.

Counsel:

Mrs T Nonggorr, for the Plaintiff
Mr K Peri, in person
Mr E Kiso in person

INTERLOCUTORY RULING

30th September, 2011

1. MAKAIL, J: This is a ruling on an interlocutory application by the plaintiff, an Ethiopian national to have Mr Koeya Peri, a private lawyer based in Mt Hagen and the Assistant Registrar of the National Court, Mt Hagen, Mr Eric Kiso show cause why they should not be punished for contempt of Court orders of 11th November 2008 and 30th October 2009. In the substantive action, the plaintiff sued the defendant, a British national for breach of promise to marry and sought damages. While the substantive action was pending, on 11th November 2008, the plaintiff applied and obtained an interim Court order. The terms of the interim Court order were as follows:

"1. Pursuant to Order 1 Rule 7 and Order 4 Rule 49(2) of the National Court Rules this Honourable Court dispense with the requirements of service of this Motion.

2. Pursuant to Order 14 Rule 10 of the National Court Rules and Section 155(4) of the Constitution, the Defendant is restrained from sending out of Papua New Guinea by any means directly or indirectly any funds earned by him pursuant to his employment, until further Order.

3. That until further Order, the Defendant is restrained from expending half his net income, and must deposit such half of his net income into a separate ANZ Bank Account created by him for this purpose.

4. That the details of such account be provided by the Defendant or his Lawyers to the Plaintiff's Lawyers in writing within 7 days of service of these Orders.

5. The Orders made pursuant to this application be served along with all other filed court documents on both the Defendant and his Lawyers within 7 days.

6. The matter is returnable for inter parties hearing on 05th December 2008 at 9.30 am in the National Court in Mt Hagen.

7. That pursuant to Order 12 rule 1 and Order 9 Rule 10 of the National Court Rules, the Defendant file and serve within 7 days an Affidavit annexing copies of all statements of bank and investment accounts held by him both in Papua New Guinea and elsewhere, for the period of the last 12 months.

8. That pursuant to Order 12 rule 1 and Order 9 Rule 10 of the National Court Rules, the Defendant file and serve within 7 days an affidavit annexing all pay records from employers and income records from other earnings, for the period of the last 12 months.

9. The time for entry of these Orders be abridged."

2. The plaintiff alleged the defendant failed to comply with the interim Court order of 11th November 2008 and filed an application for contempt against him. The application was heard by the National Court (Yalo, AJ) on 23rd October 2009 and on 30th October 2009, his Honour handed down his decision finding the defendant guilty of contempt. His Honour published his decision and I have had the benefit of reading it. By way of punishment, his Honour imposed the following penalties:

"1. The Defendant shall pay a fine of K2,000.00 for failure to comply with Order No. 3 of the Court Orders of 11th November 2008 within seven days of these Orders with the conditions that:

(a) The Defendant shall comply with Order 3 of 11th November 2008 within 7 days; and

(b) In addition and for the purpose of same Order 3 and Order 4, Mr Haines shall open a new ANZ Bank Account at Mount Hagen Branch within 7 days from 2nd November 2009 and supply details of such account to the Plaintiff's Lawyers within the same period.

and failure to comply with this Order attracts a further monetary fine or a term of imprisonment or both.

2. The Defendant shall pay a fine of K3,000.00 for breach of Order No. 7 of the Court Orders of 11th November 2008, of which Warner Shand Lawyers shall pay K2,500.00 and the Defendant shall pay the balance.

3. Costs of the Contempt Proceedings shall be met by the Defendant's Lawyers, Warner Shand Lawyers and the Defendant shall be indemnified from paying the total costs of these proceedings.

4. Mr Peri shall be referred to the Papua New Guinea Law Society for that authority to investigate the manner in which Mr Peri has conducted himself in taking carriage of this particular matter for professional misconduct in this matter."

3. Following the decision of his Honour, the plaintiff further alleged the defendant failed to comply with the Court order of 30th October 2009 by 06th November 2009 and escaped the jurisdiction of the Court despite the pending action and the need to comply with the Court order of 30th October 2009. As a result, on 03rd December 2009, the plaintiff filed another application by notice of motion to have the defendant further punished for contempt of Court.

4. It was submitted on behalf of the plaintiff that Messrs Peri and Kiso have breached the Court orders of 11th November 2008 and 30th October 2009 and they should be found guilty for contempt of Court. Counsel for the plaintiff strongly submitted Messrs Peri and Kiso should be punished for contempt of Court because following the decision of the National Court on 30th October 2009, the defendant disappeared from Mt Hagen and it is believed, he has left the jurisdiction.

5. Counsel submitted the defendant left the jurisdiction because it was Mr Peri who wrote to Mr Kiso requesting him to advise the British High Commission that all was in order for the defendant to leave the country and Mr Kiso did so. This was in direct breach of the Court orders of 11th November 2008 and 30th October 2009 which required the defendant to pay a sum of money to the plaintiff in an account with ANZ Bank in Mt Hagen. The defendant did not and left the jurisdiction. As Messrs Peri and Kiso facilitated the defendant's departure from the country, they are also in contempt of the Court orders of 11th November 2008 and 30th October 2009.

6. Furthermore, counsel relied on a letter from the Associate to Yalo, AJ to Mr Kiso dated 14th December 2009 to support her submission that his Honour had ordered that the defendant's passport be further withheld until the defendant complied with the Court orders especially, the order for punishment. According to this letter, the Associate advised Mr Kiso that although the direction to withhold the defendant's passport was not part of the orders of the Court on 30th October 2009, his Honour had issued a verbal order for it to be withheld until the defendant complied with the Court orders.

7. Counsel also referred the Court to the letters exchanged between Mr Peri and Mr Kiso and pointed out that none of these letters were copied to her as lawyer on record for the plaintiff to keep her informed of what was going on and in particular, the defendant's efforts in complying with the two Court orders. This, she submitted demonstrated the alleged contemnors deliberately did not want her to know their plan to get the defendant to escape the jurisdiction of the Court.

8. Mr Peri appeared in Court and denied the allegation of breach of the Court orders of 11th November 2008 and 30th October 2009. He said all he did was, he wrote a letter to the Assistant Registrar of the National Court Mr Kiso to inform him that the application for contempt of Court against the defendant had been concluded and that there was no reason for Mr Kiso to retain the defendant's passport. Further to that, there was no legal impediment for the defendant to depart from the country.

9. Further to his defence, Mr Peri, explained he was in Kundiawa on the day the plaintiff's further application for contempt against the defendant was listed for hearing before the Court on 11th December 2009. By then, he or his law firm had ceased to act for the defendant as he had filed a notice of ceasing to act on 08th December 2009. He withdrew his services because of non-payment of legal fees.

10. He further explained the defendant's passport was impounded pursuant to an ex-parte order of the Court of 06th August 2009 and that ex-parte order was further extended on 26th August 2009. On 30th October 2009, the application for contempt was heard and determined by the Court. The Court found the defendant guilty of contempt and ordered him to pay inter-alia, fines. Mr Peri submitted the defendant then complied with the Court orders of 11th November 2008 and 30th October 2009 by paying the fines and opening a bank account with ANZ Bank in Mt Hagen.

11. He further submitted the passport was supposed to be returned to the defendant even though the Court did not state so in its decision as the application for contempt had been death with by the Court. He wrote the letter to Mr Kiso to release the passport because there was nothing more to be done as far as complying with the Court orders of 11th November 2008 and 30th October 2009 were concerned.

12. As for Mr Kiso, he appeared and denied being in breach of the Court orders of 11th November 2008 and 30th October 2009. He explained the defendant's passport was held by his office pursuant to a Court order. He received a letter from Mr Peri requesting release of the defendant's passport. That letter was only informative and not a direction to him. He noted the Court order of 30th October 2009 did not state the defendant's passport be returned to him but as far as he was concerned, the application for contempt had been determined by the Court on 30th October 2009 and there was nothing stopping him from releasing the passport to the defendant or his lawyers. At that time, he did not know the defendant's where about when he wrote to Mr Colin Glass of the British High Commission and advised him of the conclusion of the application for contempt of Court.

13. This is a civil contempt case, because it involves allegations of refusal or neglect to do an act required by a judgment or order, or to disobey a judgment or order requiring the defendant to do a specific act: see Yap -v- Tan [1987] PNGLR 227 at 228. The alleged contempt of Court arises in connection with proceedings in Court as it involves allegations of failure or breach by Messrs Peri and Kiso of Court orders of 11th November 2008 and 30th October 2009 in a civil action for damages arising from a breach of promise to marry: see order 14, rule 42(1) of the National Court Rules.

14. Both alleged contemnors did not raise any objection in relation to the competency of the application for contempt against them. That is, they did not take issue with the summons to show cause why they should be punished for contempt of Court. In Nombri Waime Ambre -v- The State [1995] PNGLR 453, the plaintiff filed an application for contempt of Court against the Secretary for Finance Mr Gerea Aopi for failing to settle a judgment obtained against the State in a personal injury case. On the return date of the application for contempt of Court, Mr Aopi did not attend. Only a lawyer from the State appeared. The National Court ordered the Assistant Registrar to issue a summons to Mr Aopi to appear before the Court to show cause why he should not be dealt with for contempt of Court for failing to settle the judgment.

15. The State raised an objection in relation to the competency of the contempt of Court proceeding against Mr Aopi on the basis that there is no provision in the National Court Rules for the National Court to issue a summons to Mr Aopi to appear in Court to explain why he should not be death with for contempt of Court. It was submitted the summons to show cause was not one of the three modes prescribed by the National Court Rules for commencement of contempt of Court proceedings, in particular, Order 14, rule 38 (contempt committed in the face of the Court) or Order 14, rule 42(1) (contempt within the hearing of the Court) where in both instance, an application must be by motion on notice plus supporting affidavit or Order 14, rule 42(2) (where contempt committed is not in connection with proceedings in the Court, in which case, proceedings must be commenced by originating summons plus a statement of charge and affidavit).

16. The Court held inter-alia that, notwithstanding the absence of any provision in the National Court Rules relating to the Court's power to order the issue of a summons to show cause following motion for civil contempt of Court instituted by the plaintiff or his lawyer, the National Court, nevertheless, has an inherent power to direct or order the Registrar to issue a summons to show cause requiring the contemnor to appear before the Court at a specified time and place to be dealt with for contempt.

17. In Andrew Kwimberi of Paulus Dowa Lawyers -v- The Independent State of Papua New Guinea (1998) SC545 at 21, the Supreme Court held that contempt proceedings are criminal in nature but a contemnor could be charged, convicted and punished "without following the usual criminal procedure prescribed by written law". The procedure to follow instead is as is prescribed and laid down by the Order 14, rules 37-50 of the National Court Rules, which are comprehensive. Non-compliance of those procedures does not render the proceedings void.
18. As Messrs Peri and Kiso did not raise any objection in relation to the competency of the application for contempt and that, in any case, on the authority of the above cited cases, I am satisfied the application to punish them for contempt of Court is properly before the Court. That is to say, although the plaintiff has not filed a notice of motion for the application for contempt against these two persons, it is open and within the Court's inherent power to summon them to show cause why they should not be punished for contempt of Court.

19. However, as an allegation of contempt of Court is a serious matter, I will apply the criminal standard of proof of beyond reasonable doubt as was done in the cases of Ross Bishop & Ors -v- Bishop Brothers Engineering Pty Ltd & Ors [1988-89] PNGLR 533, Peter Luga -v- Richard Sikani as Commissioner of Correctional Services & The State (2002) N2285 and my recent judgment of Roy Koroka -v- Michael Kapal & The State: OS No 834 of 2006 (Unnumbered & Unreported Judgment of 19th September 2011).

20. Therefore, the plaintiff must establish beyond reasonable doubt that Messrs Peri and Kiso intentionally disobeyed or flout the orders of the Court. There is also authority that in order to establish contempt, it must be established that a defendant intended to disobey or flout an order of the Court. In Re Sheppard and Sheppard [1976] DLR (3d) 592, the Court said:

"In order to establish a contempt, it is necessary to prove that the defendant intended to disobey or flout the Order of the Court. The offence consists of the intentional doing of an act or not doing of an act which is in fact prohibited by or ordered to be done by the Court."

21. Warrinton, J considered the meaning of "wilful disobedience" in Stancomb -v- Trowbridge UDC [1910] 2 Ch 100 at 194, in the context of the then existing rules of the Court and said:

"I think the expression 'wilfully' in Order XL11 r31 is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v. Manchester Ship Canal Co. [1897] N.N.7."

22. Wilful disobedience of a Court order is determined from the conduct of the alleged contemnor or the party alleged to be in breach of the Court order: see Ome Ome Forests Limited -v- Ray Cheong & Ors (2002) N2289.

23. On the evidence before the Court, I am not satisfied the plaintiff has established beyond reasonable doubt that Messrs Peri and Kiso have wilfully breached or disobeyed the Court orders of 11th November 2008 and 30th October 2009. This is because first, there is evidence by way of an affidavit of the defendant sworn on 10th November 2009 and filed on 11th November 2009 that on 06th November 2009 the defendant had paid K5,000.00 comprising of a fine of K2,000.00 for breaching term 3 of the Court order of 11th November 2008 and a further fine of K3,000.00 for breaching term 7 of the same Court order: see copy of receipt of payment marked annexure "A" to the affidavit of the defendant (supra).

24. Secondly, there is evidence that the defendant had opened an account with ANZ Bank on 03rd November 2009: see copies of the ANZ Bank account opening form and ANZ Bank deposit slip of K50.00 dated 03rd November 2009 marked annexures "B" and "C" to the affidavit of the defendant (supra) respectively. If the plaintiff claims the defendant has not paid money into the account that has been opened at ANZ Bank in Mt Hagen,that is another matter, which may be a subject of a further application for contempt of Court, a point I will come to address later on.

25. On these evidence, I am satisfied the defendant has complied with the Court orders of 11th November 2008 and 30th October 2009. It follows there was nothing preventing the defendant through his lawyer Mr Peri from requesting release of his passport from the Assistant Registrar with or without notice to the plaintiff's lawyers nor is there anything preventing the Assistant Registrar from advising the British High Commission of the conclusion of the application for contempt against the defendant. The decision to issue a new or temporary passport to the defendant by the High Commission rests entirely with it, and it would seem, that decision was made following the conclusion of the application for contempt as the original passport is still in the custody of the Assistant Registrar.

26. This leads me to the third reason and that is, there is no issue with service of the Court orders of 20th January 2009, 06th August 2009 and 24th August 2009 on Mr Kiso. This is apparently clear from Mr Peri's submission to the Court where he admitted the existence of these Court orders. They can also be found in the affidavit of Mr Peri sworn on 15th December 2009 and filed on 16th December 2009: see annexures "A", "B" and "C". It is also apparent from Mr Kiso's explanation to the Court that he had held the defendant's passport because there was a Court order for the defendant's passport to be surrendered to him. For it has been held that there can be no contempt of Court if the alleged contemnor has not been served with the Court order: see Ross Bishop & Ors (supra).

27. As there is no issue between the parties in relation to the service of these Court orders, I think, these orders are very crucial to the entire application before the Court. The Court order of 20th January 2009 restrained the defendant from leaving the jurisdiction pending the determination of the application for contempt of Court. Term 1 of the Court order reads:

"The Defendant Patrick Haines is restrained from leaving the jurisdiction of Papua New Guinea until the charge of contempt has been determined." (Emphasis added).

28. The Court order of 06th August 2009 is an ex-parte interim order. By that Court order, the defendant was to surrender his passport pending the determination of the application for contempt of Court, which he did. Term 2 of the Court order reads:

"Pursuant to Order 14 Rule 46(b) of the National Court Rules and Section 155(4) of the Constitution an order that:

(a) until further orders Defendant/ Respondent surrenders his passport to the Assistant Registrar of the Mount Hagen National Court pending the determination of the contempt application." (Emphasis added).

29. The ex-parte Court order of 06th August 2009 was extended on 24th August 2009 after parties appeared and argued for and against its extension. By the Court order of 24th August 2009, the order for the defendant to surrender his passport remained in force until the determination of the application for contempt. Term 1 of the Court order reads:

"The Defendant surrenders his passport to the Assistant Registrar of the National Court at Mount Hagen pending the determination of the contempt application." (Emphasis added).

30. It should be noted all these Court orders, in no uncertain terms, made reference to the "determination of the contempt application". None of them made reference to or stated that the defendant shall surrender his passport to the Assistant Registrar of Mt Hagen National Court pending determination of the substantive action/proceeding. It should also be noted and emphasised that the critical words used in these Court orders are "determine" and "determination". The word "determine" is a verb (to do something) and the Oxford Advanced Learners Dictionary, 7th ed, (2005) London, Oxford University Press at 399 defines "determine" as "to discover the facts about something" or "to officially decide something" and the word "determination" as "the process of deciding something officially." In the legal context, the word "determine" is defined by the Osborn's Concise Law Dictionary 9th ed, (2001) London, Sweet & Maxwell at 133 as "(1)[t]o come to an end; (2) [t]o decide an issue or appeal".

31. In my view, the underlying reason for the plaintiff to have the defendant surrender his passport to the Court is to prevent him from leaving the jurisdiction of the Court while the application for contempt is pending or yet to be determined. Now that the Court has determined it, and has found the defendant guilty and imposed appropriate penalties, there is nothing further for the Court to determine. The application for contempt of Court for which the defendant's passport was surrendered to the Court has been determined. In other words, the Court has decided officially the application for contempt of Court against the defendant. It therefore, has come to an end.

32. If the plaintiff claims that the defendant has been restrained from leaving the jurisdiction until the determination of the substantive action, then, that is another matter as it has not been raised as one of the grounds for contempt of Court against Messrs Peri and Kiso. Further, if the plaintiff claims that the determination of the application for contempt has not been completed as the defendant has yet to comply with the orders for punishment as imposed by the Court on 30th October 2009, I would reject this proposition for two reasons, and this is the point I said earlier I would discuss in more detail later.

33. I do so now and the first reason is this, as alluded to above, the application for contempt against the defendant has been determined on 30th October 2009 when the Court found him guilty of disobeying the Court order of 11th November 2008 and penalised him by the imposition of various penalties. If he continues to disobey or fails to comply with the Court order of 11th November 2008 and also the Court order of 30th October 2009, in my view, they would be considered as new set of events, which would give rise to new grounds for fresh application for contempt against the defendant.

34. Secondly, the proposition would run counter to the expressed terms of the three Court orders I have alluded to earlier. I reiterate, these Court orders did not state that the defendant shall surrender his passport to the Assistant Registrar of the Mt Hagen National Court pending the determination of the application for contempt of Court and "the compliance of the orders for punishment". Rather, they only state that the defendant shall surrender his passport to the Assistant Registrar of the Mt Hagen National Court pending the determination of the application for contempt. If the Court was to accept the proposition of the plaintiff, this Court would be seen to be imposing an additional order on the original Court orders. This, I cannot do.

35. Even if the plaintiff claims that on 30th October 2009, the National Court, (Yalo, AJ) had ordered the defendant's passport to be withheld until the defendant complied with the Court orders, especially the order for punishment, I am not satisfied based on the letter of the Associate to Yalo, AJ dated 14th December 2009 that it is sufficient proof of the decision of the Court. I consider a Court order or transcript of the proceedings of 30th October 2009 would be the best evidence to support the plaintiff's claim. In the absence of such evidence, I find there was no legal impediment for the defendant's passport to be returned to him. Further, there was no legal impediment for Messrs Peri and Kiso to facilitate the British High Commissioner's request for the defendant's departure from the country. In that respect, it should be noted, Mr Kiso did not advise the British High Commission to issue a temporary passport to the defendant. He only advised the High Commission that the application for contempt had been completed, which in my view was correct and proper in the circumstances.

36. In any case, from my reading of term 1(a) and (b) of the Court order of 30th October 2009, term 1(a) and (b), in particular, the last sentence where it states ".....and failure to comply with this Order attracts a further monetary fine or a term of imprisonment or both", I am of the view this term of the Court order is vague and ambiguous. In Ross Bishop & Ors (supra), the Supreme Court held, inter-alia, that to succeed on a charge for contempt of a Court order, the Court order must be clear and unambiguous.

37. I say term 1(a) and (b) of the Court order of 30th October 2009 is vague and ambiguous because it could mean, the defendant would automatically be guilty of contempt of Court if he continues to disobey or fail to comply with the Court orders of 11th November 2008 and 30th October 2009 and by way of penalty, would be further fined or imprisoned or both. This interpretation could further suggest that, the plaintiff will not be required to file a fresh application to the Court to have the defendant further punished for contempt of Court if he continues to disobey or fail to comply with the Court orders of 11th November 2008 and 30th October 2009. Further, it could also mean that there will be no hearing, hence the defendant will be given no opportunity to respond to the allegations of his further contemptuous conduct. This is one set of interpretation.

38. The other interpretation is this, term 1(a) and (b) could also mean the plaintiff must file a fresh application to the Court to have the defendant further punished for contempt of Court if the defendant continues to breach or disobey the Court orders of 11th November 2008 and 30th October 2009. To my mind, term 1(a) and (b) of the Court order of 30th October 2009 is vague and ambiguous. It could lead to confusion. Indeed, it is noted the plaintiff has filed a fresh application by notice of motion on 01st December 2009 to have the defendant further punished for breaching or disobeying the Court orders of 11th November 2008 and 30th October 2009. This further application is still pending hearing as the apparent disappearance of the defendant has prompted the present application for contempt against Messrs Peri and Kiso.

39. Given these two competing interpretations of term 1(a) and (b) of the Court order of 30th October, 2009, I am of the view, it is vague and ambiguous and where the Court order is vague and ambiguous, an application for contempt must fail. I so find in this case.

40. For these reasons, I am not satisfied beyond reasonable doubt Messrs Peri and Kiso have deliberately disobeyed the Court orders of 11th November 2008 and 30th October 2009. I find each of them not guilty and dismiss the application of the plaintiff. Cost shall follow the event.

Ruling and orders accordingly.

__________________________________

Nonggorr & Williams Lawyers: Lawyers for the Plaintiff
Koeya Peri in person
Eric Kiso in person