Robertson v Isaacs

• Jurisdiction: St Vincent and the Grenadines
• Judge: Robotham, J.A.
• Judgment Date: 20 July 1981
• Neutral Citation: VC 1981 CA 2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: Civil Appeal No. 9 of 1979
• Date: 20 July 1981

Court of Appeal

Peterkin, C.J.; Berridge, J.A.; Robotham, J.A. (Ag.)

Civil Appeal No. 9 of 1979

Robertson

and

Isaacs

Appearances:

O.R. Sylvester for the appellant.

J.H. Bayliss Frederick for the respondent.

Practice and procedure - Contempt of court

1 Robotham, J.A. (AG): This is an appeal from the judgment of Glasgow, J. dismissing a motion for contempt of court brought by the plaintiff/appellant against the defendant/respondent, for failure to comply with the terms of an injunction made by the same judge on May 31, 1979.

2 The action was commenced on July 23, 1977 by a Writ (139/1977) naming Inez Boatswain, Stephen Bascombe, and the respondent Grafton Isaacs as defendants and the relief sought was:

• (1) Specific performance of an oral agreement between the appellant and the first defendant Inez Boatswain made in July 1971 for the sale by her to the appellant of approximately 1 ³/₄ acres of land situate at Villa for price of $7,000.00

• (2) A declaration that the said Inez Boatswain and the respondent are trustees of the property for the plaintiff.

• (3) An injunction to restrain the second defendant Stephen Bascombe and the respondent whether by themselves or their servants or agents or otherwise howsoever from entering or crossing the said property and from interfering and/or molesting the plaintiff/appellant whether by himself or his servants or agents or otherwise howsoever in the occupation and use of the said property.

3 Appearances were entered by all three defendants on July 26, 1977, but no statement of claim was ever filed.

4 On July 25, 1977, a summons was issued to all parties to attend before a judge in Chambers on July 28, 1977, for the hearing of the application for an interlocutory injunction. Affidavits in opposition were filed on behalf of the defendant Bascombe, and the respondent. The matter was not heard on July 28, but was adjourned to September 13, 1977. On that date it was adjourned to a date to be fixed.

5 Nothing further was done in the matter until May 3, 1979, when an affidavit was filed by the appellant. Thereafter on May 31, 1979 the summons filed on July 25, 1977, for the hearing of the application for the interlocutory injunction was heard. At that hearing the appellant and his counsel were present, but the respondent did not appear, and was not represented by counsel. Upon the appellant giving the usual undertaking as to damages, the interlocutory injunction in the terms sought was granted. The terms of the order were personally and quite properly communicated to the respondent in June 1979 by Andrew Cummings, a solicitor, who had earlier as an associate of Mr. E.A.C. Hughes represented the respondent; notice of the order was also communicated to the respondent by Arleigh Douglas, when he tried unsuccessfully to serve the court's order on him on June 22, 1979; on July 11, 1979 Oscar Moses a Bailiff of the High Court personally served the respondent with a copy of the court's order, along with the undertaking as to damages. There can be no doubt therefore that the terms of the order were regularly communicated to the respondent. Despite this, he completely ignored the order of the court, and continued by himself, his servants and/or agents to carry out construction work on the land. Particulars need not be given because there is no dispute that this is precisely what the respondent intentionally did for reasons which will appear later.

6 On July 31, 1979, the plaintiff/appellant brought the motion seeking to have the respondent committed:–

“… for his contempt in failing and/or refusing to obey the order of the court made the 31st day of May, 1979, the terms of which were personally communicated to him by Andrew Cummings solicitor in the month of June and notice of which order was brought to his attention by Arleigh Douglas on the 22nd day of June, 1979, and a copy of the said order was served personally on him on the 11th day of July 1979.”

7 The motion was heard by the same judge on August 21/22, 1979. It was resisted on two grounds namely:–

• (1) The motion was defective in that it did not state the grounds of the application as required by Order 73 rule 2(2) of the Rules of the Supreme Court (Revision) Order, 1972.

• (2) The granting of the interlocutory injunction on May 31, 1979 was a nullity because no document had been filed for one year from the date of the last proceeding had on September 13, 1977 when the application for the interlocutory injunction was adjourned for a date to be fixed. The suit 137/1977 was therefore deemed altogether abandoned and incapable of being revived by virtue of Order 34 rule 11(1)(a) of the Rules of the Supreme Court, 1970, with effect from September 14, 1978. In the given circumstances the order itself being invalid, there was no obligation to obey it. In a written judgment delivered on November 22, 1979, the learned trial judge upheld both submissions and dismissed the motion.

8 At the hearing of this appeal, Mr. Frederick for the respondent raised the preliminary objection that the appellant had no right of appeal and referred the court to section 60 of the West Indies Associated States Supreme Court Act, 1970. I can summarily dispose of this objection by stating my view that section 60 deals only with criminal contempt, and has no application to civil matters. The grounds of appeal are set out hereunder:–

• (1) The learned judge was wrong in law in allowing and/or permitting the defendant/respondent to utilise the plaintiff/appellant's application for contempt for the purpose of discharging the interlocutory injunction.

• (2) The learned judge was wrong in law in allowing and/or permitting the defendant/respondent in contempt proceedings to raise and argue the issue of abandonment of Suit No. 139 of 1977 which was not and ought not to have been an issue in the contempt proceedings.

• (3) The learned judge misconstrued Order 34 of the Rules of the Supreme Court, 1979 and came to a wrong conclusion in law in holding that Suit No. 139 of 1977 must be deemed to be altogether abandoned and incapable of being revived as from 14th September, 1978 pursuant to Order 34 rule 11 in that he failed to determine the preliminary question:

  • (a) Did Suit No. 139 of 1977 ever become ripe for hearing and if so,

  • (b) when did it become ripe for hearing?

• (4) Further and in the alternative Suit No. 139 of 1977 never became ripe for hearing since by Order 34 rule 3 a cause or matter shall not become ripe for hearing if there are any interlocutory proceedings pending; and the summons upon which the interlocutory injunction was made on 31st May, 1979 was pending proceeding in Suit No. 139 of 1977.

• (5) The learned judge erred in law in holding that where an order of the court is a nullity that it is open to a person to treat that order as such and to disregard the order without going to the court for relief.

• (6) Further or alternatively the learned judge erred in law in disregarding the fundamental principal of law that is, it is the unqualified obligation of every person against whom, an order is made by a court of competent jurisdiction to obey it unless and until the order is discharged.

• (7) The Learned judge was wrong in law in deciding the issue of abandonment of the cause or matter out of which the contempt proceedings arose without evidence and which was not an issue in the proceedings with which he was seized.

• (8) The learned trial judge was wrong in law in holding that the notification by a solicitor to the client of his Associate of the terms of an injunction made by a court of competent jurisdiction against him is privileged.

• (9) The learned judge was wrong in law in holding:

  • (a) that the Notice of Motion is defective and

  • (b) that that defect is fatal.

9 I will deal first of all with the question whether or not the motion is defective. (See ground 9).

10 Order 73 rule 2 states:–

• (1) Where an application for an order of committal may be made to the court, the application must be made by motion and be supported by an affidavit.

• (2) … the notice of motion stating the grounds of the application and accompanied by a copy of the affidavit in support of the application must be served personally on the person sought to be committed.

11 It is quite clear that the injunction in this case was designed only to enjoin the respondent from trespassing on the land. Not only were the terms of the injunction made on May 31, 1979 regularly communicated to and served personally upon the respondent, but on August 3, 1979 the bailiff of the High Court for St. Vincent served the motion for committal on the respondent, along with the affidavits of Calvin Mandeville, Oscar Moses, Andrew Cummings and Arleigh Douglas which were being relied on in support of the motion. The notice of motion clearly stated that his imprisonment was being sought “for his contempt in failing and/or refusing to obey the order of the court made on May 31, 1979.”

12 I can readily conceive of a case where an injunction is granted to restrain a person from doing one of several things. In such a case, if there is a breach of any of them, the party in contempt must be made aware of the particular way in which he has breached the order of the court. Not only must he know but the court also must know...