Traverso v Poilapa
DECISION
1. This is an application by the judgment creditor, Sandrino Traverso for the judgment debtor Kalorib Poilapa to be punished for contempt of Court.
2. The Application was filed with a sworn statement of Sandrino Traverso in support and is made pursuant to r18.14 (2) of the Civil Procedure Rules. The grounds for making the application are basically that Mr Poilapa failed:
• To honour his undertakings to the Court to make monthly payments of VT25,000 towards the debt owing to the judgment creditor in the sum of VT18, 434, 942; and
• To honour his undertaking to the Court that his family would sell lease titles 12/0822/511, 12/0822/512 and 12/0822/513 to settle his debt
3. Mr Poilapa filed a response and a sworn statement in support. His response is he has no means of income as evidenced by his bank statement but referred to two lease titles Nos 12/0543/358 and 12/0543/382 where he has signed consents to transfer to the judgment creditor as part payment of the debt in the sum of VT5 million. No evidence is shown on the document whether it has been lodged with the Lands Department for processing. Furthermore, it appears that the registered proprietor of both leases is Saki Poilapa and not Kalorip Poilapa.
4. Furthermore, he says that the final balance of the debt will be offset by the transfer of stage 2 and 3 of the Lama subdivision to the judgment creditor.
Discussion
5. Rule 18.14 provides for Contempt by failing to comply with an order and provides: -
“18.14 Contempt by failing to comply with an order
(1) This rule applies where a person fails to comply with an order of the court or an undertaking given to the court during or at the end of a proceeding.
(2) If the failure happens during a proceeding:
(a) the court may initiate proceedings for contempt; or
(b) another party may apply for an order that the first person be punished for contempt.
(3) If the failure happens after the proceeding has ended, another person may apply to reopen the proceeding, and ask that the person be punished for contempt.
(4) The application:
(a) must have with it a sworn statement giving details of the contempt; and
(b) must be served personally on the person.
(5) After hearing the matter, the court may do all or any of the following:
(a) fine the person;
(b) order the person be imprisoned for the period the court decides;
(c) for a body corporate, order that the body corporate’s property be seized;
(d) release the person, whether on conditions or not.”
6. On 8 May 2013 the judgment creditor filed a claim against Mr Poilapa seeking repayment of funds loaned to Mr Poilapa totalling VT 14,728,691. As no defence was filed by Mr Poilapa default judgment was entered against him on 8 August 2013 for the amount claimed plus interest at 5%.
7. That debt has remained owing to date and has not been settled by Poilapa. An enforcement order was issued and enforcement warrants were issued which remain unsatisfied. The judgment creditor wants Mr Poilapa to be held in contempt of orders issued and to be punished accordingly.
8. Having considered the submissions by Mr Godden, the question remains whether non-compliance with orders for enforcement of judgments for money amounts can amount to contempt of Court punishable by imprisonment.
9. I refer to the following decision of the Court of Appeal in Naylor v Foundas [2004] VUCA 26 where the court discussed imprisonment for contempt:-
“(c) Imprisonment for contempt
Imprisonment for making default in payment of a sum of money has never been the law in Vanuatu.
Before Independence, the Debtors Act 1869 (U.K.) had application. Section 4 of that Act, subject to six very narrow exceptions that have no application in a case like the present one, provides "... no person shall....be arrested or imprisoned for making default in payment of a sum of money".
The Debtors Act 1869 was an Act of general application. It was still in force in England on the Day of Independence, and in our opinion continued in force in this Republic after that day pursuant to Article 95 (2) of the Constitution.
The principle that a person should not be imprisoned for non-payment of a money sum extended to judgment debts. This was recognized in Order 45 of the High Court (Civil Procedure) Rules 1964 which formerly applied in Vanuatu. That order dealt with the available methods of execution on a judgment. Imprisonment for non-payment was not an available option, and Rule 7 specifically recognized this.
Rule 7 provided:
"A judgment requiring any person to do any act other than the payment of money, or abstain from doing anything may be enforced by writ of attachment, or by committal" (emphasis added)
The High Court (Civil Procedure) Rules 1964 were wholly replaced by the Civil Procedure Rules No. 49 of 2002 Part 14 of the new Rules which deals with Enforcement of Judgments and Orders does not provide for imprisonment for non-payment of money due under a judgment.
Moreover, it is now widely recognized internationally that to imprison a person for an inability to pay a debt or to meet some other contractual obligation is a serious breach of the fundamental human rights of liberty, security of the person and freedom from arbitrary detention. Those fundamental rights are now recognized in international law through the Universal Declaration of Human Rights (G A Res 217 (III) 1948) and further elaborated in The International Covenant of Civil and Political Rights (G A Res 2200(XXI) (1966)).
Article 11 of the Covenant provides:
"No person shall be imprisoned merely on the ground of inability to fulfil a contractual obligation."
The following commentary on Art. 11 appears in "The International Covenant on Civil and Political Rights; Cases, Materials and Commentary" 2nd Ed (2004) by S. Joseph, J Schultz and M. Casten:
Article 11 protects against imprisonment as a punishment for inability to fulfil a contractual obligation. The 'contractual obligations' envisaged in article 11 are private law civil obligations, rather than, for example, statutory obligations. As the guarantee was primarily designed to tackle the phenomenon of 'debtors' prisons', 'contractual obligations' obviously include monetary debts. However, article 11 could apply to other contractual obligations, such as performance of services or delivery of goods. The reference to 'inability' indicates that the person must be incapable of fulfilling the relevant contractual obligation, rather than simply unwilling to do so. The word 'merely' indicates that the guarantee does not protect people who have committed some other offence over and above the contractual breach. For example, if one intentional manufactures one's 'inability' and commits fraud, one is not protected from imprisonment by article 11.
Article 11 is a non-derogable right, which has generated no meaningful jurisprudence, so its parameters remain largely undefined".
Vanuatu is not a signatory to the Covenant, so it is not part of the domestic law of this country.
However, Chapter 2 of the Constitution of the Republic of Vanuatu sets out fundamental rights and freedoms to which all persons are entitled. Article 5 (1), paragraphs (b), (c) and (e) recognize the fundamental rights and freedom to liberty, security of the person and freedom from inhuman treatment. It is from these broadly expressed fundamental human rights that article 11 of the Convention is derived.
Having regard to Article 5 of the Constitution and to the international law position, it is hardly surprising that counsel were unable to identify any law in Vanuatu that could justify the imprisonment of a person who is unable to pay a civil debt.
It is to misunderstand the law of contempt to think that the inherent contempt powers of the Court can or should be used to achieve by the back door what cannot be directly achieved under a specific law.
The Court has inherent power to deal with criminal contempts which undermine the administration of justice, and civil contempts that occur when a party to civil proceedings fails to comply with a specific order of the Court. Thus, if a party deliberately fails to comply with an injunction, imprisonment for contempt may be an appropriate order.
However, punishment for civil contempt is punishment for a deliberate failure to do something that is in the power of the defendant to do, but the defendant, in defiance of the order, chooses not to do. In the case of a judgment debtor who by reason of impecuniosity is unable to pay moneys ordered to be paid, the failure to comply is not a deliberate defiance to do what is possible, and imprisonment should not be ordered. Contempt proceedings for failure to pay a monetary judgment would only be appropriate where the judgment creditor leads clear evidence that the debtor had the means to pay, but chose not to pay so as to frustrate the creditor. There was no evidence that this was the case here. On the contrary there was evidence given on the appellant's examination that she was hopelessly insolvent.”
(Emphasis added)
10. Sandrino Traverso in his sworn statement at paragraphs 2 to 7 states as follows: -
“2. I confirm that this proceeding has been in the Supreme Court for a very long time, after the Enforcement Conference convened by the Master of the Supreme Court on 16th March 2021, in which the Debtor confirmed that his family is prepared to sell several titles to fulfilled the debt. I carried out a search at the land Department. I attach and mark as “ST1” a true copy of the Order issued by the Master on 16th of March 2021.
3. I carried out a search and found out that the Debtor has a lease title which he did not provide details of during the Enforcement Conference.
4. I confirm that at the time I carried out the search, the file which contained the documents in relation to Lease Title No 12/0543/030, does not include a Transfer of the Lease to Kalontas Titus, therefore, I instructed my Lawyer to apply for sale and seizure of the lease to fulfil the Debtors debt.
5. As instructed my lawyer applied for seizure and sale of the lease title, the Application was granted on 1st of July 2022.
6. However, I was later advised by my lawyer that the Sheriff of the Supreme Court could not seize and sell the lease title as the lease title had been transferred.
7. When I received that information, I seek an appointment with the Director of Lands Record, Mr Gordon Wille, I got an appointment and we had a meeting and he provided the documents which now confirms the lease has been transferred. I attach and mark as “ST2” a true copy of the transfer.”
11. This evidence has not been rebutted or denied by Mr. Poilapa. Mr. Poilapa had a registered lease which was not disclosed to the judgment creditor. The lease was discovered by the Judgment creditor when checking the register at the Lands Records office. Subsequently the said lease was transferred and registered to a Kalontas Titus before the sheriff could enforce the enforcement warrant to seize the property. The consideration for the transfer was VT300,000. These funds were not even paid to the judgment creditor in clear defiance of the enforcement orders. Mr. Poilapa had the means to pay but chose to frustrate the judgment creditor.
12. I note that imprisonment is not available as punishment for contempt in cases where one is in default of paying a sum of money. However, I am of the view that that this case falls within the exception in Naylor referred to above for the simple reason that the evidence is clear that Mr Poilapa deliberately failed to disclose the lease referred to by Mr Traverso and failed to disclose that he had sold the lease for a sum of VT 300,000 and further more deliberately failed to pay the funds to the judgment creditor in clear defiance of the enforcement orders.
Result
13. I find Mr Poilapa in contempt and I order that: -
a) Mr. Poilapa be committed to prison for a period of 3 months effective from today and must present himself to the Correctional Center Manager before close of business today.
b) Upon Mr. Poilapa’s failure to comply with paragraph a) above the Center Manager shall inform the Court and a warrant of arrest will be issued for the Police to arrest Mr. Poilapa and deliver him to the Correctional Center.
c) Mr. Poilapa has 30 days to appeal.
d) Any appeal filed shall not operate as a stay of the decision.
DATED at Port Vila this 28th day of May, 2026
BY THE COURT
………………………
Dudley Aru
Judge