Nihopara v Nihopara [2023] SBHC 65; HCSI-CC 343 of 2020 (31 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Nihopara v Nihopara
Citation:
Date of decision:	31 August 2023
Parties:	Andrew Antou Nihopara v Sarah Rove Nihopara
Date of hearing:	2 April 2023
Court file number(s):	343 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona, DCJ
On appeal from:	Magistrates Court
Order:	1. Notice of appeal filed on 23rd July 2020, is hereby dismissed in its entirety. 2. Cost in the cause.
Representation:	Mr. A. Hou for the Appellant No one for the Respondent (Ms Kohata from Public Solicitor Office, absent)
Catchwords:
Words and phrases:
Legislation cited:	Family Protection Act S 37, Solomon Islands Court (Civil Procedure) Rule 2007,r9.75
Cases cited:	Goldsmith v Sperrings Ltd [1991] 1 WLR 478

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 343 of 2020

BETWEEN

ANDREW ANTOU NIHOPARA
Appellant

AND:

SARAH NIHOPARA
Respondent

Date of Hearing: 2 April 2023
Date of Judgment: 31 August 2023

Mr A Hou for the Appellant
No on for the Respondent (Ms Kohata for from Public Solicitor Office, absent)

JUDGMENT ON APPEAL FROM THE MAGISTRATES COURT

FAUKONA DCJ: This is an appeal against the Central Magistrates Court decision refusing to grant application to strike out the Interim Protection Orders dated 5^th June, 2020 (oral) and written ruling on 10^th July 2020.

Background facts:

2. On 20^th November 2019, the Respondent filed an application for interim protection orders pursuant to S. 37 of the Family Protection Act, in the Central Magistrates Court, in Civil Case No. 123 of 2019.
3. The application was heard ex-parte on the same date and the interim protection orders prayed for were granted.
4. Upon receipt of the protection orders on 28^th January 2020, the Appellant’s Counsel filed a defence and an application to strike out the interim protection orders.
5. On 7^th February 2020 the Court heard the application to strike out, and did dismiss the interim protection orders on 10^th February 2020. There was no appeal against the order for dismissal.
6. On 25^th February 2020 the Respondent served another application upon the Appellant under the same provision S. 37 for another interim protection orders. The registry file was CC 25 of 2020.
7. On 6^th March the Appellants Solicitor filed another application to strike out the Respondents application for interim protection orders.
8. On 5^th June 2020, the court heard the Appellants application to strike out and the decision was delivered on 19/06/2020 verbally, and written decision dated 10^th July 2020, refusing the Appellants application to strike out.
9. The Appellant now appeals to this Court against that decision.
10. On 23^rd July 2020 the Appellant filed notice of appeal with six (6) grounds of appeal in the High Court.
11. Since the filing of the notice of appeal, the Counsel for the Respondent did not attend on several occasions. However on motion days she attended was being informed verbally and by direction orders to file response to the notice of appeal and a supporting sworn statement, she did not at all.
12. In the light of that failure, there was no application for default judgment.
13. This judgment is based on the consideration of the notice of appeal, written submissions by the Appellant’s Counsel, the ruling of the learned Magistrate in the court below and evidence filed and gathered from documents on the court file.

Grounds 1 and 2.

14. Grounds 1 and 2 are taken together because of their link to the application of rule 9.75, and repetition in entertaining facts that had been struck out in a previous file which had not been appealed.
15. It is pertinent to examine r 9.75 objectively. Rule 9.75 of SI Courts Civil procedure Rules 2007, explicitly advocate three dynamic requirements, and where one is proved as not being complied with, the Court can order the proceedings be dismissed.
16. The three dynamics that will determine whether the court will dismiss the proceedings generally or in relation the claim are;
    • (a) the proceedings are frivolous and vexatious, or
    • (b) no reasonable cause of action is disclosed, or
    • (c) the proceedings are an abuse of the process of the Court.
17. In my observation (a) and (c) are applicable to this case.
18. For general purposes frivolous or vexatious claim is where as claim, even if known to law is factually weak, worthless and futile; pleading can be describe as frivolous.
19. In specific meaning frivolous claim is a claim which has no merit, while vexatious claim is one that is made for the purpose of harassing or injuring another party by continuously bringing claim against that person which is not based on facts or do not have merit.
20. In the case of Goldsmith V Sperrings Ltd,^[1] Lord Denning define abuse of court process as thus;
    • “In a civilized society, legal process is a machinery for keeping and doing justice. It can be abused when it is diverted from its true course to serve extortion or oppressing or to exert pressure to achieve an improper end.”
21. Sometimes abuse can be shown by very steps taken in Court. Other times, it can be shown by evidence that legal process is used for improper purpose.
22. In any particular case, the legality may appear to be entirely proper and correct, what makes it wrong is the purpose for which it is used. If it is used for exerting pressure to achieve improper end, then it is wrong to the law.
23. The Appellant argues in ground 2 that the Magistrate continued to entertain same facts in Civil Case No. 123 of 2019, which had been struck out without an appeal in Civil Case No. 25 of 2020. Therefore the case was frivolous, vexatious, discloses no reasonable cause of action and an abuse of process.
24. I noted the Magistrates Court had struck out the interim protection orders on 10^th February 2020. The Respondent failed to appeal the decision.
25. However, on 20^th February 2020, the Appellant obtained a Police Safety Notice (PSN), with specific conditions that the Respondent must not commit domestic violence against him.
26. The safety notice states in paragraph 3 that the Respondent must not enter or attempting to enter or remaining at a specific place namely, property, house legally own by the Appellant located at Tinge Ridge, West Honiara.
27. The Respondent must not destroy or damage any possession or property of the Appellant. The Respondent must not use another person to contact the Appellant in any means on her behalf.
28. She must not threaten or abuse the Appellant through email, telephone calls, and text messages or in person to any place the Appellant may be including current resident and office.
29. The Respondent should not act or behave in a manner that can lead to domestic violence.
30. Those conditions were purposely made to restraint the Respondent and stop her not to repeat domestic violence act or venture into, if she incline so to do further.
31. As a result of the Police Safety Notice, the Respondent moved out from the house at Tinge Ridge and lived at the Heritage Park Hotel from 20^th February to 23^rd February 2020, for 4 nights. Until she filed the second application for interim protection orders on 24^th February 2020.
32. In normal circumstances the second application would be vexatious and an abuse of Court if proved under the definition above. That it was filed for the purpose of harassing the Appellant by continuing bringing the same nature of application against the Appellant which to him was based on the same set of facts being heard and struck out.
33. I read paragraph 6 and 7 of the Magistrates Court ruling on the application to strike out. In those paragraphs the Magistrate attempted to narrate reasons the basis upon issuant of the Police Safety Notice (PSN) and its effect upon the Respondent.
34. From the sworn statement of the Respondent filed on 9^th March 2020, in particular Annexure SRN2, which contain all the emails exchange by the parties from 24^th September to 28^th October 2019. The subject of the emails was for the Respondent to move out from Tinge house.
35. Hence the PSN issued dated 20 the February 2020 contain as one of the reasons, however, the whole reasons condensed in the PSN was a reversal situation culminating allegations upon the Respondent as a perpetrator. It was a revelation of continuous argument between the parties about the house and perhaps more.
36. Consequently the Respondent yielded to the notice. However, despite her immediate response, I can perceived that the notice was rather serving an unprecedented motive. It had affected the vulnerable children negatively, one with tender age actually traumatized and ceased to attend classes.
37. I will deal with the connecting issues in grounds 3 and 4. Meanwhile I must affirm that the ruling by the learned Magistrate in dismissing the Appellant’s application to strike out, was based on a new set of facts not the same as the previous application. I must therefore dismissed these two grounds accordingly.

Ground 3 and 4.

38. These two grounds are taken together jointly as they link and share the same sentiment with a bigger story from grounds (1) and (2).
39. On 20^th February 2020, PSN was issued and served on the Respondent. Because of the notice the Respondent had to move out leaving the two boys, one at tender age, to live in the house by themselves.
40. According to the sworn statement of the Respondent filed on 9^th March 2020, paragraph 25, she deposed that in the evening of 20^th February 2020, upon receiving the notice she arranged with her elder son to drop of food staff at the neighbor’s house. She picked up the little son (8 years) and left the house to check in at Heritage Park hotel, where both stayed for about four nights.
41. Because they were not at home the younger son could not attend classes and she could not go to work.
42. I suppose that was the purpose intended for the PSN to serve.
43. On these two grounds the Appellant argue describing the learned Magistrates ascribing the PSN, in favour of the Appellant as provocative and amount to an abuse of process.
44. Whether it was provocative or not, the end result caused was a negative repercussion affecting the son Sanjay the most, who was vulnerable. I noted the elder son had to travel to Heritage Park Hotel to take clothes for the mother and son.
45. Is that not an abuse of process? Lord Denning stated in the Goldsmith case that an action can be abused when it is diverted from the true course to serve extortion or oppression or to exert pressure to achieve an improper end.
46. Abuse can be shown by evidence that legal process is used for improper purpose. The legality may appear entirely proper and correct, what makes it wrong is the purpose for which it is used. When it is used to exert pressure to achieve improper end, then it is wrong to law.
47. Those ascriptions or attributions equally match up to the definition of abuse I quote above. If they are abuse of process then they are provocative as well.
48. Therefore, I agree with the learned Magistrate’s description of the Appellant behavior.
49. From actions of the parties so far, there is likelihood that the legal process available will be continued to be accessed to demean each other.
50. So far as these two grounds (ground 3 and 4) are concerned I must dismiss them forthwith.

Ground 5.

51. The purpose for the legislation Family Protection Act 2014, is to provide first available means in a case of alleged domestic violence to ease tension between the parties. Normally the application by the affected party is in terms of ex-parte application. There is no need to console the alleged perpetrator because of its emergency nature.
52. The final order as I understood is absolutely different from the trial of the charge of domestic violence. The final order assumed to have been granted or still negotiated, would be a set of orders to restraint both parties not indulge in further activities that – may amount to domestic violence as defined by the Act.
53. Domestic violence is a crime recognized under the Domestic Violence Act. The process would begin with a charge for domestic violence. And then followed by the criminal process of the court. The end result is whether the appellant is guilty or not. If guilty then a fine or imprisonment sentence be imposed. If not guilty the appellant will go free. I perceived that is a different process altogether from what the Appellant got from the Magistrate.
54. I do not see any merit on this ground, therefore dismiss it forthwith.

Ground 6.

55. In the Magistrate Court, the learned Magistrate over-ruled an application to recuse herself from presiding and hearing the second application by the Appellant to strike out the second set of protection orders.
56. It ought to be acknowledged that in recusal application, a Magistrate has absolute discretion whether to step down or not from a particular case.
57. It is not mandatory for a Magistrate or even Judge to act upon the application for recusal automatically. He or she must weigh the grounds more diligently. If the grounds rely on hold no merit a magistrate can over-ruled.
58. This is exactly what occurred in this case. The learned Magistrate had exercised her discretionary powers freely without any vetting. As I can read from her ruling there was no demonstration of impartiality and pre-emptive decision on domestic violence. There is no merit on this ground therefore I must dismiss it.
59. Quite apart from that, is the tense situation between the parties utilizing the provisions in law to demean each other whilst shielding themselves behind those legal provisions?
60. In conclusion I must dismiss all the grounds in the notice of appeal. I find there is not merit in them. There is no reason I should interfere with the learned Magistrates ruling in the court below. I must therefore dismiss the entire appeal in its totality.

Orders:

1. Notice of appeal filed on 23^rd July 2020, is hereby dismissed in its entirety.
2. Cost in the cause.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [1997]1 WLR 478.