Zaku v Vathaga [2024] SBHC 45; HCSI-CC 91 of 2021 (30 May 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Zaku v Vathaga
Citation:
Date of decision:	30 May 2024
Parties:	Brownless Zaku and Clement Eta v Donald Vathaga
Date of hearing:	17 May 2024
Court file number(s):	91 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1 The application for a declaration that Mr Rano as solicitor or representative of the Appellants is in breach of Rule 13(1) of the Legal Practitioners (Professional Conduct) Rules is refused 2. The parties will bear their own costs on this application.
Representation:	Mr W Rano Appearing as Spokesperson for the Appellant Mr J Apaniai for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Legal Practitioners (Professional Conduct) Rules, r13 (1), Lands and Titles Act S 225 (6)
Cases cited:	Sky Development Corporation Ltd v Emau [2017] PGNC 146, Gagaha v Rano [2018] SBHC 32

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 91 of 2021

BETWEEN

BROWNLESS ZAKU AND CLEMENT ETA
(Representing Sinagi Tribe of Zabana)
Appellant

AND:

DONALD VATHAGA
(Representing Rurughu tribe of Zabana)
Respondent

Date of Hearing: 17 May 2024
Date of Hearing: 30 May 2024

Mr W Rano appearing as spokesperson for the Appellant
Mr J Apaniai for the Respondent

RULING

1. This is an appeal from a decision of the Isabel Customary Land Appeal Court. Mr Apaniai of counsel for the respondents has raised a preliminary matter concerning the representation of the Appellants. Mr Rano is a law practitioner practising in Solomon Islands. He has advised the Court that he appears as a spokesman for his tribe counsel. Mr Apaniai for the Respondents submits that as Mr Rano is a legal practitioner, by appearing for those to whom he is related, he is in breach of rule 13(1) of the Legal Practitioners (Professional Conduct) Rules. Mr Rano is said to be the son of the older brother of the second named Appellant in these proceedings. Mr Apaniai submits that Mr Rano is the disqualified to act for or represent the Appellants in the appeal because of his close blood relationship with them.
2. Rule 13(1) of the Legal Practitioners (Professional Conduct) Rules provides:
   • “13(1) A legal practitioner shall not appear in any Court or in any matter where by reason of his connection with the client, whether that connection be blood relationship, relationship by matrimony or personal relationship, it will be difficult for him to maintain his professional independence.”
3. Mr Apaniai drawers to the Court’s attention that Mr Rano has signed the certificates as legal practitioner that are required on the sworn statements of Brownless Zaku filed on 18 October 2021, and of the same deponent filed on 11 March 2024. The direction orders were engrossed by Rano and Company in connection with the appeal on the direction orders filed on 2 April 2024, which stated that Mr Rano appeared as ‘counsel for the Appellants’. The written submissions filed on behalf of the Appellants, including the Appellant’s list of authorities were engrossed and filed by Mr Rano. For his part Mr Rano said that he speaks as a representative of his tribe not as counsel. He said he has a home and several buildings on his customary land. He says that in 2012 he was the spokesperson before the Customary Land Appeal Court. He submitted that being a legal practitioner does not take away his membership of his tribe. He said that there had been no objection to his appearing before, and has done so before Justice Brown and Justice Goldsboro in the past. I will return to this shortly. Mr Rano said, because he has a professional experience, it provides an advantage for him speaking as a spokesman for his tribe. He said that he is part of them that their interest is his interest. He said that there are no judgements in this jurisdiction that assist in this matter but put before the Court the case from Papua New Guinea Sky Development Corporation Ltd v Emau [2017] PGNC 146.
4. In carrying out some research the Court noted the decision of this Court by Justice Brown involving a similar issue with Mr Rano. In Gagaha v Rano [2018] SBHC 32 there was a challenge to Mr Rano appearing in the Customary Land Appeal Court. I am surprised that this case wasn’t not brought to the attention of this Court. In Gagaha Justice Brown ruled that Mr Rano could not appear before the Customary Land Appellate Court because he was a legal practitioner. His reasoning was based on the provisions of section 226 of the Land and Titles Act. Section 225(6) provides:
   • “(6) No legal practitioner shall be permitted to appear before a customary land appeal court.”
5. Justice Brown said that the section required a strict interpretation and no legal practitioner shall be permitted to appear. That rule, however, applies in the Customary Land Appeal Court and not in the High Court. Rule 13(1) of Legal Practitioners (Professional Conduct) Rules recognises the dangers of a legal practitioner, acting for those with whom he shares a relationship by blood, marriage, or otherwise. The final clause in the rule makes it clear that the prohibition on appearing for those within with whom a legal practitioner is in a relationship is not absolute. It applies only when it would be difficult for the legal practitioner to maintain his professional independence. The issue is further complicated by the fact that Mr Rano appears as part of those he is representing. Mr Apaniai has said there could be no objection if Mr Rano was named as one of the appellants. He is not so named. Mr Rano would be entitled to represent himself in this Court. The issue then becomes broader. Is a person who is a legal practitioner still entitled to represent of themselves when they are part of a wider group who are parties to the litigation?
6. I agree with Mr Apaniai that there could be no objection, if Mr Rano was a named as a party. As a spokesman, he is clearly representing others with whom he is in a relationship. However, I am not satisfied that anything that has been put in front of me demonstrates that it would be difficult for Mr Rano to maintain his professional independence in these proceedings if he appears for others in his tribe. Each case, will depend on its own facts, and each case will need to be closely monitored. The danger for Mr Rano, speaking on behalf of his tribe, is that in the course of the litigation an issue may arise, where it will, in fact, be difficult for him to maintain his professional independence. Those whom he represents are entitled to the protection afforded by rule 13(1) in such circumstances. I am not persuaded that Mr Rano should be removed from being the spokesman for his tribe in this proceeding. The court then declines to make the declarations sought. However, the position may change in the course of the conduct of the appeal. In the circumstances, the application was properly brought, and each party will bear their own costs.

Orders

1. The application for a declaration that Mr Rano as solicitor or representative of the Appellants is in breach of Rule 13(1) of the Legal Practitioners (Professional Conduct) Rules is refused
2. The parties will bear their own costs on this application.

By the Court
Hon. Justice Howard Lawry
Puisne Judge