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Masirewa v Colonial Mutual Life Insurance Society Ltd [2003] FJHC 39; Hbc0273d.2002 (11 February 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 273 OF 2002S

Between:

MOSESE MASIREWA
and
ANA MASIREWA
Plaintiffs

and

COLONIAL MUTUAL LIFE INSURANCE SOCIETY LIMITED
First Defendant

and

CULDEN KAMEA
Second Defendant

Mr. Timoci Naco appearing for the Plaintiff
Ms. R. Lal for the Defendants

DECISION

These proceedings were commenced by way of Originating Summons in June 2002. The Plaintiff was then described as:

“Timoci Naco ... acting as power of attorney for Mosese Masirewa and Ana Masirewa.”

On 16 September 2002 Mr. Naco and Ms. Lal appeared following the filing by Ms. Lal of a summons to strike out the Originating Summons as disclosing no reasonable cause of action. Having heard Mr. Naco and Ms. Lal I granted leave to amend the Originating Summons and adjourned the hearing of the summons to strike out for continuation. I also raised the question of the right of Mr. Naco to appear on behalf of Mr. and Mrs Masirewa.

On 8 October 2002 an amended Originating Summons was filed substituting Mr. and Mrs. Masirewa as plaintiffs in the place of Mr. Naco. On 3 February 2003 Mr. Naco again appeared, together with Ms. Lal.

Before proceeding to hear argument on the summons to strike out it is necessary to rule on the question of whether Mr. Naco has any right of audience.

It is not disputed that Mr. Naco is not a qualified legal practitioner. He explained to me however, that the plaintiffs, Mr. and Mrs Masirewa, are his sister and his brother in law. They are also directors of his company Sky Investments Limited. They believe they have a grievance against the Defendants and wish to pursue legal proceedings against them but they are not able to afford to instruct a legal practitioner to appear for them. Therefore, Mr. Naco submitted, if his appearance was refused then Mr. and Mrs. Masirewa would be unable to pursue their claim.

Mr. Naco also supported his right to audience by reference to statute and to the High Court Rules.

Mr. Naco produced and provided me with copies of two powers of attorney granted by Mr. and Mrs Masirewa to him in January 2002. These powers of attorney are substantially in the form set out in the First Schedule to Regulation 17 of the Land Transfer Regulations made under the provisions of Section 177 of the Land Transfer Act (Cap 131). Sections 118, 119, 120 and 121 of this Act are also relevant. These sections deal with the use of a power of attorney under the provisions of the Act, the requirements that a power of attorney be deposited and registered and their revocation and cancellation.

Although the form of the powers of attorney produced by Mr. Naco substantially corresponded with the form of the power of attorney required by the Land Transfer Act Mr. Naco did not rely on the powers granted by the Act but rather relied on powers which he submitted had been conferred upon him by section 114 of another Act, the Property Law Act (Cap 130). These powers seem to be rather wider than those given by the Land Transfer Act. Section 118 of the Land Transfer Act generally authorises the donee of a power to exercise the powers of the donor under the Act whereas Section 114 reads as follows:

“Execution by attorney in his own name

114.-(1) The donee of a power of attorney may execute or do any assurance instrument or thing in and with his own name and signature and his own seal (where sealing is required) by the authority of the donor of the powers; and every assurance, instrument and things so executed and done shall be as effectual in law to all intents as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.

(2) This section shall apply to powers of attorney created by instruments executed either before or after the commencement of this act.”

Mr. Naco submitted that the power of attorney granted to him gave him the right to appear on behalf of Mr. and Mrs. Masirewa in the proceedings not only because of the wording of Section 114 but also because, as may be seen from the powers of attorney, they have been slightly altered from the statutory form by the addition of the following words:

“Furthermore to take all legal proceedings on my behalf and to defend any proceedings in which I may be a party.”

Mr. Naco also referred to Order 5 rule 6 of the High Court Rules 1998. That Order reads as follows:

“6-(1) Subject to paragraph (2) ... any person ... may begin and carry on proceedings in the High Court by a barrister and solicitor or in person

(2) (not relevant).”

In answer, Mr. Lal suggested that Order 5 rule 6 does not assist Mr. Naco. I agree. In my view the rule merely restates the well known position; it confirms that a litigant in person may commence proceedings on his own behalf or may retain a barrister and solicitor to represent him. The rule does not authorise a person who is not a barrister and solicitor to commence proceedings on behalf of someone else.

Ms. Lal also pointed out that there was nothing to show that the power of attorney upon which Mr. Naco relied had not been revoked. I accept this submission but do not consider that it is decisive.

Ms. Lal’s third submission was that Mr. Naco’s claim to have a right to represent Mr. and Mrs. Masirewa was contrary to Sections 50 and 52 or the Legal Practitioners Act (19 of 1997). These sections govern the right to practice as a barrister and solicitor and the consequences of practising without a practising certificate.

Section 50 (1) states that a person holding a practising certificate may practice in the courts of Fiji. Section 52 (1) (a) states that a person shall not “practise or act as a legal practitioner” without being the holder of a current practising certificate.

In my opinion there are two questions which must be answered. The first is whether Mr. Naco, in seeking to appear for Mr. and Mrs. Masirewa is practising or acting as a legal practitioner. If he is, then he must hold a practicing certificate, which he does not. If he is not then, secondly, is he entitled to appear by virtue of the power of attorney?

Black’s Law Dictionary defines practice as “repeated or customary action, habitual performance, a succession of acts of similar kind, the exercise of a profession.”

It is a matter of record that Mr. Naco is not only seeking to appear in this case but is also seeking to appear in another action in which he wishes to represent his wife. As already mentioned Mr. and Mrs. Masirewa are his sister and brother in law. On balance I would not hold that Mr. Naco is practising law merely by seeking to represent members of his family. That leaves only the power of attorney for consideration.

In the absence of any statutory enactment or established practice defining what persons are to be heard as advocates a court has the power to regulate its own procedure and to determine what class of persons shall have audience (ex parte Evans [1846] EngR 789; (1846) 9 QB 279). As has been seen, Order 5 rule 6 of the High Court Rules permits a person either to appear in person or by way of a barrister and solicitor. In the Magistrates’ Court, Order IV of the Magistrates’ Court Rules (Cap 14 – Subs) implies the same position. There is no provision in either of these rules for persons other than a barrister and solicitor to appear on behalf of someone else. There are a number of provisions to allow unqualified persons to conduct prosecutions in the Magistrates’ Courts (see e.g. Criminal Procedure Code - Cap 21 – Section 75) but they are not relevant to the right of appearance in civil proceedings. On the other hand, the representation of a litigant in person by an unqualified person on an ad hoc, as opposed to a practicing basis does not appear to be specifically excluded. Does this mean that a person holding a power of attorney has a right to appear on behalf of the donor of the power? I think not.

Although Black defines a power of attorney to be “an instrument authorising another to act as one’s agent or attorney” it goes on to state that:

“the attorney is attorney in fact.”

An “attorney in fact” is distinguished from an attorney at law, who is a person authorised to practice law. An attorney in fact is defined as:

“A private attorney authorised by another to do an act in his place and stead either for some particular purpose, as to do a particular act or for the transaction of business in general, not of a legal character.”

Under specific Fiji legislation namely the Property Law Act and the Land Transfer Act powers of attorney may be granted for the purposes of complying with the requirements of those Acts. In my opinion the powers of attorney capable of being granted under those Acts may not be used for another purpose namely to secure a right of audience in the Courts.

In the present case, while I am not satisfied that Mr. Naco is practicing law, I do not find that his power of attorney is capable of conferring upon him a right of audience in this or any other court. While a court may exceptionally allow an unqualified person to assist a litigant in person it will not do so unless the interests of justice will thereby be served. Although I accept that Mr. and Mrs. Masirewa may not be able to afford legal counsel, that does not mean that they are unable to represent themselves. Unless I was satisfied that they are unable to represent themselves or had grave difficulties in so doing I will not be prepared to allow an unqualified person, whether Mr. Naco or any one else, to appear on their behalf. In some tribunals such as Small Claims Tribunals, the practice and procedure is informal and relatively straightforward. That is not the case in the High Court. To allow unqualified persons to appear on behalf of litigants in person would, save in exceptional circumstances, not be at all conducive to be good administration of justice.

Mr. Naco is not the only person who has attempted to secure a right of audience in the Courts of the basis of a power of attorney. It may therefore be helpful to summarise my conclusions:

(1) A person whose repeated actions give rise to the reasonable conclusion that he is practising law must hold a current practising certificate.

(2) A person who practises law but does not hold a current practicing certificate commits a criminal offence (Legal Practitioners Act – Section 52 (2)).

(3) Only the holder of a current practising certificate has a right of audience in the courts to appear on behalf of someone else.

(4) Any litigant in person may appear in the courts on his own behalf.

(5) Save is exceptional circumstances and with the leave of the court, a person who does not hold a practicing certificate may not appear on behalf of someone else in the courts.

I am not satisfied that the circumstances of this case are such as to warrant allowing Mr. Naco to appear on behalf of Mr. and Mrs. Masirewa and I therefore decline him audience.

In conclusion, it may perhaps also be worth noting that under Section 52 (1) (c) of the Legal Practitioners Act:

“A person shall not, unless that person is the holder of a current practicing certificate draw or prepare any instrument relating to any real or personal estate or property or any legal proceeding or grant of probate or letters of administration, whether as an agent for any person or otherwise unless he or she proves that the act was not done for or in expectation of fee, gain or reward, either direct or indirect.”

A person who fails to comply with Section 52 (1) (c) is also guilty of committing a criminal offence.

M.D. Scott
Judge

11 February 2003