Boyers v Tausinga [2012] SBHC 172; HCSI-CC 328 of 2010 (30 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 328 of 2010

BETWEEN: PETER JAMES BOYERS - Petitioner

AND: SILAS HENRY VAQARA TAUSINGA - First Respondent

AND: ATTORNEY-GENERAL - Second Respondent

Date of Hearing: 9,11,14,15,16,17 May 2012
Date of Ruling: 30 July 2012

Mr Zama for Applicant
Mrs Tongarutu for Respondent

RULING

MWANESALUA J:

[1] This is an application by the First Respondent filed on 8 May 2012 for the following orders:

(1) An order that the Petitioner’s Legal Practitioner, Nuatalie Tongarutu, of ANT Legal Services be restrained from representing the Petitioner in this proceeding on the basis that she is or is likely to be a witness for the Petitioner.

(2) An order that this proceeding be struck out for failing without reasonable excuse to comply with the Direction Orders of the Court made during the Conference on 13 April 2011 to prepare and file a set of agreed facts and Court Book.

(3) An order that the Sworn Statements of Reverend Alex Aqorao, Eric Hitu, Mickery Liva and Chief Eki Daga filed on behalf of the Petitioner on 22 February 2011, 21 February 2011, 4 January 2011, and 22 February 2011 respectively be struck out for non-compliance with the provisions of the Magistrates’ Court Act, Oaths Act and the Solomon Islands Courts (Civil Procedure) Rules 2007 relating to the administration of Oaths before a Magistrate.

(4) Subject to Order 3 above, a further order that this proceeding be also struck out under the Solomon Islands Court (Civil Procedure) Rules 2007 as being frivolous or vexatious, discloses no reasonable cause of action and an abuse of Process of the Court.

(5) An order that the Petitioner/Respondent pay the First Respondent/Applicant’s costs of and incidental to this action on indemnity basis.

(6) Such further and other orders as the Court thinks fit to make in the circumstances.

[2] Ground 1 of the Application. This ground is based on rule 16(14) and 15 of the Legal Practitioners (Professional Conduct) Rules (Cap. 16), which are in the following terms:

“16(14) A Legal Practitioner shall not accept instructions in a case in which he has reasons to believe that he is or is likely to be a witness.

(15) A Legal practitioner shall withdraw from representing a client if-

(a) It becomes apparent to him is or is likely to be a witness on a material question of fact; and

(b) He can withdraw without jeopardising his client’s interests”.

[3] Ground 2 of the Application. This ground is premised on rule 8.19 of the Solomon Islands Courts (Civil Procedure) Rules 2007. It states:

“8.19 If a party or his or her legal practitioner has failed to comply with an order made at a Conference without reasonable excuse, the Court may order that the party’s claim, defence, counterclaim or third party notice be struck out.”

[4] Ground 3 of the application. This ground is based on Sections 30 and 33 (1) and (2) of the Magistrates’ Court Act (Cap. 20), Section 2 (1) and (2) of the Oaths Act (Cap. 23) and Rule 14.4 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (Civil Rules) relating to the administration of Oaths before a Magistrate.

Magistrates’ Court Act (Cap. 20)

“S.30. Every Magistrate shall have power to issue writs of summons for the commencement of actions in a Magistrate Court, to administer Oaths and take solemn affirmations and declarations, to receive production of books and documents and to make such decrees and orders and issue such process and excise such judicial and administrative powers in relations to the administration of justice as shall from time to time be prescribed by this Act or any other Act, or Rules of Court, or, subject thereto, by any special order of the Chief Justice”.

33. (1) Every Magistrate and every justice of the peace is hereby authorised to administer all oaths which may require to be taken before him in exercise of the jurisdiction and powers conferred upon him by this or any other Act.

(2) Any such oath may also be administered by any clerk of Court under the direction and in the presence of a Magistrate.

Oaths Act (Cap. 23)

2 (1) Any Judge, Magistrate and justice of the peace may administer any Lawful Oath or take any affidavit, affirmation or declaration in relation to any matter or proceeding before him in the exercise of any jurisdiction or powers conferred upon him by law for the time being in force.

3 (2) A Commissioner of Oaths may, by virtue of his commission, administer any oath or take any affidavit for the purposes of any Court or matter in Solomon Islands, and take any bail or recognisance in or for purposes of any civil proceedings before the High Court or any Magistrates Court.

“Rule 14.4 Sworn Statements must be sworn before a Judge, Magistrate, Notary Public, Commissioner of Oaths, Justice of the Peace, Legal Practitioner with a current practising certificate, or officer authorised to administrator Oaths under the provisions of any Act or Regulations.”

[5] Ground 4 of the application. This is based on Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 which provides:

“9. 75. If in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) The proceedings are frivolous or vexatious; or

(b) No reasonable course of action is disclosed; or

(c) The proceedings are an abuse of the process of the Court;

the Court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”

Consideration of Grounds of the Application

[6] Ground 4 – The Petition is frivolous or Vexatious

(1) What this means in non technical language is that, the Petition should be dismissed because it was not filed in good faith. Its aim is merely to annoy and embarrass the First Respondent. There is no cause of action in it against the First Respondent. It would be wrong to use the process of the Court to proceed with it. And that it would be a waste of Court’s time to hear it.

(2) The Last General Election was held on 4 August 2010. Twelve candidates stood in the West New Georgia and Vona Vona Constituency. That included the Petitioner and the First Respondent. The First Respondent was duly returned and is now the current member of the National Parliament for that Constituency. The Petitioner is the runner up.

(3) The Petitioner filed this Petition on 9 September 2010. He alleges that the First Respondent and his agents were guilty of corrupt practices before and during the Election. That is to say, bribery, intimidation, treating and undue influence. I have perused the Sworn Statements filed in support of the Petition. Some of them show some evidence of corrupt practice. For instance, the Sworn Statements of Sale Hiro, Zachariah Beti, Philip Molia, Rev. Alex Aqorao and Eric Hitu. But their truth and credibility will be tested during the trial of the Petition itself. This Petition is not frivolous and vexatious. I refuse to strike out the Petition on this ground.

[7] (1) Ground 3 - That the Sworn Statements of Mickery Liva filed on 4 January 2011, Rev. Alex Aqorao filed on 2 February 2011, Eric Hitu filed on 21 February 2011 and Chief Eki Lee Daga filed on 22 February 2011, be struck out for non-compliance with Sections 30 and 33 of the Magistrates Court Act; Sections 2 (1) and (2) and 3(2) of the Oaths Act and rule 14.4 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (The Civil Rules). The provisions of these Acts and rule are set out above.

(2) Mickery Liva took his oath in relation to his sworn statement of 4 January 2011 before Commissioner for Oath, Alick Hagi at Munda on 3 January 2011. That sworn statement was made on behalf of the Petitioner. But in his later sworn statement filed on 28 January 2011, on behalf of the First Respondent, Mickery Liva explained that the contents of his earlier sworn statement were not his and that he merely signed it after it was prepared for him. The signature of the Commissioner for Oaths and his stamp were already affixed to the sworn statement before he signed it. This evidence shows that Mickery Liva did not make his oath before the Commissioner for Oath in relation to his statement. That statement is therefore not a sworn statement. That is a clear breach of Section 3(2) of the Oaths Act and rule 14.4 of the Civil Rules. In the circumstances, the sworn statement of Mickery Liva filed on 4 January 2011 is struck out.

(3)The sworn statement of Rev. Alex Aqorao filed on 2 February 2011 shows that it was Magistrate Esther Lelapitu who administered the oath to the Deponent at Gizo on 24 January 2011. In her statement file on 10 May 2012, Esther Lelapitu deposed that she was not familiar with Rev. Aqorao. However, she remembered administrating the oath to such person at Gizo whilst she was there attending to her father’s 100 days customary ceremony after his death. She told the deponent to send the document to Honiara where she would affix the stamp. She also confirmed that the deponent wrote his initials on the statements in her presence. I have considered submissions of counsel for First Respondent on this statement, but I am satisfied that Magistrate Esther Lelapitu administered the oath to the Deponent. I refuse to strike out the sworn statement.

(4) The sworn statement of Eric Hitu filed on 21 February 2011 shows that the oath was administered by Magistrate Esther Lelapitu at Honiara on 17 February 2011, with Central Magistrates Stamp on it. Counsel for the First Respondent submits that the signature of N. Tongarutu at the bottom of the Certificate of Compliance was a photocopy; that letters “E” and “H” at the bottom of page 2 appeared to be photocopies; and at page 2 the signature of Eric Hitu was again, a photocopy. I have looked at the signature of N. Tongarutu, letters “E” and “H” and the signature of Eric Hitu. N. Tongarutu would be required to give evidence to clarify whether her signature is or is not a photocopy. Counsel for the First Respondent has not satisfied this Court that the said signatures and letters were photocopies. I refuse to strike out Eric Hitu’s sworn statement.

(5) Sworn statement of Chief Eki Lee Daga filed on 22 February 2011 on behalf of the Petitioner. The Deponent was 61 years in 2011. He is also a chief at Dunde village. He deposed, among other things, that the CFC members of his village block voted for the First Respondent. That was because their pastors told the voters to vote for the First Respondent. That the First Respondent had no work experience, no leadership role, attained no high academic qualifications and not assisted the Dunde Community in any way. But in his sworn statement of 7 March 2011, filed on behalf of the First Respondent, he withdrew his earlier statement. He did not mention who prepared his earlier statement. It must be the solicitor for the Petitioner. This witness is related to the First Defendant and may have realised that he would not be comfortable to testify against the First Respondent. But that is not a good reason to remove his earlier statement. I refuse to strike out Chief Eki Lee Daga’s sworn statement.

[8] Ground 2 – Non-compliance with Direction Orders of 13 April 2011. According to the Court Record, these Direction Orders were issued on 23 March 2011 and not on 13 April, 2011. The case was adjourned to 13 April 2011 for Mention. On that date, the Court discovered that neither Counsel complied with the Direction Orders. As a result, the Court adjourned the Petition sine dire and vacated the trial date, which was set for 31 May 2011 in accordance with the Direction Orders of the Court. The case was brought to Court on 13 December 2011 with the view of sending the case to the Registrar to set a date for trial. The Court then set 30 July 2012 for trial. That would have to be vacated again. The issues for determination have already been identified. They are bribery; intimidation; treating and undue influence. It is obvious that all Counsels representing the parties in this Petition failed to comply with the Direction Orders of 23 March 2011. Accordingly, the Court will refuse to grant an order to strike out this Petition as sought under rule 8.19 set out above. I refuse to strike out the Petition on this ground.

[9] Ground 1 - An order that the Petitioner’s Counsel be restrained from further representing the Petitioner on the basis that she is or is likely to be a witness for the Petitioner. The order for restraining Counsel is based on rules 16(14) and 15 of the Legal Practitioner’s Professional Conduct) Rules (Cap. 16). The provisions of those rules are fully set out above.

(2) The sworn statements of Erick Hitu filed on 21 February 2011 and Chief Eki Lee Daga filed on 22 February 2011 respectively were made in support of the Petitioner. Counsel for the Petitioner made the Certificate of compliance with respect to those sworn statements. Counsel for the Petitioner is likely to be called as witness to give evidence on facts deposed to in those sworn statements pursuant to rule 16(4) and 15 of the Legal Practitioners (Professional Conduct) Rules (Cap.16). In Kallinicos and anor –v- Hunt and ors [2005] NSWC1181 Bereton J said: “It is generally undesirable for a practitioner who is aware that he is likely to be called as witness, other than in relation to formal or non contentious issues, to continue to act. If a practitioner’s credibility is at stake as a witness, his personal integrity may be put in issue that may constitute a personal interest inconsistent with the practitioner’s duty to the Court or to the Client”.

(3) Bereton J also said, “The test to be applied is whether a fair-minded, and reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting in the interests of the protection of the integrity of the judicial process and due administration of justice, including the appearance of justice”.

(4) The Court holds the view that Counsel for the Petitioner is likely to be called as a witness in respect of the sworn statements of Erick Hitu and Chief Eki Lee Daga. Ground 1 of the application is therefore granted.

ORDERS: (1) Order that the Petitioner’s Legal Practitioner, Nuatalie Tongarutu, of ANT Legal Services be restrained from further representing the Petitioner on the basis that she is or is likely to be a witness for the Petitioner.

(2) An Order that this proceeding be struck out for failing without reasonable excuse to comply with Director Orders of the Court made during Conference on 23 March 2011 to prepare and file a set of facts and Court Book is refused.

(3) An order that the Sworn Statement of Mickery Liva sworn on 4 January 2011 be struck out for non compliance with the Oaths Act and Rule 14.4 of the Civil Rules. But an order to strike out the sworn statements of Rev. Alex Aqorao, Eric Hitu and Chief Eki Lee Daga filed on 22 February 2011, 21 February 2011, 22 February is refused.

(4) Order that Counsel Nuatalie Tongarutu is restrained from further representing the Petitioner in this Petition.

(5) Order that the First Respondent’s Costs be paid by the Petitioner in indemnity basis.

(6) Trial of the Petition from 30 July to 3 August 2012 is vacated.

(7) This Petition is to be mentioned on 10 August 2012 at 1.30pm.

THE COURT