LEWALLY v PADDY'S BEACH BAR AND RESTAURANT (C.C. 291/08) [2008] SLHC 19 (26 January 2008);

C.C. 291/08  2008   L No. 7


(LAND AND PROBATE DIVISION) BETWEN: RAHMAN LEWALLY                                        - PLAINTIFF


PADDY' BEACH BAR AND RESTAURANT                                                                                    - DEFENDANTS

ALEX HEROE Trading as PADDY'S BEACH BAR & RESTAURANT Y H WILLIAMS Esq & O JALLOH Esq for the Plaintiff C F MARGAI Esq and R B KOWA Esq for the Defendants JUDGMENT

1. By Notice of Motion dated 11 December,2008 the Applicant, who is the Plaintiff in the substantive Action, applied to this Court for two Orders: firstly that the Applicant be at liberty to issue a Writ of Attachment and/or an Order of Committal for Contempt of Court against the Contemnors named therein, who are the Defendants in the substantive action, for failure, and/or refusal to comply with the Orders of Court dated 28 November,2008 and 5 December 2008 respectively that the Defendants play music at reasonable noise levels until the determination of this Application....and that the Defendants shall ensure that music emanating or originating from their business premises shall not at any particular point in time during the day or night exceed 40 decibels." The words "an Order of" before the word "committal" in line 4 above, have been inserted by me in order to make sense of the 1st and 2nd lines of the Applicant's Motion paper. Secondly, the Applicant asks that the Order of this Court dated 5 December,2008 be extended until the determination of the substantive matter; and thirdly, that the Contemnors pay the Costs of this Application.

2. The first point I wish to make about this Application, is the change in the title without an Order of this Court. The Application is made in an action which is intitled: C.C. 291/08 2008 D No.7; BETWEEN: RAHMANU LEWALLY - PLAINTIFF AND PADDY'S BEACH BAR & RESTAURANT AND ALEX HEROE Trading as PADDY'S BEACH BAR & RESTAURANT as Defendants. The Deputy General Manager of the 1st Defendant business


is not a party to the Action. My understanding of the Rules is that the title of this Application should have remained as stated above, with the description, "Contemnor" being added to the description of "ALEX HEROE" as 2nd Defendant, with the Deputy Genera! Manager, who is not a party to the action, and who is unnamed, being described only as "Contemnor." Obviously, the 1st Defendant, being a non-person, could only commit contempt through its management and/or workforce, and could not therefore be described as a "Contemnor." But as MR MARGAI has not taken objection to this change without the imprimatur of the Court, and these being civil proceedings in which either side is treated as being at arms-length, I shall not nullify the Application for this reason alone, because it has some merit.

3. The Applicant's Application is supported by the affidavit of ABDUL RAHMAN LEWALLY sworn to on 11 December,2008. The Deponent's name gave rise, at the hearing, to adverse comment by MR MARGAI, because the Plaintiff is described in the Writ of Summons, and in all subsequent documents filed, as RAHMANU LEWALLY. Here he was deposing to an affidavit in what appeared to be another name without explaining away the difference, so as to reassure the Court, that he was one and the same person. However, such reassurance was provided by his lead Counsel, MR WILLIAMS, and it was accepted by the Court.

4.In his affidavit, MR ABDUL RAHMAN LEWALLY deposes that the Injunction granted by this Court on 28 November,2008 was served on the Defendants; and that the other Injunction granted by this Court on 5 December,2008, was also served on the Defendants; that despite the service of the said Orders on the Defendants, the Defendants and the Contemnor have failed to accord them the respect they deserve, and have continued with the wrongfulLy conduct prohibited by the Injunction; that he was informed by an occupant of his house, ALHASSAN KAMARA, and verily believed, that throughout the nights of 28 & 29 November,2008 respectively, the Defendants and the Contemnor, continued to play music at 'unreasonable hours'; that on the nights of 30 November and 1 December,2008 respectively, the Defendants and the Contemnor, continued to play music at unreasonable levels; that he woke up at about 12.30am on 1 December,2008 and could not go back to sleep until 3am because of the unreasonable level of noise coming from the Defendants' premises; and that between 6 and 7 December,2008 he used a sound level


meter to monitor the levels of noise coming from the Defendants' premises.

5. Exhibited to his affidavit are the following: "A" Is a copy of the Order of this Court dated 28 November,2008; "B" is a copy of the Order dated 5 December,2008; "C" is a copy of an entry in a Way book evidencing service of the latter Order on the 2nd Defendant, and on his Solicitors; there is no indication that it was served on the Contemnor, Deputy General Manager. "D" is a copy of the noise level readings taken by the Plaintiff on the nights between 6 and 10 December,2008 respectively.

6. The first Order, "A" commanded the Defendants to the play music at reasonable noise levels; the 2nd Order, "B" specifically commanded the Defendants to ensure that music emanating or originating from their business premises shall not exceed 40 Decibels; and that failure to comply with this Injunction shall be punishable as Contempt. The mandatory warning is indorsed on both "A" and "B" respectively. "C" does not show that "B" was served on the Deputy General Manager, and unless the Plaintiff provides evidence that he was so served, or that the Order was brought to his particular notice, he could not be held to have acted in Contempt of the Court Order. I do not believe that service of the Orders on the 1st Defendants' Solicitors, is equivalent to service on the individual employees of the 1st Defendant business. It is clear however, that both Orders were served on the 2nd Defendant; if therefore, it turns out that he has deliberately disobeyed these Orders, he will be guilty of Contempt.

7.I must point out, that this Application is confined to whether the Defendants and Contemnor, are guilty of Contempt. I have not been called upon to determine the merits of the substantive Application dated 21 November,2008 in respect of which, a Decision is still outstanding. A Decision should have been rendered on 2 December,2008 but was not ready as of that date. In any event, it was clear, arguments had not closed, as allegations and denials were being made by both sides. On that day, when the matter up for hearing before, fresh instances of disobedience of the Order of 28 November,2008 were brought up by the Pliantiff. The 2nd Defendant denied these breaches of the Court's Order. I made further Orders, and adjourned that Application to 5 December,2008. By that date, the Defendants had filed another affidavit in opposition to the Application of 21 November,2008 deposed and sworn to by the 2nd Defendant himself. In it, the 2nd Defendant


explained why he had been unable as of that date to comply with the Order of 2nd December,2008 giving him and the other Defendant liberty to adduce scientific evidence of the noise levels emanating from the 1st Defendant's business premises. It was for this reason I had to make the Order of 5 December,2008. As I have stated above, arguments in the substantive Motion remain open.

8. I must point out also, that in this Application, I am not called upon to determine the accuracy or otherwise of the Plaintiff's method of calculating the noise levels coming from the Defendants' premises; nor whether, it is true that he obtained the reading meter lawfully or otherwise from CEMATTS. The Order of 5 December,2008 has not been challenged, nor has it been set aside. Whether or not 40 decibels is the acceptable norm for noise levels emanating from another person's premises, is not in issue here.

9.I now turn to the case presented by the Defendants, and the Contemnor. The 2nd Defendant deposed and swore to an affidavit in opposition on 15 December,2008. In it, he deposes, inter alia, that "....the Applicant's behaviour.........(has) demonstrated malice now encapsulated in what I might describe as an abuse of the Judicial process. I find it strange that the Applicant who is an interested party can expect this Hon. Court to give weight (or) credence to Exhibit D. "D" is of course the memorandum of the readings taken by the Plaintiff. Strange it may seem to the 2nd Defendant, but this Court does attach weight to evidence submitted to it, and which goes un-contradicted. Such evidence, does not, in my Judgment, evince malice on the part of the other party. The suggestion in paragraph 5 thereof that in pursuing this Application, instead of pursuing the substantive action, the Plaintiff ought not to be taken seriously, shows, in no small measure, how little the deponent thinks of the Court's processes, and how dismissive he is of the consequences of breaching these processes.

10. In an additional affidavit in opposition deposed and sworn to on 18 December,2008, the 2nd Defendant exhibits as "AH1-9" a report submitted by his Expert, DR S E NONIE; and as Exhibits "AH10 1-2" another Report submitted by another Expert ROLANDSON WILLIAMS. "AH" is a copy of DR NONIE's forwarding letter dated 16 December,2008. "AH2" is his report in prose. In the summary of his results, he states, inter alia, that" the sound intensity level without the music was measured to have an average of 25 dB in position 2 and 27 dB


in position I. Sound intensity level with the music (was) on at position 2 was found to vary between 80dB and 85dB. The measurement in Position 1 was found to be almost identical to this figure. After three hours continual measurement, the sound level was found to be independent of the time of the night." In plain English, DR NONIE confirmed that with the music on, noise levels rose to 80dB; and this Court's Order set the limit, rightly or wrongly, at 40 dB. "AT-8" are the graphic returns of DR NONlE's readings. "A9" is a copy of the World Bank's Environment, Health and Safety Guidelines. At page 2 of these guidelines, under the rubric: "Workplace Noise" there is a guideline lettered c) which states that "Personnel must use hearing protection when exposed to noise levels above 85dB." If the intention here, is to rely on this guideline as supportive of a noise level of 85 dB in situations where an individual wishes to have a good night's sleep free from unwanted noise emanating from a place of entertainment, I am afraid to say, the intention will remain unfulfilled. Apart from the fact that the reference to a work place entails that the employee who subjects himself to noise levels of 85Db may be said to have voluntarily accepted the risk of harm being done to his hearing faculties, I do not imagine for one moment that the author of the guidelines intended them to apply to persons who are exercising their right to sleep peaceably in their beds at night.

11. MR WILLIAMS' Report, "AH10 1-2" contains readings of unimaginable noise levels, all of them way above the 40dB level Ordered by this Court.

12. On 16 December,2008 MR MARGAI cross-examined the Plaintiff on the contents of his affidavit. The questions related to his actual name, and to the readings he had submitted to the Court in exhibit "D"

13. On 31 December,2008 the Defendants filed another affidavit, this time deposed to by one their Counsel R B KOWA Esq. Exhibited to that affidavit are "RBK1&2" respectively, copies of correspondence between defendants' Solicitors and CEMATTS' evincing that the Plaintiff could not have got his meter from that Firm. In reply to this allegation, the Plaintiff deposed to another affidavit on 6 January,2009. In it, he explained the circumstances in which he came about the meter. At the hearing on 6 January,2009 after granting leave to both sides to use the respective affidavits I have referred to, I closed arguments in order to bring to an end the constant flurry of affidavits going in opposite directions. These affidavits, in my view, should be reserved for use during the substantive hearing.


14. To turn to the Law, Order 51 of the High Court Rules,2007 deal with the issue of Contempt of Court. Rule 1(1) provides thatn the power of the Court to punish for Contempt of Court may be exercised by an Order for Committal. Rulel(2) provides that an Order of Committal may be made by the Court where Contempt of Court - (b)......consists of disobedience to an Order of the Court or a breach of an undertaking to the Court"

15. In my Judgment, there has been clear disobedience of the Order of this Court of 5 December,2008. There is no evidence before me that this Order, and this Notice of Motion were respectively served personally on Defendant's Deputy General Manager. Order 51 Rule2(2) requires that the Notice of Motion and affidavit, should be served personally on the person sought to be committed. The Application is therefore refused in respect of the Deputy General Manager.

16. It follows that the 2nd Defendant ought to be Committed for Contempt of the Orders of this Court dated 28 November,2008 and 5 December,2008 respectively. However, Order 6 Rule 1(1) provides that " the Court by whom an Order of Contempt is made may by Order direct that the execution of the Order of Committal shall be suspended for such period or on such terms or conditions as it may specify." Reading through the affidavits filed on his behalf, it seems to me the that the 2nd Defendant was not well-advised as to the consequences of disobedience of an Order of Court. A litigant cannot choose which Orders he will obey, and those which he will not obey. He is bound by all Orders of Court made in a cause in which he is involved, until such Orders are set aside by a higher Court. In the result, and pursuant to Rule 6(1) I ORDER as follows", i. The 2nd Defendant is Guilty of Contempt of the Orders of this   Court of 28 November,2008 and 5 December,2008 respectively ii. The Court suspends his Committal for such Contempt until the hearing of the Plaintiffs Application dated 21 November,2008 is completed and determined, on the following terms: he shall issue and file an Undertaking on behalf of the 1st Defendant and himself that together, they will OBEY the Order of this Court until the complete hearing and determination of the Plaintiff's Application dated 21 November,2008, or until further Order. Further, that both Defendants shall pay to the Plaintiff the sum of Le500,000/00, in lieu of Committal of the 2nd Defendant. iii. The Defendants shall pay the Costs of this Application such Costs assessed at Lel,500,000.


iv. There shall be Liberty to Apply

N C BROWNE-MARKE Justice of Appeal 26 January,2008.