Aneka v Oeta [2015] SBHC 91; HCSI-CC 321 of 2013 (27 October 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 321 of 2013

BEFORE:

CHIEF JOHN KAIA ANEKA (Representing Mana'ara Tribe)
Claimant

AND:

PHILIP OETA, DONALD KAIA, INITO RADELE and EPHREM KELESI
(Representing themselves, their lines, clans, and Rere tribe).
Defendants

Date of Hearing: 31st July 2015 and 8th September 2015
Date of Ruling: 27th October 2015.

Mr. G. Fa'aitoa for the Claimant
Ms. L. Ramo for the Defendants

DECISION ON APPLICATION FOR COURT CONTEMPT

Faukona PJ: An application for contempt was filed on 25th September 2014 by the Defendants. The application alleged that the Claimant and fourteen (14) others had breached Court orders of 6th May 2014. Fourteen others mentioned in evidence was never being made a party in the application for contempt.

A full contempt proceeding was conducted on 31st July 2015. The case was then adjourned for oral submissions on 8th September 2015. On 8th September when the Court resumed for oral submissions the Counsel for the Defendants submitted that she did not file any written submissions because upon assessment and considering her clients' case, it would appear that the evidence given was not on the requisite standard of proof hence do contends to the Claimant's case. In other words, the Counsel agrees there is no evidence available to proof the allegation of contempt, therefore the Claimant and fourteen others should be acquitted.

2. That being the case, Mr Fa'aitoa submits that the Defendants pay costs to the Claimant on indemnity basis and claim for damages for malicious prosecution.

3. The Counsel for the Defendants concedes to costs but argues that the claim for damages for malicious prosecution is a requirement under the law and should be a distinct cause of action. And that malice must be established by independent evidence; nothing was filed in this Court. It would be an abuse of process to seek damages for malicious prosecution when the proceeding is still continuing in Court.

4. I tend to agree with Ms Ramo, partly on her submissions and partly on the face value that there is no evidence adduce by the Claimant or any witness at trial. An independent evidence is required to proof the Defendants are actively instrumental in putting the law inforce. Could be better if the Claimant and others are called to give evidence on the motive for instituting the action and whether the Defendants had assessed the evidence on the probable cause and whether they have tested every possible relevant fact before taking action.

5. As significant as it is, a Counsel who received a report on complaint must assess against report or complaint lodged, and advises whether there was reasonable and probable cause in prosecuting the case. All these require evidence.

6. I also noted paragraph 9 page 15 in the case of Wong V Chin[1] in which the Court adopted an extract from Mitchell V Jenkins (1833) 5B & Ad. 588. Per Parke B. who stated,

"The term "malice" in this form of action not to be considered in the sense of spite or hatred against an individual, but of malus animus and as denoting that the party is actuated by improper and indirect motives"

7. In this case the substantive dispute is in the nature of customary land. As such, and often, relationship between parties is strain and at times confrontational.

8. In the circumstances of this case, I would call for a full trial on the issue of malicious prosecution, formal documents and relevant sworn statements be filed and served.

Orders:
1. That the Claimant and fourteen (14) named others be acquitted accordingly.

2. Cost involve in application for court contempt is paid by the Defendants to the Claimant on standard basis.

3. Order that proper and formal application for claim for damages for malicious prosecution be filed.

4. Case adjourn to 5th November 2015 for (m) and for direction orders.

The Court.

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^[1] (1994) SBHC 72, HCSI. CC 134 of 1991 (14 January 1994)