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Karunapetige v Li Ping Ma [2023] SBHC 75; HCSI-CC 356 of 2022 (4 September 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 356 of 2022

BETWEEN

CHANDANA SURESH GUNATILAKA KARUNAPETIGE
Appellant

AND:

LI PING MA
Respondent

Date of Hearing: 2 August 2023
Date of Decision: 4 September 2023

Mr Lazarus Kwaiga for the Appellant
Mr Donald Marahare for the Respondent

RULING ON APPEAL

Bird PJ:

1. This is an appeal against the decision of the Magistrate Court given on 22 July 2022. The appellant appeals against the whole decision upon five grounds of appeal. At the hearing of the appeal, ground five of the notice of appeal was aborted by the Appellant. The decision of the Magistrate Court now on appeal is the following:
   1. In accordance with s.35 of the Family Protection Act 2014 (FPA) the Respondent Chandana Suresh Gunatilaka Kerunapetoqe (Respondent);
      1. Must not commit domestic violence against
      2. The affected person
      100. Must not possess a firearm
   2. In accordance with s.36 of the FPA, the Respondent is prohibited from doing any of the following:
      1. Entering or remaining, or attempt to enter or remain at the affected person’s residence at Kukum, Central Honiara or any place she may reside, or approaching within 100 meters of that place;
      2. Entering or attempt to enter the affected person’s work place or approaching her within 100 meters of that place;
      100. Approaching within 100 meters wherever she may be for purposes of disturbing her and/or effecting any form of domestic violence on her;
      4. Contacting her verbally, face to face, or through communication media such as through phone, SMS text messaging, Facebook messaging, Messenger messaging or through emails;
      5. Engaging in any of behaviour stated above that is likely to lead to domestic violence against the affected person;
      6. Engaging in any forms of abuses in the nature of verbal, psychological, financial, physical and sexual at anytime and anywhere;
      7. Engaged in threats that is likely to lead to domestic violence against the affected person;
      8. Engaged in stalking or interfering with her freedom of moving around freely anywhere at any time;
      9. Possessing a weapon other than a firearm for the purposes of committing domestic violence against her; and
      10. Encouraging another person to engage in behaviour in relation to the affected person that, if engaged in by the Respondent, would be prohibited under the order.
   3. In accordance with s.37 of the FPA, the Respondent is further ordered:
      1. Prohibited from damaging any property belonging to the affected person;
      2. Directed to return the following personal property to the custody of the affected person namely:-
      1. A generator and 1 x set sound system he removed from the Gym Centre;
      2. X 1 television screen removed by him from the affected person’s house at Kukum occupied by the respondent;
      3. X1 fridge removed from the affected person’s house at Kukum occupied by the respondent;
      4. X2 set of sofa removed from the affected person’s house at Kukum occupied by the respondent;
      5. X1 ice making machine removed from the affected person’s house at Kukum occupied by the respondent;
      6. X1 air-fryer pot removed from the affected person’s house at Kukum occupied by the respondent;
      7. X1 stir-fryer pot removed from the affected person’s house occupied by the respondent;
      8. X2 stir-fryer pot removed from the affected person’s house at Kukum occupied by the respondent;
      9. X1 steam pot removed from the affected person’s house at Kukum occupied by the respondent;
      10. X1 electric ceramic stove removed from the affected person’s house at Kukum occupied by the respondent;
      11. X1 iPhone 6 removed from the affected person’s house at Kukum occupied by the respondent;
      12. Alcohol removed from the affected person’s house at Kukum occupied by the respondent;
      13. X1 car key for car MA3666 removed from the affected person’s house at Kukum occupied by the respondent;
      14. X2 big travelling luggage removed from the affected person’s house at Kukum occupied by the respondent;
      15. X1 rock cutter splitter removed from the affected person’s house at Kukum occupied by the respondent;
      16. X1 t keys to safe removed from the affected person’s house at Kukum occupied by the respondent;
      17. X1 iPad removed from the affected person’s house at Kukum occupied by the respondent;
      100. allow the affected to recover or have access to her containers currently located at the Gym centre at Lunga in East Honiara, and
      4. directed to vacate the premises at Kukum currently occupied by him, which premises is owned by the affected person.
      5. To uphold the objective of the FPA, the applicant/affected person must report any breach of these orders to the nearest Police Station for criminal prosecution.
   • Duration of Order
   • This order in force until 22 July 2025 or otherwise varied or revoked by the Court.
   • Effect of Order
   • It is 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.

The Appellant’s case

2. The grounds of appeal as advanced by the appellant are the following namely:
   1. That the learned Magistrate erred in law and /or fact and thereon miscarried and misdirected himself when he adjudged that the respondent was entitled to final protection orders without considering all the circumstances of the Appellant and the respondent in a fair and just manner;
   2. That the learned magistrate erred in law and /or fact and thereon miscarried and misdirected himself when he failed to consider that the Appellant had being acquitted after trial of all criminal charges in Criminal Case No. CRC 67 of 2022 that shared similar facts with the facts contained in the application before him and in and in doing so failed to consider section 18 (1) (b) and (2) of the Family Protection Act 2014;
   3. That the learned Magistrate erred in law and/or fact and thereon miscarried and misdirected himself when he issued the Final Protection Order despite there being a procedural error in the issuance of Police Safety Notices dated 19 February 2022 and 18 March 2022 that breached Section 14 (3) of the Family Protection Act 2014 thereon rendering the proceeding before the Magistrate in Civil Case No. 14 of 2022 void;
   4. That the learned Magistrate erred in law and/or fact and thereon miscarried himself when he issued the final Protection Order without considering mediation as provided for under Section 28 of the Family Protection Act 2014.
3. This appeal of the appellant is contested by the Respondent and the court heard submissions from both counsel on 2 August 2023. In relation to appeal ground 1, it is submitted by Mr Kwaiga of counsel for the appellant that the learned Magistrate erred in both law and fact and thereon misdirected and miscarried by failing to consider all of the circumstances of the Appellant and the Respondent in a fair and just manner. It is submitted that there was no supporting or corroborating independent evidence adduced in the case. It is further submitted that there was no medical report to justify the physical and psychological abuse allegedly committed against the Respondent. It is further submitted that the final orders of the court below also meant and had affected the tenancy agreements between the Appellant and the Respondent. The agreements were nullified and terminated without any lawful basis and without any restitution to the Appellant.
4. It is further submitted that it is also important for the court below to take note that the Appellant and the Respondent were Directors and Shareholders in a company called LCSM Enterprises Limited with the Appellant holding 90% shares and the Respondent holding 10% shares. The company issue is subject to litigation in CC75 of 2022 before this Court. The Claim in that case was filed in court on 28 March 2022, some 11 days before the application for interim orders was filed on 8 April 2022. It is the case for the Appellant that the learned Magistrate in the court below was informed of the litigation in CC75/22 but failed to take those matters into account. It is further the Appellant’s case that some of the properties named in the Final Production Order dated 22 July 2022 are properties belonging to the company and do not belong to the Respondent personally. The Appellant was therefore prejudiced by the said order.
5. It is also submitted by Mr Kwaiga of counsel that the process and procedure adopted by the Respondent in obtaining Final Protection Orders was invalid or null and void. Mr Kwaiga submits that the learned Magistrate failed to consider that the application for Interim Protection Orders was null and void from the beginning. The reason being that the Police Safety Notice issued on 19 February 2022 had expired on 12 March 2022. There was no court order to validate the Police Safety Notice of 19 February 2022 in accordance with s. 14 (1) (a) of the FPA. There was also no extension of that Police Safety Notice before its expiry pursuant to s.14 (1) (b) of the FPA.
6. It is therefore argued on behalf of the Appellant that in dealing with the Police Safety Notice dated 18 March 2022, that resulted in the application for Interim Protection Orders dated 8 April 2022, the learned Magistrate was in effect permitting a wrongful or unlawful act to be occasioned without having jurisdiction or power in law to do so rendering the entire process undertaken from 18 March 2022 to 22 July 2022 null and void and of no effect.
7. In ground 2 of the grounds of appeal, the Appellant’s argument resolves around the application of s.18 (1) (b) & (2) of the FPA 2014. That section provides:
   • s.18 (1) (b) and (2)This section applies if –
     1. .............
     2. the respondent is the defendant in criminal proceedings before a court for the commissions of an offence that involves domestic violence
   • (2) The court may, of its own motion or on an application by or on behalf of an affected person –
     1. make a protection order for the protection of the affected person; or
     2. vary or revoke a protection order for the protection of the affected person made by –
        1. a court with the same or an inferior level of jurisdiction; or
        2. an authorised justice.
8. Having stated the provision, it is submitted on behalf of the Appellant that the court had erred when it failed to consider and apply s.18 (1) (b) and (2) of the FPA despite being aware and being capable of obtaining the relevant information from the Court Registry of the Appellant’s status that he had been an accused person in criminal case number CRC 67 of 2022 that was tried before the Central Magistrate Court.
9. It is Mr Kwaiga’s submission that the allegation contained in the Respondent’s application for protection orders were similar in that it involved the Appellant’s purported acts of domestic violence against the Respondent on 3 February 2022 for which the Appellant was also charged for in CRC 67/22. He was acquitted of the charge on 19 July 2022.
10. In light of the above position, it is further submitted by counsel that when the learned Magistrate failed to take into account the proceeding in CRC 67/22, he had fell into grave error in granting the Final Protection Orders on 22 July 2022.
11. On appeal ground 3, Mr Kwaiga of counsel for the Appellant relies on his prior submission discussed in paragraphs 5 and 6 of this ruling.
12. Ground 4 of the Appellant’s appeal relates to the provision on mediation pursuant to s. 28 (1) of the FPA. That provision provides:
    • s.28 (1) When the court receives an application for protection order, including an application filed under s.25, the court must inform the affected person that he or she may elect to seek mediation with the respondent.
13. It is submitted on behalf of the Appellant that the learned Magistrate fell into error when he failed to take into account the provision of s.28 (1) of the FPA. That provision is a mandatory requirement and the learned Magistrate is required under that provision to inform the affected person whether or not she may elect to seek mediation with the respondent. There is no record in the proceeding that the learned Magistrate had conducted that process when it received the Respondent’s application for a Protection Order. The court is urged by Mr Kwaiga for the Appellant that his client’s appeal should be allowed in the circumstances.

The Respondent’s case

14. Mr Marahare for the Respondent contends that the appeal of the Appellant should be dismissed. On the outset, it is submitted by counsel that the FPA 2014 gives this court a discretion to either confirm, vary or revoke the protection order which the appeal relates and or to make such order or decision as it considers should have been made by the original decision maker.
15. As a background information to the appeal, it is submitted by Mr Marahare that an application for final protection order was made by the Respondent on 19 May 2022 pursuant to s. 19 (a), 21 (1) (a) and 28 (1) of the FPA 2014. The proceeding was commenced by the Respondent as an “affected person”. The application was preceded by 2 Police Safety Notices. The first was obtained on 19 February 2022 and the second on 18 March 2022. An interim protection order was obtained by the court on 11 April 2022 pursuant to s. 26 (a) of the FPA. It is the Respondent’s case that even if an interim protection order was not currently in force, that does not mean that the application was nugatory. Mr Marahare relies on s. 27 of the FPA in support of his argument.
16. It is submitted by counsel that s.45 of the FPA requires that the appeal is by way of a rehearing. That means that this court is being asked to determine whether or not on the evidentiary basis available before the Magistrate Court at the material time and before the court now, it is sufficient for this court to grant final protection orders or to maintain the orders granted by the Magistrate Court.
17. In light of that position, Mr Marahare had set out the issues for determination in this appeal. The first issue alluded to by counsel was whether the Appellant was someone whom the affected person has had a domestic relationship with. It is submitted that the Appellant is indeed someone that the Respondent has had a domestic relationship with taking into account s. 5 (c) of the FPA. The parties have had an actual intimate or sexual relationship with each other for some time. That section provides:
    • s. 5 (c) A person is in a ‘domestic relationship’ with another person if –
      1. .............
      2. ............
      100. they are or were in an engagement, courtship or customary relationship, including an actual or perceived intimate or sexual relationship of any duration;
18. The next issue in counsel’s submission is whether the Appellant had committed or likely to commit domestic violence against the Respondent as defined in s. 4 (1) of the FPA. I set out that provision:-
    • s. 4 (1) “Domestic violence” is conduct committed by a person (the “offender”) against another person with whom the offender is in a domestic relationship, or the threat of such conduct, that constitutes any of the following –
      1. physical abuse;
      2. sexual abuse;
      100. psychological abuse;
      4. economic abuse
19. Counsel had referred to paragraphs 8, 9, 10 and 17 of the sworn statement of Li Ping Ma filed on 19 May 2022 in support of his client’s position. There was also sexual abuse contained in paragraph 11 of the Respondent’s sworn statement on page 167 of the Appeal Book. Psychological abuse would also be evident in paragraphs 14 and 23 of the sworn statement of the Respondent on pages 167 and 168 of the Appeal Book. Economic abuse is shown on paragraphs 20 and 21 of the same sworn statement at page 168 of the Appeal Book and exhibits “C” and “C1” of the additional sworn statement of the Respondent on page 102 of the Appeal Book. It is also the Respondents case that the Appellant had admitted to domestic violence and that could be extracted from exhibit “A” to the additional sworn statement of the Respondent at page 98 of the Appeal Book.
20. The third issue for the court to determine is whether the making of a final protection order is necessary to protect the Respondent from domestic violence. It is submitted by counsel that there is sufficient justification that warrants the making of the final protection order. The parties relationship had hit rock bottom and the Respondent was fearing for her safety. There are a lot of unresolved and outstanding business issues affecting both parties and therefore the final protection order was justifiable. There was also allegation that the Appellant was in possession of firearm which poses a security risk for the Respondent.
21. Having discussed the issues that needed the determination of this court, Mr Marahare has addressed the respective appeal grounds of the Appellant. In respect of appeal ground 1, it is submitted by counsel that the court is merely required to satisfy itself on the balance of probabilities as to the allegations under s. 29 (1) of the FPA. It is therefore submitted that on numerous occasions, the Appellant had committed domestic violence on the Respondent as per her sworn statement filed in this cause. It is also submitted by Mr Marahare of counsel that even if the interim protection order was no longer in force at the material time, that does not render the application nugatory. Counsel relies upon s.27 of the FPA in support of his position.
22. In relation to appeal ground 2, it is submitted by Mr Marahare that the Magistrate Court has jurisdiction to make the orders as it did on the basis of s. 17 (1) (a) and s. 18 (2) (a) of the FPA. It is submitted that the learned Magistrate was not in any mandatory obligation to consider or take into account CRC 67 of 2020 of which the Appellant was acquitted.
23. In as far as appeal ground 3 is concerned, it is submitted by counsel that there is no procedural error committed as alleged. It is further submitted that even if there was, that did not render any application for final protection order nugatory or that any orders issued as a result thereof were void. So that if there was any procedural error at all, such error did not take away the jurisdiction of the Magistrate Court to make a final protection order.
24. As to appeal ground 4, it is submitted by Mr Marahare that the learned Magistrate had complied with s. 28 (1) of the FPA. It is submitted that in earlier stages of the proceeding before the lower court, the learned Magistrate informed the Respondent about the possibility of mediation with the Appellant. The Appellant and the Respondent were given ample time to seek mediation but the Respondent had opted to apply for a final protection order instead. Upon the matters discussed by Mr Marahare, it is therefore submitted that the appeal of the Appellant should be dismissed with cost.

Discussion

25. Having discussed the case for the Appellant as well as the Respondent, I must remind myself that under s. 45 (1) of the FPA, this appeal is treated as a rehearing. In that regard, I must take into account the evidence which was adduced by the respective parties at the lower court and this court.
26. Appeal ground 1 attacks the decision of the learned Magistrate in making a final protection order without any corroborative and independent evidence. It is alleged that the final protection orders also affected existing tenancy agreement between the Appellant and the Respondent. There was no restitution for the Appellant. It is further the case for the Appellant that some of the properties listed under order 3 of the final protection orders were properties belonging to LCSM Enterprises Limited, a duly registered company with both the Appellant and the Respondent holding shares and are also directors thereto. The issues relating to the company are currently before this court in CC75 of 2022.
27. In relation to the properties covered in order 3 of the final protection order dated 22 July 2022, I have read the 2^nd sworn statement of Chandana SG Karunapedige filed on 26 July 2020, the 2^nd sworn statement of Li Ping Ma filed on 25 August 2022 and the 3^rd sworn statement of Chandana SG Karunapedige filed on 25 August 2022 and I could see that ownership are an issue between the parties to this appeal. I have also noted that matters affecting LCSM Enterprises Limited is currently before this court in CC 75 of 2022. Ownership of the said properties will have to be determined by the court in that proceeding pursuant to the provision of the Companies Act (cap 75) and other related legislations under that Act.
28. In the 2^nd sworn statement of the Appellant filed on 26 July 2022 after the final protection order was made by the Magistrate Court, the Appellant stated that the items referred to in order 3 (b) (1), (2) and (4) belong to LCSM Enterprises Limited as well as he had personally contributed to the purchase of the items listed. Copies of receipts were attached to the sworn statement which included receipts for LCSM Enterprises Limited, from LP Company Limited and from the Appellant as well. It is the Appellant’s case that those items should therefore be removed from the final protection order. There is no other issues in relation to the balance of the properties under order 3 of the final protection order except that the Appellant denied the properties are in his possession.
29. In relation to the tenancy agreement allegedly breached by virtue of the final protection order of 22 July 2022, the Appellant was entitled to have received six months notice before termination of the said agreements. The tenancy agreements dated 31 December 2021 were in respect of the respective properties in parcel number 192-004-324 and 192-035-256.
30. On the contrary, the 2^nd sworn statement of Li Ping Ma filed on 25 August 2022 was to the effect that the properties in order 3 (b) (1), (2) and (4) belonged to LP Company Limited, her own company unrelated to LCSM Enterprises Limited. Some of the receipts produced by the Appellant were not correct receipts because her company has its own receipts. The said properties therefore belonged to her company LP Company Limited or herself and should not be removed from the final protection order. In fact, it is further deposed to in her sworn statement that the generator set on order 3 (b) (i) has been given by the Appellant to a third party.
31. It is further the Respondent’s case that the Appellant is not concerned about the affairs of LCSM Enterprises Limited. The Respondent says that under the Appellant’s management, the company was unable to make timely repayment of loan obligation to Pan Oceania Bank which resulted in the bank suing the company for loan arrears. The Respondent had to step in to settle the arrears and the case in CC 235 of 2022 was withdrawn. It is therefore the case for the Respondent that the company LCSM Enterprises Limited was salvaged by herself and the Appellant is trying to run her down economically.
32. One of the main thrust of appeal ground 1 of the Appellant’s appeal hinges on the need for corroboration of the evidence of the Respondent in the court below. Having discussed the cases for both the Appellant and the Respondent in respect of ground 1, I would say that the need for corroboration of evidence in court was abolished upon the coming into effect of the Evidence Act 2009. Section 18 of that Act provides:
    • s.18 Subject to any other written law, it is not necessary that evidence on which a party relies be corroborated.
33. In light of that provision, it is not necessary that the evidence of the Respondent was corroborated by independent evidence before the lower court. The court can rely on the evidence of the Respondent if it is satisfied that the evidence adduced contains the truth of the matter in issue. It boils down on whether or not the witness was a credible witness. The court at first instance is the court that could decide on credibility of a witness.
34. The other thrust of the Appellant’s contention in appeal ground 1 is that the application for interim protection order was null and void from the start because the first police notice issued on 19 February 2022 had expired on 12 March 2022 without a court order to validate it under s. 14 (1) of the FPA and an extension prior to its expiry on 12 March 2022 was not made as required under s. 14 (1) (b) of the FPA. So in effect, from what I could get from submission of Mr Kwaiga is that the police safety notice is a prerequisite to the making of a protection order by a Magistrate Court. Upon expiry of the police safety notice, the Magistrate Court’s jurisdiction could not be invoked under s. 19 of the FPA.
35. I am of the considered view that the argument of the Appellant is flawed on the following basis. Firstly, I am of the view that the court’s jurisdiction is not subject to the police safety notice. The police safety notice could be relevant to situations where the affected person has no access to the court system or that the issue is extremely urgent and the court’s powers are not able to be invoked.
36. Even without a police safety notice an affected person can go direct to the Magistrate Court and make an application under s. 19 of the Act. The Magistrates Court jurisdiction in conferred on them under s. 17 of the Act and it is not a condition precedent that a police safety notice must first be obtained before that jurisdiction could be exercised. There is nothing that hinders the Magistrate Court to exercise their jurisdiction under s. 17 of the Act so even if the police safety notice had expired as alleged, the jurisdiction of the Magistrate Court can still be invoked under s.17 of the Act.
37. On the issue of the effect of the final order on early termination of the parties tenancy agreements, it is my considered view that the issue should and could be resolved in other civil litigation for breach of contract and not through this process. So having discussed the issue surrounding appeal ground 1, I hereby allow appeal ground 1 in part only. In place of the final protection order dated 22 July 2022, the properties itemised under order 3(b) (1), (2) and (4) are to be excluded from the said order. The Magistrate Court and this court has no jurisdiction to deal with them initially because I am of the view that the said properties are partly owned by LCSM Enterprises Limited. The properties can only be properly and legally dealt with by this court in CC 75 of 2022.
38. In relation to appeal ground 2, it resolves around the application of s. 18 (1) (b) and (2) of the FPA. At the material time when the final order was entered by the court, the Appellant was acquitted of the criminal charges against him. The complaint in the criminal charges were similar in nature and the learned Magistrate should have taken that fact into account pursuant to the above provisions.
39. My reading of s.18 of the Act, is that even if the Appellant was a defendant in criminal proceedings for commission of offences involving domestic violence, the court may still make a protection order for the protection of the affected person. So it is at the discretion of the said court to either make or refuse to make a protection order applied for. The two proceedings are different in nature. The criminal complaint requires proof beyond reasonable doubt and the application under the FPA is proof on the balance of probabilities and therefore the criminal complaint might not be proved to the required standard that had led to the acquittal of the Appellant.
40. On the balance of probabilities as is stipulated under s. 29 of the Act, the learned Magistrate had used his discretion to make a final order instead of exercising his discretion under s. 18 (1) (b) and (2) of the Act. There was overwhelming evidence adduced by the Respondent before the Magistrate Court on physical abuse, sexual abuse, psychological abuse and economic abuse on her. I fail to see any error occasioned by the learned Magistrate in making a final order. I have perused the various sworn statement filed by the respective parties to this appeal and can find on the balance of probabilities that the Appellant had committed domestic violence and is likely to commit domestic violence on the Respondent. Appeal ground 2 is hereby dismissed.
41. In as far as appeal ground 3 is concerned, I have discussed the arguments raised under appeal ground 2 above. In light of my discussions on appeal ground 2 above, I also dismiss appeal ground 3 of the appeal.
42. As to appeal ground 4, it attacks the lower court’s discretion to refer the parties to mediation under s. 28 (1) of the Act. The Respondent’s submission in relation to this ground is that the Respondent was advised by the court to try and utilise the provision of s.28 (1) of the Act. The Respondent had opted to apply for final protection orders. According to her sworn statement filed on 19 May 2022, her relationship with the Appellant had reached rock bottom. That statement means that the relationship had ceased between them. There was no option for mediation under s. 28 (1) of the Act.
43. In view of that evidence, I am of the view that any form of mediation under s.18 (1) of the Act would prove to be futile between the parties. That avenue could only be possible if there was any possibility of reconciling the differences between the parties. In this case and from the sworn statements filed by the respective parties, any form of mediation would not have been able to be achieved anyway. Appeal ground 4 is also dismissed.
44. From the above discussion, I hereby order that appeal ground 1 is allowed in part only. Appeal grounds 2, 3 and 4 are hereby dismissed. I further order that parties are to bear their own costs. The result of this appeal is to be certified to the Central Magistrate Court.

THE COURT
Justice Maelyn Bird
Puisne Judge