Alex v Kova [2010] SBHC 64; HCSI-CC 434 of 2005 (14 October 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(GOLDSBROUGH J)

Civil Case No: 434 of 2005

BETWEEN:

ALEKOTI ALEVANGANA ALEX
(Suing on behalf of the Lolobo tribe of Kolombangara Island
Claimant

AND:

ISAAC KOVA
(of Vovohe village, Kolombangara Island, Western Province)
Defendant

Date of Hearing: 29 June 2010 and 26 July 2010
Date of Decision: 14 October 2010

James Apaniai for the Claimant
Dr P Tagini for the Defendant

DECISION

Goldsbrough J:

1. This is an application for the revocation of Letters of Administration first granted by this Court in October 2005. Those Letters themselves were revoked and issued again on 13 December 2007, when the Public Trustee was replaced by the present holders. In addition the applicant seeks the grant of replacement Letter of Administration in his name. He has taken out the application in a representative capacity. He asserts that he is suing 'on behalf of the Lolobo Tribe of Kolombangara Island.'
   
2. As an interlocutory matter the applicant has been required to provide proof of his entitlement in custom to act as such a representative under Rule 3.42 Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR).
   
3. Evidence has been heard on the application. On behalf of the applicants the claimant Alekoti Alevangana Alex gave evidence and was cross examined. For the respondents to the application James Rizu and Isaac Kove gave evidence and were also cross examined. Leave was given for George Ngumi to give additional evidence.
   
4. In submissions for the applicant it was conceded that there is a division within the Lolobo Tribe. As an example of this counsel for the applicant noted that the two elements of the tribe will not mix and will not attend the meetings organised by the other element. This is borne out by the evidence on the application.
   
5. Rule 3.42 of CPR provide a mechanism whereby a community, tribe, line or group may sue or be sued through a person entitled in custom to represent that community, tribe, line or group. It is a useful provision for a collective to bring proceedings without the need to name every member as a party. It is equally useful in the opposite direction.
   
6. It is not useful where there is division within that collective. In this case there is, as counsel for the applicant concedes, a division within the tribe. In those circumstances it is not clear why the applicant chose to sue in a representative capacity on behalf of the whole. Indeed it is not possible in those circumstances for an action purported to be on behalf of the whole to be successful in the resolution of a dispute between those people who all belong within the whole.
   
7. At the end of the hearing, by which time it was apparent that this application involved a dispute within the group, counsel for the applicant was asked why the proceedings were brought as they had been, in a representative capacity. His response is that this was on the instructions of his client. Further to be given the opportunity to amend the application to reflect the applicant as wishing to proceed as an individual was not sought or required.
   
8. In those circumstances the applicant cannot and has not shown that he represents his tribe. He has demonstrated that he may be qualified to speak for that part of his tribe which supports him and no more. That is not the same as is required under Rule 3.42. To that extent the case cannot proceed on that basis.
   
9. This dispute between members of the same group or tribe could never be brought and succeed as it has been brought, purporting as it now does to be the whole tribe suing. Yet since the applicant appears not to seek amendment to the case he has brought into proceedings in his own name it seems to this court that the only proper course is to dismiss the case in its entirety. This is regrettable as there does appear to remain a dispute between the parties. Yet it is a dispute within the tribe and cannot be resolved by a representative action being brought.
   
10. The Court has not been told whether when the client gave instructions to sue in a representative capacity this was against advice or not. This case does, however, afford the opportunity for the court to remind legal practitioners of the duty to give advice and only thereafter to act on instructions. If the client, after advice, seeks not to follow that advice then he or she has made an informed choice. If the advice is not given in the first instance the choice can hardly be described as informed. It is not enough for a legal practitioner to act on instructions in circumstances where the client would benefit from advice prior to giving the instructions.
    
11. Costs are ordered to be paid by the applicant to the defendants, such costs to be agreed or taxed.
    

Dated this 14th day of October 2010

GOLDSBROUGH J