Simbe v East Choiseul Area Council [1997] SBHC 23; HC-CC 033 of 1997 (20 May 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 33 of 1997

GANDLY SIMBE

v

EAST CHOISEUL AREA COUNCIL & EAGON RESOURCES DEVELOPMENT COMPANY LIMITED & ORS

Before: Palmer, J

Hearing: 30th April, 1997 - Ruling : 20th May, 1997

Counsel: P. Lavery for the Applicant; J. Sullivan for the Respondent

PALMER J.:

This is the ruling of the court on preliminary matters raised in the inter-partes hearing on 30th April, 1997. The matters raised pertain to the admissibility of evidence raised in the affidavits of a number of deponents which had been filed in support of the Applicants' application.

The first objection taken relates to the affidavit of JENNER GALO filed on 24th April, 1997. Mr Sullivan for the Respondent objects to the admissibility of this document in its entirety on the basis that it raises matters which are totally irrelevant to the application before this court, in particular on the question whether the interim injunction imposed by order of this court on 7th February, 1997 should continue or not.

I have had the opportunity to consider that document in its entirety and must agree that much contained therein at this stage appears not to be directly relevant to the issues most likely to be raised in the inter-partes hearing. I accept I can disregard that affidavit for purposes of this inter-partes hearing but I am not satisfied that I should strike off that affidavit completely.

The second objection relates to paragraph 13 of the first affidavit of Gandly Simbe filed on 7th February, 1997 in which he deposed that he had raised an appeal by letter to the Clerk to the Customary Land Appeal Court against the determination of the East Choiseul Area Council. Mr Sullivan points out that at paragraph 13 of the affidavit of Mason Pabulu (Secretary to the East Choiseul Area Council) filed on 2nd April, 1997, he deposed that he never received the original or copy of the letter of appeal of the Applicant. In response to this, the Applicant filed a second affidavit and deposed at paragraph 2(g), that he had given the letter to one Penrose Ponisi who in turn gave the original to Mason Pabulu to post and a copy for his records. Mr Sullivan takes the objection that the most the Applicant can say is that he gave the letters to Ponisi to give to Pabulu. Where he deposes that both letters had been given to Pabulu by Ponisi then he must disclose the source where he got that information from, otherwise it is hearsay and inadmissible.

The point raised is noted. Whether Ponisi gave the letters to Pabulu is another matter which should be separately proved by affidavit evidence. Gandly Simbe did not state who told him or how he came to know that Ponisi had given the letters to Pabulu. The most he can say in the circumstances therefore, as correctly pointed out by Mr Sullivan is that he had given the letters to Ponisi with specific instructions to deliver them to Pabulu. In the absence of any other evidence, I accept little weight can be placed on his statement that the letters were given by Ponisi to Pabulu. It is not necessary however to have that part of his affidavit struck out. It is sufficient that the point raised has been brought to the attention of the court to bear in mind when dealing with that part of his affidavit.

The same can be said in respect of the third objection regarding paragraph 2(e) of the second affidavit of Gandly Simbe filed on 24th April, 1997. I accept that the first sentence is a subjective expression of opinion but when read in conjunction with the second sentence it brings out more clearly what the gist of that paragraph was.

The final objection taken relates to paragraph 2 of the affidavit of Derald Galo in which reference was made to what a Member of Parliament, Honourable Qurusu, had said the Managing Director had told him. Mr Lavery for the Applicant however explains that the reference to that was merely for the purposes of showing the reason why no immediate injunctive relief had been sought by the Applicant, and not to seek to show or pursue the point, that the Second Defendant was thereby estopped by what the Managing Director had said. Mr Sullivan accordingly did not pursue the matter further.

In view of the ruling of this court, I do not consider it appropriate to make any orders.

THE COURT