Gagaha v Rano [2018] SBHC 32; HCSI-CC 487 of 2015 (16 March 2018)

ALLAN GAGAHA & -V- WILSON RANO
OTHERS (Defendant)
(Claimant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.487 of 2015

Date of Hearing: 7 March 2018
Date of Judgment: 16 March 2018

M. Bird for claimant
W. Rano for defendant

Claim to refuse right in legal practitioner to appear or to speak for persons of his own clan in Customary Land Appeal Court proceedings on basis of statutory refusal to allow a legal practitioner right to appear before the Court.

Brown J:
The claimants are appellant parties as claimed representatives of the Rurughu tribe of Santa Isabel in CLAC proceedings no 5 of 2002, in which the respondents named are Wilson Sagevaka, Brownless Zaku and Clement Eta on behalf of the Sinagi clan. The claimants come to this court to seek a declaration preventing the defendant, Wilson Rano from “representing” the respondents before the CLAC. By statement of case the claimant has stated

1. Wilson Rano is a lawyer by Profession. [This is not in issue]
2. He had been “representing” the respondents in the CLAC proceedings and was spokesperson for such respondents. [This is denied to the extent Mr. Rano was not “representing” them in the formal sense, rather was spokesperson as a member of the respondent group or Sinagi clan and entitled in his own right as such clan member to be present and allowed to speak].

100. The continued appearance by the defendant before the CLAC by virtue of his position as a legal practitioner “would manipulate the normal system of the CLAC or hearing no 5 of 2012”. [The CLAC has stood its proceedings over to have this court make a determination on the live issue of continuing appearance by the defendant before that court].

4. As a consequence of his position as a legal practitioner [as evidenced by his provision of a document called “Court Book” normally used pursuant to Civil Procedure Rules in this High Court], the defendant should be disqualified from appearance or representative capacity, whether spokesman or otherwise in the CLAC.
   

A declaratory order is dealt with in Chapter 15.9 of the Rules;
By R.15.9.3 - A person claiming any legal or equitable right which depends on the construction of any provision of a written law may apply for the determination of the question of construction and a declaration as to the right by filing a claim.

By defence filed on the 25 September 2015 the defendant, Wilson Rano recites his standing to speak for and advise particular persons, chief Brownless Zaku and Clement Eta of the Sinagi clan. He says he was spokesperson in the earlier Local Court proceedings in Land Case no 3 of 2000. No appeal was taken over his appearance in that case. It follows these claimants are estopped from now complaining about his appearance before the CLAC. The “Appeal Book” was used by Mr. Rano to assist the CLAC for reason of absence of material seen relevant by Mr. Rano.

By counter claim, Mr. Rano pleads the ruling of the Isabel Local Court given on or about 17 July 2011 in the absence of appeal, allowing the defendant to speak for his clan, must stand thus affording him right of appearance before the CLAC. [S.256(1) of the Land and Title Act].

Any law, discriminatory in effect barring a legal practitioner from representing his clan, personal interest and land (right) is unlawful and inconsistent with S.15 (1) of the Constitution. The claimant in the event, is out of time to litigate the issue, either in the CLAC or this High Court and a declaration obtained by the claimant in terms sought, would, for the above reason, be void.

The claimant’s reply to the defence and Counter claim took issue with facts (which I need not address) and relied on this High Court’s original jurisdiction to deal with the issues. I accept however it is a non sequitur to plead acceptance of his appearance before the local court affords him a shield from criticism when he seeks to appear before the CLAC. It is also a mistake to assume assertion of acceptance of a wrong principle of law over time somehow binds the claimant to such acceptance of wrong principle or interpretation.

By S.18 of the Constitution, this Court has original jurisdiction to hear and determine the issue of the conflict of law. Section 15-(4), when dealing with discrimination, sets out the defined meaning of “discriminatory” to include “whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”

The descriptive differentiation by the subsection relates to race, place of origin, political opinions, colour, creed or sex but does not name a profession, such as the “legal profession” amongst such descriptions as one needing particular protective consideration.

I am satisfied the provisions of the Land and Titles Act, s.255-(6) “No legal Practitioner shall be permitted to appear before a customary land appeal court” may not be questioned or impugned by reliance on or reference to Section 15 of the Constitution. The fact that he name chief Brownless Zaku and clement Eta of the Sinagi clan shows the clan has opportunity by at least two of its Chiefs, to speak for the clan before the CLAC.

Section 255 provides for the adoption by the CLAC of powers of a local court. The CLAC has entered upon the hearing with the concurrence of Mr. Rano who may not avoid the strict interpretation of subjection (8) by reliance on the absence of appeal on such point from the determination of the local court, rather the issue is one for construction of the written law, [S.255 (8) of the Act] a necessary determination, before the CLAC will proceed with its hearing.

This court may accordingly make orders in terms of the declaration sought by the claimant. Construction of subsection (8) does not permit of any interpretation apart from the strict literal interpretation; “no legal practitioner shall be permitted to appear......”; it is not hedged about with choices, such as allowing appearance in the circumstances pleaded by the defendant (chosen to represent the clan and spokesperson as member). The imperative use of “shall” prohibits appearance of a “legal practitioner” (which is conceded by Mr. Rano so to be) before a CLAC. [A “legal practitioner” is defined by the Legal Practitioner Act and includes at this time, Mr. Rano].

I accordingly make orders in term of the claim filed on 25 September 2015, clauses 1 to 3.

__________________
BROWN J