Solomon Islands Import and Export Ltd v Onika [2016] SBHC 37; HCSI-CC 102 of 2014 (15 March 2016)

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Mr. G. Suri for the Claimant/Respondent.
Mr. C. Hapa for the Fourth Defendant/Applicant.
Mr. M. Pitakaka for the Fifth Defendant.
No Appearances for the First; Second and Third Defendants.

1.	Fourth Defendant filed an application to disqualify Counsel Suri (“Suri”) from acting for the Claimant. The application, plus a supporting sworn statement (ss) by Peter Chow were filed on 29/07/2015. The application was premised on the belief that Suri, who acts for the Claimant, has a conflict of interest arising out of a legal work, Suri undertook for Peter Chow, a director of the 4^th Defendant, previously in 2003.
2.	The previous engagement could be quickly summarised. In 2003, Suri drafted an agreement for sale of land between Peter Chow (purchaser) and Trustees of Tandai Land Holding Group (Vendor). Parties signed the said agreement and Peter Chow, paid for Suri’s legal fees. And then it seems that was it. We do not know what becomes of that agreement and whether Peter Chow got what he wanted from the Vendors under the said agreement^[1]. But that is all irrelevant to the application. *Brief Background*
3.	Claimant filed an Amended Claim for judicial review on 2/4/2014; because of de-registration of PN 192-010-262, by the second Defendant. Claimant is the registered owner of the Fixed Term Estate (FTE) in PN 192-010-262 (“PN 262”), until about 20^th March, 2012. Grant of the said FTE to claimant was dated 12^th/4/2011^[2].
4.	Second Defendant informed the Claimant that its FTE in PN 262 had been de-registered, by letter dated 21/3/2014. This amended claim is to challenge that de-registration. The 1^st, 4^th and 5^th Defendants are sued, because, the Claimant alleged they contributed to de-registration; as particularised in statement of case at paragraphs 9 (9.1) – (9.5), of the Amended Claim.
5.	I reproduced the allegations and remedies sought against the 4^th Defendant, briefly. Claimant seeks permanent restraining orders against the 4^th Defendant from causing any more de-registration and to stop the 4^th Defendant from occupying the land in dispute. Otherwise, the core of the Claimant’s claim is against the 2^nd Defendant, challenging de-registration. *Application to Disqualify Counsel Suri*
6.	The application to disqualify Suri, is premised on Section 11 (4) of The Legal Practitioners (Professional Conduct) Rules (Cap 16).^[3] (“the Rule”). The Rule prohibits a legal practitioner from representing “conflicting interests” in “litigation”. Counsel Hapa submitted that Suri is caught by this rule because, he acted for the 4^th Defendant previously and now acts for the Claimant in this case, where the dispute between the Claimant and the 4^th Defendant is in respect of the same land. Same land, (PN 262) pursued by Claimant is the same land Suri drafted an agreement for Peter Chow in respect of previously in 2003. Suri admitted all these - that he drafted the agreement, got paid in 2003 and that it was the same land but subsequently registered as part of PN 262. The question, I continue to ask is what is the “conflicting interest” in this case between the Claimant and 4^th Defendant, which sandwiched Suri, and therefore must disqualify Suri? For the application to succeed, applicant must demonstrate that as between the Claimant and 4^th Defendant, Suri has “conflicting interest” such that if he continues to act, there will be a real or potential prejudice, mischief or harm to one or the other.
7.	I asked more than once, during oral submissions questions to the same effect. Counsel Hapa repeatedly referred me to the defence – saying the conflict is in the defence filed by the 4^th Defendant. I examined closely paragraphs 4 and 5 of the defence, I am unable to see clearly, the “conflicting interest” that Suri has, that is detrimental and will prejudice either the Claimant or the 4^th Defendant in this litigation/case. I examined closely the supporting ss, but still could not see a “conflicting interest” that is prejudicial to one or the other. Applicant did not produce evidence of substance of real mischief or real prejudice to the 4^th defendant or claimant connected to Suri’s representing the claimant. No can it be said that the applicant has produced evidence of probability of mischief or probability of prejudice, to one or the other. These are the thresholds for disqualifying advocates on the ground of conflict of interest or conflicting interest (Tropical Resources Development Co. Ltd –v- Dalgro (SI) Ltd (2003) SBHC118, HC-CC 87 of 2003).
8.	I found on Suri’s admission that he acted for Peter Chow previously, by drafting a Customary Land Purchase Agreement. Suri was paid. This was in 2003. I also found on Suri’s admission that this is the same land (2003 – was customary land and 2014 – became registered land and formed part of PN 262). But again, I could not establish on the balance of probability the “conflicting interest” that must disqualify Suri.
9.	Firstly, Suri acted for Peter Chow in 2003. The 4^th Defendant is a different person from Peter Chow in law. There is evidence that Peter Chow was acting for the 4^th Defendant in the agreement drafted by Suri in 2003^[4]; though not clear on the face of the agreement.
10.	Secondly, the 2003 agreement was in respect of a customary land. This case is about a registered land. Thirdly, this is not a case, where Peter Chow is suing for his rights under the 2003 agreement drafted by Suri, against Tandai Land Holding Group Trustees and Commissioner of Lands or Registrar of Titles. The application may have merit, if Peter Chow is suing these persons and Suri is acting for an opposing party in such a case.
11.	Counsel Hapa said in submission that the 4^th Defendant claimed ownership of the disputed land. And at trial if they have to produce evidence, then the best evidence is the Claimant’s lawyer, who drafted the 2003 agreement. Even if this were so, I could not see the “conflicting interest”. If Peter Chow is to use the 2003 agreement as evidence, then it is actually to his benefit or to the 4^th defendant’s benefit, because every interest in land must be evidenced in writing, rather than verbal to make a strong case. That will not be prejudicial to the Claimant’s claim for de-registration against the 2^nd Defendant. It will not also be prejudicial to the Claimant’s claim against the 4^th Defendant from causing any more de-registration and from occupying the land or vice versa. And it will not be necessary to proof who drafted the agreement. The agreement will speak for itself as relevant evidence in any relevant litigation. Supposing that 4^th defendant will challenge the acquisition and registration of the sea area subjected to the 2003 agreement, which was subsequently acquired and registered forming part of PN 262, then such a cause of action will be against the Commissioner of Lands, Registrar of Titles and Tandai trustees, as potential defendants.
12.	Now I turned to examine conflicting interest in this case, in terms of Suri acting for Peter Chow previously, where Chow is a Director of the 4^th Defendant. There is no conflicting interest either. The agreement Suri drafted in 2003, is now disclosed in this case. Suri’s involvement ceased more than 10 years ago. I can’t quite see how Suri’s acting for the Claimant will cause real or potential prejudice or real or potential mischief to the 4^th Defendant, even where Peter Chow is a Director of the 4^th Defendant, and even if the 2003 agreement were to be used to prove the 4^th Defendant’s allegation.

13. From the pleadings; the sworn statements; the submissions and from the conduct of the case thus far, conflicting interest that is prejudicial either to the claimant or 4^th Defendant connected to Suri acting for the claimant is not established. I am not satisfied, on the evidence before me, that the applicant has made out a case to disqualify Suri, on the basis of “conflicting interest” between the claimant and 4^th Defendant. The application is dismissed with costs on standard basis against the 4^th Defendant to be taxed if not agreed. Court will next list the 5^th Defendant’s application.

High Court of Solomon Islands

Solomon Islands Import and Export Ltd v Onika [2016] SBHC 37; HCSI-CC 102 of 2014 (15 March 2016)