Lidon BVC and Golden Country (FTCC 077/15)  SLHC 1137 (04 March 2016);
IN THE HIGH COURT OF SIERRA LEONE
COMMERCIAL AND ADMIRALTY DIVISION
FAST TRACK COMMERCIAL COURT
LIDON BVC -PLAINTIFFS
GOLDEN CENTURY -DEFENDANTS
LORA GOLDEN WINGS (SL) LTD
STYLE RESEARCH LTD
YADA WILLIAMS & ASSOCIATES SOLICITORS FOR THE PLAINTIFFS
MOHAMED P. FOFANAH ESQ. SOLICITORS FOR THE DEFENDANTS
BEFORE THE HON. MR. JUSTICE SENGU M. KOROMA J. RULING DELIVERED ON THE 4TH MARCH, 2016
By a Notice of Motion dated the 15th day of October, 2015, the Solicitor for the 3rd, 4th and 5th Defendants herein applied to this Court for the following orders:-
For the avoidance of confusion, the parties will be referred to as follows:-Plaintiff as Respondent and the Defendant as Applicant.
- That this Honourable Court dismisses or strikes out the Writ of Summons dated 25th September, 2016 issued/taken out by Messrs. Yada Williams & Associates of 7 Walpole Street, Freetown (hereinafter referred to as “‘‘THE FIRM’’”) for and on behalf of the Plaintiffs/Respondents herein against the 3rd, 4th and 5th Defendants/Applicants, inter alia on the following grounds:
- That the said Writ of Summons and proceedings commenced thereby violates rules 18(1), 19, 20,21 and 22 of the Legal Practitioners (Code of Conduct ) Rules, 2010 (Statutory Instrument No. 1 of 2011) in the sense that the Plaintiffs/Respondents’ said Solicitors and Counsel (“‘‘THE FIRM’’”) have acted against the interests (commercial or otherwise) of the 2nd Defendant/Applicant in a related/connected Matter instituted “Lora Golden Wings (SL) Ltd. (LGW) Vs. Oleg Tsukanov & Boris Farfell (Misc.App. 021/15 L. No. 72)” as well as in another Matter instituted “Momoh Ansumana & Ors. Vs. Voytovich Rostislav & Anor. (FTCC 031/15 G. No. 38)”.
- That the said Writ of Summons also violates Order 6 rule 1(2) of the High Court Rule, 2007 in the sense that it fails to state “the occupational and residence address” of the Plaintiffs/ Respondent, as they are neither incorporated/registered in Sierra Leone nor do they carry on business in the country.
- That the cost of this Application be borne by the Plaintiffs/Respondents herein.
- Any other or further Order(s) that this Honourable Court may deem fit and just.
The Application is supported by the Affidavit of Boris Farfell sworn to on the 15th day of October, 2015 and filed herewith together with the Affidavits attached thereto. In the said Affidavit, Boris Farfell deposes as follows:-
- That he was personally served with the Writ of Summons issued out of the matter Fast Track Commercial Court FTCC 077/15 2015 L. No. 108 together with an Originating Summons in a related/connected matter instituted “Lora Golden Wings (SL) Ltd. Vs. Oleg Tsukanov & Boris Farfell (Misc.App. 021/15 L. No. 72) dated 25th September, 2015 Exhibits “A” and “B”. The said documents were received under protest.
- That ‘‘THE FIRM’’ of Solicitors/ Counsel Yada Williams & Associates that issued the said Writ for and on behalf of the Plaintiffs against the Defendants herein including the 3rd, 4th and 5th Defendants, are the same Solicitors who represents the 3rd Defendant herein as their client (the Plaintiff) in the related/connected matter above-Misc.App.021/15 L. No. 72.
- That the said Firm of Yada Williams & Associates also represents Voytovich Rostislav (sued as Director/shareholder of the Lora Golden Wings (SL) Ltd- being the 3rd Defendant herein) and Eduard Myronenko (also sued as Executive Director of Lora Golden Wings (SL) Ltd). True copies of the Writ of Summons, Memorandum and Notice of Appearance entered and defence filed by the said Solicitors are exhibited as “C”, “D” and “E”.
- That at all material times, Yada Williams & Associates represented that, in their defence of Voytovich Rostislav and Eduard Myronenko, they were defending the best interests of Lora Golden Wings (SL) Ltd.
- That he was reliably informed by his Solicitor that the conduct of Messrs Yada Williams & Associates in representing the 3rd Defendant in one respect in Court matters and then acting against it and its interest in the current matter amounts to a professional conflict of interest.
- That both actions ought to be struck off.
- That the Writ of Summons herein failed to state “the occupational and residential address” of the Plaintiffs as they were not incorporated in Sierra Leone.
The Plaintiffs oppose the application and filed an Affidavit sworn to by Bernard Jones Esq. on the 22nd day of October, 2015. He deposed as follows:-
- That the matter Misc.App.02/15 between Lora Golden Wings (SL) Ltd-v-Oleg Tsukanov & Others was discontinued on the 19th October, 2015. The notice of discontinuance was exhibited as “A”.
- That Charles Pujeh Esq. a Barrister and Solicitor of the High Court of Sierra Leone practises in the same Firm, Edrina Chambers at No 18 Pultney Street, Freetown partnership and/or association with Mohamed P. Fofanah.
- That both Mohamed P. Fofanah Esq. and Charles Pujeh Esq. have appeared on several occasions together and separately in the matter referred to in Exhibit “C” attached to the Affidavit of Boris Farfell sworn to on the 13th October, 2015.
- That the said Charles Pujeh has on a few occasions deputised Mohamed P. Fofanah in the said proceedings.
- That Charles Pujeh acting as Solicitor for Boris Farfell wrote a letter to Lora Golden Wings (SL) Ltd giving them notice to vacate the office premises the company currently occupies. A copy of the said letter was exhibited as “H”.
- That on the 7th September, 2015 proceedings were instituted by Boris Farfell in the Magistrates Court –Exhibit “I” and “J” respectively.
- That Charles Pujeh represented Boris Fafell on several occasions in the said matter.
- That ‘‘THE FIRM’’ of Yada Williams & Associates were not imputing conflict of interests against the said Charles Pujeh Esq. and Mohamed P. Fofanah in respect of their conduct in the various matters herein.
An Affidavit in reply was sworn to by Charles Pujeh on the 23rd October, 2015. He deposed as follows:
- That he instituted and conducted the ejectment proceedings at the Magistrate’s Court on the instructions of Boris Farfell, a shareholder and Director of Lora Golden Wings (SL) Ltd, in order to evict all illegal occupants out of the company’s premises. This was essentially because Messrs Voytovich and Myronenko, who are officials of Lora Golden Wings (SL) Ltd, had brought in employees of their own stranger companies (known as the four LGW companies).
- That the said ejectment matter was commenced and persecuted without the involvement of Mr. Mohamed P. Fofanah. In fact when the said Mohamed P. Fofanah knew about the action, he told him to discontinue it since the four LGW companies should have been the Defendants and not LGW.
- That the said ejectment proceedings were later struck out by the Magistrate. Notices to quit were later served on the employees of the four LGW companies.
What is not clear here is the reason why the proceedings were struck out. Was it because the Solicitors for Boris Farfell had conflicted themselves by instituting the proceedings or that the said proceedings lacked merit?
SUBMISSIONS BY COUNSEL:
- COUNSEL FOR THE APPLICANT.
Mr. Mohamed P. Fofanah Counsel for the 3rd, 4th and 5th Defendants relied on the Affidavit of Boris Farfell sworn to on the 15th day of October, 2015. He gave particulars of the wrongs purportedly committed by ‘‘THE FIRM’’ of Yada Williams and Associates as the basis of his application herein.
- The Writ of Summons taken out in this action dated 25th September, 2015 was filed ‘‘THE FIRM’’ of 7 Walpole Street, Freetown. Mr. Yada Williams signed as Counsel.
- Exhibit “B”, the Originating Summons, also taken out and filed by Yada Wiliams and Associates dated 25th September, 2015 was in the name of Lora Golden Wings (SL) Limited as Plaintiff against Boris Farfell and the Registrar-General.
- Exhibit “C” is the Writ of Summons taken out and filed by Mr. Mohamed P. Fofanah on behalf of Boris Farfell, Momoh Ansumana and Oleg Tsukanov all of them suing in representative capacities as shareholders of LGW (SL) Limited against Voytovich Rostislav and Eduard Myronenko who were sued in the representative capacities as Directors/shareholder of LGW. In this matter, ‘‘THE FIRM’’ acted for Voytovich Rostislav and Eduard Myronenko as evidenced by Exhibit “D”.
- That the matter herein ought to be struck out as the authorship of the Writ of Summons which commenced the said action is gravely flawed and violates Rules 18(1), 19, 20, 21 and 22 of the Legal Practitioners’ Code of Conduct Rules 2010(S.I. No 1 of 2011) Counsel submitted that ‘‘THE FIRM’’ by appearing for and representing Voytovich Rostislav and Eduard Myronenko (who were sued in a representatives capacities as Officials of LGW) in the previous matter were also representing the interests of LGW. This is evidenced in Exhibit “E”, the Defence filed by ‘‘THE FIRM’’ to Exhibit “C”. He argued that having represented Rostislav Voytovich and Eduard Myronenko who were protecting the interests of LGW, it would be wrong for ‘‘THE FIRM’’ to now proceed to file an action against LGW.
- That ‘‘THE FIRM’’ had conflicted itself by acting for and against LGW (or its interests) in the two different but related matters. Counsel referred this Court to BLACK’S LAW DICTIONARY 9TH EDITION on the meaning of conflict of interest. Furthermore, Mr. Fofanah submitted that in Exhibit 1-D, ‘‘THE FIRM’’ was protecting the assets of LGW.
- That ‘‘THE FIRM’’ of Yada Williams and Associates ought to disengage itself completely from both clients.
- That the Writ of Summons failed to state the address of the Plaintiff thereby infringing Order 6 Rule 5 of the High Court Rules, 2007.
COUNSEL FOR THE RESPONDENT
- That Counsel for the 3rd, 4th and 5th Defendants has not mentioned any rule that pleadings can be struck out based on the fact that Firm of Solicitors had represented a particular client in one matter as Plaintiff and another as Defendant. He submitted that in the absence of any rule to the contrary, Counsel or Solicitor cannot be prevented from so acting.
- That even the Court cannot invoke its inherent jurisdiction to strike out the matter or prevent the Solicitor or Counsel from so acting.
- That the application is misconceived. Rule 18(1) of the Code of Conduct was inapplicable. Even if it were applicable, the complaint must be to the regulatory body and not the courts.
- That a perusal of Rules 18-22 of the Code would reveal that there was no conflict of interest. It was clear that the Solicitors for the Plaintiffs in this matter have not advised or appeared for any other person in these other matters other than for Rostislav and Myronenko. That being the case, how could the same Solicitors for the Plaintiffs herein have offended Rule 18(1) of the Code of Conduct.
- That there was no connection between ‘‘THE FIRM’’ of Yada Williams and Lora Golden Wings other than that of Solicitor and Client. Rule 20 of the Code envisaged a connection beyond that of Solicitor and Client.
- It was an abuse of process for this application to be made as it was baseless and without foundation.
- That there had not been any breach of the High Court Rules. In the circumstance, the Court lacked jurisdiction to entertain the application.
- That the Respondents have not violated Order 5 Rule 1(a) of the High Court Rules, 2007 as alleged by the Applicants. The Writ of Summons has the address of the Plaintiffs as Khabarovsk Russia. The writ was also indorsed with the address of the Solicitor.
- That out of abundance of caution, the Originating Summons complained of by the Applicant had been discontinued. The Affidavit of Bernard .E. Jones sworn to on the 22nd day of October, 2015 was used as evidence of discontinuance pursuant to Order 24 Rule 2 sub rule 5 of the High Court Rules, 2007.
- That the exhibits attached to the Affidavit of Bernard .E. Jones Esq. sworn to on the 22nd day of October, 2015 proved that Solicitors and Counsel for the Defendants had at one stage instituted proceedings against LGW.
- That by the authority of the Supreme Court of Sierra Leone Decision CRIMINAL APPEAL 2/2008 THE STATE –v-FRANCIS GABBIDON the Court cannot penalise Counsel and at the same time strike out the pleadings of the innocent client.
Reply by Mohamed P. Fofanah
- That the object of the pleadings in Exhibit A was for the Plaintiffs to take over the assets of LGW, a company whose assets which the Mr. Voytovich (an alleged shareholder of LGW) had claimed to be protecting in another matter.
- Counsel relied on the case of RE ROGERS-WRIGHT (A Solicitor) 1937-49 ALR 111.
ISSUES FOR DETERMINATION
The main issue for determination in this matter is whether the conduct of ‘‘THE FIRM’’ in instituting the matter FTCC 077/15 2015 l. No. 108 between LINDON BVC & NEFTEGAZ SERVIS RV and GOLDEN CENTURY, DIMITRI PORTNOV, LORA GOLDEN WINGS (SL) LIMITED ROCSOLANA LTD and STYLE RESEARCH LTD whilst at the same time representing the interests of LGW in the matter instituted MOMOH ANSUMANA & ORS–v-VOYTOVICH ROSTISLAV & ANOR(FTCC 031/15 G. NO.38) amounts to a conflict of interest.
I have chosen not to consider the matters that had been discontinued by both sides though mention would made of them in the ruling.
2. Whether the Writ of Summons herein violates Order 6Rule 1(2) of the High Court Rules, 2007.
I shall proceed to dispose of these issues sequentially.
- There has been very few if any determination of an issue of this nature in the Courts of Sierra Leone. The few that may have been had always been determined based on English jurisprudence considering the close relationship between the legal system of Sierra Leone and England and Wales and other Commonwealth jurisdictions. Traditionally, the main concern was that clients should not suffer prejudice from a lawyer’s representation –at the same time or sequentially-of the parties adverse in interest. Disqualification of a lawyer from a case was reserved for situations where there was real risk of harm to the client, as opposed to a theoretical possibility of harm (see CHOLMONDELEY–v-CLINTON (1815) 19 VES. JUN. 261. The rule was not absolute, but pragmatic. Courts looked to the circumstances of each case and sought to determine whether it was realistic to conclude that the client would suffer some form of harm. Fletcher Moulton L. J. IN RAKUSEN-v-ELLIS (1912) 1 CH.831 catched the flavour of the English common law approach in these words:
“As a general rule, the Court will not interfere unless there be a case where mischief is rightly anticipated…where there is such a probability of mischief that the Court feels that, in its duty as holding the balance between the high standard of behavior which it requires of its officers and the practical necessities of life, it ought to interfere and say that a Solicitor shall not act.”
Issues relating to conflict of interest by Solicitors was exhaustively dealt with by the Supreme Court of Canada in the case of CANADIAN NATIONAL RAILWAY COMPANY AND McKERCHER LLP (2013) SCC 39. This case established a more modern approach and the principles enunciated therein would be more appropriate in determining the main issue in dispute in this matter. I note that the decisions of Canadian Courts are not binding on this Court but however, their persuasive nature as both a common law and Commonwealth jurisdiction will create a leeway for Judges in similar jurisdictions to adopt them with the necessary modifications.
Before applying the principles established in the Canadian National Railway case to the instant case, I shall determine an issue which Counsel on both sides gave different views viz: whether this Court and not the Professional Regulatory Body has jurisdiction in this matter.
Courts of inherent jurisdiction have supervisory power over litigation brought before them. Lawyers are officers of the Court and they are bound to conduct their business as the Court directs. When issues arise as to whether a lawyer may act for a particular client in litigation, it falls to the Court to resolve those issues. The Court’s purpose in exercising their supervisory powers over lawyers traditionally have been to protect clients from prejudice and to preserve the repute of the administration of justice and not to punish lawyers.
It is noteworthy that the inherent power of Courts to resolve issues of conflict of interest in cases that may come before them should not be confused with the powers conferred on the General Legal Council to establish regulations for their members who form a self governing profession. The purpose of the General Legal Council is to establish general rules applicable to all members to ensure ethical conduct, protect the public and discipline (through the Disciplinary Committee). Lawyers who breach the rules-in short good governance of the profession. Both the Courts and the General Legal Council are involved in resolving issues relating to conflicts of interest-the Courts from the perspective of proper administration of justice, the General Legal Council, from the perspective of good governance of the profession.
Based on the foregoing, I hold that the instant matter deals with the preservation of the repute of administration of justice which clothes this Court with jurisdiction to hear and determine this application.
Having held that this Court has an inherent jurisdiction as regards a resolution of the first issue in dispute, the next question to determine is whether the Solicitors for the Plaintiff have conflicted themselves.
The Canadian case of Canadian National Railway Co and McKercher LLP was concerned with the risks to effective representation that arises when a lawyer acts concurrently in different matters for clients whose immediate interests in those matters are directly adverse. This concern was based on the principle established in the case of R-V-NELL (2002) 3 SCC 631 where it was held that the “bright line” rule is that a lawyer, and by extension a law firm, may not concurrently represent clients adverse in interest without first obtaining their consent. “When the “bright line” rule is inapplicable, the question becomes whether the concurrent representation of clients creates a substantial risk that the lawyer’s representation of the client would be materially or adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client or third party. “The bright line” rule is based on the inescapable conflict of interest in some situations of concurrent representation and it reflects the essence of a fiduciary’s duty of loyalty. It applies to concurrent representation in both related and unrelated matters. However, it applies only where the immediate interests of clients are directly adverse in the matters on which the lawyer is acting and it applies only to legal interests, as opposed to commercial or strategic interests.”
In determining whether the alleged conduct of the Plaintiffs’ Solicitors fall within the scope of the “bright line” rule, recourse should be made to the two cases referred to herein purporting to establish that the conduct falls foul of the rule.
- MOMOH ANSUMANA & ORS-V-VOYTOVICH ROSTISLAV & ANOR (FTCC 031/15 G No. 38)
In this matter, ‘‘THE FIRM’’ of Yada Williams and Associates acted for Votovich Rostislav (a shareholder of LGW) in an action brought against them by Momoh Ansumana and Another (as shareholders and Directors of LGW). They were represented by Mohamed P. Fofanah of Edrina Chambers. In this matter, the Plaintiffs claimed as follows, amongst others:-Exhibit “C” attached to the Affidavit of Boris Farfell).
- Full statement of accounts by the 1st and 2nd Defendants herein, being Director and Managing Director respectively (and in the case of the 1st Defendant also shareholder) of LGW of all accounts and transactions of the company as well as a statement and production of an inventory of assets of the company from July, 2013 to date.
- An injunction restraining the Defendants herein, their privies, assign, servants, agents and representatives from continuing to deal or transact in, dispose of, transferring or in any way interfering with the assets of the company.
- An Order attaching the assets, shareholdings, dividends and entitlement of the Defendants herein in the four LGW companies to the assets of the LGW.
- Immediate recovery of the said assets, shareholdings, dividends and entitlements of the company from the Defendants.
In the particulars of claim, Counsel for the Plaintiffs pleaded that the Defendants were sued as Director and shareholder of the company as the 1st Defendant holds 40 percent thereof but by their conduct were acting contrary to the interest of the LGW. Example, they formed the LGW companies and purportedly transferred the assets of LGW to them.
‘‘THE FIRM’’ entered an appearance on behalf of the Defendants on 29th April, 2015-Exhibit “D”. A statement of defence was filed on the 18th May, 2015-Exhibit “E”.
- In the said defence, the Defendants admitted being shareholders and Directors of LGW.
- That the Plaintiffs did not contribute any money towards the purchase of the assets, equipment, machinery etc of the 1st Defendant as they were brought by funds provided by the said 1st Defendant through companies he controlled.
- That the said equipment, machinery, vehicles etc that were currently in the name of LGW were placed in the said name for convenience as it was the said company that held an exploration license which automatically granted the company a duty free concession to import the said equipment, machinery, assets etc. I must comment here that this aspect of the Affidavit is ill-conceived. The Defendant therein has for all purposes confessed to tax evasion.
- That the said assets, equipment etc were brought into Sierra Leone for use by LGW and were still being used by them. There had therefore being no transfer to the four LGW Companies.
- The four LGW Companies were formed to complement the objections of the LGW.
- That the 1st Defendant and a Russian company that he controls Neftegazservis have solely provided funds to Golden Century, a German Enterprise owned and operated by Dimitri Portnov in the form of loans to purchase the assets of LGW.
- A similar transaction took place in respect of providing funds to Lindon Trade Limited to provide loans to Dimitri Portnov trading as Golden Century for the purchase of other sets of equipment, assets for LGW.
- That the said loans have not been repaid by LGW.
- FTCC 077/15 LINDON BVC, NEFTEGAZSERVIS RV AND GOLDEN CENTURY & ANOR
In this matter, ‘‘THE FIRM’’ appeared as Counsel for the Plaintiffs against Golden Century, Dimitri Portnov, LGW, Rocsolana Limited and Style Research Limited to claim various sums of money allegedly loaned to the 1st & 2nd Defendants for purchase of equipment to be used by LGW. If this action were to succeed, LGW would be stripped of its assets and remain an empty shell. The main Defendant here is really LGW since the other Defendants were all sued for their role in facilitating the procurement of assets to be used by LGW.
In the previous case, ‘‘THE FIRM’’ was acting as Solicitors and Counsel for the Defendants and purported to protect the assets of LGW from the Plaintiffs. In the instant case, the said firm is trying to strip LGW of its assets in favour of third parties. Applying the “bright line” principle, there will be a real harm to the interest of the shareholders of LGW (in which the client of ‘‘THE FIRM’’ holds 40 percent), if the present matter succeeds. That outcome would undermine the ability of LGW to continue to operate as a going concern.
The law of conflicts is mainly concerned with two types of prejudice: prejudice as a result of a lawyer’s misuse of confidential information obtained from a client (in the instant case, information obtained by ‘‘THE FIRM’’ from representing Voytovich in protecting the assets of LGW from Boris Farfell and others) and prejudice arising from where the lawyers “soft paddles” his representation of a client in order to serve his own interests, those of another client, or those of a third party. As regards these concerns, the law distinguishes between former clients and current clients. The lawyer’s main duty to a former client is to refrain from misusing confidential information. With respect to a current client for whom representation is ongoing, the lawyer must neither misuse confidential information, nor place himself in a situation that jeopardizes effective representation. (See the Canadian Railway Case).
In the instant case, ‘‘THE FIRM’’ through acting for Voytovich Rostislav received confidential information regarding the financing of LGW. This is the confidential information they are now trying to use in the matter instituted entitled FTCC 077/15 to claim various sums of money on behalf of Lindon BVC and Neftegazservis RV allegedly loaned to the 2nd Defendant, Dimitri Portnov for the purchase of assets of LGW. In view of this, I hold that the brief from the Plaintiffs in the matter instituted FTCC 077/15 is “sufficiently related” to the matters to which they have acted for a substantial shareholder of LGW and therefore possess confidential information that raises the risk of prejudice. Furthermore, if ‘‘THE FIRM’’ continues to act for the Plaintiffs herein, it will be in a position where it will be systematically unclear whether they performed the fiduciary duty to act in what they perceived to be the best interest of their cent in the matter FTCC 031/15 G No. 8.
- I hold that ‘‘THE FIRM’’ cannot continue to represent the Plaintiffs in the matter instituted FTCC 077/15 2015 L. No. 108 whilst at the same time representing major shareholder and Executive Director of LGW in a related matter FTCC 31/15/G No. 38. In arriving at this conclusion, I have applied the “bright line” rule. The rule applies to concurrent representation in both related and unrelated matters. As already stated, it applies only where the immediate interests of clients are directly adverse in the matters on which the lawyers are acting. In the instant case, if Lindon BVC and Neftigaz succeed in their action, LGW would be saddled with debt liability leading to its loss of assets. The shareholdings of ‘‘THE FIRM’’’s client Voytovich Rostislav will disappear immediately. The immediate interests of both of ‘‘THE FIRM’’’s clients were immediately adverse, and those interests were legal in nature. It is therefore right to conclude that in bringing this action, Solicitors for the 2nd, 3rd and 4th Defendants were acting “on a principled basis, and not merely for tactical reasons.” For if they had acted otherwise, the Court would have found it difficult, if not impossible to arrive at a decision for disqualification.
Taking all the facts of this case into consideration, I have concluded that ‘‘THE FIRM’’ by accepting the brief from Lindon and Neftegaz have placed themselves in a conflict of interest and have breached its duties of commitment and candor to LGW of which their client Voytovich Rostislav is a major shareholder (he is the holder of the largest single shares). The question is whether ‘‘THE FIRM’’ should be disqualified from representing Voytovich Rostislav in a related matter.
Applying the principle laid down in the CANADIAN NATIONAL RAILWAY COMPANY CASE, the Courts in the exercise of their supervisory jurisdiction over the administration of justice in the Courts have inherent jurisdiction to remove law firms from pending litigation. Disqualification may be required: 1) to avoid risk of improper use of confidential information. 2) to avoid risk of impaired representation; and/or 3) to maintain the repute of the administration of justice. As I have stated earlier on in this ruling, the issue in this application rest mainly on the third purpose; to maintain the repute of the administration of Justice. Here, the said purpose may be served by disqualification in Order to protect the integrity and repute of the administration of justice. Indeed ‘‘THE FIRM’’ had in this vein discontinued another matter under similar circumstances. Disqualification may be required to send a message that disloyal conduct involved in a law firm’s breach is not condoned by the Courts, thereby protecting public confidence in lawyers and deterring other law firms from similar practices.
I however do not agree with Counsel for the applicant that the said matter be struck out on either this ground or that the Plaintiffs are not registered companies in Sierra Leone. On the issue of striking out an action on the ground of non-compliance by Solicitors of certain rules, I agree with Counsel for the Plaintiffs/Respondents and the authority of FRANCIS GABBIDON –v- THE STATE CR. APP No 2/2008 SUPREME COURT that it will not serve the interest of justice. As Justice Semega-Janneh JSC puts it in that case, “the idea of declaring all pleadings, documents (including assignments and conveyances), acts etc by all offending Legal Practitioners raises the fear of an unacceptable and unimaginable catastrophe and chaos, spreading over and adversely affecting, all aspects of the national economy and body politic.”
The other issue of the Plaintiffs not been registered in Sierra Leone should not be strictly enforced. In a globalised world where commerce is governed by various forms of agency and other relationships, it will not be in the interest of financial intermediation in Sierra Leone to prevent international banking institutions from enforcing legally binding loan agreements in our Courts. (The question of liability is yet to be established.)
In the circumstances, this Court orders as follows:-
- That ‘‘THE FIRM’’ are hereby disqualified from acting as Solicitors and Counsel for the Plaintiffs in the matter instituted FTCC 077/15 LINDON BVC, NEFTEGAZ SERVIS RV AND GOLDEN CENTURY against Lora Golden Wings and its interests.
- Costs in the cause.
Hon. Mr. Justice Sengu M. Koroma (J.)