Folotiya v The law Association of Zambia (1975/HPA/19) [1976] ZMHC 4 (19 March 1976)

FOLOTIYA v THE LAW ASSOCIATION OF ZAMBIA (1976) ZR 24 (HC) HIGH COURT SILUNGWE CJ 19th 10 MARCH 1976 ■ No. 1975/HPA/19 Flynote Legal practitioner - Practising Certificate - Appeal against refusal to issue - Accountants' certificates submitted - Failure to inform appellant about fate of I such certificates - Propriety of. 15 Legal practitioner - Legal Practitioners Act, No. 22 of 1973 - Provisions of section 68 - Discretionary nature of - Appeal under section 37 (2) - Whether necessary to go outside terms of section. Legal practitioners - Practising Certificate - Application for issue - Need for expeditious disposal. Headnote The 20 petitioner appealed under section 37 (2) of the Legal Practitioners Act, No. 22 of 1973 against the Law Association of Zambia (the respondent) for the latter's refusal to issue to the appellant a Practising Certificate for the year 1975. He sought a directive from the Chief Justice to the respondent to issue a Practising Certificate to him forthwith for 1975 and to 35 furnish the relevant application form for such certificate for 1976. He alleged amongst other matters that the Legal Practitioners Committee acted wrongly and irregularly in invoking against him the provisions of section 68 of the Legal Practitioners Act in that the Committee had not rejected the accountant's certificate submitted to him. ■ ■ Held: (i) It 30 would have been desirable and proper for the Committee to inform the appellant what ■ the fate of the accountant's certificates was. (ii) The provisions of section 68 of the Legal Practitioners Act, No. 35 22 of 1973 are discretionary and there is nothing to show that the invocation of those provisions by the Committee was not exercised judicially. ■ (iii) The power of the High Court to make a declaratory order is a discretionary one. In this case, which happens to be an appeal it 40 is not desirable or even necessary to go outside the terms of section 37 of the Legal Practitioners Act, No. 22 of 1973. ■ (iv) Matters such as this one should be dealt with expeditiously by the Law Association of Zambia. I Legislation referred to: 45 Legal Practitioners Act, No. 22 of 1973 ss. 37 (2) 38. 68. 1976 ZR p25 SILUNGWE J E Gani, for the appellant. J H Jearey, for the respondent. Judgment Silungwe J: This is an appeal brought by the petitioner (to whom I shall hereinafter refer as the appellant) under section 37 (2) of the Legal Practitioners Act, No. 22 of 1973 (hereinafter referred to as the 5 Act) against the Law Association of Zambia (hereinafter referred to as the Association) for the latter's refusal to issue to the appellant a Practising Certificate for the year 1975. The appeal which takes the form of a petition and is dated 8th December, 1975, was lodged by the appellant on the 10th of that month following the Association's letter of 7th November, 1975 15 (delivered to the appellant on 10th November), which confirmed the Association's refusal to issue to the appellant the Practising Certificate that had been applied for. Subsection (2) of section 37 of the Act reads as follows - ■ I "(2) Within one month after being notified of the decision of the 15 Association, the applicant may appeal against such decision to the Chief Justice who may affirm the decision of the Association or may direct it to issue a certificate to the applicant on such terms and conditions as the Chief Justice may think fit or free from ■ ■ ■ ■ terms and conditions or not to issue a certificate or, if a certificate has 20 been issued, may by order suspend such certificate until such certificate expires or the suspension is terminated by order of the Association or the Chief Justice or may make such other order as he may think fit." In his prayer the appellant asks me to direct the Association "to 25 issue a Practising Certificate to him forthwith for 1975 and to furnish the relevant application form for such certificate for 1976." The appeal is supported by an affidavit sworn by the appellant and the Association has replied by swearing two affidavits. Some of the contents of the affidavits sworn on behalf of the Association are obviously 30 irrelevant and could only have a prejudicial effect as against the appellant. At the commencement of the hearing there was an application by Mr Gani on behalf of the appellant to delete such contents. I do not see the necessity of taking this step because I will totally ignore all such matters. It is necessary to give the history of this matter. It is common cause 35 that the appellant was admitted as a legal practitioner on 12th March, 1968. On 13th January, 1975, he submitted an application to the Association for the issue to him of a Practising Certificate pursuant to section 36 of the Act in respect of his Lusaka office as well as the Ndola office which he had taken over in August, 1974, from the late Mr Michael Musuku. 40 On ■ the 22nd of that month the Association, through its Legal Practitioners Committee (hereinafter referred to as the Committee), addressed a letter to the appellant advising him that no Practising Certificate would be issued to him "until he has submitted to the Committee a satisfactory Accountant's Certificate for the period 31 - 3 - 73 to 31 - 3 - 74 for the Lusaka 45office and the period 30 - 8 - 73 to 30 - 8 - 74 for the Ndola office." On 14th February, 1975, the appellant submitted an Accountant's Certificate in relation to both his Lusaka and Ndola offices. By his letter dated 18th ■ I SILUNGWE J February, the appellant made an undertaking to the Association to reimburse all moneys which might be found to be due and payable to any client of the late Mr Musuku. On the following day the appellant was advised that his application would be considered by the Committee 5 on 4th March. On 5th March, the Association wrote to the appellant informing him that at the meeting held on the previous day it had been decided that until certain matters referred to in that letter had "been attended to, no Practising Certificate will be issued to (him)". Such matters were mainly two - fold, namely - I 1976 ZR p26 ■ ■ ■ (a) 10 that action should be taken under the provisions of section 68 of the Act to require production by the appellant of his books of account, bank statements, receipt books and bill files to Mr John Phillip Clements Davis of Geo. McKenzie & Co. the accountant proposed by the Association for the purpose of examining such books of 15 account, etc. with view to ascertaining if the regulations had been complied with, and (b) that the appellant do furnish an explanation in terms of section 37 (1) (g) of the Act concerning the state of affairs disclosed in the Accountant's Certificate of 12th February, 1975, in respect of the Ndola office. On 20 10th March, the appellant made a reply in which he said, among other things, that he had "no objection to Mr Davis' appointment or any other qualified accountant to audit" books of account, but he desired to be told whether the Committee had rejected his Accountant's Certificate. He pointed out that it would be impossible for him to furnish "full 25 explanations for the state of affairs disclosed in the Accountant's Certificate dated 12th February, 1975, in relation to the Ndola office, as such information could only be furnished by the late Mr M. N Musuku who owned and ran the practice". On 11th March, the Association, noting that there was no objection 30 to Mr Davis' ■ appointment, wrote to the appellant advising him to ensure that books of account, etc. were produced to Mr Davis at a given address on or before 18th March, 1975, by 1630 hours. In a lengthy letter of 26th March, the appellant pointed out to the Association that prejudice had been brought to bear upon his application considered by the Association 35 on 4th March, as certain members of the Committee were biased against him. He went on to say, inter alia, that since his Accountant's Certificates had "not been rejected", he took objection "to the appointment of Mr Davis to examine the books since Mr Davis' qualifications are in no way superior to those of the accountants who certified ■ ■ ■ my 40 accounts". He then stated that it had "been decided to appoint" Messrs Dalal & Co. Ltd. Chartered Accountants, Lusaka, "to audit the books and issue fresh certificates".. On 7th April, 1975, the Association told the appellant, in writing that as he had failed to comply with the request of the Committee given 45 to him in the letters of 5th March and 11th March, the matter would be placed on the agenda for a meeting of the Committee scheduled to be held on 6th May. On 25th April, the appellant forwarded to the Association his accountant's (Dalal & Co's) Certificate: The Honorary Secretary ■ SILUNGWE J to the Committee acknowledged on 2nd May receipt of the Accountant's Certificate and confirmed to the appellant that the meeting of the Committee would take place as earlier announced. On 7th May, the Honorary Secretary addressed the following letter to the appellant - I "Dear Sir, 5 re: Practising Certificate for 1975 Further to my letter of the 2nd instant I am to advise that your application was considered at length by Committee at its meeting held on the 6th instant. 1976 ZR p27 I am instructed to advise you that as you did not object to the 10 appointment of Mr Clements Davis in your letter dated 10th March, 1975, the Committee still requires you to surrender your books of account to Mr Clements Davis. I am further to advise that upon receipt of confirmation from Mr Clements Davis that he has received your books of account for both practices, I am authorised after 15 advising the members of the Committee to issue you with a Practising Certificate. ■ ■ Yours faithfully, (sgd) D. M. Lewanika Hon. Secretary" ■ ■ ■ This 20 prompted the appellant's reply, dated 28th May, in which he inter alia reiterated his objection to the appointment of Mr Davis pointing out that Mr Davis "was a personal friend of Mr Andrew Greene and Mr Stacey, the convenors of the Committee". "Mr Greene" he continued "on or before 4th March, 1975, told me personally that he would personally 25 appoint a third party and would ensure that he would file an affidavit and fix me up as he had done to Isaac Zulu and others." The Honorary Secretary wrote to the appellant on 2nd June, reminding him that in his letter of 5th March, the appellant had been given five days within which to object to Mr Davis' appointment and that in the appellant's letter 30 dated 10th March, no such objection had been raised - the objection was not made until 26th March, after a reminder had been sent to the appellant asking him to comply with the request of the Committee. The Honorary Secretary, however, informed the appellant that the matter would further be dealt with at the next meeting of the Committee and that he (the 35appellant) would be notified of the outcome. On 2nd July, the appellant requested if he could have personal representation at the Committee's meeting. The Honorary Secretary replied on 11th July stating that an attempt had been made to hold meeting of the Committee on 2nd July but that no quorum could be formed because Messrs Greene and Stacey 40 had recused themselves in the light of the appellant's accusations. He advised the appellant that a special meeting would be arranged and that his request for personal representation would be put forward. On 13th August, the appellant requested if the special meeting could be held during the course of that month "since time is running out and many 45 more problems are cropping up". The Honorary Secretary replied on 21st August, as follows - ■ ■ I SILUNGWE J 1976 ZR p28 "Dear Sir, re: Practising Certificate I am in receipt of your letter dated 13th August, 1975, and would regret to advise that to date it has not been possible to arrange for 5 meeting of the Committee to consider specifically your request for a Practising Certificate. I However, I would advise that the next meeting of the full Committee is to be held on the 2nd day of September, 1975, and that if the Committee has not met before then, this matter will certainly 10 be ■ considered on the 2nd September, 1975. Yours faithfully, (sgd) D. M. Lewanika Hon. Secretary" On 23rd September, the appellant wrote again asking for confirmation 15 that the Committee would soon be sitting "most probably before the 5th October, 1975". On 7th November, the Honorary Secretary wrote the following letter to the appellant - ■ "Dear Sir, re: Practising Certificate 20 ■ I refer to previous correspondence herein and would advise that special meeting of the Committee which was not attended by either Mr Greene or Mr Stacey met on the 4th day of November, 1975, to reconsider your application for Practising Certificate for 1975. I am instructed to inform you that the meeting resolved that it 25 will abide by the previous decisions that has ■ already been communicated to yourself. Yours faithfully, (sad) D. M. Lewanika Hon. Secretary" In 30 his submission Mr Jearey, on behalf of the Association, has drawn my attention to ■ the provisions of subsections (1) and (2) of section 38 of the Act. Those provisions read as follows - "38. (1) Every Practising Certificate shall, subject as hereinafter provided take effect on the day on which it is issued by the Association: 35 ■ Provided that every Practising Certificate issued between the 1st January and the 1st February in any year shall have effect for all purposes from the 1st January in that year. (2) Every certificate shall continue in force from the day from or 40 on which it has taken or takes effect in accordance with this section until the 31st December next following (both days inclusive) and shall then expire." On the strength of these provisions, I consider that this application is of academic interest only in that I have no power to direct the issue of a 45 Practising Certificate retrospectively because subsection (1) of section 38 makes it abundantly clear that with the exception of the proviso, which is ■ ■ 1976 ZR p29 I SILUNGWE J not relevant in this case, if I were to direct the issue of the Practising Certificate to the appellant, that certificate would become effective on the date on which it is issued. As this appeal relates to the year 1975 which has gone by, any such direction on my part would be unnecessary and a futile exercise. Mr Jearey contends that the appellant could, instead of 5 waiting until about the close of the year, have appealed to the Chief Justice under subsection (2) of section 37 of the Act shortly after 22nd January, 1975, when he was first advised that no Practising Certificate would be issued to him. With due respect to Mr Jearey, this is an over - simplification of the issues involved in this case. In the letter of 22nd January, 1975, the 10 Association told the appellant that no Practising Certificate would be issued to him until he had submitted to the Committee a satisfactory Accountant's Certificate for the purpose stated therein. The appellant did in fact submit such certificates to the Committee and the Honorary Secretary acknowledged receipt thereof. It is clear from the Honorary 15Secretary's correspondence that some time later the Accountant's Certificates were considered by the Committee and the appellant was informed accordingly. But at no time did the Honorary Secretary indicate to the appellant, as Mr Gani rightly contends, on behalf of the appellant, that the Accountant's Certificates had been rejected. In his letter of 2nd June, the 20 Honorary Secretary informed the appellant that the latter had raised no objection to Mr Davis' appointment until the time specified in the Secretary's letter of 5th March had expired. In point of fact the appellant did raise an objection on 26th March. It is here necessary to refer to paragraph 2 of the Honorary Secretary's letter dated 5th March which reads 25 as follows - ■ ■ ■ I "If I do not hear from you within five days, or alternatively if the Committee is satisfied that you do not have ■ any proper objection to the appointment of Mr Clements Davis, the Committee will serve a further notice upon you requiring all your books of account, 30 bank statements, receipt books and bill files to be produced to the said Mr Clements Davis at the offices of Messrs Geo. McKenzie & Co. (giving the address)." It is clear, as has already been pointed out, that the appellant's objection to Mr Davis' appointment was out of time. I have some difficulty in 35 appreciating why the appellant was given so short a time, i.e. five days, within which to comply with the Committee's request. This, however, was not the only determining factor on the part of the Association because an alternative had been given, namely, that the Committee, if ■ ■ satisfied that the appellant had no proper objection to the appointment of Mr Davis, 40 would take the steps already referred to above. The appellant did, though belatedly, object to Mr Davis' appointment on the ground that Mr Davis would be biased against him in view of the fact that he was a friend of Mr Greene who had personally told the appellant that he (Mr Greene) "would personally appoint a third party and would ensure that he would file an 45 affidavit and fix him up as he did to Isaac Zulu and others." The Committee has never expressed its dissatisfaction with the appellant's objection, neither has it told him that the objection was not a proper one. ■ 1976 ZR p30 I ■ ■ SILUNGWE J On 30 11th July, the Committee's intended meeting was abortive for lack of quorum. This ■ was probably not due to the fault of the Association because two members of the Committee had had to recuse themselves following the allegations made against them by the appellant. The 5 appellant did indicate to the Honorary Secretary his desire for personal representation at the Committee's meeting and the Honorary Secretary's reply thereto was that this request would be put before the meeting. As it turned out, the Committee met on 4th November, 1975, and finally determined the matter maintaining its earlier refusal to issue to the 10 appellant the Practising Certificate. It seems the appellant was not in attendance at that meeting, neither was he informed of the date of the meeting. At page 3 of the petition, the appellant makes certain allegations in paragraph 14, the first one being that the Committee acted wrongly and 15 irregularly, in invoking against him the provisions of section 68 of the Act in that the Committee had not rejected the Accountant's Certificates submitted on 14th February, neither had it rejected the certificates submitted on 25th April of that year. It could be presumed that silence on the part of the Committee in relation to the Accountant's Certificates submitted 20 on the two dates above mentioned was an indication that the certificate did not satisfy them. But whatever the reason, it would have been desirable and proper for the Committee to inform the appellant what the fate of those certificates was. The provisions of section 68 (1) of the Act are discretionary and there is nothing to show that the invocation of 25 those provisions by the Committee was not exercised judicially. The appellant's allegation in this connection cannot therefore succeed. He goes on to say that the Committee failed to disclose to him the reasons or grounds for proceeding against him under the said section (1) of section 68. What has just been pointed out in relation to this section also 30 applies here. ■ The appellant, however, alleges that the Committee failed to afford him any opportunity to make representations to the Committee in relation to the matters adverse to him. This allegation can only be entertained if it related to his absence at the Committee's meeting which was held on 4th 35 November, 1975. Otherwise the appellant was given opportunity to make and did in Act make various representations in writing to the Association. The appellant contends that an invocation of section 68 of the Act is not, and ought not to be a bar to the issuing of a Practising Certificate. The Association's power to issue Practising Certificates is contained in Part V 40 of the Act; under section 37 the Association has discretion either to issue such a certificate or to refuse to issue it or to decide to issue it on certain terms and conditions, "as the Association may in its discretion think fit". Section 37 (2) of the fact provides a remedy to an applicant whose application has been unsuccessful, namely an appeal to the Chief 45 Justice. Mr Gani has applied to amend the petition so as to provide for an alternative paragraph seeking a declaration that the Association's refusal to issue to the petitioner a Practising Certificate current for 1975 was ■ ■ ■ ■ ■ SILUNGWE J improper, wrongful and unlawful. In support of the application he cites, inter alia, Order 18 last paragraph of 18151 of the 1973 White Book Part 1 and also relies on the last words of subsection (2) of section 37, namely, that the Chief Justice "may make such other order as he may think fit." Mr Jearey vigorously resists this application mainly on the following 5 two grounds: I 1976 ZR p31 (a) that according to Order 15/16/1/2 of the 1976 Supreme Court Practice Part 1, an application for a declaratory order may be commenced by writ of summons or originating summons adding that the matter under consideration was not begun by any of the 10foregoing summons; and I (b) that the last words in subsection (2) of section 37 referred to above must not be read in isolation, that they must relate to the issue of a Practising Certificate and not to things like a declaratory order. 15 I The court's power to make a declaratory order is a discretionary one. In this case, which happens to be an appeal, I do not consider it desirable or even necessary to go outside the terms of section 37 of the Act. I would refuse the application for a declaratory order. I do not consider that this matter has been satisfactorily handled by 20 the Association in that they could have dealt with it expeditiously and come to a final decision by about the middle of 1975 or shortly thereafter, but as is evident the matter was finally disposed of on 4th November, 1975. In all the circumstances of this case I find myself unable to affirm the decision of the Association and as has already been pointed out, it would 25 be futile to direct the issue of a certificate to the appellant for the year 1975. However, had the final decision by the Association been reached say by the middle of last year or shortly thereafter, there is a likelihood that I might have considered directing the Association to issue to the appellant a Practising Certificate on two conditions - 30 I • • (a) that an independent accountant be appointed in terms of section 68 of the Act to examine the appellant's books of account, etc.; and (b) that a satisfactory Accountant's Certificate be submitted to the Association. 35 I In view of what I have said above this appeal must be dismissed. The circumstances of the case are such that I do not consider it necessary to make any order as to costs. Accordingly, there shall be no order as to costs. I I wish to express the hope that in matters such as this one, the Association will act with speed. 40 Appeal dismissed