Solomon Islands Broadcasting Corporation v Bisili [1999] SBHC 119; HC-CC 218 of 1998 (14 December 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 218 of 1998

lass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> SOLOMON ISLANDS BROADCASTING CORPORATION

v

MARK BISILI

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands Before: Palmer J.

Civil Case No. 218 of 1998

Hearing: 9^th December 1999

Ruling: 14^th December 1999

Applicant/Defendant in person

A. Radclyffe for the Respondent/Plaintiff

P J.: This is an action by they the Plaintiff, holder of the fixed-term estate in Parcel Number 191-032-2 (hereinafter referred to as “the Premises”), for inter alia, damages for trespass and possession of the Premises. The Defendant was a former employee of Plaintiff. In or about 16^th September 1996, Plaintiff made offer to Defendant for sale of the Premises for $85,000-00. Defendant was in occupation of the Premises at time of offer and was given opportunity to raise funds from Solomon Islands National Provident Fund (“SINPF”) for purchase of the Premises. Defendant was unsuccessful in obtaining loan from SINPF. His contract of employment with Plaintiff expired on 1^st May 1998 and was not renewed. He was then given until 31^st July 1998 to come up with purchase price. Further extensions were given, to 14 August 1998, then 28 August 1998 and finally 30 September 1998 (see annexures “MB 6”; “MB 7”; and “SIB 8” annexed to affidavit of Mark Bisili filed on 19 January 1999). Thereafter Defendant was served with Notice To Vacate the Premises within three weeks, by letter dated 6 October 1998 (see annexure “MB 90”). On or about 11 November 1998, proceedings in this Court were commenced to have Defendant removed from the Premises. Defendant entered appearance through Counsel Mr. A. Talasasa, on or about 2^nd December 1998 (see Memorandum of Appearance filed 2^nd December 1998). Statement of Defence was filed on 19 January 1999. Pleadings closed on or about 4^th May 1999 and Certificate of Readiness was filed on 8 June 1999, indicating case was ready for trial. Case was first listed for trial for 5^th August 1999. Notices of hearing were sent out to parties solicitors on 22^nd June 1999. On 3^rd August 1999, Defendant filed summons returnable on trial date seeking leave to file counter-claim out of time. Court granted leave. Defendant did not attend hearing; his Counsel appeared on his behalf (see affidavit of Andrew Radclyffe filed 29 November 1999 at paragraphs 2 and 3). Case was again listed for the second time for trial for 5^th October 1999. Plaintiff and his witnesses attended Court. On day before trial date (4^th October), Defendant’s Counsel informed Court he would not be able to attend as he was under treatment for malaria. Case was again adjourned and new date fixed for the third time for 26 October 1999. Case did not come up for trial until 28 October 1999. Defendant did not turn up for trial but his Counsel did. Application was made by his Counsel for further adjournment on grounds he could not be located in town and therefore could pass message to him about hearing date. This was granted by Court. It seems however Defendant was around town at time of said hearing date (see paragraph 8 of a affidavit of Andrew Radclyffe filed 29 November 1999 at paragraph 8, deposing to fact that Defendant was seen around his residence on said date). New date was fixed for the fourth time for 16 November 1999. Notices of hearing were dispatched on 28 October 1999. Plaintiff and his witnesses attended. Neither Defendant nor his Counsel appeared on said date. Court allowed trial to proceed with Plaintiff calling its witness to adduce evidence in support of its claim and judgement entered against Defendant. Defendant now comes to Court by Summons filed 18 November 1999, seeking to have judgement set aside under Order 38 Rule 7 of the High Court (Civil Procedure) Rules, 1964 (hereinafter referred to as “the High Court Rules”). Time limit provided under Rule 7 is three weeks. This has not expired. Defendant filed three affidavits in support; two by himself filed on 19 November and 9 December 1999 and the third by his Counsel filed on 9 December 1999. Ground relied on was that he was not aware of hearing date. Mr. Bisili states in his affidavit filed 8 December 1999 he was away at Western Province during the month of October 1999 and only returned towards end of month. He states he did not get in touch with his Counsel on his return. He did state though in his submissions before this Court he had relied on his Counsel (as any defendant would have done in his position) to do everything for him.

An affidavit has puedly been filed by Mr. Talasasa in support of Defendant’s application but on the face of which is defective. Paragraph (1) of that affidavit did not state full name of the Deponent. It merely states “I was the Solicitor for the Defendant”. An affidavit should always contain the name in full of the person making it and contain words to the effect “make oath or solemnly and sincerely declare as follows:”. It should be borne in mind an affidavit is a solemn document invoking the authority of God Almighty as witness to what is being deposed. It should never be taken lightly accordingly. That affidavit also did not contain the description and true place of abode of the Deponent. Counsel in this case should have taken cognisance of the provisions of Order 40 of the High Court Rules as to format of affidavits. The affidavit to that extent is defective and would have been inadmissible but for Mr. Radclyffe’s willingness to have it admitted for purposes of this application as it sheds light on the plight of the Defendant’s case in this matter. That affidavit accordingly has been received and a memorandum entered to that effect pursuant to Order 40 Rule 14 of the High Court Rules.

At paragraph 2 of his affidavit, Mr. A. Talasasa states he advised Defenda secure the services ices of another Solicitor to continue with the remaining part of his case. In the affidavit of Mr. Bisili filed 9 December 1999, paragraph 7, he confirms receiving a letter from Mr. Talasasa dated 30 October 1999, towards “the end of the second week of November”. He would not have been in position in any event to be aware of the fact that after 28 October 1999, Mr. Talasasa was no longer willing to represent him. How or why said letter did not get to Mr. Bisili until after two weeks is not known. Mr. Talasasa also did not state in his affidavit when or how Defendant was informed after 28 October 1999.

This Court also notes a document entitled “DiscontinuatioRepresentation” was fils filed on 9 December 1999. This has been objected to by Mr. Radclyffe as inadmissible on grounds there is no such thing provided for in the Rules. Two things can be observed from that document. First what Mr. Radclyffe says is correct. The Rules make no provision for such document. Secondly, even if the document should be accepted, it would only have been effective from date of filing; 9 December 1999. Learned Counsel, Mr. Talasasa would have been obliged to represent Mr. Bisili right up to 9 December 1999.

Order 7 Rule 2 deals with the question ofge of Advocates. I quote:

“2. (1) A party suing or defending by an advocate shall bliberty to change his advocadvocate in any cause or matter, without any order for that purpose, but unless and until notice of any change of advocate is filed the former advocate shall be considered the advocate of the paryt till the final conclusion of the cause or matter.

(2) Notice of any change of advocaall be filed with the RegisRegistrar of the Court.”

In the affidavit of Mr. Talasasa at paragraph 2, he depoe advised the Defendant to t to secure the services of another Solicitor. Mr. Bisili confirms this in his submissions before this Court that the decision to withdraw was made by his Counsel.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Rule 2 of Order 7 makes plain one thihat “unless and until notice of any change of advocate iate is filed the former advocate shall be considered the advocate of the party till the final conclusion of the cause or matter”. Rule 2 unfortunately makes no provision for the situation where a Solicitor acting for a particular person decides to withdraw his services. Guidance therefore must be sought from the Rules of the Supreme Court 1883 contained in The Annual Practice 1958 (application provided for under Order 71 of the High Court Rules). Order 7 Rule 4 of the Rules of the Supreme Court 1883 provides as follows:

“Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with the provisions of Rule 2 of this Order, (note Rule is identical to our Rule 2 of Order 7 as well) the solicitor may on notice to be served on the party personally or by prepaid post letter addressed to his last-known place of address, unless the Court or Judge otherwise directs, apply to the Court or Judge for an order to the effect that the Solicitor has ceased to be the solicitor acting for the party in the cause or matter, and the Court or Judge may make an order accordingly; Provided that unless and until the solicitor has –

(a) served on every party to he cause or matter (not being a party in default as to entr entry of appearance) a copy of the said order; and

(b) procured the order to he entered in the appropriate office mentioned in Rule 2(2) of this Order; and

(c) left at the said office a certificate signed by him that the order has been served as aforesaid;

he shall (subject to the provisions les 2 and 3 of this Order) der) be considered the solicitor of the party to the final conclusion of the cause or matter whether in the High Court or the Court of Appeal.”

Rule 4 above sets out in meticulous terms how a Solicitor who wishes to withdrs services is to act. act. In essence an order would have to be obtained from the Court before such Solicitor can regard himself as having been discharged. In the facts of this case, it is clear no such order had been obtained.

onduct of Counsel for the Defendant, in particular after 28 October 1999, is of conceconcern to this Court, irrespective of who such Counsel may have been. Learned Counsel Mr. Radclyffe had gone to extents to submit it amounts to unprofessional conduct, in particular if one were to take into account paragraph 3 of Mr. Talasasa’s affidavit. I quote:

“Between 28/10/99 and 16/11/99 I did not check my High Court mail box as I was with other demanded commitments and therefore I did not sight the hearing date to be on 16/11/99.”

Mr. Radclyffe ry points out learned Counsel is obliged to check his mail box at the High Court Registry on a regular basis especially in the circumstances of this case, where he owes a duty to his client and where he had not been released from his obligations by order of the Court. I repeat for the sake of all legal practitioners, any counsel who wishes to withdraw his services from continuing with a client’s case must obtain order of release from the Court as provided for in Rule 4 of Order 7 of the Rules of the Supreme Court 1883 (ibid). Counsels must always bear in mind theirs is an honourable profession and the demands placed and expected of them in the conduct of their profession is very high indeed. This is reflected by the fact their conduct is governed by rules (The Legal Practitioners (Professional Conduct) Rules), and rules of procedure set out in the High Court Rules and Rules of the Supreme Court 1883 (ibid). Not only had Court time been wasted in this instance, but Mr. Bisili’s case had been unnecessarily prejudiced. It is this Court’s duty in those unfortunate circumstances to refer the matter to the Honourable Chief justice under section 8(1) of the Legal Practitioners Act [Cap. 16] for his consideration in the light of Counsel’s conduct under Rule 4(a)(iii), (v), and 4(c) and Rule 9(1) and (3) of the Legal Practitioners (Professional Conduct) Rules.

The effect of this meant the ment purporting to withdraw legal services must be struck ouck out as ineffective and any suggestions that Mr. Talasasa no longer represents Mr. Bisili to be a nullity. The proper course now open to Mr. Talasasa is to apply to Court for order of release pursuant to Rule 4 of Order 7 of the Rules of the Supreme Court 1883 (ibid). In the meantime he is deemed by the Rules to be still the Solicitor on record for the Defendant and obliged to receive service of documents on behalf of his client and to act in a manner consistent with that representation. The Defendant on the other hand has duty to check with Mr. Talasasa on regular basis for the handling and future conduct of this case until formal order of release is obtained.

What should now happen to the application to set aside? The Defendant has had to appear in Court in person to defend his case and to seek orders to have judgement entered on 16 November 1999 set aside. Whilst on one hand I am satisfied judgement entered was proper in all respects with respect to service of hearing notices, I cannot overlook fact that Defendant had been prejudiced by the conduct of his Counsel. From the affidavit material before this Court, blame cannot be squarely placed on Defendant. The bulk of blame must lie on his Counsel’s shoulders, though I accept some blame must be borne by the Defendant for failing to check with his Counsel on regular basis about progress of his case especially when he knew case was at concluding stages for trial.

I do bear in mind on the other hand, the prejudice Plaintiff feels it has been subjected cted to and the feeling that the Defendant is not serious about his case and may be employing delaying tactics. In all the circumstances, the balance of justice just tips slightly in favour of the Defendant for the granting of an order to set aside. Defendant will be given therefore one last chance to defend his case. No further adjournments will be considered by the Court except for very good reasons.

Hestion of representation in the meantime must be sorted out with Mr. Talasasa and prod proper application made to Court where that is necessary. The case is to be listed for trial as soon as possible after Court Vacation in the new year in January or February.

Finally, the question of costs for 16 November and 9 December 1999. This must be aw in favour of the Pla Plaintiff. The only issue outstanding is whether this should be on indemnity basis or not and whether it should be borne by the Defendant or his Counsel. Based on the affidavit material before this Court, it is my respectful view costs should be on indemnity basis and should be ordered against Counsel for the Defendant. I do recognise however, both the Defendant and his Counsel had not been given opportunity to address on this issue. Accordingly I direct this issue be determined by the Registrar of High Court.

ORDERS OF THE COURT:

b> 1. &nbssp;&nnsp;& Ssp; SET ASIT ASIDE JUDGEMENT OF 16 N 16 NOVEMBER 1999.

2. & p;&nssp; Asp; AWARD CARD COSTS OF 16 NOVEMBOVEMBER AND 9 DECEMBER 1999 IN FAVOUR OF THE PLAINTIFF.

3. &nbbsp; &nsp; DIRECT QOESTI OF WHETHEHETHER COSTS SHOULD BE AWARDED ON INDEMNITY BASIS AGAINST DEFENDANT'S COUNSEL OR THE DEFENDANT TO BE HEARD BY REGISTRAR OF HIGRT.

4.  p;&nssp; DIRECT CECT CECT CASE TO BE LISTED FOR HEARING FOR JANUARY / FEBRUARY YEAR 2000.

&pt"> nbsp;

THE COURT