Croos and Another v. Dabrera
CROOS AND ANOTHER
COURT OF APPEALISMAIL. J., (P/CA)
A. NO. 63/96
C. COLOMBO NO. 14930/LNOVEMBER 11, 1998.
Contempt of court – Enjoining Order – Contravention – Constitution Art. 105 (3)- Judicature Act s. 55 – Proof beyond reasonable doubt – Jurisdiction of Courtof Appeal – Actus Reus – Mens rea – Disobedience – Wilful – Strict liability -Rule 31 old English Rules of the Supreme Court.
The plaintiff-petitioners as trustees filed action seeking a declaration of title andeviction of the accused-defendant from the premises in question. Plaintiff alsoobtained an enjoining order restraining him from leasing, letting, mortgaging,alienating or entering into any kind of transaction which could jeopardise the rightsof the plaintiffs as trustees, until the final determination of the action.
Whilst the said enjoining order was in force the accused-defendant had enteredinto an agreement to sell the premises in question. The defendant had furtherinitiated negotiations with the Commissioner of National Housing to have theproperty vested under CHP law. On being charged for contempt of court.
Held: Per Tilakawardena, J.
"Action taken with regard to acts of contempt is based on the premisesthat a well regulated laws of a civilised community cannot be sustainedwithout sanctions being imposed for such conduct. It is important to maintainthe respect and dignity of the court and its officers, whose task it is touphold and enforce the law because without such respect, public faith inthe administration of justice would be undermined and the law itself wouldfall into disrepute."
The offence of contempt of court under our law is a criminal chargeand the burden of proof is that of proof beyond reasonable doubt.
Under Rule 31, old English Rules, an act of disobedience wouldbecome an act of contempt only if it was 'wilful'. Wilful was takento mean that which, where the terms of an injunction were brokenit was not necessary to show that the person was intentionally
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contumacious or not he intended to interfere with the administrationof justice. Yet where the failure or refusal to obey the order of courtwas casual or accidental or unintended, it would not be met bythe full rigours of the law.
There is a difference between disobedience to injunction andundertakings given to court and disobedience to a declaratory orderor a judgment or decree of court. Our law therefore strictly doesnot need a proof of a wilful mens-rea.
If the act was done after obtaining legal advice, it may be amitigatory factor and relevant in certain circumstances only to provebona tides.
Cases referred to:
Johnson v. Grant – 1923 SC 787.
In Re Bramblewale – 1969 1 All ER 1012.
Cornel & Co.. Ltd. v. Mitsuit & Co. Ltd., and Taisai Corporation -CA 883/96 CAM 11.11.98.
In Re S. M. A. Cader and another – 68 NLR at 293.
Fairelough & Sons v. Manchester Ship Canal (No.) of 1897 – 41 Sol Jo225.
Dayawathie and Pius Pieris v. Dr. S. D. M. Fernando and others – 19882 SLR 314.
APPLICATION for a Rule NISI on respondent to show cause against being
punished for contempt of court.
Wijeyadasa Rajapakse with Kuwera de Soysa for the plaintiff-petitioners.
Sanath Jayatillake with Rangith Karunaratne for the defendant-respondent.
Cur. adv. vult.
January 20, 1999.
SHIRANEE TILAKAWADENA, J.
The plaintiff-petitioners as trustees of the "John Leo de Croos Trust",filed action in the District Court of Colombo, to have the defendantaccused evicted from premises bearing assessment number 33, HortonPlace, Colombo 7, and to seek a declaration of Title concerning thepremises.
The plaintiff-petitioners obtained an enjoining order dated, 28.03.90,which stated inter alia that:
CACroos and Another v. Dabrera (Shiranee Tilakawardena, J.)207
“You are hereby ordered to be restrained from leasing, letting,mortgaging, alienating or entering into any kind of transaction withregard to the property described in the schedule which couldjeopardize the rights of the plaintiff’s as trustees of the above trustuntil the final determination of this action.”
The terms of the order are unambiguous, and clearly restrainedthe defendant-accused from entering into any transaction whatsoeveras regard the premises in suit referred to aboye.
The said order was served on the defendant-accused on 30.04.90.The Fiscal Officer (K. K. Gunadasa) who had re-served the said ordergave evidence of the service of the order. He had also tendered anaffidavit deposing to the fact of having served the order. The registermaintained by the court was marked P10 and the notebook of theFiscal maintained P9. The endorsements contained therein werereadverted to.
Despite the receipt of the said notice and whilst the aforesaidenjoining order was in force, the accused-defendant had entered intoan agreement dated 02.02.92, bearing No. 242 which was notariallyexecuted and attested by Notary A. Keerthiratne. Under thisagreement, the defendant-accused purported to sell and convey theaforesaid premises in a sum of Rs. 2 million to a third party, andhad accepted by way of an advance a sum of Rs. 50,000. The factthat this agreement to sell had indeed been entered into was notcontested. The purported agreement was produced and marked P1.and corroborated by the oral testimony of Notary A. Keerthiratne.
D. S. Rupasinghe, an Attorney-at-law, who was called as a witnessby the defendant-accused, admitted having advised the defendant-accused in this transaction. Rupasinghe stated that he was theAttorney-at-law of the defendant-accused in case in the District Courtwhich issued in enjoining order. He stated that his client andhe had been aware of the terms of the enjoining order. He also statedthat he had acted on the advice of another senior counsel.
Furthermore, it was evident from his testimony that, Rupasinghehas acted as a broker for the sale of the premises under the agree-
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merit. He stated that he had an oral assurance of Mr. J. N. A. Croos,the 1st plaintiff in the case, that the case will be withdrawn in theevent of the sales agreement being honoured.
If this was an intention to adjust this matter by having obtainedsuch an assurance, it would have been expected of an Attorney-at-law to intimate the same to court and obtain permission for theexecution of the sales agreement.
Submissions on behalf of the defendant-accused were made, thatthe “reservation clauses" contained in clauses 1 to 7 of the salesagreement excluded her from being liable for the violation of theforegoing Order. This is untenable as this would mean that everyenjoining order could be violated with impunity, based on 'reservationclauses'. It must be viewed in the light of the fact that parties cannotindirectly do what they are directly restrained in law from carrying out.
It was clear from the consideration of the totality of the evidencethat the agreement had been executed in patent contravention of theenjoining order, dated 28.03.90.
The defendant-accused had also by letter dated 2.02.93, markedas P2, initiated negotiations with the Commissioner of National Housingto have this property vested under the Ceiling of Housing and PropertyLaw, No. 1 of 1973. She has also given her consent to the sameby the affidavit marked as P4. Her acts pertaining to the vesting ofthe house and premises had directly led to a consequential vestingorder dated 27.04.93 marked as P3. In order to have this ordervacated, the plaintiffs were compelled to pursue the matter before theCeiling of Housing and Property Board of Review and the Court ofAppeal. The conduct of the defendant-accused, therefore had theeffect of rendering nugatory the enjoining order. Clearly, the defendant-accused had acted in contravention of the enjoining order when she. initially sent P2 to the Commissioner of Housing.
The defendant-accused had also let the premises in suit, toMr. Weerasinghe. This was proved by oral evidence as well as thedocumentary evidence contained in the affidavit of the defendantaccused marked P4. This document has not been controverted.
Croos and Another v. Dabrera (Shiranee Tilakawardena, J.)209
The defendant-accused neither gave oral testimony nor didproduce any documentary evidence.
The charges of "contempt of court" were preferred against thedefendant-accused by this court under powers vested in it, in termsof Article 105 (3) of the Constitution read with section 55 of theJudicature Act. The charges preferred against her were for acting inviolation of the enjoining order of 28.3.90, by the execution of thesales agreement No. 242 marked P1; and wilfully and fraudulentlymaking arrangements with the Commissioner under the Ceiling ofHousing and Property Law by the furnishing of the affidavit P4, andthereby acting in comtempt of the authority of the District Court.
The charge of contempt of court, was classically defined in thecase of Regina v. Kopito, by Goodman, J. as “the scandalizing ofthe court, in that the words or the acts are likely to bring the courtand Judges into disrepute.
The action taken with regard to acts of contempt is based on thepremises that a well regulated laws of a civilized community cannotbe sustained without sanctions being imposed for such conduct. Itis therefore thought important to maintain the respect and dignity ofthe court and its officers, whose task it is to uphold and enforce thelaw, because without such respect, public faith in the Administrationof Justice would be undermined and the law itself would fall intodisrepute.
The Lord President Clyde in Johnson v. Grant" stated: "the phrasecontempt does not in the least describe the true nature of the classof offence with which we are concerned …. the offence consistsin interfering with the administration of law, in impeding and pervertingthe course of justice, it is not dignity of the court that is offendeda petty and misleading view of the issues involved – it is thefundamental supremacy of the law which is challenged".
The offence of contempt of court under our law is a criminal chargeand the burden of proof is that of, proof beyond a reasonable doubt.
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Even if contempt is not always a crime, it bears a criminal characterand therefore, it must be satisfactorily proved. Lord Denning, M Rin Bramblewalef® stated that “a contempt of court must be satisfactorilyproven. To use the all time honoured phrase it must be proven beyondreasonable doubt.
The jurisdiction of the Court of Appeal to punish for contempt, wherethe acts complained were committed in the original courts was dis-cussed in the case of Cornel and Co., Ltd v. Mitsui and Co., Ltd.and Taisei Corporation. Following the decision of In Re S.M.A. Caderand another at 293, Wigneswaran, J. has held that for both thespecial power prescribed in part LXV of the Civil Procedure Code topunish summarily offences of contempt of court committed in faciecuriae, and offences committed in the course of any act or proceedingin the original court does not effect the power of the Court of Appealto punish for contempt under Article 105 (3) of the Constitution.
When considering the charge of contempt of court, the actus reuscommitted by the defendant-accused was discussed in great detailin the earlier part of the judgment. On the evidence it has been provedbeyond a reasonable doubt that there has been disobedience anda non-compliance of the explicit terms of the enjoining order dated28.3.90.
It is also necessary consider the mens rea pertaining to this charge.Linder Rule 31 of the Old English Rules of the Supreme Court, anact of disobedience would become an act of contempt only if it was"Wilful". "Wilful" was taken to mean that while, where the terms ofan injunction were broken it was not necessary to show that the personwas intentionally contumacious or that he intended to interfere withthe administration of justice, yet where the failure or refusal to obeythe order of court was casual or accidental and unintentional, it will“not be met by the full rigours of the law". (Borrie and Lowe's Lawof Contempt, at p. 100-104 following Lord Russell, CJ. in Fairelough& Sons v. Manchester Ship Canaf5).
In the case of Dayawathie and Peiris v. Dr. S. D. M. Fernandoand others/® Justice Jameel has distinguished the mens rea in the
Croos and Another v. Dabrera (Shiranee Tilakawardena, J.)211
offence into two categories and held that there is a difference betweenthe mens rea in cases where there has been a disobedience toinjunctions and undertakings given to court on the one hand, and thosein which disobedience has been to a decree and judgment on theother. He has held that "while in the former, the act itself, unless ithas been accidental, casual or done unintentionally, was held to beculpable. In the latter instance, there must be something more. Namelya deliberate disdain of the court or a disregard for, or a defiance ofthe court and its decree".
In the former case there is strict liability. Where the order is coerciveevery diligence must be exercised to observe it to the letter. In suchcircumstances there is no need to show that the person charged withcontempt was intentionally contumacious or that he intended tointerfere with the administration of justice. Unless the act wasaccidental, casual or done unintentionally it is culpable.
In the latter case mere disobedience without more is insufficient.A party cannot sacrifice his right of appeal nor is it permissible toobtain execution in the guise of contempt proceedings. Where the lawexpressly provides for execution of decrees contempt proceedingscannot be resorted to. In the latter type of disobedience the contemnershould have acted in defiance of the order or wilfully refused to obeyit. Deliberate disdain of the court, or a disregard for, or defiance ofthe court and its decree is required.
Therefore it is clear that in our law, there is a difference betweendisobedience to injunctions and undertakings given to court anddisobedience to a declaratory order or a judgment or decree of court.
Our law therefore strictly does not need a proof of a wilful mensrea, when an injunction is given by a competent court. Neverthelessaccording to the facts disclosed in the evidence pertaining to this case,it is apparent that there has been a wilful disobedience of the enjoiningorder. The fact that the enjoining order had been served on thedefendant-accused and that she was fully aware of its terms has notbeen contested. In addition, even in the agreement entered into herthe "reserve clauses" contained therein, was to secure a defense evenat the time of entering the agreement. The evidence of all the
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witnesses in the court and the documents referred to disclose thatthe disobedience to the enjoining order has been deliberate andwilful this has been proved beyond a reasonable doubt.
Another matter to be considered is whether the legal advice givento the defendant-accused would exonerate her from liability. Theveracity of this evidence has already been dealt with in the earlierpart of the order. Assuming however that she had acted solely onlegal advice, nevertheless under our law she cannot disclaim liabilityon this basis.
In the case of Dayawathie and Pius Pieris v. Dr. S. D. M. Fernandoand others (supra) it was held that the plea, that the act was doneafter obtaining legal advice is not conclusive, but it may be a mitigatoryfactor and relevant in certain circumstances only to prove bona tides.
In this case no direct plea was taken, but even upon a considerationof the above it is clear that the defendant-accused had deliberatelycontravened the explicit provisions of the enjoining order of the court,and it cannot be said that she had acted bona tides. It is clear fromthe facts that her acts were both deliberate and wilful.
Submissions were also made that the charges have not beenproperly framed. Objection has never been taken on the charges, andit is clear from the cross-examination that the charges were clearlyunderstood by the defendant-accused. In any event, no prejudice hasbeen caused and we hold that the objections to the charges are withouta basis and untenable in law.
In all the circumstances of this case we hold that the chargesagainst the defendant-accused has been proved beyond a reasonabledoubt and we hold her guilty as charged.
ISMAIL, J. (P/CA) – I agree.Rule made absolute.
Defendant-respondent – guilty as charged.