In Re: M an Advocate (C.A. 11/1932.) [1932] EACA 7 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

$\mathbf{r}$ Before SIR JOSEPH SHERIDAN, C. J. (Tanganyika), JOHNSON, Acting C. J. (Zanzibar), and Law, Acting C. J. (Uganda).

## IN RE "M" AN ADVOCATE.

## C. A. $11/1932$ .

Advocate-professional misconduct, what amounts to-retaining client's money—disciplinary power of court over advocates.

Held (2-7-32):-That there was not such proof of the fraudulent retention of the sum mentioned in the proceedings as would justify a conviction in a criminal case, and that that being the test, the order of the Supreme Court striking off the Roll must be set aside.

That notwithstanding anything contained in the Legal Practitioners' Rules made under Article 9 of the Order in Council, 1921, there is an inherent power in the Court to suspend or strike off an advocate for professional misconduct.

Davies, Crown Counsel, for Crown.

Daly for Appellant.

" M", an advocate, who had been admitted to practice in Kenya under the Legal Practitioners' Rules was brought before the Supreme Court on a notice, issued at the instance of the Attorney General on behalf of the Crown, to show cause why he should not be suspended or struck off the Roll for professional misconduct. After hearing the evidence the Chief Justice orderedthat " $M$ ' be struck off the Roll of Advocates.

Daly submitted that Rules 7 and 8 of the Legal Practitioners Rules were ultra vires the rule-making power contained in article 9 of the Order in Council, 1921, which gave no power to make disciplinary rules affecting persons admitted to practice as advocates. He asked leave to make this submission now as he had not embodied this in his memorandum of appeal.

Submitted that retention of client's money, though reprehensible, did not amount to professional misconduct.

In the matter of a Solicitor, 11 T. L. R.1894-95, at 169.

In re Sparkes, 144 E. R. 291.

Cordery on Solicitors, 3rd Edition, Chapter 7.

In re Blake, 121 E. R. 357.

Guildford & Sons, 138 E. R. 1242.

Re Bonner, 110 E. R. 662.

Submitted that there was no contradiction of "M's" statement that he endorsed his fee on his brief, and there had been no cross-examination of " $M$ " as to this. Submitted further that the lower Court should have accepted "M's" version as to his fee.

In re a Solicitor, 63 T. L. R. 350.

In re a Solicitor, 5 T. L. R. 486.

Davies.—"Admitted" in Kenya means something different from the English acceptation of that term. It has no restricted meaning. Power to admit to practise in Kenya impliedly retains in the Court power to suspend or strike off for misconduct.

> Maxwell on Interpretation of Statutes, 7th Ed. 304 and $305.$

Apart from rules, Court has inherent power over officers of the Court.

Ex parte Renner, L. R. 1897, AC. 218.

In re Taylor, 1912, A. C. 347.

2 Halsbury 385, para. 646.

$Daly$ replied.

SIR JOSEPH SHERIDAN, C. J.—This is an appeal by an advocate of the Supreme Court of Kenya against an Order directing that he should be struck off the Roll on the ground that he fraudulently retained two sums of money: Sh. $61/61$ and Sh. $6/72$ , the property of a client. It has been conceded by Crown Counsel that there were no other charges and that the consideration of the case has to be confined to the issue whether those sums were Strictly speaking the issue should be fraudulently retained. confined to the retention of Sh. 61/61 for that is the only sum mentioned in the affidavit grounding the application for a rule This Sh. 61/61 was a sum which was paid into Court. $_{\rm misi.}$ on the 9th October by the judgment-debtor in a case in which the advocate had acted successfully for his client.

The case concerned a claim for wages made by a Hindu cook in a Mahomedan household, and regarded as a claim for wages would not appear to involve any great difficulty. As frequently happens however in such cases fears were entertained by the client that matters extraneous to the case would be introduced and that attempts would be made to affect adversely his social position. Certainly he attached great importance to winning the case and in particular he was anxious that his wife, a purdah lady, should not be obliged to give evidence in open Court. His letters to his advocate clearly reflect his anxious mind in regard to the case and incidentally show that in attaining his ends he was not prepared to be over-scrupulous; otherwise what is his object in referring to money witnesses in his letter of the 11th August, 1931? That letter shows that he anticipated having to meet a false case and his request to his advocate as to whether he should "bring some money witnesses same as plaintiff's "is eloquent. Judging from the importance he attached to the case, the attention he required from his advocate, and, I might say. the nuisance he threatened to make himself so far as his advocate was concerned, it would be but reasonable that a higher fee than ordinary should be charged.

The first point for consideration is whether a fee of Sh. 100 or Sh. 40 was agreed on. The advocate says it was Sh. 100; the client Sh. 40. To my mind the former would not be an unusual fee when one considers the aspects of the case to which I have referred. A sum of Sh. 40 was paid on the 3rd July, and the entry made in the day book by the advocate himself reads: "Sh. 40 my fee". That this entry by itself is consistent with the Sh. 40 not being the whole fee is borne out by the admission of the Crown Counsel at page 54 of the shorthand note where he conceded to Mr. Daly that there were lots of such entries where the whole fee had not been paid.

$\frac{1}{100}$ Endorsed on the plaint in pencil the fee appears as Sh. 100. and there can be no suggestion that this endorsement was made after the proceedings by the Attorney General were commenced. I say this because at page 6 of the record the client himself states that on the 9th October, 1931, months before any action was threatened, "M" told him he must make up the fee to Sh. 100 and pay it to him. Now the client says he did not see "M" write anything and the advocate states that in accordance with his usual practice he endorsed the fee of Sh. 100 on the summons. This is the only evidence on the point. It was unchallenged, there being no cross-examination on the point, and that the advocate made the endorsement on the 28th June, the date he was engaged, I can find no reason to disbelieve. Indeed that he may have made this endorsement at the time he was engaged is conceded by Crown Counsel at page 67 of the shorthand note.

Believing that the advocate made this endorsement in the first instance, we have the strange state of affairs that he writes down Sh. 100 and according to the client states that his fee is Sh. 40. This requires some analysis and as against the advocate the most severe test to apply is to consider what the client stated in his evidence as having happened on the 9th October. At page 6 of the record his evidence is "' M' told me I must make up the total fee to Sh. 100 and pay it to him." This shows that the advocate was consistent with the endorsement appearing on the summons by asking for Sh. 100. True it is not an admission by the client that the fee was originally

fixed at Sh. 100, but it is consistent with the advocate holding out for that fee. As to who is to be believed means everything in this case and the client is the only witness for the Crown.

Although I have not had the unquestionable advantage of having seen him, yet judging from the record I would not regard him as a witness with a great regard for the truth. I have pointed out from one of his letters the length to which would be prepared to go to ensure winning his case. I find that at page 6 of the record he states there was a discussion about the fees, but at page 8 in cross-examination he stated that there was no talk about the fees and that he went away quite satisfied. At page 7 of the record he said he went two or three times to the advocate'soffice, and denied that he had gone there fifteen times; yet in his letter to the Registrar of the 29th December, 1931, he complained that he had gone from ten to fifteen times to the office. To emphasize his disregard of the truth I quote from his evidence at page 8 of the record, reading: $-$

"After 9th October, I did not see 'M' except in the street. I did not go to 'M's 'office after the 9th October."

I consider it of much importance that according to the client he went to the advocate's office on the 9th October and asked if " M" had collected the money from Court, went away quite satisfied, never wrote to "M" about his claim and in fact took no action until he wrote to the Registrar on the 29th December, 1931.

Counsel for the appellant who has left no stone unturned in his client's interests has pressed upon us that even if the fee originally fixed was Sh. 40 (which he does not admit) nevertheless there has been an acquiescence in the retention of the $\mathfrak{L}$ h. 61/61 by the complainant. For this alternative defence I think there is a great deal to be said. At page 8 of the record he said: "I thanked 'M' for what he had done and that he had saved the honour of a purdah woman," and later: "' M' took great trouble over the case." At page 8 (a) he said: "It was in my mind that if 'M' received the Sh. $61/61$ and Sh. $6/72$ from the Court he could retain it ". And then his reason for his change of front is significant reading. He says: "The reason I brought the charge was that I was virtually kicked out of 'M's' office and I was incensed. When 'M' insulted me I thought the matter over in my mind. When I went to ' M's' office I thought that if he chose to draw out the money In Court he could keep it. When he insulted me $\mathbb{I}$ was angry. Because of that I determined to get the money. I did not ' offer ' 'M' the Sh. 61/61. I did not give expression to my thoughts ".

Does it not occur to one as strange that although he was treated in this manner, causing his anger to rise, he made no complaint till the 29th December, 1931, nearly three months later? This story of ill-treatment does not ring true.

At page 8 of the shorthand note the complainant was $.$ asked : —

> Q. 79.-" Why should you pay him any more if you say there is a fixed fee of Sh. 40 which you had already paid him?

> A.—What I meant was this, that if the case was nicely fought I would on my own account pay him more."

And then he went on to say that the case was nicely fought.

Now it was on the 9th January, 1932, that the advocate was asked by the Attorney General for an explanation of the alleged wrongful retention of the Sh. 61, and his reply was to send a copy of the ledger entries showing the receipt of this sum from the Court on the 9th October and its appropriation towards his fees by him on the same date. It was criticized and rightly so by Crown Counsel that in replying to the Attorney General he made no mention of his having been engaged at a fee of Sh. 100, but for him it is to be said that he was asked to account for a specific sum and he did so by sending a copy of the entry referred to and adding that he was prepared personally to give an explanation. It may seem strange that he had omitted to include the Sh. 40 he had already received, but it is a fact that this sum had not been posted in the ledger to which he had referred on receiving the Attorney General's letter.

I have given this case careful consideration and while the system of book-keeping followed by the advocate does not reflect credit on him, and I am satisfied that both he and his clerk were not impressive witnesses, yet there has not in my opinion been such proof of his having fraudulently retained the sum of money in issue as would justify a conviction in a Criminal Case, and that, as Crown Counsel conceded, is the test. I would accordingly set aside the Order made by the Supreme Court.

In the view I take of the case I do not find it necessary to deal at length with the question raised, by Mr. Daly of the validity of the Rules made under the Order in Council. His argument was that the power to make Rules did not include a power to provide for suspending an advocate from practice or striking him off the Roll. As an advocate is in my opinion an officer of the Court, as in the case of a solicitor in England, the Court has disciplinary power over him and were there no rules providing for suspension or striking off the $Roll_x, L_i$ consider the Court, by reason of its inherent power to control the conduct of its officers, could suspend or strike off the Roll an advocate for misconduct. The Rules made under the Order in Council while they do not in my view take away from the inherent power of the Court, set out the manner in which it will exercise its disciplinary powers.

JOHNSON, Ag. C. J.—Upon the facts I am in agreement with the judgment of my brother the Chief Justice of Tanganyika and would allow the appeal.

Mr. Daly, for the appellant, felt it his duty to call the attention of the Court to the language of the Kenya Colony Order in Council, 1921, Article 9, and to suggest that Rules of Court (Legal Practitioners) No. 3 of 1926, which purport to be made under Article 9, are ultra vires the powers conferred by the Order in Council.

Article 9 provides that "Subject to the provisions of any Ordinance the Supreme Court may, with the approval of the Governor, make rules for regulating the practice and procedure of the Supreme Court and Subordinate Courts ".

The second part of the Article runs: "The power to make rules shall include $(a)$ a power to fix fees and scales of remuneration, and $(b)$ a power to regulate the conditions on which persons may be admitted to practise as advocates or solicitors in the Courts of the Colony."

The Rules, after providing for the admission of advocates in Rules II to VI, proceed in Rule VII to define the matters which render an advocate liable to be suspended or have his name struck off the Roll.

Mr. Daly urges that Article IX makes no mention of discipline, in connexion with the rule-making powers of the Courts and suggests that, as in criminal matters so in disciplinary matters, the powers of Courts must be strictly examined.

As we are of opinion that the appeal should be allowed, the matter is not of moment to his client. Unfortunately Mr. Daly was unable to argue the suggestion I made to him and therefore such remarks as I may make upon this point are obiter. But the matter is of importance, and in my view Mr. Daly was enabled to advance arguments which deserve statement and comment.

bushellargued that a barrister was not an officer of the Court as is a solicitor in England and therefore was not subject to the discipline of the Courts. I find myself unable to agree with this tsukānumi izmenus ai remogitant čara daga

A barrister in England is reported to the Benchers of his Inn and by them may be disbarred. A solicitor after due enquiry by the Law Society is reported to a Judge of the High Court and is by him struck off the Roll. The barrister pays no fee. But the solicitor does, and is under the direct control of the Court as its officer.

In Kenva the Supreme Court has followed the Article and laid down conditions for admission upon which a man is entitled to style himself an advocate of the Court. His qualification may entitle him to the prefix "learned" but there are neither barristers nor solicitors in Kenya. Only advocates, "learned" or otherwise. Like solicitors in England they take out an annual licence to practise. Like solicitors, they are in my opinion officers of the Supreme Court and subject to the powers inherent in all Courts to provide for the proper conduct of business.

It is convenient to have the procedure stated under which those powers may be exercised, and I think the Rules in question are Rules properly made under the first part of Article 9 as Rules regulating a part of the practice and procedure of the Supreme Court.

Mr. Daly's attention was called by me to the words "shall include " in the second Part of the Article, but unfortunately was unable to address himself to this particular point.

It is my personal view that the Article does not limit the Court, but that the latter part of the Article is one enlarging the powers of the Court and not limiting them. By enacting the Rules in question the Court had limited its powers by indicating the precise method in which it will exercise them.

LAW, Ag. C. J.-I have been privileged to read the judgments of the Chief Justice of Tanganyika and the Acting Chief Justice of Zanzibar, with which I respectfully concur, and I would allow the Appeal.

Though I can add nothing useful to those judgments, I desire formally to place on record my expression of opinion that Article 9 of the Kenya Colony Order in Council, 1921; in no way fetters the powers of discipline which may be exercised by the Supreme Court over advocates admitted to practice before its Judges. Such power must be inherent, unless otherwise limited. Any other position, in my view, would be intolerable. That Rules are necessary to prescribe the conditions under which persons may be admitted to practice in the Supreme Court, is perfectly natural. In their absence it is not practicable to decide what persons are eligible for admission as advocates. But once admitted, advocates are required to conduct themselves properly and honestly.