A petitioner came before the Court of Appeal to hold an accused in contempt of Court for defying an enjoining order to refrain from selling a property, by entering into a sales agreement. (Croos and Another v. Dabrera - SLR - 205, Vol 1 of 1999 [1999] LKCA 3; (1999) 1 Sri LR 205 (January 20, 1999)).
Contempt being a criminal matter in this country, it would be noticed that the defendant in the District Court was referred to as the defendant-respondent and alternately as defendant-accused, in the Court of Appeal.
The bare bones facts of the case were as follows, as set out here in this excerpt from the DC judgement: “The plaintiff-petitioners as trustees of the ‘John Leo de Croos Trust’, filed action in the District Court of Colombo, to have the defendant-accused evicted from premises bearing assessment number 33, Horton Place, Colombo 7, and to seek a declaration of Title concerning the premises.”
With regard to the enjoining order, it was a clear order restraining the defendant from entering into any kind of transaction regarding a property. The fiscal had submitted in court that the order had been duly served on the defendant.
The Court of Appeal judgement states: “The plaintiff-petitioners obtained an enjoining order dated, 28.03.90, which stated inter alia that: ‘You are hereby ordered to be restrained from leasing, letting, mortgaging, alienating or entering into any kind of transaction with regard to the property described in the schedule which could jeopardize the rights of the plaintiffs as trustees of the above trust until the final determination of this action’.”
Despite the enjoining order, the defendant had proceeded to enter into an agreement to dispose of the property by first entering into a sales agreement. The notary that attested the Sales Agreement had testified in court that the said agreement was entered into, and this fact was never contested:
“Despite the receipt of the said notice and whilst the aforesaid enjoining order was in force, the accused-defendant had entered into an agreement dated 02.02.92, bearing No. 242 which was notarially executed and attested by Notary A. Keerthiratne. Under this agreement, the defendant-accused purported to sell and convey the aforesaid premises in a sum of Rs. 2 million to a third party, and had accepted by way of an advance a sum of Rs. 50,000. The fact that this agreement to sell had indeed been entered into was not contested. The purported agreement was produced and marked P1 and corroborated by the oral testimony of Notary A. Keerthiratne.”
The defence resorted to by the accused seemed an act of desperation. It was contended that the reservation clauses in the Sales Agreement prevented her from being held liable for violation of the enjoining order. A reservation clause simply means in general in a sales agreement that the seller can withdraw from the sale and the title of the property doesn’t pass, unless the buyer follows through, and pays the rest of the money following from the payment of the advance. So, the submission of the accused was basically that since she had only entered into a sales agreement and title hadn’t passed, that she was not in contempt.
Court was not impressed. As the judgement records: “Submissions on behalf of the defendant-accused were made, that the ‘reservation clauses’ contained in Clauses 1 to 7 of the Sales Agreement excluded her from being liable for the violation of the foregoing Order. This is untenable as this would mean that every enjoining order could be violated with impunity, based on ‘reservation clauses’. It must be viewed in the 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 totality of the evidence that the Agreement had been executed in patent contravention of the enjoining order, dated 28.03.90.”
Court in laymen’s terms, simply held that any excuses do not cut. The Sales Agreement was with intent to violate the enjoining order, period.
The severity of the offence was encapsulated in a case cited in judgement: “The Lord President Clyde in Johnson v. Grant stated: “The phrase contempt does not in the least describe the true nature of the class of offence with which we are concerned … the offence consists in interfering with the administration of law, in impeding and perverting the course of justice, it is not the dignity of the court that is offended, a petty and 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 of proof is hence that of proof beyond a reasonable doubt. Compliance of the enjoining order cannot be obtained by resorting to contempt of court action – but however, the aggrieved party can appeal for a contempt ruling if the enjoining order had been violated. If the court decree had been violated with impunity the party in contempt should have been seen to, with criminal intent, sought to have defied the court order.
The Appeal Court judgement states: “In the latter case mere disobedience without more is insufficient. A party cannot sacrifice his right of appeal nor is it permissible to obtain execution in the guise of contempt proceedings. Where the law expressly provides for execution of decrees contempt proceedings cannot be resorted to. In the latter type of disobedience, the contemner should have acted in defiance of the order or willfully refused to obey it. Deliberate disdain of the court, or a disregard for, or defiance of the court and its decree is required.”
What if the party accused had been in contempt because he or she was merely following legal advice? That could be a mitigating factor, but not if there was deliberate and willful intent to defy, on the part of the accused:
“In the case of Dayawathie and Pius Pieris v. Dr. S.D.M. Fernando and Others it was held that the plea, that the act was done after obtaining legal advice is not conclusive, but it may be a mitigatory factor and relevant in certain 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-accused had deliberately contravened the explicit provisions of the enjoining order of the court, and it cannot be said that she had acted bona fide. It is clear from the facts that her acts were both deliberate and willful.”
In the case under review, the accused was held by the Court of Appeal to have been in contempt of the court order, and she, technically the defendant-respondent, was held guilty as charged.
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