Civil Case No. 253 of 1996
IBOY LASI,
GORDON RENCE
(Directors representing the Gerasi Tribe)
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NORTH ORTH NEW GEORGIA TIMBER
CORPORATION
High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 253 of 1996
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Hear3 February 1998
Ruling: 2 March 1998
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J. W. Talasasa for thor the Respondents
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RULING
MURIA CJ:
The Respondent challenged the right of Mr. Philip Tegavota of Counsel to
represent the two applicants in this case.
The princieasons relied upon by Mr. Talasasa who appeared as a
representative of the respondent in his capacity as
the Chairman and
Director is that Mr. Tegavota would have a conflict of interest if he is to
continue to represent the
applicants in the present case. In his affidavit
filed on 10th April 1997, Mr. Talasasa deposed that Garden Rence
(one of the applicants) caused a special meeting of the representative to
be
called, the notice of which was drafter by Mr. Tegavota. Again in the same
affidavit Mr. Talasasa further deposed
that Mr. Tegavota and Mr. Mori were
joint trustees in the NB Bank Account for the Merest Tribe. In Court Mr.
Talasasa
submitted that as Mr. Tegavota acted for the respondent in the past
paying him substantial legal fees, it would be a conflict
of interest for
Mr. Tegavota to now act against the respondent.
Mr. Tegavota agreed te had acted for the respondspondent in CC313/95.
However he was asked by Mr. Talasasa to stop acting
for the respondent and
so he ceased to act for the respondent since 1995. In an earlier case,
CC387/93, in which the
landowners brought claims against Golden Springs
International (SO) Co. Ltd and the respondent, Mr. Tegavota was retained by
Golden Springs and also acted for the Respondent. The matter went to the
Court of Appeal which ordered a re-hearing.
That case was resolved. Since
1995. Mr. Tegavota ceased acted for the respondent and so there is no
longer any conflict of interest if he is to act for the applicant
in the
present case.
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Having considered the facts as put before the Court particularly where iere it
has been shown that Counsel, now acting
for the applicants who are members
of the Board of Directors of the respondent, had acted for the respondent in
the past
at least up to 1995 on a couple of occasions together with the fact
that in those previous occasions when he acted for the
respondent, one of
the applicants namely, Gordon Rence was Chairman of the Board of Directors
of the Respondent, can
it be said that the same legal practitioner would be
in a position of conflict of interest if he were to act for the applicants
against the respondent in the present case? This is a matter of importance
to our young legal profession in this country
and so I feel some form of
test ought to be applied so that legal practitioners may be guided in this
area of practice
of the law. I would prefer the test to be put in this way.
Given the facts as disclosed, are there present circumstances of
potential
conflicts of interest which dictate that he (Mr. Tegavota) cannot represent
the clients. This test is appropriate
in this case in my view since not only
that the respondent is interested in the legal practitioner�s position but
that
the applicants� interest be also properly represented. There is that
fiduciary duty of a solicitor to his client that calls
an him to refrain
from acting for a client where there are circumstances of potential conflict
on the part of the solicitor
in a matter.
Each case must be determined according to its own circumstances. Ins. In the
present I apply the test earlier set out.
Three factors are relevantly
noted. Firstly, there is the fact that the previous cases in which Counsel
acted for the
respondent arose, dealt with and completed three years ago;
secondly, the circumstances and nature of those cases were different
to the
present case; and thirdly, that Counsel had ceased to act for the respondent
since 1995. The circumstances in
other cases, may not be the same and so the
test set out earlier would have to be considered in the light of those
circumstances.
The respondent�s applicais refused.
<
As to costs, I think the reent does not stand to gain gain anything
personally by raising this important question. In
fact the benefit is both
to the applicants and respondent now that the point has been clarified. I
exercise the Court�s
discretion and directed that there will be no order for
costs.
Orccordingly.
<
(GJB
Muria)uria)
CHIEF JUSTICE
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