Gora v Gigini [2003] SBHC 89; HC-CC 002 of 2003 (14 March 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 2 of 2003

CHRISTIAN GORA

–V-

WILLIAM GIGINI (for Belama Tribe), SELWYN GAMUTU (Sinage Tribe),
KOLIGHOLE DEVELOPMENT COMPANY,
ATTORNEY GENERAL (Representing the Commissioner of Forest
And Provincial Government) AND PAN PACIFIC PARTS LIMITED

High Court of Solomon Islands
Muria, CJ

Date of Hearing: 11th March 2003
Date of Ruling: 14th March 2003

M. Ipo for the Plaintiff
M. Samuel for the 1^st, 2^nd, 3^rd and 5^th Defendants
J. Deve for the 4^th Defendants

MURIA, CJ: This is the Court’s ruling on a preliminary point raised by Jeffrey Deve of Counsel for the fourth defendant. The challenge mounted by Mr Deve is in respect of the admissibility of two affidavits sworn by the plaintiff before Mr Rawcliffe Ziza who is another solicitor in the Public Solicitor’s Office where Mr Michael Ipo, Counsel for the plaintiff, also works.

Background

The brief background to the case is that, the plaintiff has commenced proceedings on 10^th January 2003 against the defendants by way a Writ of Summons, claiming declaratory orders, permanent injunction, damages for trespass and for conversion, and costs. An ex parte summons was taken out by the plaintiff on the same day for an interim injunction against the defendants from entering the land in question, namely, Kolighole land, for the purposes of felling, extracting and removing trees, logs or timber from the said land. In support of that application, the plaintiff swore and filed two affidavits, one sworn on 18^th December 2002 and filed on 10^th January 2003 and the other sworn on 14^th January 2003 and filed on the same date. The interim application was heard on 21^st January 2003 and an interim order made on the same date. At the inter partes hearing on 7^th February 2003, the defendants had also filed summons seeking to discharge the interim order dated 21^st January 2003 or vary that order. The Court granted variation of the interim order on same date. At that hearing, Counsel for fourth defendant gave notice that he would mount a challenge to the validity of the two affidavits mentioned earlier. Having now been granted abridgment of time, he now brings put his challenge to the two affidavits by way of notice of motion.

The Issue

Mr Deve challenges the validity, and so the admissibility, of the two affidavits sworn by the plaintiffs on 18^th December 2002 and 14^th January 2003 respectively. Both affidavits were sworn before Mr Rawcliffe Ziza, a solicitor also in the Public Solicitor’s Office where Mr Michael Ipo, Counsel for the plaintiff, works. So the issue is whether the two affidavits were validly sworn.

Argument

For the fourth defendant, it was argued, in essence, that since counsel for the plaintiff and Mr Ziza before whom the affidavits were sworn, were both solicitors in the Public Solicitor’s Office, it was not proper that Mr Ziza should administer the oaths in respect of the two affidavits. Counsel for the fourth defendant contended that to do so would be in breach of section 3 (2) of the Oaths Act (Cap. 23) and Order 40, r.16 of the High Court (Civil Procedure) Rules. In the ordinary language, the two provisions of law prohibit in affidavit being sworn before an advocate or solicitor of the party on whose behalf the affidavit is to be used or before a clerk or agent of such advocate or solicitor. Mr Deve sought to impress upon the Court that the two affidavits in question were invalid and are null and void and ought not to be admitted in evidence for breach of the Oaths Act and High Court Rules.

On the other hand, Mr Ipo defended the action taken by his colleague Mr Ziza. He contended that there was nothing improper about one solicitor in the Public Solicitor’s office administering oaths in respect of an affidavit of a client of another solicitor in that office. Each solicitor in the Public Solicitor’s Office represents his or her own client, unlike that of a private legal practice. Therefore, Counsel argued, a solicitor in the Public Solicitor’s Office is not prevented from administering the oath to an affidavit such as that done in the present case.

Decision

There is a clear case law authority for the position contended for by Mr Ipo. In Tang v Lo^[1] the Court held that where one solicitor in the Public Solicitor’s Office was acting for a person, that did not result in all the solicitors in that office becoming ‘an advocate’ for that person. An affidavit could, therefore, properly be sworn before another solicitor who works in the Public Solicitor’s office and who is not acting for the person on whose behalf the affidavit is to be used. The reason for so holding is succinctly put by Daly CJ as follows:

“Each lawyer in that office must be.............before him.”

That is the law at the present until it is otherwise said so by the Court of Appeal. Counsel for all parties in this case have not bothered to research into this aspect of the law for authorities from jurisdictions that have the same set up. The two obvious places are Papua New Guinea and Solomon Islands. Authorities from the United Kingdom on this particular aspect of the practice of the law are clearly inapplicable. Thus the authorities cited Mr Deve in support of his contention are of no help to his argument. It was on the invitation of the Court that counsel for the parties have been alerted to the case of Tang –v- Lo (No. 1), the case which discussed the very rule which Counsel for fourth defendant is here relying upon (Rule 16 of O.40). Having been alerted by the Court of the Tang –v- Lo’s case, and inviting Counsel to make further comments if they so wished, only Counsel for the fourth defendant make a short additional written submission. The Court is grateful. A distinction was sought to be made by Counsel that in the Tang –v- Lo case, the solicitor who had sworn the affidavit was “no longer in the Public Solicitor’s office when Mr Gordon Strang, who also work (sic) in the Public Solicitor’s office took charge of the case.” Firstly, this assertion is utterly incorrect. The solicitor, Mr Radclyffe, who represented the defendant is that case, and who had sworn the affidavit before Mr Strang, had not left the Public Solicitor’s Office. In fact Mr Radclyffe was the defendant’s advocate who took charge of the case, not Mr Strang. It was Mr Radclyffe who argued the case before the Court. When I joined the Public Solicitor’s Office in late 1982, Mr Radclyffe was still in the office, and so was Mr Strang who left the Public Solicitor’s Office in 1983. Mr Radclyffe was still in Public Solicitor’s Office when I left that office in August 1991. Mr Radclyffe did not leave the Public Solicitor’s Office until after I left in 1991.

Mr Strang never took charge of the case. Counsel’s submission on the facts of that case was clearly not correct. The distinction which he sought to impress upon the Court therefore cannot hold water as well. Secondly, there may be occasions when the solicitor for a party may have been absent and another solicitor in that office “stands-in” for that solicitor. Very often the standing-in solicitor merely asks the Court for an adjournment to enable the advocate for the party to take charge of the matter at the later stage. That does not make the standing-in solicitor in the Public Solicitor’s Office an advocate for the party concerned in terms of O.40 r 16 of the High Court Rules.

If anything, what requires to be done in the Public Solicitor’s Office is perhaps a proper office practice to ensure that the conduct of cases by solicitors in that office keeps within the bounds of the legal position of each solicitor in that office.

In the present case, the legal position of each solicitor in the Public Solicitor’s Office is laid down in Tang –v- Lo. That being so, the fourth defendant’s application is dismissed.

Sir John Muria
CHIEF JUSTICE

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^[1] Tang v Lo (No.1) [1982] SILR 41