Whiteside v Akosawa [2014] SBHC 46; HCSI-CC 311 of 2013 (29 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOHN WHITESIDE
Claimant

And:

CHRIS AKOSAWA
1st Defendant

And:

GORDON DARCY LILO
2nd Defendant

And:

ATTORNEY GENERAL
3rd Defendant

Mr. G. Suri for the Claimant.
Mr. Banuve (Solicitor General) for the 1st & 3rd Defendants
Mrs. N. Tongarutu for the 2nd Defendant.

Date of hearing: 14 April 2014.
Date of Judgment: 29 April 2014.

RULING
Apaniai, PJ:

Introduction.

1. This is an application by John Whiteside ("claimant") seeking the following orders:-
   

A. An order directing Solomon Telekom Company Ltd to disclose, pursuant to rules 11.28 to 11.32 (of the Solomon Island Courts (Civil Procedure) Rules 2007 (the "Rules")), to the parties to this proceeding a printed statement of all telephone calls and text messages made on the claimant's cell phone number 7479440 on Sunday 9th June 2013 between the hours of 12.00 am and 9.00pm.

B. An order directing Solomon Telekom Company Ltd to disclose, pursuant to rules 11.28 to 11.32, to the parties to this proceeding a printed statement of all telephone calls and text messages made on the claimant's cell phone number 7479440 on Sunday 9th June 2013 between the hours of 12.00 am and 9.00pm.

C. An order that the claimant have leave, pursuant to rule 5.35, to amend his claim in the terms contained in the proposed amendments provided to the defendants but refused by the 2nd defendant.

D. An order pursuant to rule 8.3 that the 2nd defendant provide to the claimant the Further & Better Particulars of the 2nd defendant's defence filed on 3rd September 2013 as already requested by the claimant but refused by the 2nd defendant.

E. Further and other orders as the court deems meet.

F. Costs of an incidental to this proceeding be paid by the 2nd defendant.

2. The application is supported by a sworn statement by the claimant himself filed on 25 September 2013.
   
3. At the hearing of the application, Mr. Suri, of counsel for the claimant, decided to vacate orders B and D. Those orders were therefore vacated. The remaining orders sought in the application are those in A, C, E and F above.
   
4. Also at the commencement of the hearing, Solomon Telekom Company Ltd ("Telekom") has indicated by a written note (marked "A") that it will abide the orders of the court. Telekom was therefore excused from attendance at the hearing.
   
5. Mr. Banuve, of counsel for the 1st and 3rd Defendants, has indicated that there are two other cases before the court (Civil Case No. 189 of 2013 and Civil Case No. 248 of 2013) which relate to the same alleged conduct by Crown servants. He suggested the consolidation of three cases. He hinted, however, that the orders sought in the present application do not really involve the 1st and 3rd defendants and therefore he had nothing much to say in regards to the application. However, he seeks the indulgence of the court to allow the 1st and 3rd defendants to file their defences out of time should the application succeed.
   
6. Mrs. Tongarutu, of counsel for the 2nd defendant, however, opposes the application.
   

Background:

7. The background to the application can be stated briefly.
   
8. The claimant is a Fiji citizen employed as General Manager by the Russell Islands Plantation Estate Ltd ("RIPEL").
   
9. At about 2.30am on Sunday 9 June 2013, the claimant was arrested at Heritage Park Hotel on allegations that his residence permit had expired on 6 June 2013 and was living illegally in the country.
   
10. On arrest, he was taken to Rove Police Headquarters where he was placed in custody. He was then taken to the Henderson International Airport ("Henderson") at around 12.30pm that Sunday to be deported to Fiji on an Air Niugini flight. Air Niugini, however, refused to take the claimant on board.
    
11. As a result of Air Niugini's refusal, the claimant was taken to Rove Police Headquarters where he was again placed in custody until about 9pm that Sunday night when he was subsequently released and taken back to his hotel room at Heritage Park Hotel, apparently as a result of an interim order issued by this court restraining the deportation of the claimant.
    
12. It is said that the restraining orders were served on the 1st defendant and the police officers assisting him at around 12.30pm at Henderson but that the 1st defendant and the police officers had refused to comply with the orders. If this is true then contempt of court may have been committed by the 1st defendant and the police officers and they need to be dealt with accordingly. The court will not entertain disrespect to its orders especially by police officers who are employed to maintain law and order and to ensure that the law and court orders respected. The matter should be brought to the notice of the Commissioner of Police for appropriate investigation and action.
    
13. In his claim, the claimant alleged that he was unlawfully arrested, assaulted and falsely imprisoned from 2.30am to 9pm (18 ½ hours). He therefore seeks damages for malicious invasion of his private rights, unlawful arrest, false imprisonment, trespass to goods, battery and assault. He also claims aggravated and exemplary damages and compensation under section 17 of the Constitution.
    
14. The claim is against the 1st defendant, 2nd defendant and the Attorney General. In relation to the claim against the 1st defendant, the claimant alleges that it was the 1st defendant who was giving directions to the police for his unlawfully arrest, assault, imprisonment and his being taken to the Airport to be put on board the Air Niugini. Under paragraph 2 of the claim, the clamant claims that the 1st defendant is personally liable for his actions. However, under paragraph 4 of the claim, the claimant claims that the 3rd defendant is also vicariously liable for the conduct of the 1st defendant to the extent that his actions were committed in his capacity as a servant of the Crown.
    
15. The 2nd defendant has been included as a defendant on allegations that he was the one giving instructions to the 1st defendant in regards to the claimant's unlawful acts committed against him. Under paragraph 3 of the claim, the clamant claims that the 2nd defendant is personally liable for his actions, but, under paragraph 4 of the claim, the claimant claims that the 3rd defendant is also vicariously liable for the conduct of the 2nd defendant to the extent that his actions were committed in his capacity as a servant of the Crown.
    
16. The 3rd defendant is sued as representing the Royal Solomon Island police who were involved, along with the 1st defendant, in arresting, assaulting and imprisoning the claimant that Sunday. In paragraph 4 of the claim, the claimant also claim that the 3rd defendant is also vicariously liable for the conduct of the 1st and 2nd defendants to the extent that their actions were committed as servants of the Crown.
    
17. In his claim against the 1st and 2nd defendants, the claimant alleges that the 1st defendant was taking instructions from the 2nd defendant using the claimant's mobile phone number 7479440 during the course of his arrest and the period he was detained by the 1st defendant and the police that Sunday.
    
18. It is in relation to that allegation that the claimant, by this application, seeks an order against Telekom to release a print out of his mobile statement. It is clear that the reason for seeking the order is to ascertain whether or not calls were made by the 1st defendant to the 2nd defendant during the period when the claimant's mobile phone was in the possession of the 1st defendant from 12am to 9pm on Sunday 9 June 2013.
    

Issues:

19. There are two main issues to be considered in this application. The first is whether or not Telekom should be ordered to disclose a printed statement of all telephone calls and text messages made on the claimant's cell phone number 7479440 on Sunday 9th June 2013 between the hours of 12.00 am and 9.00pm. The second is whether or not leave should be granted to the claimant to amend the claim in the manner suggested.
    

Whether Telekom should be ordered to disclose.

20. The application against Telekom is based on Rule 11.28 which allows a party to apply for an order that documents be disclosed by a person who is not a party to the proceedings.
    
21. Rule 11.29 requires that the application must be supported by a sworn statement in which the applicant must state the reasons why the documents should be disclosed.
    
22. In deciding whether or not to make an order for disclosure, the court must consider a number of issues. These issues are the likely benefits of a disclosure, the likely disadvantages of a disclosure and whether the party required to disclose the documents has sufficient financial resources to do so (Rule 11.30). Needless to say, making an order for disclosure is a matter for the discretion of the court.
    
23. In exercising that discretion, the court must be satisfied that the person in possession and control of the documents was given an opportunity to be heard, that the documents are relevant to an issue in the proceedings and that disclosure is necessary to decide the proceedings fairly and save costs (Rule 11.31).
    
24. The claimant has filed a sworn statement in support of the application on 20 August 2013. A Mr. Josiah Maesua has also filed a sworn statement in support of the application that same day and a further supporting sworn statement was filed by the claimant on 25 September 2013 along with an amended application.
    
25. On reading the sworn statements, it is clear that the reason for seeking the order is to ascertain whether or not calls were made by the 1st defendant to the 2nd defendant during the period from 12am to 9pm on Sunday 9 June 2013.
    
26. Mrs. Tongarutu, in opposing this application, argues that it is likely the statement will not show who talked with Akosawa that Sunday nor will the statement show what was said over the phone that Sunday. As such, she argues that the statement will not be of any use and therefore no order should be made for the release of the statement as sought.
    
27. However, I am satisfied getting the statement would assist in this case. Although I accept the likelihood that the statement might not show who talked with Mr. Akosawa that Sunday or what was said over the phone, it is my view that the statement will assist in determining whether Mr. Akosawa had called anyone on the claimant's mobile that Sunday and, if so, whose phone Mr. Akosawa had called.
    
28. Such evidence will certainly assist both parties in advancing their cases in this matter. For instance, if the statement shows that Mr. Akosawa had called the 2nd defendant's phone then that would advance the claimant's case against the 1st and 2nd defendants. If, on the other hand, the statement shows that no calls were made on the claimant's mobile, or, that a call was made but to a phone other than the 2nd defendant's phone, that would advance the 1st and 2nd defendants' case. In that regard, I see no disadvantage to anyone if the statement is released.
    
29. Furthermore, I am satisfied that Telekom was aware of the application to release the statement and was present in court through one of its employees who handed a written note to counsel for the claimant, for onward transmission to the court, stating that Telekom would abide the court orders. That means Telekom is willing and able to release the statement if ordered to do so. I do not think Telekom does not have the financial resources to disclose the statement. For these reasons, it is my view that the statement should be released.
    

Whether leave should be granted to the claimant to amend the claim.

30. In this application, the claimant also seeks an order (in paragraph C of the Amended application filed on 29 September 2013) that the claimant have leave, pursuant to rule 5.35, to amend his claim in terms contained in the proposed amendments provided to the Defendants but refused by the Second Defendant.
    
31. The suggestion is to amend paragraphs 2 and 3 of the claim's statement of the case to include an averment that the 2nd defendant is also sued in his official capacity as Prime Minister.
    
32. Under rule 5.34, a party may amend a statement of the case to better identify the issues between the parties or to correct a mistake or defect or to provide better facts about each issue.
    
33. Such amendment can only be made with the leave of the court or the consent of the parties. In this case, the consent of the 2nd defendant was requested by letter dated 3 September 2013 but the 2nd defendant has refused to give consent. There is no evidence that consent has been sought from the 1st and 3rd defendants.
    
34. Rule 5.36 provides that in deciding whether to allow an amendment, the court must have regard to whether another party would be prejudiced in a way that cannot be remedied by awarding costs or extending the time for anything to be done or adjourning the proceedings.
    
35. The issues here are, first, whether the purpose of the amendment is to better identify the issues or to correct a mistake or defect or to provide better facts about each issue and, second, whether another party would be prejudiced in a way that cannot be remedied by awarding costs or extending the time for anything to be done or adjourning the proceedings.
    
36. As to the first issue, I am satisfied the amendments are necessary to better identify the issues and to provide better facts about each issue. Among the issues in this case is whether the 2nd defendant had been giving instructions to the 1st defendant and, if so, whether he was doing so in his private capacity or in his capacity as Prime Minister of Solomon Islands. These are issues for trial but such issues must be made clear from the averments in the pleadings. In my view, leave should be granted to amend the claim in the manner sought.
    

Costs.

37. The claimant also seeks an order for costs against the 2nd defendant for his refusal to give consent to the proposed amendment thereby resulting in this application. I think the appropriate order to make is that costs be in the cause.
    

Decision and orders.

38. The application is granted. The orders are:-
    

[1] That Solomon Telekom Company Ltd disclose, to the parties a printed statement of all telephone calls and text messages made on the claimant's cell phone number 7479440 on Sunday 9th June 2013 between the hours of 12.00 am and 9.00pm.

[2] That leave is granted to the claimant to amend paragraphs 2 and 3 of the statement of the case of the claim to include an averment that the 2nd defendant is also sued in his official capacity as Prime Minister.

[3] The 1st and 3rd defendants shall file their defences within 14 days from the date hereof.

[4] Costs in the cause.

THE COURT

_________________________

James Apaniai

Puisne Judge.