Hite v Fueimua [2024] SBMC 5; Civil Case 4 of 2024 (10 April 2024)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 4/2024

Between:
YVONNE HITE

And:
MICHAEL FUEIMUA

Date of Hearing: 10 April 2024
Date of Ruling: 10 April 2024

Non – Appearance for the Claimant
Non – Appearance for the Respondent

RULING

1. The Affected person filed an application for interim protection order (IPO) on 22 January 2024.
   
2. The application for IPO order was granted on the same date, 22 January 2024. The matter was then adjourned to 21 February 2024 in order for the affected person to serve the respondent with the IPO order. Proof of service was filed on 31 January 2024.
   
3. The conditions sought by the affected person in the application for interim protection order are as follows:

Conditions sought to be imposed on the Respondent under the order

In accordance with section 35 of the Family Protection Act 2014:

1. The respondent Mr. Michael Fueimua:
   
   • (a) must not commit domestic violence
     • (i) against the applicant Mrs. Yvonne Hite
   • (b) must not possess a firearm.
     
2. In accordance with section 36 of the Family protection Act 2014, the respondent Mr. Michael Fueimua is prohibited from doing any of the followings:
   
   • (a) entering the affected person’s home, or any place she may reside, or approaching within 20 meters of the place;
     
   • (b) entering the affected person’s workplace, or approaching within 20 meters of the place;
     
   • (c) approaching the affected person;
     
   • (d) contacting the affected person;
     
   • (e) attempting to do anything mentioned in paragraphs (a) to (d);
     
   • (f) encouraging another person to engage in behaviour about the affected person that, if engaged in by the respondent, would be prohibited under the order.
     
3. In accordance with Section 37 of the FPA, Michael Fueimua is further ordered:
   
   • (a) to refrain from damaging any property(s) of the affected person;
     
   • (b) to return any of the property(s) of the affected person currently under his carriage or custody and to allow the affected person to have uninterrupted access to her property(s).
     
4. In pursuant to section 38(a) the respondent to comply forthwith with the following orders:
   
   • (a) The respondent must surrender the elder son to the applicant and to have custody of the children namely, Josh Julius age 8, Manufakaturima Fueimua age 6 and Junior Michael Fueimua age 4;
     
   • (b) An order that the respondent may have access to the child upon prior consent from the Applicant.
     
5. To uphold the objective of the Family Protection Act, the affected person must report any breach of these orders to the nearest Police Station for criminal prosecution.
   

Duration of order

This order remains in force until varied or revoke or further orders of the court.

Effect of order

It is an offence to breach any condition of this notice. The penalty for the offence is 30,000 penalty units or imprisonment for 3 years, or both.

Date of order

22^nd of January 2024

6. On 21 February 2024, counsel Ma’unatongu from Public Solicitor’s Office appear on behalf of the affected person and inform court that counsel in carriage of this matter, Mrs. Saefo’oa is now withdrawn from representing the affected person, so the file is transferred to me. Mr. Ma’unatongu also inform court that we heard rumours that the affected person and respondent now stay together however, we yet to confirm that, and probably on the next occasion we will update court on that. Should we confirm both parties go back to their normal life, then we will be intending to make an application to vary or revoke the IPO order.
   
7. On 28 February 2024, counsel appear and confirm to the court that the affected person and respondent now stay together. Since they stay together, he seeks adjournment to mediate the matter between parties. However, on 15 March 2024, Mr. Ma’unatongu appear again for the third time and inform court that he will no longer represent the affected person. The reason is because the affected person did not answer phone calls and cooperate to progress the matter further.
   
8. The court then adjourned the matter for the affected person to appear in person and update the court regarding her position whether or not she will still proceed with the matter.
   
9. On 5 April 2024, the matter came back for mention again however, there is no appearance of the affected person or his/her counsel. Given that circumstances, court then make direction for the matter to be adjourned for the last time. Further to the adjournment, direction too was also issued that is should the affected person fail to appear on the next occasion, the court will strike out the matter for want of prosecution.
   
10. Unfortunately, on 10 April 2024, the matter was mention again and still there is no appearance from the affected person.
    
11. Rule 9.71 and 9.72 of the Solomon Islands Courts (Civil Procedure) Rule 2007 provides for the court to strike out proceeding if the claimant does not take step to progress the proceeding^[1]. It states;
    

“9.71 Rules, Rules 9.72 to 9.74 apply if the claimant does not:

(a) take the steps in a proceeding that are required by these rules to ensure the proceeding continues; or
(b) comply with an order of the court made during a proceeding.
9.72 The court may strike out a proceeding...”^[2].

12. The fact that there is no appearance from the affected person or any lawyer to progress this matter and also, given that there is no reason from the affected person been put before this court as to why she fails to appear in order to process this case. I am satisfied that this matter should be struck out pursuant to rule 9.71 & 9.72 of the Solomon Islands Courts (Civil Procedure) Rule 2007 for want of prosecution.
    

Orders

(1) The matter is hereby strike out pursuant to Rule 9.71 & 9.72 of the Solomon Islands Courts (Civil Procedure) Rule 2007 for want of prosecution.
(2) The IPO order granted on the 22 January 2024 is no longer effective.
(3) Parties to bear their own cost.

THE COURT

..............................................
MR. MICHAEL FAGNI
Magistrate – First Class

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^[1] See Rule 9.71 & 9.72 of the Solomon Islands Courts (Civil Procedure) Rule 2007.
^[2] Ibid, n 1.