(1) Lalibai Thakurdas Pagarani (2) Hasibai Known as Mora a Llilaram Kekwlani (3) Rijha Known as Kanta Kishinchand Jethwani (4) Gopi Known as Vanti Jai Motiana (5)kijmari Dhanwanti Thakurdas Pagaranti (6) Saraswati Known as Kanchan Satish Motiani (7) Rukmani Aswani Plaintiffs/Appellants v (1) I. Choithram International S.A. (2) Bytco International S.A. (3) Bholenath Inc. (4) Mahadev Inc. (5) Kishore Thakurdas Pagarani (6) Lekhraj Thakurdas Pagarani (7) Ramesh Pohumal Thanwani (8) Ramchand Dharmadas Rajwani (9) Vashdev Lalchand Pamnani Defendants/Respondents

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: SATROHAN SINGH J.A,MATTHEW J.A. [AG.]
• Judgment Date: 27 July 1998
• Neutral Citation: VG 1998 CA 4,[1998] ECSC J0727-3
• Docket Number: Civil Appeals Nos. 10, 11 and 15 of 1997
• Date: 27 July 1998

[1998] ECSC J0727-3

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Justice Satrohan Singh Justice of Appeal

The Hon. Mr. Justice Albert Redhead Justice of Appeal

The Hon. Mr. Justice Albert Matthew Justice of Appeal (Ag)

Civil Appeals Nos. 10, 11 and 15 of 1997

Between:

(1) Lalibai Thakurdas Pagarani

(2) Hasibai Known as Mora a Llilaram Kekwlani

(3) Rijha Known as Kanta Kishinchand Jethwani

(4) Gopi Known as Vanti Jai Motiana

(5)kijmari Dhanwanti Thakurdas Pagaranti

(6) Saraswati Known as Kanchan Satish Motiani

(7) Rukmani Aswani

Plaintiffs/Appellants

and

(1) I. Choithram International S.A.

(2) Bytco International S.A.

(3) Bholenath Inc

(4) Mahadev Inc

(5) Kishore Thakurdas Pagarani

(6) Lekhraj Thakurdas Pagarani

(7) Ramesh Pohumal Thanwani

(8) Ramchand Dharmadas Rajwani

(9) Vashdev Lalchand Pamnani

Defendants/Respondents

Appearances:

Mr. Alan Steinfeld Q.C, Mr. Stephen Moverley Smith with him for the Appellants.

Mr. Stephen Smith, Mr. Paul Webster with him for the Respondents.

SATROHAN SINGH J.A .

1 This judgment relates to three appeals brought by the appellants against judgments of Ephraim Georges J. They are the offsprings of a multi million dollar suit between the parties. I do not propose to elaborate herein on the facts of that suit. We have already done so comprehensively very recently in our judgment on the substantive issues of that suit. Also, because of the nature of these proceedings I do not consider it necessary to repeat them here.

2 The alleged mischief that necessitated the proceedings resultant in these appeals was the filing by the seventh named appellant RUKMANI ASWANI, allegedly aided and abetted by the other appellants, of an application in pending proceedings in a country called Dubai, for the appointment of a guardian of the estate of Thakurdas Pagarani (deceased). That application was granted and a guardian was appointed. The impression of the respondents was that during the hearing of the substantive matter before Georges J, the appellants had undertaken to the Court not to make any such application. They accordingly filed contempt proceedings against the appellants. Appeal No. 15 of 1997 relates to those proceedings.

3 At the first hearing of the contempt motion on August 15, 1997, Georges J refused an application of the appellants for an adjournment save on terms that they be ordered to apply forthwith to the Court in Dubai to stay the proceedings in which the guardian had been appointed. On August 22, 1997, the appellants applied to said Judge for a variation of that order. That application was dismissed by the Judge. Appeals No. 10 and 11 are from those two orders.

4 Subsequent to those two orders of Georges J and before these appeals came on for hearing, the guardianship order made in Dubai was rescinded. That rescission order virtually removed the bedrock of Appeals No. 10 and 11 and left them as mere empty shells. As a result we can see no legally justifiable reason to involve ourselves in their merits or demerits. They are now merely matters of an academic nature. Accordingly, applying the accepted legal principle that a Court ought not to adjudicate on a matter which is purely of an academic iiature, we would order that appeals Nos. 10 and 11 do stand dismissed. Because we have not decided those two appeals on their merits we would make no order as to costs. The remainder of this judgment will therefore only address the appeal in the contempt proceedings No. 15 of 1997.

5 On August 7, 1997, the respondents issued a motion before the High Court to commit the appellants for their alleged breach of an undertaking given by them through their Counsel to the Court on January 22, 1997. This allegation was subsequently amended to allege a breach of the undertaking "recorded in the Court Order…. entered on 11 July 1997." Georges J heard the motion and found the appellants guilty of breaching the undertaking recorded in the order of July 11, 1997. After they were convicted, the appellants through their Counsel by way of mitigation, apologised for their behaviour to the Court. Georges J accepted their apology and imposed no penalty other than an order that they pay the costs of the contempt proceedings to the respondents.

6 The Appellants have appealed and their main concern was, whether on the facts and circumstances disclosed in the record, there was in fact an undertaking that was breached. The respondents cross appealed against the leniency of the so called penalty that was imposed.

7 The law applicable to contempt proceedings is not in dispute. The onus of proving the alleged contempt was on the respondents. Such proof was beyond a reasonable doubt. A Contempt of Court is akin to an offence of a criminal character: Re Bramblevale Limited (1970) Ch:128: Dean -V- Dean (1987) IFLR 517. It is also settled law that before there can be a breach of an undertaking, the terms of such undertaking should be clear, precise and unambiguous and that the persons giving the undertaking should be left in no doubt as to the consequences of a breach. [ Hussain -V- Hussain (1986) Fain 134] In Redwing Limited -V- Redwing Forest Products Limited (1947) LT Cha. Div. 387 it was held that the undertaking must be clear and the breach clear beyond all question. Any ambiguity in the meaning of the undertaking must be resolved in favour of the alleged contemnor.

8 The record of proceedings before us show that during the hearing of the substantive matter, the appellants on January 22, 1997, through their legal advisors proposed an undertaking to the trial Judge. The terms of that undertaking were not fully agreeable to the respondents and therefore the terms were not then settled. At the behest of the Judge, each side was required to submit a draft of the terms of the undertaking. This they did but they were not ad idem. Georges J took the two drafts, chose one and on July 11, 1997 had an order entered in accordance with the one he chose.

9 Before that order was entered, and more particularly on May 24, 1997, the appellants had already applied in pending proceedings before a Court in Dubai for the appointment of a Guardian to administer the Pagarani estate, the subject of the dispute between the parties. That application had two hearings, one on June 18, 1997 and the other on July 2, 1997. There was therefore on those dates no settled form of the terms of the undertaking. As earlier mentioned the order evidencing the undertaking in issue was not entered until July 11, 1998. The submission of Queen's Counsel Mr. Steinfeld for the appellants was that given these circumstances, there was no or no settled undertaking at the time of the alleged breach.

10 Applying the law abovestated to the circumstances disclosed here, we are compelled to agree with the submission of Mr.Steinfeld. We consider that at the time of the alleged contempt, the undertaking the appellants were alleged to be in breach of, did not exist. Before the order of Georges J of July 11, 1997, it was not possible to discern from the transcript the exact terms of any undertaking purportedly given by the appellants. We therefore hold that at the time of the alleged breach there was no effective undertaking in existence.

11 The transcript of the proceedings before us show confusion as to what the undertaking was before the aforesaid order of Georges J. Indeed, the Judge himself, in his discussions with the lawyers in this matter on the question of penalty and costs expressed reservations as to the clarity of the undertaking, and this despite his very firm observation in his written judgment that there was no ambiguity in the undertaking. These reservations revealed themselves when he observed that he was "taking a certain approach because it was clear that there was some misunderstanding at some stage." He said "if one reviews all the documents, two versions were put before me for settling and I opted for one having regard to my own notes and my own recollection." From another part of the transcript Georges J said "I accept that they have misunderstood the undertaking. Two versions were put before me which I accepted one." In reminding Mr. Webster for the respondents that the argument of the appellants was that there was a misunderstanding as to the undertaking, Georges J suggested that there was support for the argument. Finally, the fact that the respondents when they brought the motion, founded it on the "undertaking" of 22 ^nd January 1997 and then amended same to the date of the order entered on July 1997, demonstrates also some confusion in their minds. It is my considered opinion that when Georges J said in his judgment "I see no room whatsoever for any doubt or ambiguity as to the precise terms of the undertaking"; he was referring to the undertaking evidenced in the July 1997 order which it is agreed was settled and entered after the alleged contemptuous event.

12 For these reasons, we cannot find precision in the terms of whatever undertaking the appellants were alleged to have breached. Accordingly, we would allow the appeal No. 15 of 1997, and set aside the judgment of Georges J. The Cross Appeal is dismissed. The appellants will have their costs in this Court in the appeal and the cross appeal and in the Court below to be taxed if Riot agreed. As earlier mentioned, appeals Nos. 10 and 11 of 1997, do also stand dismissed with no order as to costs.

SATROHAN SINGH Justice of Appeal

13 I concur

ALBERT REDHEAD Justice of Appeal MATTHEW J.A. [AG.]

14 The matters before this Court pertain to three appeals and one cross-appeal against several orders made by Georges J between August and October 1997. All the appeals relate to legal proceedings in Dubai to appoint a person as a "Guardian" of the estate of the late T.C. Pagarani which were initiated by the seventh Appellant on May 24, 1997 and supported by the other Appellants. A "Guardian"; was appointed in the proceedings on July 16,...