In Re: of an Advocate; In Re: of the Advocates Ordinance (Civil Application No. 6 of 1955) [1955] EACA 311 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and DE LESTANG, J. (Kenya) $\mathcal{E}_{\frac{1}{2}}$

## IN THE MATTER OF AN ADVOCATE

## AND

## IN THE MATTER OF THE ADVOCATES ORDINANCE, 1949 Civil Application No. 6 of 1955

(Application for conditional leave to appeal to Her Majesty in Council from a decision of the Court of Appeal in Civil Appeal No. 26 of 1955, reported ante, page 260.

Appeal to Privy Council—Application to appeal as of right and with leave of the Court of Appeal—East African (Appeal to Privy Council) Order in Council, 1951, section 3 (a) and (b)—Advocate.

The applicant/advocate applied for conditional leave to appeal to the Privy Council (i) as of right under section 3 (a) aforesaid, or alternatively (ii) with leave of the Court under section 3 $(b)$ aforesaid, from a decision of the Court upholding a decision of the Supreme Court that he had committed professional misconduct.

Section 3 aforesaid provides: "Subject to the provisions of this Order, an appeal shall lie—(a) as of right, from any final judgment of the Court, where the matter in dispute on the appeal amounts to or is of the value of £500 sterling or upwards, or where the appeal involves directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the said value or upwards; and $(b)$ at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the appeal is one which by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council for decision".

Prior to the lodgment of the complaint against the applicant, he had been appointed a resident magistrate. This appointment he resigned by arrangement with the Chief Secretary on the understanding that he would be reappointed in the event of the complaint being dismissed. He argued in support of his application under section $3(a)$ aforesaid that accordingly, indirectly, there was involved more than the sum of £500, his appointment as resident magistrate being of a value exceeding £500.

As to his application under section 3 (b) aforesaid the applicant contended that there were three points of law involved in the proposed appeal which, by reason of their great general and public importance or otherwise, ought to be submitted to Her Majesty in Council for decision, namely (1) on the question of the degree of proof required to sustain a finding of professional misconduct against an advocate, (2) on the question of extent of the authority of the Advocates' Committée in Kenya under the Advocates Ordinance, and (3) on the question of the scope and extent of the functions of the Supreme Court of Kenya in considering a report by an advocates' committee.

**Held** (8-8-55).—(1) A resident magistrate holds office at the pleasure of the Crown, so that the applicant had no legal right to be reappointed to such office, and the undertaking by the Chief Secretary could not bind the Crown and limit its power not to reappoint the applicant thereto, so that the applicant had, not only no civil right in excess of £500 but no civil right at all, and section 3 $(a)$ aforesaid could not apply to him.

(2) The question of the degree of proof required to sustain a finding of professional misconduct against an advocate was a matter of "great general importance" within section $3(b)$ aforesaid, and that question and the other two questions proferred in support of the application under section $3(b)$ were questions of public importance.

(3) The words "or otherwise" appearing in section 3 $(b)$ aforesaid are intended to give the court a wide discretion when granting leave provided that it is satisfied that the points raised ought to be submitted to Her Majesty in Council for decision.

Application for leave to appeal granted under section $3(b)$ aforesaid.

Cases referred to: Terrell v. The Secretary of State for the Colonies (1953)<br>2 Q. B. 482; Meghji Lakhamshi & Bros. v. Furniture Workshops (1954) 1 A. E. 273;<br>Churchwardens of the Parish of St. George v. May, 14 E. R. 918; La

Bechgaard for applicant.

Reid, amicus curiæ.

ORDER (prepared by de Lestang, J.).—This is an application for conditional leave to appeal to Her Majesty in Council—

(i) As of right under section 3 (a) of the East African (Appeal to Privy $(a)$ ) Council) Order in Council, 1951, or alternatively—

(ii) With the leave of the Court under section 3 $(b)$ .

Section 3 of the East African (Appeal to Privy Council) Order in Council, 1951, reads as follows: $-$

"3. Subject to the provisions of this Order, an appeal shall lie-

- $(a)$ as of right, from any final judgment of the Court, where the matter in dispute on the appeal amounts to or is of the value of £500 sterling or upwards, or where the appeal involves directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the said value or upwards; and - (b) at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the appeal is one which, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council for decision."

The applicant is an advocate practising in the Colony who, on the report of the Law Society of Kenya pursuant to a complaint made to it by the Registrar of the Supreme Court of Kenya, was found by the said Supreme Court to have committed professional misconduct and was ordered to be admonished. Prior to the Registrar's complaint the applicant had been appointed a resident magistrate at a salary of £1,350 per annum with the usual privileges attaching to appointments in the Colonial Legal Service, and was to have taken up his appointment with effect from 1st January, 1955. As a result of the complaint lodged against him, the applicant entered into an arrangement with the Chief Secretary to the Government of Kenya under which he resigned his appointment as resident magistrate on the understanding that he would be reappointed in the event of the complaint being dismissed.

We have already dismissed his application for leave to appeal under (i) above, but have granted him leave under (ii) above, and we now give our reasons for so doing.

As regards the application under section 3 $(a)$ , the applicant contended that his proposed appeal involves indirectly some civil right exceeding £500 in value, the basis of his contention being, as stated in paragraph 7 of his affidavit, that there is indirectly involved in the said appeal his right to be restored in his appointment as resident magistrate, which appointment is of a value in excess of $£500$ .

It was conceded that a resident magistrate holds office at the pleasure of the Crown and, in our opinion, the short answer to the applicant's contention is that he has no legal right to be reappointed as a resident magistrate. Any undertaking he may have received from the Chief Secretary to the Government of Kenya cannot bind the Crown and limit its power not to appoint him if it so chooses. (Terrell v. The Secretary of State for the Colonies (1953) 2 Q. B. 482.) Indeed, Mr. Reid, to whom we are indebted for appearing as *amicus curiæ*. informed us that even if the applicant were successful in his appeal he would not necessarily be reappointed a magistrate, but merely that the question of his reappointment would be reconsidered if he were completely exonerated. We are, therefore, of the opinion that the proposed appeal does not involve any civil right, still less any civil right of a value in excess of £500 and that the application in so far as it is founded on section 3 $(a)$ must fail.

As regards the application under section 3 (b), the applicant contended that there were three points of law involved in the proposed appeal which, by reason of their great general and public importance or otherwise, ought to be submitted to Her Majesty in Council for decision. Those points of law are set out in his affidavit as follows: -

- (a) On the question of degree of proof required to sustain a finding of $(a)$ professional misconduct against an advocate, and particularly whether proof which falls short of proof beyond reasonable doubt can suffice; and - (b) on the question of extent of the authority of the Advocates' Committee in Kenya under the Advocates Ordinance, and particularly whether its finding that a prima facie case against an advocate has been made out can amount in substance to a finding that such advocate has, in fact, been guilty of professional misconduct; - (c) on the question of the scope and extent of the functions of Her Majesty's Supreme Court of Kenya in considering a report by an Advocates'. Committee and whether such functions are merely revisionary or confirmatory.

We think that the point of law raised in $(a)$ properly comes within the expression "great general importance" in section 3 $(b)$ . Although the question here specifically relates to the degree of proof necessary to sustain a finding of professional misconduct against an advocate, the decision on the point would not be restricted to the legal profession but would apply generally to other professional bodies subject to disciplinary action. We are also of the opinion that all three questions are of public importance since they deal with the powers of the Advocates' Committee and of the Supreme Court over a body of professional men who, if not strictly speaking public officers, enjoy special privileges and have, in consequence, special responsibilities towards the public. Moreover, the power of the Court to grant leave to appeal is not, in our view, limited to questions of great general or special importance. The words "or otherwise" which appear in the section are, no doubt, intended to give the Court a' wide discretion when granting leave provided it is satisfied that the points raised ought to be submitted to Her Majesty in Council for decision. The Law Reports abound with cases of professional men being granted special leave to appeal to the Judicial Committee where questions of professional status or injury to character are involved. We are aware that the discretion of the Judicial Committee to grant special leave to appeal is not fettered in any way. Nevertheless, in exercising our discretion in the present case we have thought it proper to take into consideration the fact that the professional status and the character of the applicant are also involved.

For these reasons we have granted the applicant leave to appeal subject to the conditions in the formal order of the court.