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Ron v Commissioner of Police [2005] VUSC 123; CC 020 2004 (28 October 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

IN THE MATTER OF: Civil Appeal Case No. 20 of 2004

BETWEEN:

VICTOR RON
Appellant

AND:

COMMISSIONER OF POLICE
Respondent

AND IN THE MATTER OF: An Application Made pursuant to Rule 18.14 of the Civil Procedure Rules No. 49 pf 2002: Contempt by failing to comply with a Court Order

BETWEEN:

MARISAN L.E. PIERRE
Official Receiver and Administrator of Mountain View Treasures
Applicant

AND:

VICTOR RON
WARI ATHANAS
JEAN YVES ETUL
JONATHAN BAKON and WILLIE THOMAS
Respondents

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Ms Marisan Pierre representing herself as Applicant
Mr Saling N. Stephens for the Respondents

Date of Hearing: 19th July 2005
Date of Judgment: 28th October 2005

JUDGMENT

Introduction

This is a reserved judgment. After the conclusion of the evidence Counsel requested time to file written submissions. Five days were allocated to the Applicant and a further five days to the Respondents to respond. The Applicant has not filed and served any written submissions at the time of writing this judgment on 19^th October. The Respondents filed their written submissions in the absence of the Applicant’s submissions on 27^th September 2005. The Court therefore dispenses with the Applicant’s submissions as more than sufficient time have been allocated for her to do so.

Background Facts

1. On 27^th October 2004 and on 3^rd, 4^th and 5^th November 2004 the Court of Appeal (the Court) heard an appeal by Victor Ron against the Commissioner of Police.
   
2. On 5^th November 2004 the Court recorded an Order by Consent of the Parties to the following:-
   
   • (a) ..........;
     
   • (b) Dismissing the appeals of the appellant;
     
   • (c) ..........;
     
   • (d) Appointing Ms Marisan Pierre as the Official Receiver and Administrator of the Vanuatu Joint Force Insurance and Social Benefit Scheme (the Scheme);
     
   • (e) Restraining the Parties to the counterclaim and any other person from dealing in any way with the affairs of the scheme without the prior written consent of the said Marisan Pierre, and from interfering with the administration and management of the scheme by the said Marisan Pierre.
     
3. The Court specified in paragraph 3(a) the powers and authority of the Official Receiver and Administrator (the Administrator).
   
4. The relevant powers which appear at issue are:-
   
   • (a) “IX – To carry on the business of the scheme so far as may be necessary.”
     
   • (b) “X – Report to the Court any obstruction to the work of the administrator......”
     
5. On Monday 7^th February 2005 the Administrator filed a Report on the affairs of the Scheme from December 2004.
   
6. At paragraph 21 of the Report the Administrator alleged breaches of the Orders of the Court dated 5^th November 2004 against the Respondents who had dealt with the business of the Scheme without her written consent, and further that they had obstructed her work as Administrator.
   
7. On the same Monday 7^th February 2005 the Administrator filed an Application pursuant to Rule 18.14(3) seeking to reopen the proceeding and seeking orders to punish the respondents for contempt of court orders.
   
8. On 23^rd April 2004 Wari Athanas entered into a Transport Service Agreement with Mountain View Retail/Wholesale Shop (also, the Scheme).
   
9. Under the Agreement the Scheme was responsible among others, for –
   
   • (a) Managing the transport (belonging to Wari Athanas) until December 31^st 2004; and
     
   • (b) Reviewing the Agreement upon a week written notice given by either party.
     
10. Similarly Wari Athanas, the taxi owner was responsible among others, for–
    
    • (a) Placing the taxi (vehicle) under the management of the Scheme until December 2004; and
      
    • (b) Reviewing the agreement by giving one week written notice (to the Scheme or Administrator).
      
11. After her appointment by the Court of Appeal on 5^th November 2004, the Administrator assumed all the function and responsibilities of the Scheme, including the Management of Wari Athanas’ taxi under the Agreement of 23^rd April 2004.
    
12. The Administrator visited the Scheme during December 2004 to January 2005 to sort out the affairs of the Scheme which comprise of lending facility, retail and wholesale shop and a taxi business. It was during these visits the Administrator met Wari Athanas and had brief meetings with him regarding the taxi business and its arrangements. She wrote him a letter on 30^th December 2004 advising him not to repossess the taxi on 31^st December 2004 in accordance with the Agreement.
    
13. The Administrator arranged a meeting with Victor Ron and Wari Athanas in January 2005 to sort out the taxi issue. Unfortunately no one turned up on the date scheduled for the meeting. The Administrator had spent 5 weeks in Santo and had to return to Vila on 31^st January 2005 after her failed attempts to meet with Victor Ron and Wari Athanas.
    
14. On Tuesday 1^st February 2005 the Administrator received a message by telephone from Elton Tuku, driver of the taxi that the taxi was recovered by a debt collecting agency who acted on behalf of Wari Athanas.
    
15. Those involved in the recovery process were Jean Yves Etul, Jonathan Bakon and Willie Thomas.
    

Allegations

It is against those background facts that the Administrator has alleged the respondents had acted in breach of the Court of Appeal Orders of 5^th November 2004, and that accordingly they should be punished.

Issues

The primary issue for determination is whether or not the respondents have committed breaches of a Court Order by failing to obey or comply with Court Orders?

Burden and Standard of Proof

This is a civil contempt. The onus of proof rests with the Administrator on the balance of probabilities.

Evidence

A. By the Administrator -

Three witnesses were called. They each confirmed their respective sworn statements and were accordingly cross-examined by defence counsel. All their sworn statements were tendered into evidence. I summarise the relevant parts only of each witness evidence:-

(i) Elton Tuku

He was the taxi driver of Wari Athanas’ taxi, the subject of the Agreement of 23^rd April 2004. On Tuesday 1^st February 2005 he was stopped by Bakon Jonathan in the center of town. He had a passenger with him. Bakon told the witness that the taxi was under arrest. The witness asked for reasons and Bakon told him that he had orders from Wari Athanas. Bakon’s voice was harsh and forceful. He was ordered to get out of the taxi but because of the fact that he had a passenger he was allowed to drop off his passenger and return the vehicle. He was followed by Bakon in another vehicle and stopped again at BP Bon Area. Finally at the LCM Store in town the taxi was stopped at 7.40 p.m and recovered by the debt collecting agency, PDC.

In cross-examination the witness explained that PDC meant the Pascal Debt Collector. He knew this by receipt of a letter which had been sent to the shop belonging to the Scheme. He did not produce a copy of the letter. He confirmed that the taxi belonged to Wari Athanas but he did not know about the arrangements concerning the management of it.

(ii) Simeon Nixon

He is the appointed Inspector of the Scheme for the purposes of inspection and auditing of the books of the business of the Scheme. He was approached by Bakon of PDC on Wednesday 2^nd February at 7.45 am whilst shopping at Puichee Store. Bakon told him he was acting as a debt collector and that he was authorised by Wari Athanas to remove the taxi. He was approached in a rather disturbing way. He was invited to attend a meeting but told Bakon he would not talk until he had received instructions from the Administrator. He explained the reason being that there was a Court Order preventing any one from dealing in any way with the business of the Scheme without the prior written consent of the Administrator. He left to return to the shop and was told by the shop assistant that Jean Yves was looking for him. Jean Yves later met with the witness and the witness again informed him that he would not talk because they had taken the law into their own hands. Bakon was present also. Their approach was rough and forceful. It was then that Bakon confirmed to the witness that the had received instructions from Victor Ron that the taxi arrangements had expired on 31^st December 2004 and that the taxi should be returned to Wari Athanas but it was a surprise that the witness and the Administrator were still holding onto it. This confirmation was made at the shop. To settle the matter the witness and the debt collectors attended a meeting with the Police. At the meeting Acting Commander Solip Amos explained the Court Order and scolded the debt collectors for their action and warned them of the consequences of breaching a Court Order. Wari Athanas then apologized and wanted to return the car but the witness refused. The taxi is still with Wari Athanas to date.

(iii) Marisan Pierre

She is the appointed Official Receiver and Administrator of the Scheme. She is the Financial Services Commissioner and a lawyer by profession. She identified and confirmed her sworn statement dated 7^th April 2005 and its annexures. The sworn statement was tendered into evidence. She made a Report and sent copies to the Court and then to other parties including Mr Stephens. She said she and Simeon Nixon had had several meetings with Wari Athanas during which they had explained clearly the terms of the Court Order to him. She admitted she did not serve a copy of the Court Order on Mr Athanas. She wrote a letter dated 30^th December 2004 to Wari Athanas telling him about the taxi being in the hands of the Administrator and that he should not remove it at any time. In cross-examination she said the Administrator had the power to report a breach of the Order under paragraph 3(a)(x) of the Court Order and to pursue proceedings for contempt under Rule 18 of the Civil Procedure Rules. To the question whether Wari Athanas was a party to the case, Ms Pierre answered that he was not but he became liable under paragraph 3(b) of the Court Order. Asked what action she took after 31^st December 2004 after the Agreement had expired, she said she did nothing because Mr Athanas was silent and did not inform her. Asked where the taxi was, she said the taxi is not with the Scheme. Asked if she spoke to or met with Victor Ron at any time she said no as there was no need of her to do so. Asked how Victor Ron had breached Court Orders she said by the representations Mr Ron was making about the expiring date of the Agreement and his enquiries with Mr Athanas and the debt collectors as to when the Administrator and Mr Nixon would return to Vila so he could take over the management of the Scheme again.

B. By the Respondents, five witnesses gave evidence:-

(i) Cecil Patrick

He deposed to a sworn statement dated 4^th March 2005 which he identified and confirmed. He was an independent witness. He did not remember the date. He was with Victor Ron by the seaside. He saw Wari drive the taxi towards them. He heard them say they had removed the vehicle. He saw Wari, Jean Blac, Bakon and Jean Yves in the vehicle. He said they removed the vehicle because the Bank was pressing Wari for his loan repayment outstanding for December 2004 and January 2005. They asked Victor Ron to hold a meeting with Ms Pierre. Victor Ron told Wari that he was aware of the Agreement which should have ended on 31^st December 2004, and asked Wari if they had renewed the Agreement? To that Wari answered no and that he took steps to recover his taxi because the Bank was pressing him for repayment of outstanding amounts. He heard Victor Ron say that he would not attend the meeting but only if Ms Pierre organised that meeting. He heard Mr Ron tell the debt collectors and Wari not to use his name in the process of recovering the vehicle because he was aware of the Court Order in place. He said Victor Ron did not know anything about the removal of the vehicle and he was shock when he learnt of it that day. In cross-examination the witness said he is a close friend of Victor Ron.

(ii) Jean Yves Etul

He deposed to a sworn statement dated 4^th April 2005 which he identified and confirmed. Wari alone went to see him and instructed him to remove the taxi from Mr Tuku. He only acted on that instruction after Wari had shown him a copy of the contract which had expired on 31^st December 2004. He is a debt collector employed by PDC. Bakon was not employed but was asked by him to only assist.

(iii) Bakon Jonathan

He deposed to two sworn statements dated 4^th and 8^th April 2005 which he identified and confirmed. He denied the involvement of Victor Ron in the group that recovered the taxi. And he denied talking to Mr Nixon at Puichee Store concerning Victor Ron’s involvement.

(iv) Victor Ron

He is a senior Police Officer. He deposed to three sworn statements which he identified and confirmed and admitted as part of the evidence for the defence. He was and is aware of the Court Order of 5^th November 2004 and that he respected its terms. He was aware that the Order had appointed Ms Pierre as the Official Receiver of the Scheme and that anyone wishing to get involved in the affairs of the Scheme should first obtain the consent of the Administrator. He was aware of the arrangement about Wari’s taxi. He denied being involved in the arrest and seizure of the taxi and only knew about it after it had been seized. He said Wari had approached him to ask him to attend a meeting but he told him that he would not unless Ms Pierre had sent Wari or arranged such a meeting. He said on 3^rd February 2005 he was by the seaside with Cecil Patrick. At that time Wari, Jean Yves Etul, Jean Blac and Bakon went to see him after the taxi had been removed by them. He said he was surprised and shocked to hear Wari tell him they had arrested the taxi. He told Wari about the Court Order and asked him why they had arrested the taxi. Wari replied saying it was because Ms Pierre and Mr Nixon had not paid off outstanding loan to the Bank. Mr Wari asked him to attend a meeting but the witness refused and told him that he would only attend if Ms Pierre had arranged such a meeting.

(v) Wari Athanas

He is the owner of the taxi. He deposed to two sworn statements which he identified and confirmed. He removed the taxi from the new Management by Ms Pierre and Mr Nixon because they had overlooked repayments of outstanding loans to the ANZ Bank. He acknowledged receiving the letter dated 30^th December 2004. He waited for a meeting (as indicated in the letter) until 4^th February 2005. When nothing happened he went to Jean Yves Etul, Jean Blac and Bakon and instructed them to repossess the taxi. He repossessed the taxi due to outstanding loan repayments. He said Victor Ron did not know anything about the plan to arrest the taxi and that Victor Ron was not part and was not involved in the arrest. He denied being served with a copy of the Court Order. He confirmed that he only heard the Orders read to him in a meeting on 3^rd February 2005 by Officer Solip Amos.

Finding of Facts

I find the evidence of Elton Tuku reliable and admit them as the true facts surrounding and relating to the arrest of the taxi vehicle in issue. The Court accepts that Bakon was employed by PDC as a debt collector and that he was directly involved in the arrest of the taxi. The Court accepts that Bakon was acting on the instruction or Wari Athanas. This is confirmed by the evidence of Simeon Nixon at pargraph 3.

I also find the evidence of Simeon Nixon reliable and accept them as proof of the following facts –

(i) Bakon acted as a debt collector and approached him at Puichee Store in a disturbing manner.

(ii) Bakon was acting on the Orders of Wari Athanas.

(iii) Bakon was involved in the arrest of Wari’s taxi.

(iv) Jean Yves Etul was also involved in the arrest of Wari’s taxi.

(v) There was a meeting with Officer Solip Amos at the Police Station during which the Court Orders were read to Mr Wari Athanas.

(vi) Mr Athanas apologized and offered to return the vehicle.

However paragraph 10 of Mr Nixon’s evidence is rejected on the basis that it is heresay and that it has not been proved sufficiently that Victor Ron had given instructions about the expiry date of the Agreement.

I also find the evidence of Ms Pierre reliable and accept the relevant parts as proof of the following facts –

(i) That there was and is a Court Order.

(ii) That she is appointed by that Order as Official Receiver and Administrator of the Scheme.

(iii) She is empowered by the Order among other things, to do a report on any obstruction to her work as official receiver and administrator.

(iv) That she did a Report and filed with the Court on 7^th February 2005.

(v) That the Order restrains not only the parties to the case but any other person from dealing in any way with the affairs of the Scheme without the prior written consent of Ms Pierre, and from interfering with the administration and management of the Scheme by her.

(vi) That she and Simeon Nixon had held several meetings with Mr Athanas to discuss the arrangement about his taxi and that during those meetings Mr Athanas was informed about the Court Orders.

(vii) That she did write to Mr Athanas on 30^th December 2004 about the Agreement and the taxi and told him not to repossess the vehicle on 31^st December 2004.

(viii) That the taxi is no longer in the possession and management of the Administrator.

(ix) That she did not authorize Wari Athanas to repossess the taxi.

Now regarding the evidence given on behalf of the respondents –

Cecil Patrick

I find his evidence reliable and accept them to prove the following facts –

(i) That Wari Athanas was the perpetrator of the arrest of his taxi.

(ii) Jean Yves Etul, Bakon and Jean Blac were also involved in the arrest of the taxi.

(iii) He was with Victor Ron on the day of the arrest and heard the conversation between Victor Ron and Wari Athanas, which conversation are confirmed by Victor Ron himself.

(iv) At no time was Victor Ron involved in the arrest or had given advice to help the debt collectors carry out the arrest.

Jean Yves Etul

I find most part of his evidence reliable and accept those relevant parts to prove the following facts –

(i) That he was involved in the arrest of Wari’s taxi

(ii) He is a debt collector employed by PDC and that he acted on the Orders of Wari Athanas alone.

(iii) He was with Wari, Bakon and Jean Blac after they had arrested the vehicle and went to see Victor Ron at Banban.

Bakon Jonathan

I find that most of his evidence were unreliable in that they lack credibility. However I accept only the relevant part which went to prove that –

(i) He was involved directly in the arrest of Wari’s taxi.

(ii) Victor Ron was not involved in the arrest and he never gave evidence concerning it.

(iii) He was with the group on 2^nd February 2005 at Banban when they went to see Victor Ron and told him about the arrest.

Victor Ron

I find his evidence reliable and credible to prove that –

(i) He was aware of the Court Order and he respected it.

(ii) He did not take part at any time in the arrest.

(iii) He did not give any advices to assist the debt collectors in the arrest process.

(iv) He was with Cecil Patrick on the day of arrest and was shocked when Wari and the group told him they had arrested the vehicle.

(v) He did not attend the meeting proposed by Mr Athanas.

Wari Athanas

I find most of his evidence to be unreliable and lacking credibility. I accept only those parts which show that –

(i) He was the only one who instructed the debt collectors to arrest his vehicle.

(ii) He was never served with a copy of the Court Order.

(iii) The only time he had heard it read to him was on 3^rd February 2005 at the Police Station when Acting Commanding Officer Solip Amos read it to him.

The Law

Clause 3(b) of the Order by Consent dated 5^th November 2004 is relevant and states –

“Order restraining the parties to the counter-claim and any other person from dealing in any way with the affairs of the Scheme without the prior written consent of the said Marisan Pierre, and from interfering with administration and management of the Scheme by the said Marisan Pierre.” (Underlining, mine).

Contempt is defined by Osborne Concise Law Dictionary as act of failure to comply with the order of a superior court or an act of resistance or insult to the court or the judges.

Rule 18.14 of the Civil Procedure Rules No. 49 of 2002 provides for contempt by failing to comply with an order (of the court). The Application is brought under Rule 18.14(1); 2(b); (3) and (4). The respondents do not challenge the basis of the application and therefore it is not necessary to refer to those provisions.

Submissions

Mr Stephens submitted that the issue for determination is “Can a person who is not a party to a proceeding be bound by the judgment of a given cause of action?

He made reference to a Court of Appeal Case No. 12 of 1998: Raupepe v. Raupepe in which the Court said: ....”the judgment of the court because it determines for the world at large who owns the land must be one that binds all those people who might have an interest in the land. A judgment would not bind those people unless they are before the Court as parties.”

Mr Stephens submitted therefore that as the respondents were not parties to Civil Case No. 5 of 2004, they were not bound by the Orders of 5^th November 2004.

Court’s Ruling

Firstly and with respect to him, Mr Stephens is not altogether correct in that submission. Except for the other four respondents, Victor Ron is a party to Civil Case No. 5 of 2004.

Secondly, the issue posed by Mr Stephens is not the real issue. The real issue is whether or not the respondents failed to obey or comply with a Court Order, and if so, have they committed a breach?

The Court therefore rules that Raupepe Case is not relevant and is not applicable to this case.

Application of Law to Facts

Applying the law to the facts I find as follows:-

1. Wari Athanas knew about the existence of the Court Orders although he was not served and did not see them until 3^rd February 2005.
   
2. The letter by Ms Pierre dated 30^th December 2004 in effect was a written notice on her part in accordance with clause 1(f) of the Agreement.
   
3. When he gave orders to Jean Yves Etul of PDC to recover and repossess the taxi vehicle despite having received Ms Pierre’s letter of 30^th December 2004, and despite verbal advices in several meetings had between him, Ms Pierre and Mr Nixon, Mr Athanas had failed to obey and comply with clause 3(b) of the Orders of 5^th November 2004.
   
4. Mr Athanas had failed to provide a one week written notice to review the Agreement as required by clause 2(d).
   
5. When Mr Athanas drove the taxi vehicle on 2^nd February 2005 to Banban to meet Victor Ron with his group, he and his group did so in direct disobedience to the Orders of 5^th November 2004.
   
6. Jean Yves Etul acted on the orders of Mr Athanas to recover and repossess his taxi vehicle. He acted blindly on the order instead of making sure it was (a) a lawful authority and (b) that it was an order from the Court. When he did, he too was covered by clause 3 (b) of the Orders of 5^th November 2004.
   
7. Bakon Jonathan acted also on the orders of Mr Athanas blindly without first making sure Mr Athanas had lawful authority, and second, that it was an order from the Court. When he did, he was covered by clause 3(b) of the Orders of 5^th November 2004.
   
8. There is no evidence against Willie Thomas.
   
9. And also that there is no evidence of disobedience of Court Order against Victor Ron.
   

Conclusion

The Court concludes that Wari Athanas, Jean Yves Etul and Bakon Jonathan had failed to comply with clause 3(b) of the Orders of the Court of Appeal dated 5^th November 2004 and that by arresting Mr Athanas’ taxi and repossessing it without the prior written consent of Ms Pierre as Official Receiver and Administrator, that they had interfered with her administration and management of the Scheme. Therefore the Court is satisfied that they committed a breach of the Orders of Court and are guilty of contempt of court.

Punishment and Orders

Accordingly I Order that each of them be punished as follows:-

(1) Wari Athanas to pay a fine of VT15,000 payable by 11.30 am Monday 31^st October. Failure to pay by that time will result in imprisonment for 15 days.

(2) Jean Yves Etul to pay a fine of VT8,000 also payable by 11.30 am Monday 31^st October 2005. In default, imprisonment for 8 days.

(3) Bakon Jonathan to pay a fine of VT8,000 also payable by 11.30 am Monday 31^st October 2005. In default, imprisonment for 8 days.

(4) All payments must be made to the Registry of the Court.

(5) Victor Ron and Willie Thomas are discharged accordingly.

(6) The Applicant will pay Victor Ron’s costs of and incidental to this proceeding on an indemnity basis, to be agreed.

DATED at Luganville this 28^th day of October, 2005.

BY THE COURT

OLIVER A. SAKSAK

Judge