Soalaoi v Comua [2016] SBHC 216; HCSI-CC 455 of 2014 (12 December 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona, PJ)

CIVIL CASE NO. 455 OF 2014

BETWEEN:

CLAY FORAU SOALAOI
Petitioner

AND:

FREDA TUKI COMUA
First Defendant

AND

The ATTORNEY-GENERAL
Second Respondent

Date of Hearing: 6^th September 2016

Date of Ruling: 12^th December 2016

Mr A. Hou for the Petitioner
Mr M. Tagini for the First Respondent
Second Respondent not involved in the application

RULING ON APPLICATION TO REMOVE PARAGRAPHS OR SWORN SATEMENT FROM THE COURT FILE

Faukona PJ: This application is to invoke and was premised on Rule 14.34 of the Solomon Islands Civil Procedure Rules (2007). This particular rule provides if there is scandalous or oppressive matter in a sworn statement, the Court may order that sworn statement be taken off the file.

2.	The application was filed by the first Respondent to declare four sworn statement or certain paragraphs thereof filed by the Petitioner in support of his petition as scandalous. The three sworn statements are (a) sworn statement by Hubert Fugui filed on 25th February 2015 (b) sworn statement of Timothy Lavalu filed on 27th February 2015 and (c) sworn statement of John Mark Fangota filed on 23rd February 2015.
	Sworn statement of H. Fugui:
3.	Mr Fugui is a Barrister and Solicitor in the employment of ANH Legal Services at that time he deposed a sworn statement which was filed on 25th February 2015. He was the Counsel taking carriage of this matter and represented the Petitioner in this election petition case.
4.	After the winning candidate was pronounced, Mr Hubert and Mr Paul Terry travelled to Tikopia island purposely to enquire and gathering information about allegations levelled against the winning candidate, the second Respondent. The allegations are in relation to bribery, treating and undue influence which alleged to have occurred during the period of national general election in November 2014.
5.	After accomplishing the trip to Tikopia and back, Mr Fugui (the Counsel) then formulate and deposed a sworn statement that was filed on 25th February 2015. The sworn statement contains facts gathered from various sources concerning the allegations. Those facts which were revealed were deposed to by Mr Fugui and Mr Paul Terry.
6.	In my investigative ability, I would regard and treat the content of the sworn statement as not scandalous. If so, in what area, and how it will legally damage the case of a particular party. The submissions concern is not pointing to a particular area where the sworn statement will scandalise or put into question. That by allowing it will negatively demise the Respondents’ case.
7.	However, I accept that Mr Fugu was the Counsel for the Petitioner at that time. As such he has certain professional rules guiding him in acting for a party and also in filing of a sworn statement representing a party in a Court. The difficulty is that, if he is given notice to be cross-examined in Court who will represent his client whilst he is in a witness box. In my opinion Mr Fugui has breached his legal practice ethics by deposing a sworn statement which could best be done by an independent witness.
8.	I would agree with Mr Tagini that the sworn statement deposed by Mr Fugui be taken off the file for the reasons I expose above.
	Sworn statement of Timothy Lavalu:
9.	I have read the sworn statement of Timothy Lavalu thoroughly. I noted he is from the Reef Islands in the Temotu Province. He is a Ship Master for about 35 years now.
10.	There is nothing in the submissions that actually points to a particular paragraph of the sworn statement that is scandalous or oppressive. However, Mr Tagini could have meant paragraphs 11-15. Those paragraphs implicated that the second Respondent was present in the Office of the Petitioners legal/Counsel when she handed the charter money of $52,000.00. The charter in fact was negotiated by the witness and Ms Lydia. The Charter Agreement was endorsed by the witness and Ms Lydia and counter signed as a witness was the second Respondent.
11.	The question of identity can be raised, whether the witness who was from Reefs could recognize the first Respondent at that time as one of the Candidate in her constituency. That issue can only be verified during cross examination where fact related to that will be upheaved.
12.	Meanwhile, the evidence of Ms Lydia is quite significance in some respect. She did not deny the first Respondent was present at the time of endorsing of the Charter Agreement. She did not deny the first Respondent signed the Charter Agreement as a witness. She did deny that the money was brought by the first Respondent and placed on the table of the legal representative of the Petitioner.
13.	All she deposed in in her sworn statement she wanted to provide transport to supporters of a parent of one of her students who was a candidate in the national general elections. The candidate was never mention by name. She also deposed that she was a business women and supporter of women in politics and business.
14.	By implication, there was an intent reflected culminating Ms Lydia was supporting a female candidate, but reserved to openly mention the name of the candidate. It can be noted the only female candidate who stood in the constituency is the first Respondent.
15.	Mr Lavalu in his sworn statement saw what actually occurred. Ms Lydia in response gave her sworn statement to dilute the sworn statement of Mr Lavalu. That intended dilution was vague, was incomplete to certain extend, to upheave and brought to light the names of those present and their participation as a response to Mr Lavalu sworn statement.
16.	I personally perceived in all directions, that the sworn statement of Mr Lavalu is in no way scandalous or oppressive. But a sworn statement to be challenged at trail.
	John Mark Fungota sworn statement:
17.	The above deposer seems to add circumstantial support to that of Mr Lavalu sworn statement. Not in all respect but to this particular concern issue of involvement of the first Respondent in chartering the boat. The rest of his statement is allegations which can be challenged.
18.	The point I am referring to is the evidence he deposed that the boat “MV Neptune Gale” was chartered for the supporters of the first Respondent only to travel on. I see there is no scandalous or oppression in his evidence, but the strength of his evidence can be challenged in Court. With that I must refuse to remove his sworn statement from the file.
	Orders:
	1.	Sworn statement o Hubert Fugui be removed from the file.
	2.	Sworn statements of Timothy Lavalu and John Mark Fangota will not be removed but continue remain on file to be tested at trial.
	3.	Cost of this hearing to be borne by the first Respondent payable to the Petitioner at 70%.
	The Court.