Legal Services and Laws of Sri Lanka


SLR-1999 Vol.1-P205

SLR - 1999 Vol.1, Page No - 205

CROOS AND ANOTHER

v.

DABRERA
COURT OF APPEAL

ISMAIL, J., (P/CA)

TILAKAWARDENA, J.

C.A. NO. 63/96

D.C. COLOMBO NO. 14930/L

NOVEMBER 11, 1998.

Contempt of court - Enjoining Order - Contravention - Constitution Art. 105 (3)-JudicatureActs.55-Proofbeyond
reasonable doubt - Jurisdiction of Court of 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 and eviction of the accused-defendantfrom
the premises in question. Plaintiff also obtained an enjoining orderrestraininghimfromleasing,letting,mortgaging,
alienating or entering into any kind of transaction which could jeopardise the rights of the plaintiffsastrustees,until
the final determination of the action.
Whilst the said enjoining order was in force the accused-defendant had entered into an agreementtosellthepremisesin
question. The defendant had further initiated negotiations with the Commissioner of National Housingtohavetheproperty
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 premises that a well regulated laws ofacivilisedcommunity
cannot be sustained without sanctions being imposed for such conduct. It is important to maintain the respect and dignityof
the court and its officers, whose task it is to uphold and enforce the law because without such respect, public faith inthe
administration of justice would be undermined and the law itself would fall into disrepute."

(1) The offence of contempt of court under our taw is a criminal charge and the burden ofproofisthatofproofbeyond
reasonable doubt.
(2) Under Rule 31, old English Rules, an act of disobedience would become an act of contempt only if it was 'wilful'.Wilful
was taken to mean that which, where the terms of an injunction were broken it was not necessary to show that thepersonwas
intentionally contumacious or not he intended to interfere with the administration ofjustice.Yetwherethefailureor
refusal to obey the order of court was casual or accidental or unintended, it would not be met by thefullrigoursofthe
law.
(3) There is a difference between disobediencetoinjunctionandundertakingsgiventocourtanddisobediencetoa
declaratory order or a judgment or decree of court. Our law therefore strictly does not need a proof of a wilful mens-rea.
(4) If the act was done after obtaining legal advice, it may be a mitigatory factor andrelevantincertaincircumstances
only to prove bona fides.

Cases referred to:
1. Johnson v. Grant - 1923 SC 787.
2. In Re Bramblewale - 1969 1 All ER 1012.
3. Cornel & Co., Ltd. v. Mitsuit & Co. Ltd., and Taisai Corporation - CA 883/96 CAM 11.11.98.
4. In Re S. M. A. Cader and another - 68 NLR at 293.
5. Fairelough & Sons v. Manchester Ship Canal (No.) of 1897 - 41 Sol Jo 225.
6. Dayawathie and Pius Pieris v. Dr. S. D. M. Fernando and others - 1988 2 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.

January 20, 1999.
SHIRANEE TILAKAWADENA, J.
The plaintiff-petitioners as trustees of the "John Leo de Croos Trust", filed action in the DistrictCourtofColombo,to
have the defendant accused evicted from premises bearing assessment number 33,HortonPlace,Colombo7,andtoseeka
declaration of Title concerning the premises.
The plaintiff-petitioners obtained an enjoining order dated, 28.03.90, which stated inter alia that:

"You are hereby ordered to be restrained fromleasing,letting,mortgaging,alienatingorenteringintoanykindof
transaction with regard to the property described in the schedule which could jeopardize therightsoftheplaintiffsas
trustees of the above trust until the final determination of this action."
The terms of the order are unambiguous, and clearly restrained thedefendant-accusedfromenteringintoanytransaction
whatsoever as regard the premises in suit referred to above.
The said order was served on the defendant-accused on 30.04.90. The Fiscal Officer (K. K. Gunadasa)whohadre-servedthe
said order gave evidence of the service of the order. He had also tendered anaffidavitdeposingtothefactofhaving
served the order. The register maintained by the court was marked P10 and the notebookoftheFiscalmaintainedP9.The
endorsements contained therein were readverted to.

Despite the receipt of the said notice and whilst the aforesaid enjoining orderwasinforce,theaccused-defendanthad
entered into an agreement dated 02.02.92,bearingNo.242whichwasnotariallyexecutedandattestedbyNotaryA.
Keerthiratne. Under this agreement, the defendant-accused purported to sell and convey the aforesaid premisesinasumof
Rs. 2 million to a third party, and had accepted by way of an advance a sum of Rs. 50,000. The fact thatthisagreementto
sell had indeed been entered into was not contested. The purported agreement was produced and marked P1. and corroboratedby
the oral testimony of Notary A. Keerthiratne.

D. S. Rupasinghe, an Attorney-at-law, who was called as a witness bythedefendant-accused,admittedhavingadvisedthe
defendant accused in this transaction. Rupasinghe stated that he was the Attorney-at-law of the defendant-accused in casein
the District Court which issued in enjoining order. He stated that his client and he had beenawareofthetermsofthe
enjoining order. He also stated that he had acted on the advice of another senior counsel.
Furthermore, it was evident from his testimony that, Rupasinghe has acted as a broker for the sale of the premises underthe
agreement. He stated that he had an oral assurance of Mr. J. N. A. Croos, the 1st plaintiff in the case, that thecasewill
be withdrawn in the event of the sales agreement being honoured.
If this was an intention to adjust this matter by having obtained such an assurance,itwouldhavebeenexpectedofan
Attorney-at-law to intimate the same to court and obtain permission for the execution of the sales agreement.
Submissions on behalf of the defendant-accused were made, that the "reservation clauses" contained in clauses 1 to 7ofthe
sales agreement excluded her from being liable for the violation of the foregoing Order. Thisisuntenableasthiswould
mean that every enjoining order could be violated with impunity, based on 'reservation clauses'. It mustbeviewedinthe
light of the fact that parties cannot indirectly do what they are directly restrained in law from carrying out.
It was clear from the consideration of the totalityoftheevidencethattheagreementhadbeenexecutedinpatent
contravention of the enjoining order, dated 28.03.90.
The defendant-accused had also by letter dated 2.02.93, markedasP2,initiatednegotiationswiththeCommissionerof
National Housing to have this property vested under the Ceiling of Housing and Property Law, No. 1of1973.Shehasalso
given her consent to the same by the affidavit marked as P4. Her acts pertaining to the vesting ofthehouseandpremises
had directly led to a consequential vesting order dated 27.04.93 marked as P3. In ordertohavethisordervacated,the
plaintiffs were compelled to pursue the matter before the Ceiling of Housing and Property Board of Review andtheCourtof
Appeal. The conduct of the defendant-accused, therefore had the effect of rendering nugatory theenjoiningorder.Clearly,
the defendant accused had acted in contravention of the enjoining order when she initially sent P2totheCommissionerof
Housing.

The defendant-accused had also let the premises in suit, to Mr. Weerasinghe. This was proved by oral evidence as well asthe
documentary evidence contained in the affidavit of the defendant accused marked P4. This document has not been controverted.

The defendant-accused neither gave oral testimony nor did produce any documentary evidence.
The charges of "contempt of court" were preferred against the defendant-accused by this court under powers vested init,in
terms of Article 105 (3) of the Constitution read with section 55 of the Judicature Act. The chargespreferredagainsther
were for acting in violation of the enjoining order of 28.3.90, by the execution of the sales agreement No.242markedP1
and wilfully and fraudulently making arrangements with the Commissioner under the Ceiling of Housing and Property Law bythe
furnishing of the affidavit P4, and thereby acting in contempt of the authority of the District Court.
The charge of contempt of court, was classicallydefinedinthecaseofReginav.Kopito,byGoodman,J.as"the
scandalizing of the court, in that the words or the acts are likely to bring the court and Judges into disrepute.

The action taken with regard to acts of contempt is based onthepremisesthatawellregulatedlawsofacivilized
community cannot be sustained without sanctions being imposedforsuchconduct.Itisthereforethoughtimportantto
maintain the respect and dignity of the court and its officers, whose task it is toupholdandenforcethelaw,because
without such respect, public faith in the Administration of Justice would be undermined and the law itselfwouldfallinto
disrepute.
The Lord President Clyde in Johnson v. Grant(1) stated: "the phrase contempt does not in the least describe thetruenature
of the class of offence with which we are concerned . . . . the offence consists in interfering withtheadministrationof
law, in impeding and perverting the course of justice, it isnotdignityofthecourtthatisoffendedapettyand
misleading view of the issues involved - it is the fundamental supremacy of the law which is challenged".

The offence of contempt of court under our law is a criminal charge and the burden ofproofisthatof,proofbeyonda
reasonable doubt.

Even if contempt is not always a crime, it bears a criminal character and therefore, it must be satisfactorilyproved.Lord
Denning, M R in Bramblewale(2) stated that "a contempt of court must be satisfactorily proven. To use the alltimehonoured
phrase it must be proven beyond reasonable doubt.
The jurisdiction of the Court of Appeal to punish for contempt, where the acts complainedwerecommittedintheoriginal
courts was discussed in the case of Cornel and Co., Ltd v. Mitsui and Co., Ltd.andTaiseiCorporation(3).Followingthe
decision of In Re S.M.A. Cader and another(4) at 293, Wigneswaran, J. has held that for both the special power prescribedin
part LXV of the Civil Procedure Code to punish summarily offences ofcontemptofcourtcommittedinfaciecuriae,and
offences committed in the course of any act or proceeding in the original court does not effect the poweroftheCourtof
Appeal to punish for contempt under Article 105 (3) of the Constitution.
When considering the charge of contempt of court, the actus reus committed by the defendant-accused wasdiscussedingreat
detail in the earlier part of the judgment. On the evidence it has been proved beyond a reasonable doubt that there hasbeen
disobedience and a non-compliance of the explicit terms of the enjoining order dated 28.3.90.

It is also necessary consider the mens rea pertaining to this charge. Under Rule 31 of the Old English Rules oftheSupreme
Court, an act of disobedience would become an act of contempt only if it was"Wilful"."Wilful"wastakentomeanthat
while, where the terms of an injunction were brokenitwasnotnecessarytoshowthatthepersonwasintentionally
contumacious or that he intended to interfere with the administration of justice, yet where the failure orrefusaltoobey
the order of court was casual or accidental and unintentional, it will "not be met by the full rigours of thelaw".[Borrie
and Lowe's Law of Contempt, at p. 100-104 following Lord Russell, CJ. in Fairelough & Sons v. Manchester Ship Canal(5).
In the case of Dayawathie and Peiris v. Dr. S. D. M. Fernando and others(6) Justice Jameel has distinguished the mens reain
the offence into two categories and held that there is a difference between the mens rea in caseswheretherehasbeena
disobedience to injunctions and undertakings given to court on the one hand, and those in which disobedience hasbeentoa
decree and judgment on the other. He has held that "while in the former, the actitself,unlessithasbeenaccidental,
casual or done unintentionally, was held to be culpable. In the latter instance, theremustbesomethingmore.Namelya
deliberate disdain of the court or a disregard for, or a defiance of the court and its decree".

In the former case there is strict liability. Where the order is coercive every diligence must be exercised to observe itto
the letter. In such circumstances there is noneedtoshowthatthepersonchargedwithcontemptwasintentionally
contumacious or that he intended to interfere with the administration of justice. Unless the act wasaccidental,casualor
done unintentionally it is culpable.

In the latter case mere disobedience without more is insufficient. A party cannot sacrifice his right ofappealnorisit
permissible to obtain execution in the guise of contempt proceedings. Where thelawexpresslyprovidesforexecutionof
decrees contempt proceedings cannot be resorted to. In the latter type of disobedience the contemnershouldhaveactedin
defiance of the order or wilfully refused to obey it. Deliberate disdain of the court, or a disregardfor,ordefianceof
the court and its decree is required.
Therefore it is clear that in our law, there is a difference between disobedience to injunctions andundertakingsgivento
court and disobedience to a declaratory order or a judgment or decree of court.

Our law therefore strictly does not need a proof of a wilful mens rea, when an injunction isgivenbyacompetentcourt.
Nevertheless according to the facts disclosed in the evidence pertaining to this case, it is apparent that there hasbeena
wilful disobedience of the enjoining order. The fact that the enjoining order had been served onthedefendant-accusedand
that she was fully aware of its terms has not been contested. In addition,evenintheagreemententeredintoherthe
"reserve clauses" contained therein, was to secure a defense even at the time of entering the agreement. The evidence ofall
the witnesses in the court and the documents referred to disclose that the disobediencetotheenjoiningorderhasbeen
deliberate and wilful this has been proved beyond a reasonable doubt.
Another matter to be considered is whether thelegaladvicegiventothedefendant-accusedwouldexonerateherfrom
liability. The veracity of this evidence has already been dealt with in the earlier part of the order. Assuming howeverthat
she had acted solely on legal advice, nevertheless under our law she cannot disclaim liability on this basis.
In the case of Dayawathie and Pius Pieris v. Dr. S. D. M. Fernando and others (supra) it was held thattheplea,thatthe
act was done after obtaining legal advice is not conclusive, but it may beamitigatoryfactorandrelevantincertain
circumstances only to prove bona fides.

In this case no direct plea was taken, but even upon a consideration of the above it is clear that the defendant-accusedhad
deliberately contravened the explicit provisions of the enjoining order of the court, and it cannotbesaidthatshehad
acted bona fides. It is clear from the facts that her acts were both deliberate and wilful.
Submissions were also made that the charges have not been properly framed. Objection has never beentakenonthecharges,
and it is clear from the cross-examination that the charges were clearly understood by the defendant-accused. Inanyevent,
no prejudice has been caused and we hold that the objections to the charges are without a basis and untenable in law.

In all the circumstances of this case we hold that the chargesagainstthedefendant-accusedhasbeenprovedbeyonda
reasonable doubt and we hold her guilty as charged.

ISMAIL, J. (P/CA) - I agree.

Rule made absolute.
Defendant-respondent - guilty as charged.


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