Akufo-Addo & Ors. v. Quarshie Idun & Ors. [1968] GLR 667.




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Amissah J.A. delivered the judgment of the court. This is an appeal from a decision of Anterkyi J. granting an interim injunction against some of the defendants in this action. The three plaintiffs, each of whom is a lawyer of considerable standing in the community, sued the Chief Justice, the Judicial Secretary and the General Legal Council. The plaintiffs complained that through the conduct of the defendants, namely, by the issue of certain circulars to judicial officers they had been denied their right of audience as barristers in the courts. They therefore sought a declaration of that right together with an injunction to restrain the defendants from interfering with its exercise. After issuing their writ and filing their statement of claim the plaintiffs made the application for the interim injunction. Argument having been heard, the learned judge gave a considered ruling in which he concluded that:

“In the result the application for an order of interim injunction succeeds as against each of the first and second defendants in his personal capacity or in any official capacity, whatsoever, and I therefore hereby make an order restraining those defendants from avoiding or declaring void in any manner whatsoever

Page 671

the status of each of the plaintiffs as a barrister and his consequent right of audience in all the courts and commissions of inquiry sitting in the State of Ghana, and also restraining each of the first and second defendants from taking any steps for that purpose, or from in any way interfering with the exercise by each plaintiff of his rights or privileges incident to his right as a barrister until trial or further action.”

In at least one respect the order was much wider than the relief asked for. The plaintiffs had complained of the defendants’ action in their official capacities and had asked for the temporary restraint to be placed on them in those capacities. The order covered both their official and personal capacities. Yet in another respect the order was narrower than the relief requested. The plaintiffs asked that all three defendants be restrained. The order restrained only the first defendant, the Chief Justice and the second defendant, the Judicial Secretary. The third defendant, the General Legal Council upon whose authority the other defendants had, according to the parties themselves, acted, was left unrestrained. The considerations which led to the grant of the order in this form will be more fully discussed presently. The defendants affected by the order have appealed to this court to test its soundness.

Before dealing with the substantive matters of the appeal, we think we ought to dispose of the questions raised about the composition of this court. The argument of the appeal began and almost ended with an attack on the court’s composition. The more serious of the two objections was the first in point of time. It had as its foundation the principle of natural justice that a man should not be a judge in his own cause. We dismissed it, reserving our reasons until the judgment. These we now give.

Mr. Mercer, with whom other learned counsel for the respondents associated themselves, declared at the opening that the respondents were not happy about the constitution of the bench. From paragraph 6 (1) of the Courts Decree, 1966 (N.L.C.D. 84), he submitted, it was the Chief Justice who had to invite a judge of the High Court to join a bench of this court. The Chief Justice was, however, an appellant in the suit. Natural justice required that he should not exercise the function to invite judges to constitute the court. Unless satisfied that the invitation to the High Court judges on this bench was not issued by someone other than the Chief Justice, the respondents would not be sure that there would be no likelihood of bias. They could not be sure that the Chief Justice was not trying to be a

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judge in his own cause, or choosing his own judges in his own cause. Where natural justice conflicted with a specific statutory provision, Mr. Mercer claimed, the principle of natural justice should prevail. That in sum was the argument. And learned counsel wanted an assurance that the court had not been constituted by the Chief Justice. But this of course could not be given because it is the function of the Chief Justice to constitute the benches of this court. As long as he remains in office and is in the country, he performs that as part of his administrative duties. The only situations in which another may be nominated to perform his functions are given by the Courts Decree, 1966, para. 3 (2), that is when he is ill or absent from this country. It was not shown that the Chief Justice was suffering from either disability. We do not see how, in the circumstances, anyone could ask that a person other than the Chief Justice should perform a function which is peculiarly attached to the Chief Justice’s office. No one is entitled by law to perform his duties for him. The respondents were well aware of the Chief Justice’s functions when they chose to bring this action in the court. In fact their action affected not only the Chief Justice but the majority of members of the Court of Appeal. As they are parties to the action itself some other objection might well have been taken if they had sat on this appeal. But without them a sufficient number of Justices of Appeal is not available to constitute even an ordinary bench of three. It has been said by counsel that the Decree did not anticipate a Chief Justice being sued. And a suggestion was made that there ought to have been legislation giving the Chief Justice’s power in this respect to some other judge. Such a course, we think, would not necessarily have been free from the other objections to which special legislation is liable. But the simple answer to the suggestion is that there has been no legislation conferring the Chief Justice’s powers on anyone else. And we have to take our law as we find it. We are sure that it was not the intention of the plaintiffs to paralyse the administration of the courts by bringing their action. The Courts Decree, 1966, has entrusted the power to invite High Court judges to sit in this court to the Chief Justice. It was not suggested that those judges to whom the invitation was extended thereby acquired an interest in the cause of the defendants. On the other hand the objection was so technical in character that counsel said in the course of argument that if the same judges were asked by some other person to constitute this bench they would be quite satisfied. Judges are sworn to do justice between parties without fear or favour. This oath transcends mere invitations or even appointments to sit in a particular case. Were it otherwise, no one would dare, from fear of bias, to bring an action against, government, because the very appointment of the judges is made by

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government. In our judgment, where a statute clearly enjoins a person to perform an act, he has to do it even if its performance is incompatible with the strict rules of natural justice. Reliance was placed by counsel on the seventeenth century English case of Day v. Savage (1614) Hob. 85 at p. 87 in which appears a pronouncement by Hobart C.J. that where a statute conflicts with the principles of natural justice, the latter is to prevail. But that was an opinion of doubtful validity even at the time of its utterance, and no English court has cared to follow it since. We are of the opinion that where the clear terms of a statute conflict with natural justice it is the latter which has to yield. This is not the first time that a situation similar to the one we are facing has arisen. In Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L.Cas. 759, there was the question whether the Lord Chancellor who had to sign decrees before an appeal in a case in which he had an undoubtedly large financial interest could be brought in the House of Lords, should, having regard to natural justice, do so. In deciding to append or not to append his signature he had a discretion to exercise. It was held by the judges that not-withstanding the principles of natural justice he could exercise the discretion vested in him. This is bow Parke B. speaking for the judges dealt with the point at pp. 787-788:

“But in order to appeal against them [namely, the decrees] to the House of Lords, they must be enrolled; and enrolment cannot be made without the Lord Chancellor’s signature.

In giving that signature the Chancellor has a discretion which he may exercise.

But he may be applied to for that purpose, and if he gives his signature, his interest affords no objection to its validity.

For this is a case of necessity, and where that occurs the objection of interest cannot prevail. Of this the case in the Year Book (Year Book, 8 Hen. 6, 19; 2 Roll Abr. 93) is an instance, where it was held that it was no objection to the jurisdiction of the Common Pleas that an action was brought against all the Judges of the Common Pleas, in a case in doubt which could only be brought in that court.”

The opinion of the judges delivered by Parke B. met with the approval of the House of Lords in that case and in the later case of Ranger v. Great Western Railway Co. (1854) 5 H.L.Cas. 72 at p. 88. In like manner this present case presents a situation of necessity where the person to exercise the power to constitute the bench hearing the appeal is also a party to the appeal. As no other may perform

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his duties for him, the objection on the ground of natural justice cannot be sustained. We accordingly dismissed it.

Mr. Brodie-Mends who was the last to argue on behalf of the respondents again raised the question of the composition of the Court in the course of his main submissions. But this time the grounds he urged were different. He put his point on three different legs. According to him, paragraph 6 of the Courts Decree, 1966, which governed the constitution of the court did not permit a bench which included more than one judge of the High Court temporarily invited by the Chief Justice to join the court. The present bench has no less than four. The relevant provision referred to reads as follows:

“6 (1) The Court of Appeal when exercising appellate jurisdiction whether civil or criminal, or any other jurisdiction shall consist of—

(a) an ordinary bench comprising three Justices of Appeal;

(b) or a full bench comprising five Justices of Appeal:

Provided that

(a) such Court shall be deemed to be a duly constituted bench, notwithstanding that it includes a Judge of the High Court temporarily invited by the Chief Justice to sit on such bench.”

We think that this point is disposed of by the provision in section 26 (3) of the Interpretation Act, 1960 (C.A. 4), that the expression of the singular includes the plural. Mr. Brodie-Mends contrasted the case of the expression “Judge of the High Court” in proviso(a) above with the use of “Justices of Appeal” in sub-paragraphs (a) and (b), concluding from this that it was not the intention of the framers of the Decree that there should be more than one such judge of the High Court at any particular time on the Court of Appeal bench. It would in Sub-paragraphs (a) and (b) have been grammatically impossible to use any expression other than the plural. Talking of benches of three or five one would be guilty of a most elementary grammatical fault unless the three or five were “Justices of Appeal.” Proviso (a) to paragraph 6 (1), however, does not suffer from the same difficulty hence there was no special reason for the draftsman to say “a Judge or Judges of the High Court,” where the ordinary rules of interpretation would include the plural in the singular. Indeed we may add that this is not the first appellate court which has been constituted by a majority of High Court judges.

Mr. Brodie-Mends next urged that the composition of the court was improper because this was an ordinary appeal, therefore

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it ought to have been heard by a bench of three. That the jurisdiction of the full bench of five judges was set out in paragraph 7 (2) of the Decree which limited it to a review of decisions of the ordinary bench of three. By constituting a bench of five judges to hear the appeal, the parties had been deprived of their right to a review. But this submission overlooks two important points. One is the recent decision of this court in the case of Asare v. The Republic [1968] G.L.R. 37 in which the full bench held, inter alia, at pp.
45-46 that:

“A decision that a particular appeal is one which should properly go before the full bench may be taken at any stage between the moment when the appeal becomes pending in the court and the moment when judgment is delivered, and it may be made in one or other of the following circumstances: (a) upon representations made by the parties or their counsel to the court, (b) upon opinion formed by judges of the court when they read the record of appeal and the relevant papers filed therewith; (c) upon opinion formed by members of the ordinary bench upon hearing arguments in court; or (d) upon opinion formed by members of the ordinary bench while considering their judgment.”

We think that the present situation is adequately covered by circumstance (b) therein stated. But even more important is paragraph 7 (1) of the Decree itself which gives a concurrent jurisdiction in the hearing of appeals to both the full bench and the ordinary bench. For it provides that:

“7. (1) Subject to the provisions of sub-paragraph (2), the jurisdiction of the Court of Appeal whether comprising a full bench or an ordinary bench shall consist of —

(a) the hearing of appeals from any judgment of the High or a Circuit Court in any civil cause.”

Thus the full bench, like the ordinary bench, may hear an appeal directly from the High Court. Sub-paragraph (2) merely adds the jurisdiction to review the decisions of the ordinary bench to the full bench’s jurisdiction to hear appeals. Were it not for this direct authority and legislative provision we would still have been hard put to it to find what possible prejudice the parties suffer from having their appeal heard once and for all by a full bench. We therefore think that there is no substance in this objection.

Mr. Brodie-Mends finally felt obliged, and we think properly, to raise the point that in the record of the proceedings mention is

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made of the fact that the application was sought to be removed from Anterkyi J. and put before the judge presiding in this appeal. This is not the first time that orders have been given that a case on the list of one judge be put on the list of another serving in the same court. Though it is the first time in the experience of any of us that such an order has apparently been taken by the judge on whose list the case is first put as an attack upon his competence and therefore a matter calling for full public inquiry. It has not been suggested that the presiding judge entertains any prejudice in this matter on this account. It has not even been suggested that he had anything to do either directly or indirectly with the attempt to remove the application from the learned trial judge. Indeed we formed the impression that this objection was not seriously intended otherwise it would have been taken in limine before the substantive arguments began instead of being made at the concluding stages. In the circumstances, like the rest, we overrule it.

The first ground of appeal argued was that the trial court had no jurisdiction to make an order of interim injunction against the first and second defendants in their official capacities. These defendants, the Solicitor-General said, had been sued in their official capacities; they were servants of the Republic and in the terms of section 13 (2) of the State Proceedings Act, 1961 (Act 51):

“13. (2) The court shall not in any civil proceedings grant any injunction or make any order against a servant of the Republic if the effect of granting the injunction or making the order would be to grant relief against the Republic which could not have been obtained in proceedings against the Republic.”

The effect of the injunction, he submitted, would operate as an injunction against the Republic. It is not here claimed that no action may be brought against a servant of the Republic performing his public duties.

Such actions may be brought provided they satisfy the requirements of section 2 of the Public Officers Act, 1962 (Act 114), as to the time within which they are instituted. What section 13 (2) of Act 51 says is that even where these actions are brought whatever be the remedy sought, an injunction should not be granted against the public officer if the effect of the order would be to restrain the Republic itself. The reason for this is not far to seek. The court has no power to grant an injunction against the Republic itself in an action brought directly against the Republic. It would therefore gravely detract from the immunity of the Republic from orders of injunction if the relief could be obtained against it indirectly through a restraint imposed on its servants. Two questions raised

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by the plaintiffs on this point require consideration. As to the first, although they conceded that the first and second defendants were acting in their official capacities, they claimed that those defendants were not acting as servants of the Republic in this case. There is no doubt that the Chief Justice and the Judicial Secretary are servants of the Republic within the contemplation of the State Proceedings Act. Section 24 of the Act states that “ ‘servant’ in relation to the Republic, includes any public officer, a member of the armed forces, and a Minister.” And section 32 of the Interpretation Act, 1960 (C.A. 4), defines a “public officer” as “a member of any of the Public services, namely, the Civil Service, the Judicial Service, the Police Service, the Local Government Service . . .” The plaintiffs, contrary to what the learned judge found, stated that the Chief Justice and the Judicial Secretary were acting as chairman and secretary respectively of the General Legal Council, a corporate body separate from the State. But the acts of the General Legal Council, they contended, were not the acts of the Republic. The General Legal Council is not an autonomous body completely independent of government. It is a governmental agency specifically created to supervise and regulate the affairs of the legal profession in the country. Section 1 (5) of the Legal Profession Act, 1960 (Act 32), expressly states that, “The Council shall in the performance of their functions comply with any general directions given to them by the Minister” (to whom the functions under the Act are assigned). The Chief Justice is ex officio chairman of the council. He is chairman only because he is Chief Justice of the Republic. We are unable to appreciate how he can, when performing duties relating to the General Legal Council be said to be acting in an official capacity but not as a servant of the Republic. Whatever be the position of the Judicial Secretary when acting as secretary of the General Legal Council, for he is not specifically named in the Legal Profession Act as secretary ex officio and there is no evidence one way or the other whether he was appointed secretary qua Judicial Secretary or as Mr. Aidoo, there cannot be any doubt that the Chief Justice acts as a servant of the Republic when conducting the affairs of the council. Furthermore, it would appear from the extract of the original circular which the plaintiffs incorporated in their affidavit that the advice to the judges and magistrates not to grant audience to certain lawyers was “on authority of the council and with the approval of his lordship the Chief Justice.” So that even if the Chief Justice were to lose his status as a servant of the Republic when he acts as the chairman of the General Legal Council, which view we do not subscribe to, this circular was issued clearly with

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the approval of the Chief Justice acting as such. As far as the secretary of the council is concerned, his fortunes ought to be tied up with those of the council. If the council is not to be restrained neither should its secretary who says, without contradiction, that he merely acts on his principal’s instructions. But if the Judicial Secretary is accepted as acting in his capacity as Judicial Secretary when serving as the secretary of the council then his position as servant of the Republic continues in his stewardship with the council.

The next problem is whether the injunction on the first and second defendants acts as an injunction against the Republic. The argument of the Solicitor-General seems to suggest that the effect of section 13(2) of Act 51 is that no injunction can ever be granted against a servant of the Republic acting in his official capacity. We are not in this case prepared to accept a proposition of such sweeping effect. Considerations not now before us may impose limitations on its all-embracing character. The question is whether an injunction against the first and second defendants in this case operates as an injunction against the State. The Chief Justice is the head of the Judicial Service. And the Judicial Secretary is under section 3 of the Judicial Service Act, 1960 (C.A. 10), “responsible to the Chief Justice for securing the general efficiency of the Judicial Service. “This would include advice and encouragement to its members short of telling them how individual cases before them are to be decided. It would include everything necessary for the efficient administration of the courts. The Chief Justice is also the chairman of the agency of the Republic responsible for all questions affecting the profession. If the council takes a decision affecting the legal profession and this has a bearing on practice in the courts, the Chief Justice has the duty to secure, with the assistance of the Judicial Secretary, the carrying out of this decision. Independently of the General Legal Council, the Chief Justice must also have the duty of ensuring that judges and other members of the Judicial Service do not encourage breaches of the law. Should he or his subordinates be restrained in the performance of these duties, no doubt this would have the effect of restraining the judicial arm of the Republic. The original circular which the plaintiffs complained of contained the following paragraph signed by the second defendant as secretary of the General Legal Council:”

“I am . . . issuing to all the courts in the country a list of those lawyers who have actually taken out licences. All lawyers are informed that on the authority of the council and with the approval of his lordship the Chief Justice, the judges and magistrates of this service are being advised that no lawyer should be granted audience in any court until his name is

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on the said list or he produces his solicitor’s licence in court. Practising lawyers are also reminded that this prohibition extends to all forms of lawyer’s normal work and not only to appearances in court.”

What matters were considered by the council in arriving at this decision are not before us. It is sufficient, however, to say that the provisions of the Income Tax Decree, 1966 (N.L.C.D. 78), are a relevant consideration. Paragraph 81 of that Decree provides that:

“81. Any person carrying on any trade, business, profession or vocation specified in the Sixth Schedule hereto shall, before he carries on such trade, business, profession or vocation in any year of assessment, be registered for the purposes of this Decree by the Commissioner and shall pay, subject to the other provisions of this paragraph, a fee of such amount as may be prescribed by rule or regulation:

Provided that, where under any other enactment or Decree, such person is obliged to be registered or licensed or to be granted a permit or other authorisation by any other person or authority and to pay a fee in that behalf, he shall not be required to be registered under the preceding provisions of this paragraph or pay such fee as may be authorised by rule or regulation under this Decree; but such other person or authority shall not register or license or grant a permit or authorisation to the first-mentioned person, unless he obtains a certificate from the Commissioner that no tax is due from him or that he has made arrangements to the satisfaction of the Commissioner for its payment.”

In the relevant Schedule to the Decree appears the persons affected. And amongst a host of them, including the building contractor, the radio and television mechanic in private practice, the doctor in private practice, the blacksmith, appears the “Lawyer in private practice.” The status of the lawyer is governed by section 2 of the Legal Profession Act, 1962, which provides that:

“2. Every person whose name is entered on the Roll to be kept under this Part shall—

(a) subject to section 8 of this Act, be entitled to practise as a lawyer, whether as a barrister or solicitor or both, and to sue for and recover his fees, charges and disbursements for services rendered as such, and

(b) be an officer of the Courts, and

(c) when acting as a lawyer, be subject to all such liabilities as attach by law to a solicitor.”

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Upon enrolment whatever qualifications the person has which satisfy the authorities that his name be put on the Roll, he is “entitled to practise as a lawyer.” It is upon his primary entitlement to practise as a lawyer that the nature of his practice whether as a barrister or solicitor depends.

At the time that the Income Tax Decree was promulgated the character of the person it sought to affect was not open to dispute. Because section 8, to which a provision of the above quoted section was made subject to, made it a pre-condition to practice that every person other than an officer of the Attorney-General’s Department must have an annual practising certificate entitling him to practise in the capacities specified in the certificate, that is whether in the capacity of barrister or solicitor or barrister and solicitor. Without this certificate he could not practise his profession as a lawyer regardless of the nature of practise he desired. Subsequent to the Income Tax Decree and before this dispute arose, the provisions in section 8 were replaced by what now appears in paragraph 3 of the Legal Profession (Amendment) Decree, 1967 (N.L.C.D. 143). Having regard to the complications it introduced into an otherwise straightforward matter, we think this amendment ill-advised. For now it is provided that:

“(1) A person other than the Attorney-General or an officer of his department shall not practise as a solicitor unless he has in respect of such practice a valid annual licence issued by the General legal Council to be known as ‘a Solicitor’s Licence’ duly stamped and in the form set out in the Second Schedule to this Act.”

The form of the licence in the Schedule has also been amended to conform to the new requirement. It is the claim of the plaintiffs and this point was strenuously urged before the trial judge, that they are qualified barristers and that their enrolment as lawyers under section 2 of the Legal Profession Act qualifies them to practise as barristers; that they need only have, in the present state of the law, annual licences to practise as solicitors. So that their lack of solicitor’s licences should not disable them from practising as barristers, whose work includes appearing as advocates in all the courts of the land. What the practice of a barrister as distinct from the practice of a solicitor is in this country, is in our opinion a question not without difficulty. However, the view put forward by the plaintiffs was the view which commended itself to the learned judge. It was a view arrived at after a construction of the Legal profession Act, especially section 2 and section 8, as amended.

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In fairness to the judge we must say that the Income Tax Decree was not cited to him. But that did not prevent or relieve him from considering the statute if it was relevant. Had he considered paragraph 81 of that Decree he would have noticed that the matter was not as cut and dried as he thought it was. And, indeed, learned counsel for the plaintiffs have admitted before us that the question is not as simple as the learned judge made it out to be. He would, for example, have seen that even if the plaintiffs’ contention that they were required by law to take out annual licences only to practise as solicitors was right, there was the question whether in that case they were not required to register with the commissioner of Income Tax to practise as lawyers. On the face of the Decree a person in the profession of “a lawyer in private practice” may not practise that profession without registering with the Commissioner of Income Tax. The Decree makes no mention of the profession of “barrister” or “solicitor.” The Decree adds a proviso which has to be read in the context of the main provision, namely, that where “such a person,” that is, the “lawyer in private practice” is obliged to be registered or licensed by another authority he shall not be required to register with the Commissioner of Income Tax. At the time when the Decree was passed, section 8 made it necessary for lawyers other than those in the Attorney-General’s Office to obtain an annual licence to practise. It may therefore be said that lawyers in private practice were at that time relieved from liability to register their annual practice depending on their practising certificate granted by the General Legal Council which in turn depended on the lawyer’s production of a certificate of the Commissioner of Income Tax that no tax was due from him or that he had made necessary arrangements to the satisfaction of the Commissioner. But when section 8 was amended so that the practising certificate covering the whole of the lawyer’s practice was replaced by the solicitor’s licence which covered only the solicitor’s aspect, a new situation arose. It surely became a question whether in the terms of the Income Tax Decree the lawyer in private was as much required to be registered or licensed or to be granted a permit or other authorisation by any person or authority other than the Commissioner before he practised his profession.

The lawyer in private practice is now obliged to take out an annual solicitor’s licence only if he wishes to practise in that capacity. If he does not, no law requires him to take out any licence. One possible interpretation, and we put it no higher than that for the purposes of this appeal, is that no law now obliges the lawyer to register or obtain a licence for the practice of his profession of a lawyer in private practice. He may require a licence to practise as

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a solicitor, yes, but not as a lawyer in private practice which seems to involve practice of a different nature as well. A person may very well continue as “a lawyer in private practice” without even wanting to or obtaining a certificate to practice as a solicitor. And if that is so would the lawyer in private practice not have to register with the Commissioner of Income Tax? Counsel for the plaintiffs sought to meet this interpretation by arguing that not only were qualified barristers not obliged to obtain an annual licence before they practise as such but that there was no provision in the Income Tax Decree which required barristers to register with the Commissioner. All that may be true, but the Decree has no truck with any person called a “barrister” or a “solicitor” for that matter. It deals with the “Lawyer in private practice.” Either the lawyer in private practice is under an obligation recognised by the Decree or he is not. Contingent obligations regarding types of practice may not be quite satisfactory. Some argument was advanced in this connection that as no regulations have been made under paragraph 81 of the Decree the lawyer cannot register. The argument does not bear examination. The regulations called for by the paragraph are only for the prescription of fees which may be payable at the registration. They are not intended to regulate the manner of registration which, according to the paragraph, is an entirely separate exercise.

If this is a possible interpretation of the relevant statutes then it is the duty of those given the authority to oversee the conduct of lawyers to ensure that no lawyer practices without the necessary qualification.

How may they do this? It has been suggested on behalf of the plaintiffs that it is not the duty of the Chief Justice or the Judicial Secretary to enforce the Income Tax Decree. And that the Decree provide penalties for its breach. But even if the Chief Justice or the Judicial Secretary or for that matter the General Legal Council is not the appropriate authority for initiating penal proceedings against lawyers who infringe the Decree, they are not prevented from discouraging breaches. And here the case of Richards v. Boseock (1914) 31 T.L.R. 70 is in point. In that case it appeared during the course of a trial that the plaintiff’s solicitor held a country certificate only, although his address on the writ was given as a London address in “Lombard Street E.C.” The judge though holding that the solicitor was committing an offence and therefore liable to a penalty, ordered the case to stand over so that the plaintiff might be able to consult another solicitor. The judge was not deprived of his power to refuse to continue with the case merely because of the penalty attached to the offence the solicitor was committing. In this country, the Chief Justice as the foremost up-holder of the

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law and the General Legal Council with the charge to supervise the conduct of lawyers are, in our view, duty bound to see to it that lawyers do not break the law. And a possible method of doing this is to advise judges and other judicial officers concerned not to countenance breaches of the law. A restraint placed upon the Chief Justice or the General Legal Council in the performance of this duty would amount to saying that in spite of the legal provisions the authority of the Republic for ensuring proper conduct amongst lawyers should be rendered impotent to prevent breaches. All that the State should be left with is its power to institute proceedings for punishment. We think this is a narrow view. And we think the restraint on the Chief Justice and the Judicial Secretary acting as agent of the Chief Justice and the General Legal Council could therefore be an indirect restraint on the Republic.

From what we have said so far, it is quite clear that in our view, if the Income Tax Decree had been considered by the learned judge the conclusion he arrived at might well have been different. The Decree was a consideration of fundamental importance. The learned judge overlooked it. The learned judge’s exercise of his discretion was to that extent faulty. Having regard to the conclusion we have come to we do not think that a discussion of the legal force to be attached to a circular issued by the Chief Justice or the Judicial Secretary to judges is necessary. But there is one matter of importance to which we must advert.

The very first and indeed the most fundamental requirement of a judge is that he should approach a dispute without prejudice against or in favour of any of the parties. A judge who finds himself in a case in which considerations other than those put before him in the court are likely to influence his decision must decline jurisdiction. It is open to question whether this basic requirement of impartiality was met in this case. The barest examination of the ruling gives cause for concern whether the learned judge was in this case in a position to exercise a discretion judicially. Several passages in the ruling cast the gravest doubt on his ability to view this particular battle with the necessary detachment. Take for example his treatment of the third defendant, the General Legal Council. The plaintiffs had joined the third defendant on the basis that it was on the council’s purported authority that the offensive conduct of the other two defendants was based. The third defendant did not deny this. The plaintiffs’ application for the interim injunction was as much against the third defendant as it was against the others. The second defendant who is secretary of the third defendant-council swore to an affidavit denying the plaintiffs’ claim. In this

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he swore that he had been authorised by the third defendant to do so. To this there was no contrary averment. And we think that ordinarily there can be few persons with a better claim to act for a corporate personality than its secretary. The learned judge despite all these facts nevertheless expended a great deal of effort and ingenuity in an attempt to prove that the third defendant had not authorised either of the other defendants in any of their actions which were the subject of inquiry before him. Without any evidence in support he managed somehow to come to the extraordinary conclusion that there had been no lawful decision of the third defendant-council authorising the first and the second defendants to issue the circulars complained of. We are unable to find any proper reason for the desire of the judge to divest the first and second defendants of the authority which they claimed they had from the third defendant and which before him and even in argument now before us the plaintiffs themselves did not dispute. It is difficult to escape the conclusion, having regard to the subsequent pronouncements of the judge that his motive was to isolate and expose the first and second defendants as the unauthorised perpetrators of a wrong so that he might the better concentrate his abuse on them. If there was the evidence for it, the affected parties could only have grumbled and borne it. But there was not. The approach of the learned judge has led to the curious result that the proclaimed agents in the commission of a wrong have been restrained leaving the principal himself untouched, even though the petition before him was that the plaintiffs’ wrong in need of redress originated from the principal. By itself this might have been explained as a single aberration to which the learned judge succumbed. But it does not stand alone. Having satisfied himself that the third defendant did not authorise the first and the second defendants’ action, he proceeded to declare the circulars as not worth the pieces of paper they were written on. But he hand before him only an interlocutory application made at a time when no defence to the statement of claim had been filed. It was therefore highly undesirable for him to pronounce with finality on the actual question in dispute between the parties. For the conclusion on the circulars he gave three reasons. All of them bore directly or indirectly on internal matters of the General Legal Council which were not in issue in the case. The first was a citation of paragraph 2 of the First Schedule to the Legal Profession Act on the membership of the General Legal Council. One fault with the citation is that it was of the original paragraph 2 which has long since been repealed and replaced by the Legal Profession (Amendment) Act, 1964 (Act 226). Apparently the object of citing the

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provision was to show that the council included representatives of the bar whom the learned judge thought ought to be notified of meetings of the council. So he continued:

“This, if effected would give the four members of the council as elected by the Bar, a reasonable opportunity of attending the meeting and of being heard in a matter on the agenda that affects the interest of the members of the Bar; but there is no vestige of evidence tending to establish that one such member representing the Bar was even present when the alleged decision was taken.”

Nobody had complained to the court that there had been no proper meeting of the General Legal Council. On the contrary the arguments on the application proceeded on the common ground between the parties that there was authorisation and therefore a properly taken decision at a properly constituted meeting. There was no need for any evidence on the point. The learned judge therefore erred in looking for any and in founding a decision on its absence. His second reason was embodied in the following passage:

“if at all there was evidence forthcoming tending to establish that the conduct of the first and second defendants as complained of by the plaintiffs, was the result of a lawful decision of the council, the question arises whether or not there was fraud on the minority—the minority members being the four elected members of the Bar.”

Even in the most ordinary of cases an allegation of fraud is a very serious matter. It is not lightly made. The courts look with disfavour on a party who makes it and is unable to substantiate it, visiting his action sometimes with heavy penalties. Where the conduct tainted with fraud is that of the Chief Justice of any country then it is a matter of the utmost gravity. But the plaintiffs had not made any such charge. They had given no evidence on it. And the defendants had not confessed to it. How a judge in such circumstances comes to find that the question falls for consideration by him is beyond our comprehension. It was most improper of him to do so and his conduct cannot be too strongly condemned. The office of a judge does not entitle him to assume the opposite of what the contending parties to a suit agree upon and to make a finding prejudicial to either of them upon his assumption. If he takes such a course then he abandons his position of arbiter between the rival claimants and himself joins in the dispute. And this, in our view, is what the learned judge did.

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The third reason given by him is equally questionable. He put it this way:

“It is common law rule that the strong should not take advantage of the weak. And therefore in the light of the above considerations the first two defendants, in this application, should have preferred evidence, which not only tends to establish that their conduct was the result of a majority decision of a meeting of the council with the correct quorum stated in the Act, but also tends to show that the four representative elected members of the Bar were given a reasonable opportunity to attend.”

We have already said that the validity of the council’s decision as a decision was not an issue before the learned judge. But he saw fit to constitute himself into an officer conducting an inquiry into the affairs of the General Legal Council. In this he misconceived his jurisdiction. Had he had this jurisdiction, it might then have been said that even the most lowly of inquiry officers requires some evidence upon which to base his findings. A requirement which he blithely thought was not applicable to him. By the time he made the remark quoted above he had stated often enough his view, which we think is erroneous, that the General Legal Council had given no authority to the first and second defendants. The object of the remark apparently was to bring home the judge’s opinion that the first and second defendants were taking advantage of the weak.

This point he developed further. Starting from a paragraph which after several readings we are unable to assign any meaning to, the judge continued:

“It is trite knowledge that possession is nine points of the law. But the first defendant, in his official capacity as occupier of the Chief Justiciary, cannot legally be a law unto himself by arrogating to himself power the of the legislature, or of the council, and thereby issue the directives complained of by the plaintiffs . . .”

And before making his order he delivered himself of the following broadside:

“I find from the facts before me that the Chief Justiciary and the Judicial Secretariat are together being used as spring-board for oppressive exercises against some members of the Bar, by taking advantage of them as the weak, and that neither

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the exercises themselves nor their validity is based on any legitimate basis, legal, equitable or even commercial, scientific or social.”

In other words the persons described were improperly using their office to oppress some lawyers. Bad faith in the holders of the offices named had not been alleged before him; the plaintiffs’ complaint being limited to an allegation that the defendants had interpreted the law wrongly. The complexion put on the case was entirely the judge’s own.

We have felt it necessary to quote these excerpts from the ruling because they indicate much better than any paraphrases we ourselves are capable of the spirit and the attitude of mind with which the learned judge purported to exercise this simple judicial discretion reposed in him by his office. He seems to have seized upon the case as an opportunity to unburden himself of gratuitous insults to the Chief Justice and the Judicial Secretary. Bearing in mind that the considerations that he took into account were without foundation in evidence we find ourselves in great difficulty in appreciating the contention that the judge’s discretion was judicially exercised. We listened with dismay to senior counsel submit in this appeal that the language of the trial judge and the substance of the ruling were deserving of approval. Perhaps those remarks of counsel were meant not to be taken seriously. But in a case like this with such profound implications for the whole legal profession, levity is to be deplored. Not one of the learned counsel appearing was prepared to adopt the judge’s reasoning leading to the order as distinct from the order itself as the foundation of his argument. In fact the burden of counsel for the respondents’ argument was to persuade us that even though the trial judge went beyond what he should, he nevertheless gave consideration to the factors which he ought to have. In the circumstances we are unable to accede to that view. The exercise of his discretion was so heavily clouded by such irrelevant considerations, a number of which were conjured up by the learned judge himself, that he could not have exercised this discretion judicially. This is not a case where a judicial discretion properly exercised has resulted in a conclusion different from what the appellate court would itself have arrived at. We are confronted with a case where the discretion has not been exercised judicially. Those authorities which say that the discretion of the trial court should not be disturbed by the appellate court are therefore of no assistance. On this ground alone we would have set aside the order as improperly made.

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Assuming that the learned judge had been in a position to exercise his discretion judicially there is the question raised by the Income Tax Decree which would have had a material effect upon his considerations. The alleged and prima facie case of the plaintiffs would certainly have looked much weaker than it appeared. Then there is the point on injunction against public officers. As to this we think that where there is a likelihood, as in this case, that at the conclusion of the hearing a finding would be made that to restrain the defendants would in effect mean a restraint being placed on the Republic an interim injunction should not be granted against the defendants. And where the balance is between inconvenience or even pecuniary harm to a party on the one hand as opposed to the condonation of law breaking on the other, as appears to be the case here, the courts should not lend their assistance to the breaking of the law. In such cases the remedy ought to be a quick trial. Perhaps the easiest way of disposing of the present case would have been by way of originating summons and not by an ordinary action commenced with a writ. After all what the plaintiffs want is a declaration based upon the interpretation of the relevant statutes. If the declaration is made in their favour, we cannot imagine a Chief
Justice faced with such a declaration persisting in his wrong-doing.

For all the above reasons we think the appeal should be allowed and the order of the learned judge set aside. We accordingly allow the appeal and set the order aside.

We venture to think that when the dust of battle, is settled and partisanship is at its end, the learned judge’s ruling will be seen by all members of a Profession who proclaim it honourable for what it is and no more—an essay in offensive and sometimes unintelligible language and a warning to judges about what they should not do.

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