Chanda v Law Association of Zambia (HP 1 of 1990) [1993] ZMSC 110 (3 March 1993)

1976/HP/LP/ NO. 1 1990/HP/LAZA/1) HENRY CHILUFYA CHANDA Applicant ♦V- , .- i * * I' . THE LAW ASSOCIATION OF ZAMBIA Respondent CORAM: The Acting Chief Justice in Chambers On 20th January* and 3rd March*1993 For the applicant: Inpewonv- For the Respondent: Mr. N^Kawanambulu, with him three other members of the Legal Practitioners Committee Ngulube* A. C. J. delivered the ruling in Chambers. The applicant, Mr* Chanda used to hold practising certifi­ . ■ ■ cates up until 1982 and he used to practice on hi$ own account under the style Chanda and Company. He was also managing and promoting professional boxers, in particular, Lottie Mwale. In connection with the latter activity, he Incurred a contractual debt'with a firm •• • - .. of printers who produced for him a promotional magazine or brochure for one of Lottie Mwale’s fights* The applicant did not pay the printers and they commenced bankruptcy proceedings in which they obtained a receiving order, placing the applicant's affairs under the Administrator-General and Official Receiver. With a receiving order outstanding against him, the applicant was unable to obtain a practising certificate for 1963. In refusing to issue such certificate at the time, the Association was acting well within its rights in , terms of Section 37 of the Legal Practitioners Act, Cap 48. A •• practitioner in the applicant's position at the time was to be , ■ . V ’-J regarded as unsuitable to practise the law, especially in private practice where clients' funds would be vulnerable and exposed t^a potentially risky situation. The applicant next applied for a practising certificate, after the discharge of the receiving order and on giving due notice, in November,1989* When none was forthcoming /J 2/..... he appealed 2 • he appealed to the Chief Justice under the terms of Section 37(2) of the Legal Practitioners Act. Under Section 37, the Chief Justice has a special supervisory jurisdiction reposed in that office. On 28th November, 1990, the then Chief Justice made an order for the issuance of a practising certificate In, among others, the following terms:- ■IT IS HEREBY ORDERED that the Law Association of Zambia issue to the appellant herein a practising certificate for the year one thousand nine hundred and ninety on such terms and conditions as the Association nay deem fit.* ■ . ■ ■ . .. To date, the applicant has not got a practising certificate. He is of course, employed as an advocate In Government service where he does not require to hold a practising certificate but is desirous of resuming private practice. In accordance with the mandate in the order of 28th November, 1990, the Association - I am informed - has imposed three conditions, that is to say:** - a) b) c) the applicant must submit his accountant's certificate from the time he stopped practising on his own account: - ■ . . ' he must work for a firm of lawyers of high repute for at least two years, and - * ■ ■ ’ ’ he should submit a fresh declaration form together with a Tax Clearance Certificate. The applicant considers these conditions to be impossible and inhuman and has applied to me for leave to review out of time the order of November, 1990 so as to remove the stipulation that the Association can specify terms and conditions. . The applicant would like the Chief Justice to specify the conditions, if any, or to dispense with any conditionality. \ . . . •1 ■ ■ There was a preliminary objection raised by the Association to my jurisdiction to entertain this application, It being argued, Inter alia, that one judge ought not to review the order of another. For the reasons which I gave ,in the ruling on the point, I found that the special jurisdiction and responsibility attaches to the office of Chief Justice and is not personal to the individual in that office at any given moment where it is the ongoing performance of an earlier order which gives rise to an application. In this 3/. event event, I held that 1 had jurisdiction to entertain an application and if necessary to put matters right. The order complained of was obtained by the applicant, ex parte to the extent that the Associa* tion had failed to attend the adjourned hearing at which the order was made. Section 37(2) of Legal Practitioners Act reads "Within one month after being notified of the decision of the 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 tc the applicant on such terms and conditions as the Chief Justice nay think fit or free from terms and conditions . or not to issue a certificate or, if a , certificate has been Issued, may by order . suspend such certificate until such ? i 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*" . . .. ..•.■■■. ■' ■ .. ■' \ . ‘:i v ■ ■■-'; x- ■ ■ • . . ■■ ■. ■ •)■•■■■ ' ''. ■ ■' ■■ '■ . The applicant has argued that to the extent that the former Chief Justice had attached a term delegating the imposition, of terms and conditions to the Association, Instead of doing so himself, that part of his order was made per incur!am and was contrary to the subsection I have quoted. I am afraid I do not se$, it that way myself. The Chief Justice is empowered to Impose terms and condlt- ions and the former Chief Justice deemed It fit to Impose .the condition that the Association set the terms. Having listened to all the ■ submissions on both sides and bearing In mind the interests of the profession and of the public, it is apparent that practitioners who have at one time or another fallen from grace can not expect the supervisory authorities to ignore their lapses such that they should as a matter of course be restored to unsupervised private practice. The relevant provisions of Section 37(1) themselves indicate that a practitioner who has had a receiving order made against him or her can be subjected to terms and conditions set by the Association even before an appeal is made under subsection (2) to the Chief Justice. I agree entirely with the Association’s attitude 'that, before a practitioner in the position of the applicant can be restored to unconditional liberty to practice on his own account, it is not ultra vires the powers vested in them to set terms and conditions, provided that these are not objectionable such as for being unreason­ able or unlawful. A receiving order necessarily undermines the (ntearitv and calls into question his ability to ▼ 4 • manage his own affairs, let alone those of his clients. When the stain Is removed, as it was in this case is not unlawful for the Association to set a period of observation, as it were, before dispensing with any conditions, such as the condition that the applicant should return to private practice only under another practitioner for a period of two years at least before setting up on his own again. If the Association was in error, It was an error on the side of discretion for the benefit and protection of the profession and the public and ultimately for the benefit of the applicant who would be thus enabled to redeem his standing absolutely and to regain the confidence of his learned colleagues in the profession* There was no error, in my opinion, on the part of the Association in this regard* I have also considered the conditions as to accounts and tax clearance* The Legal Practitioners Act, especially in Section 69(3) and the Third Schedule, indicates quite clearly that clients’? funds in a defunct or abandoned practice should be adequately accounted for. The complaint as I understood was that the Association did not afford the applicant an opportunity to make a report accounting for such clients’ funds* They must give him such opportunity and I hereby so direct. With regard to tax clearance the Income Tax Act is clear and this is really not a condition imposed by the Association as such. Thus at the end of the day, 1 do not find that the three conditions set by the Association were In any way impossible, unrea­ sonable or unlawful* There was also nothing wrong with the order as framed by my predecessor. Accordingly, I refuse the application for leave to review that order With regard to costs, I consider that the issues are Of . .. ■ ' ' - . • •. general importance to the profession and I make no order as to costs ©Z1 \v&; -*r T A1^; -V A M. M. S. W. Ngulube ACTING CHIEF JUSTICE A.