| Fiji Islands - Charan v Suva City Council - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION
CIVIL APPEAL NO. ABU0052 OF 1994S
(High Court Civil Action No. 1173B of 1984)
BETWEEN:
SURESH SUSHIL CHANDRA CHARAN
AND ANURADHA CHARAN
Appellants
AND:
SUVA CITY COUNCIL
Respondent
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Mr S.S.C. Charan for the Appellants
Mr. R. Gopal for the Respondent
Date and Place of Hearing: 26 February 1996, Suva
Date of Delivery of Ruling: 29 February 1996
RULING
(Whether an in-house solicitor can represent Suva City Council in Court)
Mr Charan the first named Appellant has questioned the Respondent's legal competence to be represented in this Court by Mr Gopal on
the ground that Mr Gopal is an employee solicitor of the Respondent Council and as such he cannot represent the Respondent in this
Court or the High Court. In fact his objection is a two-pronged one.
First, that by being represented in Court by Mr Gopal the Respondent is in breach of Order 12 Rule 1(2) of the High Court Rules in
that it is purporting to appear "in person" and not by a 'solicitor'. (We note that by virtue of Rule 6 of the Court of
Appeal Rules the High Court Rules apply to proceedings before this Court in civil causes and matters.)
Second, that Mr Gopal and the Respondent are "operating as a law firm" in breach of the Legal Practitioners Act.
Mr Charan therefore asks that we should rule that Mr Gopal being an in-house solicitor cannot represent the Respondent Council in
this Court.
With regard to the first arm of the objection, i.e. whether the Respondent Council can appear by an 'in-house' solicitor Mr Charan
has submitted as follows:-
'The Respondent Council is a body corporate duly registered under the Local Government Act, Cap. 125. By special licence under the
Practitioner's Act, (Cap. 254), the enforcement officers of the Local Government are permitted in the Magistrate's Court to enforce
the bye-laws of any Local Government. But the Order 12 Rule 1(2) of the High Court clearly prohibits an appearance in the High Court
by a body corporate other than by a solicitor, and which order states:
"(2) The defendant to such an action who is a body corporate may acknowledge service of the writ and give notice of intention
to defend the action either by a solicitor or by a person duly authorised to act on the defendant's behalf but except as aforesaid
or as expressly provided by any enactment, such a defendant may not take any steps in the action otherwise than by a solicitor."
As stated aforesaid the Practitioner's Act, (Cap. 254), do permit the officers employed by the Local Government to enforce the infringement
of the bye-laws in the Magistrate's Court but the said Act does not permit them audiences in the High Court. [We note that the Legal Practitioners Act does not contain the specific enforcement provisions stated by the Appellant.]
Previously the Respondent Council had a "City Solicitor". That is by an arrangement the Respondent Council paid the said
City Solicitor a fixed salary for his exclusive services only for the Council. The such arrangement does not infringe the Practitioner's Act (Galloway v. Corporation of London (1867) LW Equity Cases 90). But in this case the Respondent Council is appearing in "person"
by an employee solicitor, who is not even an authorised person under the Local Government Act. There is quite a distinction between
a salaried solicitor (an independent solicitor who is practicing on his own), and an employee solicitor (who is not independent practitioner
but acts by virtue of his employment).
....'
It is not in dispute that Mr Gopal is a qualified barrister and solicitor duly admitted to practise as such in this country and that
he is a full-time paid employee of the Respondent Council as a legal officer/solicitor. It is also agreed that Mr Gopal has the requisite
minimum of 3-year practising experience required by section 13 of the Legal Practitioners Act to appear and argue any cause or matter in the High Court or the Fiji Court of Appeal.
Furthermore it is agreed that Suva City Council (the Respondent) is a body corporate duly registered under the Local Government Act,
Cap. 125.
In reply, Mr Gopal has drawn our attention to section 35 of the Local Government Act whereby a local government body is empowered
"to appoint such officers and servants as the Council considers necessary for efficient discharge of its functions". He
informed us that he was appointed under this provision.
We note that in section 2(1) of the Legal Practitioners Act, Cap. 254 a "public officer" includes an officer in the employment of any city or town council or of a board or authority
established by or under the provisions of any Act.
In our opinion Mr Gopal is, therefore, a "public officer" for the purposes of relevant legislations before us.
Section 19(10) of the Legal Practitioners Act states as follows:
"(10) Nothing in this section contained relating to the issue of practising certificates shall apply to or affect a public officer
practising as a barrister and solicitor in the course of his duties."
In our view section 19(10) of the Act clearly recognises a situation where a "public officer" who is admitted to practise
as a barrister and solicitor and who is otherwise qualified to appear before this Court, may do so on behalf of his or her employer
provided such appearance is in the course of his or her duties. What is more such a public officer need not be issued with a practising
certificate.
Mr Gopal's appearance before this Court is in the course of his duties and he is, therefore, entitled to appear and argue on behalf
of the Respondent.
The ratio of the decision of the English Court of Appeal in In re Eastwood, Decd., Lloyds Bank Ltd. v. Eastwood and Others [1975] 1 Ch. 112 strengthens our view that a local government authority can be represented in Court by a salaried solicitor. In this case the Attorney-General
was represented in Court by a salaried officer, i.e. the Treasury Solicitor. It was held that the proper method of taxation of the
bill of costs was to deal with it as though it were the bill of an independent solicitor, and this principle would equally apply
to the case of a local government authority.
In view of the conclusion we have reached it follows that there is also no merit in the second arm of the objection. The question
of the Respondent alone or the Respondent and Mr Gopal jointly operating as a law firm in breach of the Legal Practitioners Act does not arise.
Sir Moti Tikaram
President, Fiji Court of Appeal
Sir Edward Williams
A Judge of Appeal
Sir Maurice Casey
A Judge of Appeal
ABU0052E.94S
Before we dispose of this appeal we wish to draw attention to Rule 15(3) of the Court of Appeal Rules. This Rule states -
"....every notice of appeal shall specify the precise form of the order which the appellant proposes to ask the Court of Appeal
to make."
It is therefore, in general, not sufficient to merely ask that the decision of the Court below be "set aside" without stating
what substantive order is being sought in substitution. To merely add the words "or such other order as the Court thinks fit"
is also not of much help either if the substantive order sought is not spelt out.
A well formulated Notice of Appeal with precise grounds of appeal are of great assistance not only to the Court but also to the parties
involved in the appeal.
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