[1955] EACA 300

### COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR OWEN CORRIE, J. (Kenya).

#### AN ADVOCATE, Appellant

#### $\nu$ .

## ADVOCATES' COMMITTEE, Respondent IN THE MATTER OF THE ADVOCATES ORDINANCE, 1949 Civil Appeal No. 26 of 1955

# (Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth

O'Connor, C. J., and Paget Bourke, J.)

Advocate-Misconduct-Disciplinary proceedings-Functions of Supreme Court -Position of Court of Appeal-Standard of proof-Method of intituling proceedings—Advocates Ordinance, section 9 (3) (iii).

Upon a report being laid before it by the Advocates' Committee, an advocate was ordered by the Supreme Court to be admonished for professional misconduct.

It was argued that since the proceedings involved the application of penal sanctions, the standard of proof required was as high as that in a criminal case.

The primary facts were agreed and it was contended that the Court of Appeal was in just as good a position as the Supreme Court to draw the correct inferences therefrom.

In England, appeals from orders of the Disciplinary Committee under the Solicitors Acts are initialed: "In the matter of C. D., a solicitor, and, In the matter of the Solicitors Acts, 1932 to 1941."

Held (11-6-55).-(1) In proceedings against an advocate for professional misconduct involving an element of deceit or moral turpitude, the standard of proof required approximates to<br>the standard required by a civil court before finding against a party on an issue of fraud. The standard required is not as high as that required in a criminal case nor so low as that in a civil case which is decided upon the balance of probabilities.

(2) The function of the Supreme Court in such proceedings is more akin to the exercise of confirmatory or revisional jurisdiction than anything else so that the status of the Court of Appeal therein is nearer to that of a

(3) $Quære$ —The correct method of intituling the proceedings.

Appeal dismissed.

Cases referred to: In re A Solicitor (1945) K. B. 368; In re Hardwick A Solicitor (1883-4) 12 L. R. Q. B. 148; ex parte Renner (1897) A. C. 218; In re Cooke (1888-9) 5 T. L. R. 407; Kashyap v., R. (1944) 25 1. L. R. Lah. 408; Benma (1955) 1 A. E. 326.

O'Donovan (A. R. Kapila with him) for appellant.

Reid for respondent.

JUDGMENT (read by Nihill, President).—This is an appeal by an advocate practising in Kenya from a judgment of the Supreme Court of that Colony given in proceedings taken under the Kenya Advocates Ordinance consequent on a report laid before the Court by the Advocates' Committee in accordance with the provisions of section 9 (3) (iii) of that Ordinance. The Supreme Court, after considering the evidence taken by the Committee and the report, and having heard counsel for the Committee and for the advocate, arrived at a finding that the advocate had committed professional misconduct in that he had intended deliberately to mislead a Judge of the Supreme Court. The advocate was ordered to be admonished. In effect this finding endorsed a finding by the Advocates' Committee contained in its report which was expressed in the following terms:

"Accordingly, the Committee find that it is fully established on the evidence, that the respondent intended to deceive and mislead the court and that therefore a prima facie case of disgraceful and dishonourable conduct inconsistent with his duty as an advocate has been made out."

In one respect only did the Supreme Court differ from the Advocates' Committee Report in that it was prepared to accept the advocate's explanation that the false statement made in paragraph 2 of Mrs. Shantaben's affidavit -dated 29th November, 1954, that her employment pass was "still valid and current" (that is to say that it had not expired by effluxion of time) was due to a genuine error by the advocate and did not justify the inference that in this respect he had an intention to deceive.

The facts leading up to and surrounding this whole matter are so fully set out both in the Advocates' Report and in the judgment appealed against, that we do not propose to set them out again in detail. In truth so far as primary facts are concerned there was no conflict either before the Committee or the court because the appellant's advocate accepted the facts stated by Mr. Justice Hooper in his two memoranda sent to the Registrar of the Supreme Court under dates 17th and 20th December which were supported by an affidavit sworn by the Judge on 28th January, 1955. The Committee accordingly proceeded on the facts as stated in the memoranda but excluded from consideration all expressions of opinion or impressions contained in the memoranda. This was apparently done because Mr. Justice Hooper had expressed his reluctance to give evidence before the Committee and so submit himself to cross-examination, and it is clear from the record that Mr. O'Brien Kelly, the advocate's counsel, was content with this -compromise.

Before leaving the facts we should perhaps point out two matters in which the Supreme Court did go a little wrong when stating them. They are, in our -opinion, minor and unimportant: —

(a) In stating that regulation 22 (4) (b) of the Immigration Regulations contained a requirement that where a person to whom a temporary employment pass had been issued left such employment he was required to report the fact to the Principal Immigration Officer within fourteen days and that if he failed to do so his temporary employment pass was deemed to have expired. The court here must have been referring to an amendment to the Principal Immigration Regulations which came into force on the 23rd of December, 1954 (see G. N. No. 1818 of 1954). This amendment was therefore not in force at the date of the Deportation Order made against Mrs. Shantaben or on the date when she swore her first affidavit. The regulation as it stood on the material dates was as stated by Cram, J., in his judgment in Civil Case No. 675 of 1954, namely as follows: -

> "If the person to whom such pass was issued . . . does not continue therein he shall report the fact to the Principal Immigration Officer, and, if he fails to report his temporary employment pass shall become void."

Incidentally, the date of the Deportation Order was 10th of April, 1954. and not in December, 1953, as stated at the top of page 9 of the Supreme Court judgment. This, however, is clearly a slip, because the correct date appears in other parts of the judgment. Mr. O'Donovan has. conceded that the requirement in the regulation as it stood before the 1954 amendment must be construed as meaning that a person had to report the fact that he had left the employment covered by his temporary employment pass within a reasonable period. If this be accepted the mistake made by the Supreme Court in concluding that Mrs. Shantaben's. employment pass had expired and become void *ipsa lege* within fourteen days of 24th June, 1953, the day on which she left her employment is of little significance, and does not really affect the validity of the court's observation that it was contrary to the plain words of the relevant regulation to state in the supplementary affidavit sworn on 14th December, 1954, that the employment pass was valid and current on 10th April. 1954.

(b) Objection has been taken by the advocate's counsel that on page 25 of $(b)$ the Supreme Court judgment the court has referred to one of Mr. Justice Hooper's "impressions", which is contrary to the understanding arrived at between the parties at the beginning of the hearing before the Advocates' Committee that "impressions" should be excluded from consideration. The point under consideration by the Supreme Court in thispart of its judgment is whether, when the advocate did mention the existence of the Cram judgment to Mr. Justice Hooper on 8th December, they brought out the point that Mr. Justice Cram had given judgment on the merits. It is true that the court has referred to an "impression", but their lordships went on to refer also to what is a fact, because it is stated by Mr. Justice Hooper in his memorandum that he is sure that at no time was he told "directly or indirectly, or in any way whatsoever by the advocate that another Judge of the Supreme Court had already ruled against his client on all the points on which he was asking Mr. Justice Hooper to rule in her favour. It is clear, therefore, that the lapse made by the court in referring to an "impression" is quite immaterial.

As we have already said, the primary facts are not in dispute. The whole issue in this appeal is whether the inferences drawn from these facts by the Advocates' Committee and the court below can be said to be reasonable ones. and free from error. The Advocates' Committee consisted of the Attorney-General and the Solicitor-General of Kenya and two senior practitioners. Mr. O'Donovan for the advocate has addressed us at length on the standard of proof required toestablish professional misconduct and on our function as an appellate court in a proceeding of this nature. He has submitted that since these proceedings involved the application of penal sanctions the standard of proof must be as high as in a criminal case, and that since the advocate's explanation is not an impossible or improbable one the Committee and the court had no right to reject it even if not wholly assured as to its truth. We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting. in judgment on a colleague who would be content to condemn on a mere balance of probabilities. That is not the same thing as saying that the allegation must be proved beyond any reasonable doubt. We think the standard required should approximate to the kind of standard a civil court would look for before finding against a party on an issue of fraud. Certainly there is authority to show that: proceedings of like disciplinary committees in England are not governed by the rules of criminal law, whether or not such proceedings can properly be described.

as quasi criminal. See, for example, In re A Solicitor reported in 1945 L. R. K. B. at page 368. The following passage is taken from the judgment of the court at p. $374: -$

"This brings us to a contention, most strenuously argued by Mr. Paull, that proceedings before the disciplinary committee are governed by the rules of criminal law, or that such proceedings are, at any rate, quasi-criminal. On this footing he suggested that the proceedings were irregularly conducted in certain respects. Whether the proceedings can properly be described as quasicriminal or not, in our opinion there is nothing in the statutes or rules which binds the disciplinary committee to the rules of criminal law."

Likewise there is nothing in the Kenya Advocates Ordinance. In the much older case of In re Hardwicke A Solicitor 12 L. R. (1883-4) Q. B. 148 the Court of Appeal held that when the High Court makes an order ordering a solicitor to be struck off the rolls for misconduct, it does so in the exercise of a disciplinary jurisdiction over its own officers, and not of a jurisdiction in any criminal cause or matter. In any event Mr. O'Donovan has not been able to show us that either the Committee or the Court applied too low a standard of proof. It is quite apparent from the long and careful report submitted to the court that the Committee appreciated that the crux of the case turned on the issue of intention and that they applied correct principles before coming to a finding. Neither has Mr. O'Donovan been able to show us, apart from the two minor matters mentioned above, anything in the nature of a misdirection on the evidence either by the Committee or the Court.

Mr. O'Donovan has also argued that because the primary facts are agreed we are in just as good a position as the Court to draw a correct inference. That may be so as far as the court hearing is concerned, but it must not be forgotten that the Committee had the great advantage of studying the advocate's demeanour when he gave his evidence.

We are left then in this position that, the facts being agreed, we are asked to say as an appellate court that the adverse inferences drawn from these facts are so patently unjustifiable, that it is our duty to intervene. This brings us to consideration of the question as to what is the function of this Court in a proceeding of this nature? Again we cannot do better than to go for guidance to the case of In re A Solicitor cited above and to quote from a passage in the judgment at p. $373:$ —

"It is important to consider the attitude which the Court of Appeal" ought to adopt towards a second reinvestigation of the disciplinary committee's findings of fact. There are two reasons for special caution. In the first place the disciplinary committee of to-day is a 'specialized tribunal', created by Parliament to deal with questions of professional duty peculiarly within the knowledge of the profession itself, and for that reason constituted of members of that profession specially selected for their knowledge, experience and position by the Master of the Rolls (who in one sense is the head of that profession), or in his absence by the Lord Chief Justice. As Lord Hewart, C. J., said, the intention was to make solicitors as far as possible masters in their own house (In re a Solicitor (1)). The second reason is that we ought to apply the general principle on which the House of Lords acts in regard to appeals from concurrent findings of fact of the two lower courts, viz., that unless such findings are vitiated by some error of law, the House will very rarely interfere with the findings of the first court. In considering the scope of the first principle, we see no reason why the conclusions of fact reached by the solicitors' statutory tribunal should be given any less weight that the decisions on fact of a Judge of the High Court sitting without a jury. In

regard to the second principle it is enough to refer to three decisions of the House of Lords. In Owners of P. Caland v. Glamorgan S. S. Co. Ltd. (1) and McIntyre Bros. v. McGavin (2), Lord Herschell, L. C., held that it was not the practice of the House on appeal by way of rehearing to differ from concurrent findings of fact in two courts below, unless both courts 'have so distinctly erred as to justify (their) lordships in saying that the concurrent findings of these two courts ought not to stand."

Mr. O'Donovan has made the point that the profession in Kenya is not armed by statute with such extensive powers of disciplinary control as pertain to the Law Society in England and that the wording of the Advocates Ordinance shows. specifically that the function of the Committee is merely to find a prima facie case and then to report. We concede this but the analogy which he sought to draw between a preliminary investigation undertaken by a magistrate which ends in a committal for trial is clearly unsound. The proceedings in the Supreme Court on reception of the report are in no way comparable to a trial in first instance for no evidence is taken unless the court sees fit to take further evidence. Its statutory duty is to consider the evidence taken by the Committee and the report. In fact, its function is much more akin to an exercise of a confirmatory or revisional jurisdiction than anything else. In spite of the use of the expression "prima facie" in the Ordinance we see no reason why a decision on facts by the Committee should carry any less weight than a decision on fact by a Judge sitting in the first instance. If we are right in this, it follows that our status is nearer to that of a second appellate tribunal rather than a first. That being the case we are fully persuaded that it must be shown that the Committee and the court have so "distinctly erred" as to justify us in saying that the concurrent findings of fact of these two tribunals ought not to stsand.

Mr. O'Donovan, to whom we are greatly obliged for his painstaking examination of the evidence and his careful argument, has been hard put to it to show where anything amounting to a distinct error lies, and in attempting to do so it appears to us he has been forced in this Court to change somewhat the nature of the defence. At least from our study of the notes of the arguments in the court below we can find no indication that in the Supreme Court he made the clear distinction which he has made before us that although there was no duty on the advocate to disclose the Cram judgment in the affidavits there was a duty cast upon him to disclose it subsequently to Mr. Justice Hooper before he ruled on the motion for an order nisi. We are unable to say whether the distinction was made before the Advocates Committee, because the addresses of counsel are not included in the record. Mr. O'Donovan has argued strongly that the judgment of Mr. Justice Cram was not relevant within the meaning of section 40^th of the Indian Evidence Act and therefore there was no obligation to disclose it in the affidavits. The Supreme Court held it was relevant, but whether the court was right or wrong on that issue a reference to the judgment shows that the court did not decide the issue of disclosure on a narrow ground but on the wider aspect, which is now conceded before us for the first time, that there was an ethical obligation on the advocate to disclose to Mr. Justice Hooper at some stage before he was asked to exercise a discretionary power. As the case was not argued before the Supreme Court in precisely the same way as before us it is. not surprising that the Supreme Court did not come to an express finding as to whether or not a legal obligation rested on the advocate to disclose the Cramjudgment in the affidavits.

For ourselves we see no reason to decide this narrow issue. Indeed we will assume that Mr. O'Donovan may be right, then what is the outcome? Surely this, that if the advocate chose to make no disclosure in the affidavits supporting the application before Mr. Justice Hooper, then he must have known that a heavy

responsibility lay on him to bring the whole judgment of Mr. Justice Cram to Mr. Justice Hooper's attention at the very first opportunity. On the facts as agreed it is clear that he did not. Two tribunals looking at the picture as a whole have come to the conclusion that the advocate never intended to make a full disclosure to Mr. Justice Hooper if he could help it, and we regret that we find it impossible to say that this conclusion or inference from the facts was unjustifiable or unreasonable. We have not overlooked Mr. O'Donovan's argument that since the advocate was never heard on the merits of his application he never had any real opportunity of discharging his ethical duty of fully disclosing the scope and effect of Cram, J.'s, judgment; this aspect of the defence has naturally received more emphasis before us consequent upon the defence conceding for the first time that this ethical duty existed. It is clear, however, that this point was not overlooked either by the Committee or the court and both tribunals havegiven their reasons why they believed that it was not for lack of opportunity that full disclosure was never made. We cannot say that this conclusion was unreasonable. Even if it be assumed the advocate had some excuse for not pressing the matter of the judgment in his first appearance before Mr. Justice Hooper, that was not his only opportunity of doing so. There were other opportunities but they were not taken. Can it be said, therefore, that the inference of deliberate suppression is unreasonable when it is remembered $(a)$ that when the advocate mentioned the judgment on 10th December it was for the purpose of explaining why he had come before Mr. Justice Hooper on a different procedure, $(b)$ that when the advocate gave the Judge the case file number on 15th December, therewas again no disclosure as to the scope and effect of the Cram judgment but merely a reference to the fact that on the file the Judge would find all the papers. relating to the promise by the Government not to execute the deportation order during the currency of the legal proceedings, and (c) that the advocate drafted the supplementary affidavit on a date between his first and second appearances. before Mr. Justice Hooper.

For the above reasons we are constrained to dismiss this appeal.

There is one observation which we wish to make on the title to this appeal. It is in the form of an appeal between parties, the advocate being the appellant and the Advocates' Committee the respondent. We raised this point during the hearing but it was not pursued. It must not however be assumed that we accept the title as being necessarily correct. We observe that the recognized form for appeals to the High Court in England from Orders of the Disciplinary Committeeunder the Solicitors Acts, does not intitule the appeal as between parties: the title used is:-

"In the matter of C. D. a Solicitor;

and

In the matter of the Solicitors Acts, 1932 to 1941"

(see Atkin's Encyclopædia of Court Forms and Precedents: Vol. 14 p. 616-Form 123). The Notice then is addressed to the Registrar of Solicitors and tothe original applicant. Under the Acts the Registrar of Solicitors has the right to be represented on the appeal by counsel, as has the Advocates' Committee: under the Kenya Ordinance.

The appeal is dismissed with costs.