HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 264 of 1992

RASI

-v-

DHORA SAWMILLING COMPANY LIMITED & OTHERS

High Court of Solomon Islands
(Muria CJ.)

Hearing: 7 June 1993
Judgment: 9 July 1993

P. Lavery for Plaintiff
T. Kama for the Respondent

MURIA CJ:	This is an adjourned hearing of an application by the plaintiff for an order to commit Atholl Smith-Loretz who is the Manager of the First Defendant and William Idumae who is a supervisor also employed by the First Defendant to prison for contempt of Court for disobeying the Order of this court made on 15 September 1992.

The terms of the Order made by Palmer, J. on 15 September 1992 prohibit the Defendants, their Officers, servants or agents from entering or carrying on any operations whatsoever within Neme Land which was shown edged red on a map annexed to the Affidavit of Mr John Rasi. The Order was served on the First Defendant on 5 October 1992.

On the 30 October 1992, Mr Atholl Smith-Loretz was shown and explained to him the Order of 15 September 1992 by the Solicitor for the plaintiffs. Mr Smith-Loretz understood the Order. The other defendants were also served with copies of the Order.

On 25 February 1993 I order the injunction issued on 15 September 1992 to continue without variation and that a survey of the boundaries of Neme Land be carried out, and to locate the site of the felling of trees on 18 November 1992. A survey had been carried out on 16th and 17th of March 1993. A report of that survey was made on 25 March 1993. A second survey was carried out on 1 June 1993 and the report of that second survey was made on 3 June 1993.

The evidence for the plaintiffs was that the Defendants were served with the order of High Court of 15 September 1992. Despite being served with the Order of the court, Messrs Idumae and Smith-Loretz told the other employees to go into the land claimed by the plaintiffs and cut trees.

One of the employees of the First Defendant who gave evidence for the plaintiffs was Jacob Maera who was then a bulldozer driver. Mr Maera stated in his affidavit that on Wednesday 18 November 1992 at 7.30 a.m. Mr. William Idumae told him and two other employees to go into John Rasi's Land (plaintiff) and remove logs already cut and to cut down three (3) new trees. Logs removed were about 15 in addition to the three newly cut. Mr Maera knew of the order of the court of 15 September 1992 but he was carrying out orders.

In court, Mr Maera added that Mr Smith-Loretz knew of the Order of the Court but he nevertheless told Mr Maera and others to go and cut trees in the plaintiffs' land.

Mr John Rasi stated in his affidavit that having been informed by Mr Maera of what happened on the morning of 18 November 1992, he went straightaway to the site and found the logs previously felled were removed. He further saw stumps of three more trees being felled that day. Mr Maera accompanied Mr Rasi and pointed out to him (Mr Rasi) where the logs were removed and new trees cut. Mr Rasi quickly reported the matter to his Solicitor the next day.

As to the boundaries of Neme Land, Mr Rasi gave evidence that he drew the map (which was attached to the Order made on 15 September 1992) showing the boundaries of his land although without showing exactly the marks on the ground itself. Those boundaries cover both the big area and the small area which was the subject of the 19983 Local Court case.

The surveyor, Mr Konale gave evidence that the points 'Noghe' and 'Punala' were shown to him by the Local Court Officials. The other two points 'Nagoto' and 'Kada Kaka' were shown to him by the plaintiff, Mr Rasi.

Mr Konale further stated that the Local Court Officials who dealt with the case in 1983, showed him the boundaries of the Neme Land the subject of court case No.3 of 19983 and he marked those boundaries with 'Neme 1', 'Neme 2' 'Neme 3' and 'Neme 4'. He added that in Neme Land marked on the map with 'court case No.3 of 1983' there were only coconut trees there.

However, having been shown the points, Mr Konale connected them, linking Nagoto with Noghe and Kada kada with Punala. Mr Konale said that having linked those points together, Mr Rasi claimed that his land was that bounded by those points.

Mr Smith-Loretz gave evidence that he was served with the court Order sometime in September 1992. He said he knew the area was in dispute but the council of chiefs instructed him to go into the area and remove the logs. Mr Smith-Loretz further sated that he must follow what the Chiefs said even though the High Court ordered not to go into the area concerned. He added that the 4th Defendant was the person from whom he received orders and he had to listen to what the Chief said.

Mr Smith-Loretz agreed that he would be in breach of the Court Order if he went into Neme Land. However he stated that it was for the 2nd defendant and the Saikile Chiefs to sort out whether the disputed area was Neme Land or not. He stated that his company (1st defendant) was under a joint-venture arrangement and so he had to proceed with his operation acting only under instructions from the Chiefs. On this basis, he instructed Mr. Idumae to go into the area under dispute and remove the fifteen (15) logs which were on the ground.

Mr William Idumae confirmed in court that he was aware of the Court Order of 15 September 1992. He further confirmed that at about 7.30 a.m on 18 November 1992 he ordered his men to go into the bush and remove the logs which were already cut and lying in the area concerned.

Like Mr Smith-Loretz, Mr Idumae said that he knew of Court Order but that the Chiefs' order was more important and that he must obey the Chiefs' order. Mr Idumae contended that the place where his men removed the logs and cut new trees was outside Neme Land.

This is an action for contempt of court and the plaintiff must prove the contempt beyond reasonable doubt. This is so since contempt of court is an offence of a criminal nature which when proved may result in the contemnor being sent to prison:

See Hitukera -v- Hyundai Timber Company Limited & Maepeza, Civil Case No.132 of 1992 (Judgement delivered on 23 July 1992.)

The evidence in this case clearly showed that the Managing Director Mr Smith-Loretz and the Production Manager Mr Idumae both of the First Defendant, had been aware of the Order of this Court dated 15 September 1992. They both clearly knew and understood the nature of that Order. Yet admittedly both men chose to enter into the area covered by the Order and carried out their operations in defiance of the Order of the High Court.

As far as it can be gleaned from their evidence, their defence was that they had to obey the order of the Saikile Council of Chiefs rather than the Order of this Court. The implication is that if there was anything wrong, then blamed the Chiefs and not the two men.

The two men further relied on the assertion by the Chiefs that the plaintiff had no right in the area concerned, for Neme Land was elsewhere and not where they removed the 15 logs and cut the three (3) new trees. However, when Mr Smith-Loretz ordered Mr Idumae who in turn instructed his men to go into the area in dispute and to remove the logs, both men were clearly aware of the fact that they were venturing into the area edged "red" on a map which was sent to them and covered by the Court Order. Whether that is Neme Land in whole or in part, is not the subject of the Order. The purpose of the Order was to prevent the First Defendants from entering and carrying out its operations in that area until the questions or ownership and extent of Neme Land were resolved.

What transpired, according to the evidence, was that despite the restraining order, the First Defendant was prepared to enter into the disputed area and did actually enter, through its servants, on the strength of the Chiefs' stand that the plaintiff had no rights in the area which he claimed to be his. I am afraid that the First Defendant's reliance on the Chiefs' assertion cannot be a satisfactory answer to their non-compliance with the Court Order.

At this stage, the extent of the boundaries of Neme Land is not yet settled. That is a matter to be dealt with by the appropriate authorities. One thing is clear, however, and that is, the area where the logs were removed and three (3) new trees were cut, is on the evidence inside the area edged 'red' on the map attached to the Order of 15 September 1992 - and verified by the surveyor's reports.

Much had been said about the Land Case No. 3 of 1983 concerning Neme Land. While the decision of the Local Court in that case may have some relevance on the questions of boundaries and ownership of Neme Land, it cannot be used by the Defendants as a buffer against the Order of the High Court of 15 September 1992, the requirements of which are very clear. Those requirements are that the Defendants their Officers servants or agents be restrained from entering or carrying on any operations whatsoever with tyhe land shown edged 'red' on a map annexed to the Order. That was the land claimed by the plaintiff to be Neme Land.

When the First Defendant went into the area specifically prohibited by the Order of this Court, they were clearly in breach of the Order. I cannot help but to find that in this case the non-compliance of the injunction as ordered by this Court was a wilful disobedience of the Order of the Court. Such actions were deliberately setting the Court at defiance and treating the order of the court as not worthy of notice. This is clearly a contempt of court and no order or direction from the Chiefs can justify it. For there is no such thing as a justifiable contempt of court: See Hitukera -v- Hyundai.

On the evidence I am satisfied beyond reasonable doubt that the Mr Atholl Smith-Loretz the Managing Director of the First Defendant and Mr William Idumae, the Production Manager and Supervisor, of the First defendant had committed a contempt of court.

Punishment:

I have found that this was a case of a wilful disobedience of the Order of the Court and as such it is a deliberate defiance of the Court and its authority. I do not need to repeat what I said in Hitukera -v- Hyundai (above) on the purpose of the court's jurisdiction in this area of the law. However, I shall refer to what I said in that case once again for the sake of the First Defendant and all those who are involved in this present dispute, in one way or the other. I said in Hitukera -v- Hyundai.

"I think it is necessary when considering punishment for contempts of court to bear in mind the necessity of his branch of the law and purpose of the court's contempt jurisdiction on these, the most important consideration must be the maintenance of the proper administration of justice. This had been succinctly stated by Lord Morris in AG -v- Times [1973] 3 All E.R. 54 at 66 where he said:-

"In an ordered community courts are establishment for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: It is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted." 

Like in any other developing country, the courts in Solomon Islands must be vigilant to see that their authority is not imperilled or treated with contempt. This is particularly so at this embryonic stage of the development of the judicial system in this country. As such the courts here will also exercise their contempt jurisdiction for the purpose and in accordance with the principles stated by Lord Morris in AG -v- Times Newspapers Limited"

There is no evidence in this case that there has been any further intrusion into the area concerned after the 18 November 1992. However the conduct of the Managing Director and the Production Manager at the time were clearly contumacious showing a flagrant disrespect to the authority of the court.

I have no doubt the two executive men of the First Defendant will now realize that they cannot substitute the Order of the Court for that of the Chiefs. No order or direction from any council of Chiefs can supersede an Order of the Court. The Order of the Court must be obeyed.

Having considered all the circumstances of this case and what had been said on behalf of the two men, the court must impose a punitive sanction against them.

I therefore order that their contempt of court, Atholl Joseph Smith-Loretz and William Idumae be committed to prison each for a period of 3 weeks. However, had the necessary penal notice be endorsed on the order, I shall have no hesitation in ordering the prison terms to be enforced forthwith. I shall therefore suspend the 3 weeks imprisonment term for 1 year. In addition each will pay a fine of $1,000.00 by 3.00 pm today, in default of which each shall serve 30 days in prison. I remind those who obtain restraining orders to adhere to the practice of endorsing on the orders penal notices which are essential before a commitment sanction can be imposed: See Hitukera -v- Hyundai (above).

I further order that the injunction granted on 15 September 1992 shall continue until the determination of the main action in this case or until further orders from the court and any repetition of the breach of the said order shall be a contempt of Court rendering the contemnor(s) liable to imprisonment.

In view of the result of this application, I feel that it would be inappropriate that this court should hear the Defendants' Summons filed on 7 June 1993 seeking a variation of the Order of 15 September 1992. I therefore order that the Defendants Summons be stood over generally with liberty to apply after the contemnors have satisfied the Court that they will abide by the orders of this Court.

I order the contemnors to pay the Applicant's costs in this application.

(G.J.B. Muria)
CHIEF JUSTICE