Sina v Matupiko [2001] SBHC 75; HC-CC 082 of 2001 (23 October 2001)

class="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGHT OF SOLOMON ISLANDSspan>

Civil Case Number 082 of 2001

JOHN SINA

v

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JOHN MARK MATUPIKO>

Before: Frank O. Kabui, J

Civil Case Number 082 of 2001

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Hearing: 22^nd October 2001

Ruling: 23^rd October 2001

Mr. G. Suri for the Plaintiff

Mr. J. Sullivan for the Defendant

RULING

(Kabui, J): I rejected Mr. John Sina’s affidavit at the hearing of Mr. Sina’s application yesterday on the ground that it did not comply with Order 40, rule 13 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). As a result of my ruling, Mr. Sina filed another affidavit in the afternoon yesterday fulfilling the requirements of Order 40, rule 13 of the High Court Rules. I said I would give my reasons later. I do so now.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Brief Facts

Mr. Sina is the Applicant in Civil Case No. 082/2001. He does not speak nor can he read English. He does not also speak nor understand Pidgin English very well. He however signed an affidavit on 22^nd October 2001 before the Registrar of the High Court in the High Court Registry. The affidavit was filed in the High Court at 9:30 am on 22^nd October 2001, just before the hearing began. The affidavit was written in the English language. The affidavit was attacked at the hearing of the Applicant’s application by Counsel for the Respondents, Mr. Sullivan, for being contrary to Order 40, rule 13 of the High Court Rules. I struck out that affidavit for that reason.

The reason for striking out the affidavian>

The starting point must be Order 40, rule 13 of the High Court R Rule 13 states

“(1) Wheraffidivit or sworn by by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in thin the jure jurat that that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court is otherwise satisfied that the affidavit was read over to and appeared to perfectly understood by the deponent.

2.  p; &nhsp;Wthre the witness s makes a mark or thumb impression instead of signing, the jurat shall state that fact, and that the mark or thumb impression was made in the presence of the officer.

3. ;Whsp an nffidavit is made in any language not understood by the deponent the officer shall certify in the thataffidwas iretedhe deponent in his own language; that he sehe seemed emed perfeperfectly ctly to unto understand the nature and purport thereof and that he approved the contents of the affidavit”...

On being cross - examined by Counsel for the Defendants, Mr. Sullivan, Mr. Sina said he signed his affidavit in the High Court Registry before the Registrar. He said he could not speak the English language. However, he said he was told to sign and he signed the affidavit. He said the content of the affidavit had not been interpreted to him in his own language before he signed. At the conclusion of cross - examination, Counsel for the Defendants, Mr. Sullivan, applied that the affidavit he struck out for non - compliance with Order 40, rule 13 of the High Court Rules. An attempted re - examination by Counsel for the Plaintiff, Mr. Suri, did not really improve the position of the Plaintiff. I had no choice but to strike out Mr. Sina’s affidavit. I noticed that Mr. Sina could write a little because he wrote on his affidavit his name. Perhaps he could read a little as well. His case obviously falls within Order 40, rule 13(3) of the High Court Rules. That is to say, he does not understand English, the language used in his affidavit. This case does demonstrate the need for legal practitioners to be mindful of the requirements of Order 40, rule 13 of the High Court Rules when dealing with villagers who may not speak, read or understand the English language. The fact that Commissioners for Oaths may not be aware of the requirement of Order 40, rule 13 above, requires the legal practitioner to be present at the swearing of the affidavit to ensure that these requirements are fulfilled before the affidavit is filed in the High Court Registry or in any Court. It is all too easy to slip on this point unless the Commissioner for Oaths is experienced enough or not being too busy to always pick the point up without being reminded by the legal practitioner who is responsible for drawing up of the affidavit. I do not think the legal practitioner can blame the Commissioner for Oaths for any slip that may occur on this point. After all, the legal practitioner is responsible for the filing of the affidavit in Court. It is his or her document. He or she will rely on it for his or her case in Court. Interpretation of the content of the affidavit is not enough. There must also be certification of that fact on the body of the affidavit.

F.O. Kabupan>

Judge