[1954] EACA 68

# ORIGINAL CIVIL

## Before CRAM, Ag. J.

### **GOKALDAS RATANJI MANDAVIA, Plaintiff**

$\nu$ .

# NAHAR SINGH MANGAT AND OTHERS, Defendants

## Civil Suit No. 72 of 1954

Civil Procedure and Practice—Civil Procedure Ordinance, section 97—Civil Procedure (Revised) Rules, 1948, Order 6, rule 29-Application for plaint to be struck out-Tort-Suit claiming damages for alleged tortious acts and libel-Whether reasonable cause of action disclosed-Whether frivolous and vexatious and abuse of process—Advocates Ordinance, 1949—Failure of public officer to comply with provisions—Whether provisions imperative or directory—Relevancy of averments—Whether judicial proceeding—Whether absolute immunity.

The plaintiff, formerly an advocate practising before this Court, became the subject of an application alleging professional misconduct and praying that he be struck off the rolls. The application was heard by a statutory body, a committee set up under section 4 (1) of the Advocates Ordinance, 1949, consisting of the Attorney-General and Solicitor-General, *ex officio* and three practising advocates nominated by the Law Society of Kenya. Also present was a secretary appointed by virtue of rules made under the Ordinance. The Committee was of the opinion that a prima facie case of misconduct had been made out and this opinion was embodied in a report and laid before the Supreme Court of Kenya. The Supreme Court heard Counsel for the Committee and for the plaintiff and came to the conclusion that the plaintiff had been guilty of gross professional misconduct and ordered that his name be struck off the Roll of Advocates for two years. The plaintiff then instituted this suit against the members and secretary of the committee, averring that they had acted without jurisdiction since neither he nor they had the status of advocates, averring malice, errors in procedure and other wrongful procedural acts and injustices leading to the wrongful striking of his name from the Rolls and claiming general damages for the tortious acts and libels. The defendants applied by motion for an order that the plaint be struck out on the grounds that no reasonable cause of action was disclosed and that the suit was frivolous and vexatious and an abuse of the process of the Court. The defendants invoked the inherent jurisdiction of the Court as well as the provisions of Order 6, rule 29, of the Civil Procedure (Revised) Rules, 1948.

Held (16-8-54).-(1) The failure to prepare a new Roll of Advocates as required by the provisions of sections 5 and 6 of the Advocates Ordinance, 1949, did not result in the plaintiff or the defendants losing their status as advocates, as these provisions were not imperative but directory, merely.

(2) Practising certificates were issued by the Registrar to the plaintiff as well as the defendants and this issue amounted to a substantial compliance with the provisions of Part IV of the Ordinance, such provisions, too, being merely directory and not imperative.

(3) The Advocates' Committee was properly constituted and had jurisdiction to entertain the application alleging misconduct. The proceedings of the committee from whatever aspect, must be considered to be judicial and were expressly so declared by section 10 (3) of the Ordinance

(4) Were members of the Advocates' Committee to be open to suits of this nature. arising out of the exercise of statutory disciplinary functions, they could not be expected to do their duty with that freedom and open mind which the discipline of the legal profession demanded. The defendants therefore were entitled, as a matter of public policy, to an absolute immunity for any acts, statements or anything else alleged to have been done by them within and during the scope of the disciplinary proceedings.

(5) Even though the plaintiff could prove that the defendants or any of them had acted mala fide or with actual malice and without reasonable and probable cause and with a knowledge that any statements made or entertained were false, as a matter of law the suit would not lie and the averments were irrelevant and immaterial. The plaint was struck out and the suit dismissed with costs.

Cases cited: Royal Aquarium Society v. Parkinson, (1892) 1 Q. B. 431, 442; Barratt v. Kearns, (1905) 1 K. B. 504, 511 (C. A.); Dawkins v. Rokeby, (Lord), (1874) L. R. 7 H. L. 744; In the matter of the Advocates Ordinance, 1949; ex parte Mandavia, (1953) 26 K. L. R. (In the Press).

Lean with Nazareth for the applicants.

#### Plaintiff in person.

RULING.—The defendants apply by notice of motion invoking the inherent jurisdiction of the Court as well as the provisions of Order 6, rule 29, of the Civil Procedure (Revised) Rules, 1948, for an order that the plaint be struck out and that the suit be dismissed with costs on the grounds that no reasonable cause of action is disclosed and that the suit is frivolous and vexatious and an abuse of the process of the court.

The suit is instituted for damages arising out of alleged tortious acts and libel.

The averments in support of the prayer are painted in which may seem lurid and extravagant colours and, having regard to the status of the defendants as Barristers-at-Law, Solicitors, Officers of the Crown as well as responsible men versed in the daily practice of the law, the depicting of their acts, intentions and characters as wicked, conspiratorial and villainous, is prima facie little short of appalling, perhaps even more so when it is seen further from the plaint upon what shallow foundations this vast inflation of alleged wrongdoing rests. But it is not my present function to examine all of these facts and to adjudicate whether they amount to the evil things condescended upon but merely to decide whether if certain facts are true or false there is a relevant case to go to trial. At least that is what I conceive the purpose of the motion to be.

This being so, even if the scope and sweep of these allegations, on what small base appears on record, seem outrageous and by their very nature strain credibility, and even although the plaintiff may appear to be basing his suit upon technicalities, it is incumbent upon me to adopt towards these a judicial frame of mind; to exclude meantime any colour of view that this suit may be brought merely to vex, and to consider if these technicalities have substance, for, if they have, then the suit will be ordered for proof.

The application being, in part, to the inherent jurisdiction of the Court, I accept, on the authority of the cases cited to me, that I may go into the facts before the Court and that I may look at affidavits filed in process to find in fact, for I rule such affidavits are admissible.

Prior in time to the coming into force of the Advocates Ordinance, 1949, the plaintiff was an advocate qualified to practise at the bar of this Court and after the Ordinance became law he continued to practise without raising objection to his qualification or that of any other until he was suspended from practice by an Order of this Court, dated 8th September, 1952, and so became disqualified for a period of two years. The first four defendants are advocates who practise either at the har or in chambers or are officers of the Crown. Under the provisions of that Ordinance, the defendants took part in a proceeding consisting of a complaint against the plaintiff for professional misconduct. I may say at this stage that I find that Mr. Whyatt and Mr. Griffith-Jones took part in the proceedings because *ex officio* they were members of the Advecates' Committee envisaged by Part I of the Ordinance and that Mr. Hamilton was present because he was appointed secretary to the Committee according to rules made under the Ordinance. The remaining defendants were nominated to the Committee by the Law Society of Kenya, a statutory body.

This Committee, whether or not four of the defendants had a right to describe themselves as advocates or had a right to be on the Committee or to take part in the proceedings or not, I shall deal with later, entertained a complaint against the plaintiff. There was a hearing; certain opinions were embodied in a report and this report was signed by the defendants and laid before the Supreme Court of Kenya. The report was that a prima facie case of misconduct had been made out. The Court considered that report and after a hearing in which further evidence was given it made a ruling upon jurisdiction; a judgment upon the merits and made an order suspending the plaintiff as aforesaid on the grounds of most unprofessional and dishonourable conduct.

The plaintiff did not appeal from the ruling, judgment or order of the Supreme Court to the Court of Appeal for Eastern Africa. I am not seized upon to decide whether or not he had such right of appeal. The plaintiff maintains he had not. As he accepts that appeal is of statute, then if his view of the law is that no statute gives him an appeal, he must inevitably arrive at the conclusion that the legislature did not intend his conception of a person aggrieved or otherwise to have any right of appeal, and logically he will arrive at this point, which is no more and no less than his misfortune.

The plaintiff did apply to the Judicial Committee of the Privy Council for leave to appeal but his application was dismissed, the Board, as is customary did not give reasons for its advice.

Finally, on or about 18th January, 1954, the plaintiff instituted the instant $\cdot$ suit.

Section 10 (3) of the Ordinance, beyond equivocation, enacts that any hearing of an application before the Advocates' Committee is deemed to be a judicial proceeding. The meaning is as plain as the words used. The legislature must not be taken to use clear and forthright terms, such as these, in an important enactment, dealing with status, without a particular object in view. It seems as clear as may be that looking to the function of the Committee to investigate complaints about professional misconduct, that is complaints involving allegations against conduct, unless the members of the Committee were privileged. they would be each and all be exposed to actions of this very nature and that the legislature, aware of the risks that would otherwise be run by members of the Committee, who might be doing no more than their unpleasant duty and it might well be compelled to deal with some very unpleasant and vindictive individuals, intended this provision as an entire prophylactic.

In my respectful view, provided members of the Committee are properly qualified to sit, then the provision is no less than the legislature intended and that is an *aegis* against attack from virtually any suit of this nature whatsoever. That is the privilege of a judicial officer, in a judicial proceeding, is to be afforded to each member of the Committee. Indeed, if that is what the legislature intended, then with respect, as I construe the provision, by a happy choice of words it has entirely succeeded.

I shall go further and rule that if any of the defendants can establish that he was an advocate as comprehended by the Ordinance qualified to sit on that Committee which was entitled to entertain a proceeding as envisaged by the Ordinance and with jurisdiction, then he would be entitled to claim privilege and the result would be that this suit would have to be regarded as doomed *ab initio* and, in consequence, the motion would succeed.

The law is we'll settled in regard to such absolute privilege but I may be excused from quoting with respect the remarks of Lord Esher, M. R., in Royal Aquarium Society v. Parkinson, (1892) 1 Q. B. 442, thus: "It is true that, in respect of statements made in the course of proceedings before a Court of Justice, whether by Judge or counsel or witnesses there is absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all Courts of Justice; but the doctrine has been carried further; and it seems that this immunity applies whenever there is an authorized inquiry, which, though not before a Court of Justice, is before a tribunal which has similar attributes. In the case of Dawkins v. Lord Rokeby, the doctrine was extended to a military court of inquiry. It was so extended on the ground that the case was one of authorized inquiry before a tribunal acting judicially, that is to say in a manner as nearly as possible similar to that in which a Court of Justice acts in respect of an inquiry before it".

I refer also to the judgment of Cozens Hardy, L. J., in *Barratt v. Kearns*, (1905) 1 K. B. at p. 511 (C. A.): "If, then, this was a legal tribunal, the authority of the decision on Dawkins v. Lord Rokeby satisfies me that the occasion on which evidence is given by the witnesses, before such a tribunal is absolutely privileged. One point only in the proceedings remains to be noticed. The evidence before the Commissioners was not given on oath, but the same remark is applicable to the evidence given which led to the action of $Dawkins$ v. Lord Rokeby. In this case I think the Commissioners were in error in not taking the evidence upon oath; but that is not a mistake which vitiates the whole proceedings, or alters the character of the tribunal".

Dawkins v. Lord Rokeby, (1874) L. R. 7 H. L. 744, was affirmed on appeal to the House of Lords and has stood since as an undiminished authority barring suits, at least, against witnesses, for anything they may give or say in evidence before a Court of Justice or a judicial tribunal. There learned counsel for the appellant took the point that a man injured by a false and malicious slander had no right to civil redress against the man who had injured him, who had uttered the alleged slanders in the course of a military Court of Inquiry, but even there the gravity of the argument was that the Court of Inquiry was not a judicial body. The Lord Chancellor (Lord Cairns) proposed a question to the Judges who, in answer, propounded the following reasons:-

"A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of Justice. This does not proceed on the ground that the occasion rebuts the prima facie presumption that words disparaging to another are maliciously spoken or written. If this were all, evidence of express malice would remove this ground. But the principle, we apprehend, is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action upon an allegation, whether true or false, that they acted from malice. The authorities as regards witnesses in the ordinary Courts of Justice are numerous and uniform. In the present case, it appears in the bill of exceptions that the words and writing complained of were published by the defendant, a military man, bound to appear and give.

testimony before a Court of Inquiry. All that he said and wrote had reference to that inquiry; and we can see no reason why public policy should not equally prevent an action being brought against such a witness as against one giving evidence in an ordinary Court of Justice".

The Lord Chancellor himself said: (quoting Mr. Justice Blackburn):—

. the said evidence so offered to be given by the plaintiff, as $``.$ aforesaid, was immaterial and irrelevant, and that, as a matter of law, the action would not lie, if the verbal and written statements were made by the defendant being a military man, in the course of a military inquiry in relation to the conduct of the plaintiff being a military man, and with reference to the subject of that inquiry, even though the plaintiff should prove that the defendant had acted *mala fide* and with actual malice, and without any reasonable and probable cause and with a knowledge that the statements so made and handed in by him as aforesaid were false and then directed the said jury, that under the circumstances so stated and admitted as above set forth, as a matter of law, the action would not lie, even though the plaintiff should prove that the defendant had acted mala fide and with actual malice and without any reasonable and probable cause, and with a knowledge that the statements so made and handed in by him as aforesaid were false. . . .

My Lords, I think it is of great importance that your Lordships should bear in mind these precise expressions which I have now read, because I feel sure that your Lordships would not desire your decision upon the present occasion to go further than the circumstances of this particular case would warrant. . . I say this more particularly because an argument was addressed to your Lordships to show that the inquiry in question was not to be considered in the light of a judicial inquiry and the evidence as not evidence to be given by a witness on oath. My Lords, that was quite true; but at the same time your Lordships have it in the bill of exceptions that it was an inquiry connected with the discipline of the army; it was an inquiry warranted by the Queen's Regulations and orders for the army; it was called for by the Commander-in-Chief, in pursuance of those Regulations; and the defendant in the action was called upon that inquiry as a witness, as a person who was required to make statements relevant to the inquiry which was then being conducted, and it was in the course of the inquiry that those stateemnts were made.

Now, my Lords, adopting the expressions of the learned Judges with what I take to be the settled law to the protection of witnesses in judicial proceedings, I certainly am of the opinion that upon all principles and certainly upon all considerations of convenience and public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined upon oath ought to be extended and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army. It is not denied that the statements which he made, both those which were made viva voce and those which were made in writing, were relative to that inquiry.

Under those circumstances, my Lords, I submit to your Lordships that the conclusion of the learned Judges is in all respects one which we ought to adopt and that your Lordships will hold that statements made under these particular circumstances are statements which cannot become the foundation of an action at law...."

## Lord Penzance said: —

í

"It is said that a statement of fact of a libellous nature which is palpably untrue—known to be untrue by him who made it and dictated by malice ought to be the subject of a civil remedy, though made in the course of a purely military inquiry. This mode of stating the question assumes the untruth and assumes the malice. If, by any process of demonstration, free from the defects of human judgment, the untruth and the malice could be set above and beyond all question of doubt, there might be ground for contending that the law of the land should give damages to the injured man. But this is not a state of things under, which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are and always will be open questions, upon which opinions may differ and which can only be resolved by the exercise of human judgment. And the real question is, whether it is proper, on grounds of public policy, to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice and may yet in the eyes of a jury be open to that imputation; or again, the witness may be cleared by the jury of the imputation and may yet have to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands

These considerations have long since led to the legal doctrine that a witness in the courts of law is free from any action; and I fail to perceive any reason why the same considerations should not be supplied to an inquiry such as the present and with the same result".

Looking, therefore, to the generality of the pleadings, in my view, it is plain that the libel and tortious acts complained of were all part and parcel of the proceedings before the Committee or leading up to or resulting from the same. The pleadings endeavour to show either states of mind which led up to an alleged malicious proceeding or acts arising out of the alleged malicious proceeding. I need not consider therefore acts alleged to have taken place either before or after the alleged malicious proceeding as constituting separate and distinct wrongs for which the plaintiff endeavours to combine and to seek reliefs in this suit, as this is not apparent from the generality of the pleadings.

It is my respectful view that, given a properly constituted Advocates' Committee which entertains a complaint of alleged misconduct on the part of an advocate, we have a proceeding which in its scope is disciplinary. In this there is a distinct analogy with the military Court of Inquiry in Dawkins $v$ . Lord Rokeby. The members of the Committee are, by statute, all advocates, the person complained against is of necessity also an advocate and, apart from any lay witnesses who may appear to give evidence, the whole proceeding is an inquiry into professional conduct with a view to discovering prima facie if the ethics of the profession of advocacy may have been offended, much in the same way as an incident which may involve a question of discipline and which may lead to a court martial of a particular officer may be the subject of an investigation before a Court of Inquiry. In both instances there is a code of regulations for reference. The absolute immunity of a witness giving evidence before a Court of Inquiry was established in *Dawkins v. Lord Rokeby* and, with respect, there seems no doubt that even if a witness were actuated by malice and falsehood to give false evidence before a Court of Law or a judicial body of almost any sort, although he might be prosecuted before a Criminal Court for perjury on grounds of public policy nevertheless on other grounds of public policy, no civil suit for defamation would lie at the instance of the person alleged defamed. Why this is so, is so much better expounded in the judgment of Lord Penzance that I need not venture to put forward my own views, except, respectfully, to accept those of that very learned exponent.

While the decision in Dawkins v. Lord Rokeby laid down a principle in relation to witnesses, a very large number of authorities are not lacking that what is said by Judges, learned Counsel or members of statutory tribunals, exercising a judicial function, in the discharge of their duties, cannot be made the subject of an action of defamation. What is said is absolutely privileged. That does not imply a privilege or a licence to be malicious but even if there be malice; even if what is said is untrue; even if the motive be evil, no suit for libel or slander can go to a jury on the merits. No suit of that nature against such persons would be permitted to go further forward than the present suit now is; that is the stage of relevancy. Here the way is barred; the barrier is absolute immunity; the sentinel is the Judge; the raiser of the barrier is public policy; the principles behind that policy are that no person so taking part in a judicial proceeding should be exposed to the risks arising from the frailties of human nature which may be found in any jury nor, even if the jury be not frail, to the anxieties and expense of a law suit; for, if such suits were not barred, then witnesses might feel constrained to stifle the truth or to suggest things that are false from discretion or fear.

That is, assuming a properly constituted Advocates' Committee, a complaint is entertained against an advocate and a report is laid before the Court or not so laid as the case may be, neither the witnesses nor the advocates constituting the Committee can be subjected to a suit in tort or in defamation such as the instant one.

It matters not that inside their competence they do wrong; it is of no avail that the members complained against adopted wrong procedure whether consciously or otherwise. A dozen injustices may be perpetrated from misapprehension, inadvertence, ignorance, calculation or malice; whatever remedies may be open to the aggrieved advocate, the instant one is not. An iron curtain of immunity comes down on the acts of the Committee and against its metal all weapons of this sort are turned. Were it otherwise and were members of the Committee to be subjected to suits of this nature, arising out of the exercise of their functions then they could not be expected to do their duty with that freedom and open mind which the discipline of the profession demands. That this is so appears a fortiori from the express declaration of the legislature that such proceedings are to be deemed judicial proceedings. That, to me, at least, seems to place the absolute immunity of the committee beyond even colour of argument. As Cozens-Hardy, M. R., if, with respect, I may be permitted again to quote his judgment in Barratt v. Kearns, said: "... in not taking the evidence on oath ... the Commissioners were in error ... but that is not a mistake which vitiates the whole proceedings or alters the character of the tribunal".

It seems to me therefore, that the plaintiff's complaints that no justice was done to him because of the failure to frame charges or to deliver the same to him; whatever letters written; whatever rules of natural justice contravened; whatever wrongful publications; whatever documents sent wrongfully; whatever documents wrongfully published; whatever evidence wrongly admitted; whatever estoppel wrongfully allowed to operate or not to operate; whatever crossexamination wrongfully discouraged or disallowed; whatever proceedings however partial, malicious, lacking in truth and so forth and so on throughout the whole gamut of these allegations to their further side; all were found to have been on the other side of the iron curtain of immunity. No jury is permitted to examine these allegations; they are abortive; stillborn.

That the plaintiff is not unaware of the doctrine of absolute immunity, I consider, is well shown by his attack which primarily is directed against not only the status as advocates of members of the Advocates' Committee but also against his own status as an advocate—an unlikely course for a man not desperate. There is a distinction and it is, in my view, no distinction without a difference for, if it can be shown that the defendants had no privilege to do what is alleged they did, then they will have no immunity and the suit will have to go forward to proof. There is a gulf between a body of men properly constituted as a judicial body lawfully partaking in a duty of a judicial proceeding having jurisdiction and a body of men who wilfully, knowingly and fraudulently usurp the jurisdiction of a judicial body and pretend to undertake a judicial proceeding. In such an instance there could be no absolute privilege and, indeed, no privilege at all. All their errors and all their malice could be made the subject of a suit for defamation and tort besides their mere wrongful usurpation. The latter is averred here and it is at this stage I am entitled by the inherent jurisdiction of the Court to examine the facts and law to discover if indeed the defendants did usurp the mantles of advocates or not, and if they usurped the functions and jurisdiction of the Advocates' Committee or not. On this decision the fate of the suit depends.

The plaintiff marshals this attack from the two assembly points that no Roll of Advocates was kept and that no practising certificates were in fact issued, both as envisaged by the Ordinance.

The importance attached by the legislature both to the keeping of the Roll and to the issue of certificates is manifest. The importance of keeping the Roll has been properly the subject of emphasis in the ruling of this Court of 25th August, 1952, in Advocates' Committee Cause No. 2 of 1952, and I am of the view, although the point was not dealt with directly in that ruling, that an equal importance attaches to the issue of practising certificates.

The facts both as to the adoption of the old Roll as a keeping of a new Roll as a compliance with the Ordinance and as to the mode of issuing practising certificates are before me.

It has been urged upon me that I should accept the Ruling of the Supreme Court on the subject of the Roll as res judicata because that identical point was virtually the sole argument to the court and virtually the sole subject of the ruling of this Court of 25th August, 1952. Nevertheless, it may be rightly or wrongly, I entertain doubts as to whether or not that ruling is binding upon this Court on that issue. It may well be. But the corridors of law leading to such a conclusion, if, indeed, the corridors do lead there, are tenebrous and beset with difficulties. For example, was the proceeding, before the amendment to the Ordinance, a quasi-criminal or a quasi-civil proceeding; are the parties the same in the sense that parties must be the same to permit the operation of the doctrine in a civil suit; is that ruling in rem as contemplated by the law of evidence current in the Colony and so on (vide Indian Evidence Act, section 41)? I propose to content myself by concluding that if that ruling is binding upon The Court, then the issue of the Roll is beyond doubt, being in that event irretrievably beyond the argument of the plaintiff in this suit as the decision is against him, but, if it is not res judicata, then I regard that decision, reached by the Chief Justice and the Senior Puisne Judge sitting together as an exposition of the law on the point of the greatest weight. It may not be binding upon

me, but I accept the reasoning and finding on the same fact and law as correct. That is I come to the same conclusion, on virtually the same facts, now before me, that the provisions of sections 5 and 6 of the Ordinance are not imperative but directory only and that the use of the old Roll by the Registrar was a substantial compliance with these provisions. So far as the Roll is concerned, neither the defendants nor the plaintiff himself lost the status of advocates.

Adverting now to the second issue that of practising certificates. In this instance I have no earlier ruling precisely in point to guide me, but it seems that the Ruling referred to nevertheless effectively patterns the subject. Certificates were issued by the Registrar. The provisions of Part IV of the Ordinance appear to be directory also and not imperative. There was a substantial compliance with those provisions. On this issue also I find that neither the defendants nor the plaintiff were deprived of the status of advocates.

In the final result, therefore, the defendants as well as the plaintiff are discovered to be what they all at the time of the proceedings seem to have believed themselves to be and that is fully qualified advocates entitled to practise under the Ordinance. That being so, inevitably this suit is irrelevant. The plaint is struck out because it is now revealed to be merely vexatious. The suit cannot succeed and ought not in any event to be allowed to go on. It is dismissed.

The ordinary rule as to costs will prevail and the plaintiff will pay the defendants' costs of the suit. There were six defendants and each would have been entitled to be represented by an advocate in a suit of this gravity. Two Counsel appeared on behalf of all the defendants and, in $m_V$ view, both from the private and public importance of the suit and the great amount of research caused by the unusual nature of the remedy prayed, the costs of both advocates should be allowed. Certified accordingly.