Ha'apio v Keniasina [2011] SBHC 12; HCSI-CC 343 of 2010 (28 March 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 343 of 2010

BETWEEN

ALIKI TOKI'I HA'APIO
First Petitioner

And

ABRAHAM NAMOKARI
Second Petitioner

And

MICHAEL AHIKAU
Third Petitioner

And

ANDREW HANARIA KENIASINA
Respondent

Mr Afeau for the First, Second and Third Petitioners
Mr Keniapisia for the Respondent
Ms Folaumoetui for the Attorney General

Date of Hearing: 15th March 2011
Date of Judgment: 28th March 2011

1. Following the August 4th 2010 election the Respondent was returned as the Member for the East Are'Are Constituency. On 14th September the Petitioners filed their petition. The basis of the petition is set out in paragraph 9, which sets out allegations the Respondent, "by himself or through his campaign managers, agents supporters and or by his family members" committed acts of bribery. A response was filed on 24th September on behalf of the Respondent by JAK Legal Services. According to the headed notepaper of JAK Legal Services, the principal partner of the firm is John A Keniapisia. There is no dispute John A Keniapisia is the same John Keniapisia named in paragraph 9 of the Election Petition.

2. Mr Afeau has made an application on behalf of the petitioners asking the court to restrain Mr Keniapisia from acting for the Respondent. The application is based on the Rules 13 and 16 of The Legal Practitioners (Professional Conduct) Rules. The Rules are made under section 21 of the Legal Practitioners Act [Cap 16].

3. Rule 13 contains a prohibition against a legal practitioner appearing in court where by reason of his connection with the client it would be difficult for him to maintain his professional independence (sub section (1)). Rule 16(14) prohibits a legal practitioner from accepting instructions in a case where he has reason to believe he is, or is likely to be, a witness. 16(15) says a legal practitioner should withdraw from a representing a client if it becomes apparent that he is or is likely to be a witness on a material question of fact and he can withdraw without jeopardising his clients interest.

4. I will deal with the objection under Rule 16 (14) first. It has long been established that a Barrister should not be both counsel and a witness in the same case. It was succinctly put by Humphrey J this way, "A barrister may be briefed as counsel in a case or he may be a witness. He should not act as both counsel and a witness in the same case". [1] A modern exposition of the rationale behind that principle is to be found in a New South Wales Supreme Court case, "It is generally undesirable for a practitioner who is aware that he is likely to be called as a witness, other than in relation to formal or non-contentious issues, to continue to act. If a practitioner's credibility is at stake as a witness, his personal integrity may be put in issue and that may constitute a personal interest inconsistent with the practitioner's duty to the court or to the client". [2]

5. In the Kallinicos case Bereton J also said, "the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice". He went on to say, "The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice".

6. This inherent jurisdiction has also been considered at length by Goldsbrough J in the case of SMM Solomon Ltd v. Attorney General and Others, civil case 386 of 2007. As His Lordship observed, our rules are prescribed as subsidiary legislation. He suggested the rules of conduct will assist the court in determining what order it should make where there is a situation covered by the rules and an application is made for restraint. He added though, the court could take into account matters not provided for in the rules. He felt the test set out in Kallinicos could and should be adopted in this jurisdiction. I quite agree. I can see no reason why I should not apply the test in this case using the principles set out by Goldsbrough J in the SMM case.

7. The term witness, as was made clear in the SMM case, entails more than the legal practitioner giving mere formal or non contentious evidence. In this instance there is a very real likelihood Mr Keniapisia will be or is likely to be, a witness on issues of substance which appear to be controversial. He is named in the Petition and he has already filed a number of sworn statements dealing with evidence at the heart of the petitioners' case. If he is not caught by rule 16(14) he most certainly would be subject to rule 16(15).

8. In chronological terms, this case is not particularly long lived. It is a mere 6 months old. However, it is an election petition and in this jurisdiction every effort is made to dispose of such cases as soon as is possible. We are now at a stage where this case could and should be set down for hearing. The issues are not overly complex and the law is fairly well settled. The evidence has largely been collected and set out in sworn statements. I do not believe, if new counsel were instructed at this stage, he or she would be put at a severe disadvantage. The major difficulty for the Respondent is the small pool of available legal practitioners and their existing commitments. What Mr Keniapisia has learnt from his enquiries is many are busy with existing work and are reluctant to take on new cases. However, not all legal practitioners have been approached because the Respondent would prefer not to instruct some. Others are "hard to contact". The Respondent has by no means established that he could not find another lawyer to act for him, rather he has established it is more convenient if Mr Keniapisia continues to act.

9. This is not a case where the Petitioners have used the objection as a tactical weapon. The question of whether Mr Keniapisia should continue to act was raised at an early stage. Mr Afeau attempted to resolve the issue out of court. That has not proved possible so he has made this application to restrain Mr Keniapisia from acting. It is not in the Petitioners' interests to delay this case. They want an early resolution to their challenge about the election of the Respondent.

10. Given his involvement as Chairman of the Respondents High Level Task Force Campaign Team, in other words he was involved at a senior level in the Respondent's campaign, there is absolutely no doubt his credibility may be at stake as a witness. He will more than probably be called as a witness for one side or the other and he will be subjected to stringent cross examination. His sworn evidence filed on behalf of the Respondent also affects the credibility of other witnesses. There is a very real danger, his personal integrity will be put in issue. In simple terms, "a fair-minded, reasonably informed member of the public" would see the integrity of both the witness and the lawyer being challenged at the same time. It would be very difficult for that fair minded member of the public not to conclude, "the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice" were not at risk. In the 19th and early 20th centuries the courts in England tried to avoid that perception by separating the lawyer from the witness. The lawyer as lawyer would appear fully robed and bewigged. The lawyer as witness would disrobe and appear in the witness box without the paraphernalia of an officer of the court. That artificiality did not work then and it will not work now in Solomon Islands.

11. Ordinary members of the public will find it almost impossible to separate the challenge to his integrity as a witness for the Respondent from the challenge to his integrity as the Respondent's lawyer and an officer of the court. The adverse effect on the appearance of justice will be unavoidable. In all the circumstance and whilst I accept and understand the Respondent will be inconvenienced by having to find another legal representative I see no alternative but to make an order restraining Mr Keniapisia from further acting in these proceedings for the Respondent.

12. I have no need to consider any issues or arguments relating to Rule 13.

13. Obviously the Respondent will need time to make alternative arrangements. I will adjourn this matter to Tuesday 19th April at 1:30 PM for a mention to enable the Respondent to report back if he is experiencing difficulties obtaining proper legal representation and to see if the court can assist. On the question of costs of this application I will hear Counsel before making any order.

Chetwynd J

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^[1] R v. Secretary of State for India in Council and Others Ex Parte Ezekiel [1941] 2 All E.R. 546
^[2] Kallinicos & anor v Hunt & ors [2005] NSWSC 1181