Sosimo v Kwan [2016] SBHC 102; HCSI-CC 424 of 2011 (11 July 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 424 of 2011

BETWEEN:

SAMUEL SOSIMO and IVY SOSIMO
Claimant

AND:

DENNIS KWAN, DEBBY KWAN and DAVID KWAN
First Defendant

AND:

KCM PROPERTIES LIMITED
Second Defendants

AND:

WINNER PROPERTIES LIMITED
Third Defendant

Date of Hearing: 8^th June 2016

Date of Ruling: 11^th July 2016

Mr M. Tagini for the Claimants
Mr R. Kingmele with Mr E. Soma for all the Defendants

RULING

Faukona PJ: An application for appointment of litigation guardian was filed on 6^th June 2014 by the Claimant’s Counsel Mr Tagini. Mr Tagini submits that the application was grounded on Rules 3.17. Rule 3.18 confers power upon this Court to appoint a person to be a litigation guardian of a person under disability. The application is to necessitate the appointment of Mrs Ivy Sosimo (the second named Claimant) to be a litigation guardian for her husband Mr Samuel Sosimo (the first named Claimant) who is a person under disability. This is to enable Mr Sosimo to start or defend the proceeding by acting through Mrs Sosimo the person appointed as the litigation guardian-Rule 3.19. Rule 3.20 states anything required to be done by a person under disability are done only by the person’s litigation guardian. Of course, a litigation guardian is liable for Claimant’s cost pursuant to Rule 3.21, and be enforced on her/him according to Rule 3.22.

2.	Historically what had transpired according to evidence is that the first named Claimant had been mentally ill since 1994. A progressive report to that effect was compiled by a Psychiatrist Consultant on 26th April 2014. The report expressly affirmed that the first name Claimant had been a known client to the mental health services since 1994. Currently he is still under medical regimens on regular outpatient schedules.
3.	From the report, the first named Claimant can be rightfully stated and described as a mentally ill person for the last twenty two years. Any change of conditions can only be ascertained by further medical reports, whether there has been any improvement or not. Meanwhile the condition of his illness was as of 2014 when the last medical report was extracted.
4.	The argument advances by Mr Tagini is that, this court has recently granted the same nature of orders in two previous cases concerning the same Claimants on the same issue. Mr Kingmele argues otherwise; and states that each case must be considered on its own facts and merits. The facts of those previous cases are different and this case is not consolidated with them.
5.	The obstacle this Court confronts is that there is no guarantee that this Court will grant automatic orders in such application. Mr Kingmele who represents the Defendants submitted that a person becomes litigation guardian in two ways. One by appointment by the High Court under Rule 3.18, or through the procedure set out in Rule 3.24.
6.	I have critically read the rules and conclude that the general power of the Court to appoint a litigation guardian is conferred by Rule 3.18. The required document that will assist the Court to make such appointment is provided for under Rule 3.24. If the applicant does not meet or file necessary documents required under Rule 3.24, the court will refuse to make any appointment.
7.	Rule 3. 24 makes reference to two persons to file sworn statements in support of the person applied for litigation guardian. One to be filed by a legal practitioner for the person under disability, or someone (not the applicant) who have knowledge of facts. Any of the two persons must depose by way of a sworn statement as to the facts as required by Rule 3.24 (a) (i) (ii) (iii) and (b).
8.	In this case, the applicant (Mrs. Sosimo) is relying on her own sworn statement filed on 6th June 2014, as supporting her application. There was no sworn statement filed by Mr Tagini who was the Counsel for the first named claimant who is under disability. Mr Tagini could have deposed as to the fitness of Mr Sosimo to instruct him to commence this case in 2011. Practically the sworn statement of Mrs Sosimo does not comply with the requirements of R3.24 (a). Therefore cannot be accepted as useful but defective in nature.
9.	If the legal representative cannot depose as to relevant facts required by the Rules, then someone else with the knowledge of the facts must do so as an alternative. That someone else does not refer to the applicant, but someone different with the objectivity expected to be provided by a third party.
10.	The mischief which the rule aimed at addressing is that if the applicant would swear a sworn statement it would be a self-serving statement. If she proceeds without consideration, deposing facts as required in R3.24 it would be without any legal effects. And secondly whether Mrs Sosimo has any interest adverse to her husband’s interest in respect of the claim. Even if she has, she would not have revealed; naturally that would be common knowledge as she is a wife.
11.	Another point to note is that the medical report exhibited to Mrs Sosimo’s sworn statement showed that Mr Sosimo is psychotic and unstable, has lost insight and is unfit for rational conversations. The fear by the Defendants is that if Mr Sosimo was sane, and was properly and independently advised, he may not have commenced this action in the first place. The report revealed that Mr Sosimo had been sick since 1994 and this case was filed on 21st October 2011.
12.	It boils down to the fact that there is significant risk as to the case and the costs if the applicant’s interest is adverse to Mr Sosimo. As a litigation guardian, Mrs Sosimo has to act in the best interest of her husband who is under disability. Whether that interest can be assessed as in the best interest of the case or in the best interest of Mrs Sosimo herself. It is a matter the applicant cannot remotely control and disregard Mr Sosimo’s interest can be assessed as in the best interest of the case or in the best interest of Mrs Sosimo herself. However, she has to uphold Mr Sosimo’s interest though risk may be foreseeable.
	Alternative order sought:
13.	In the application, the applicant Mrs Sosimo also seeks an alternative order that the Public Trustee be appointed as litigation guardian of Mr Sosimo. There is no submission by the Counsel for the Claimants as contingent in his oral submissions. The alternative litigation guardian only appears in the written submissions by the Counsel for the Defendants, though the relief is sought for an alternative order.
14.	On the alternative choice, again the applicant Mrs Sosimo’s sworn statement does not comply with the requirements of Rule 3.24. A classic instance is the requirement in Rule 3.74 (a) that the Public Trustee must agree to be the litigation guardian. There was nothing deposed by the Public Trustee. Further still the applicant to be appointed must provide undertaking that she accepts liability for any cost the disable party might otherwise require to pay. The sworn statement of the applicant Mrs Sosimo only bears the undertaking she took should Mr Sosimo incurred costs at the end of the case. But there was no undertaking deposes by the Public Trustee.
15.	With the reasons I have given above, Mrs Sosimo’s application be dismissed with costs. However she can maintain the proceedings but in her own name.
	Orders:
	1.	That application by Mrs Sosimo to be appointed as litigation Guardian for Mr Samuel Sosimo, the first Claimant is hereby dismissed.
	2.	The Court is hereby refused to appoint Public Trustees as alternative litigation guardian of Mr Samuel Sosimo refer to as person under disability.
	3.	Cost of this application is paid to the Defendants.
	The Court.