In Re: Pierre Sarr N'jie; In Re: Rule 7, Order IX of the First Schedule to the Rules of the Supreme Court, 1928 (MISC CIV CASE 63 of 1958) [1959] SLCA 1 (5 June 1959)

order to the 3rd defendant and the other members of his court that the plaintiff must in any event be found guilty. (e) That the 3rd defendant took the plaintiff to the District Commissioner after his conviction. (f) That the District Commissioner had instructed Hoare to review the proceedings at a time when he did not know the verdict of the court. Counsel tried to make capital of the fact on the evidence it appears that the District Commissioner had instructed his Assistant to review the proceedings before he knew that the plaintiff was in fact convicted. However, this is not how I read the evidence. The evidence is that the District Commissioner instructed Hoare to review the case, but there is no evidence as to what time of day he told him so. One thing is clear, namely, that he gave him his instruction before the plaintiff was taken to Hoare's office, and there is no evidence showing that the District Commissioner had not already known the court's verdict. In my opinion, all the matters relied upon as piling up to constitute the offence of conspiracy are matters which were lawful and within the competence of the District Commissioner and the defendants to perform, and in the performance of which I find that none of them resorted to unlawful means. In the circumstances therefore and for the reasons given, the plaintiff's entire claim fails and I dismiss it with costs to be taxed. [COURT OF APPEAL) IN TilE MATIER OF PIERRE SARR N'JIE, BARRISTER AND SOLICITOR OF TilE SUPREME COURT OF TilE GAMBIA AND IN TilE MATTER OF RULE 7, ORDER IX OF THE FIRST SCHEDULE TO TilE RULES OF TilE SUPREME COURT, 1928 [Miscellaneous Civil Case No. S.63 I 58] Practice and procedure-Suspension of legal practitioner--Whether deputy judge can represent judge in matter which is not "proceeding in the court "-Whether judge acting apart from Supreme Court has jurisdiction to suspend legal prac titioner--Rules of the Supreme Court, 1928, Ord. IX, r. 7 (Cap. 5, Subsidiary Legislation of the Gambia, 1955)-Supreme Court Ordinance (Cap. 5, Laws of the Gambia, 1955) ss. 2, 4, 7, 15, 27, 72-West African Court of Appeal Ordinance (Cap. 6, Laws of the Gambia, 1955) s. 14-Notaries Public Ordinance (Cap. 19, Laws of the Gambia, 1955) s. 4-lnterpretation Ordinance (Cap. ], Laws of the Gambia, 1955) s.

11. On September 22, 1958 a deputy judge in the Gambia suspended a legal practitioner from practising within the jurisdiction of the Gambia Supreme Court. From the order the practitioner appealed, claiming that the deputy judge did not have jurisdiction to make the order and that rule 7 of Order IX of the Rules of the Supreme Court, under which the order was made, was ultra vires. Held, that the the Supreme Court Ordinance (Cap. 5, Laws of the Gambia, 1955) gave no jurisdiction to the deputy judge to make the order in question.

S. C.

HoN. T. S. M'BRIWA V. TUBERVILLE. Bankole I ones

Freetown June 5,

Bairamian, Ag. P. Hurley and Ames, Ag. JI.A. C. A.

IN THE MATTER OF PIERRE SARR N'JIE. The court also said, by way of obiter dictum, that rule 7 of Order IX of the Rules of the Supreme Court was invalid, since it purported to confer power to suspend a legal practitioner on the judge of the Supreme Court, whereas such power resides in the Supreme Court itself. Note: The decision in this case was reversed by the Judicial Committee of the Privy Council on May 3, 1961. See Att.-Gen. v. N'Jie [1961] 2 All E.R.

504. Cases referred to: In re the Justices of the Court of Common Pleas at Antigua (1830) 1 Knapp 267, 12 E.R. 321; Godfrey v. George [1896] 1 Q.B. 48; Institute of Patent Agents v. Loekwood [1894] A.C. 347; The King v. Gray's Inn (1780) 1 Dougl. 353, 99 E.R.

227. Edward F. N. Gratiaen (with him E. D. N'jie) for the appellant. Christopher

0. E. Cole (Ag. Attorney-General) for the respondent. BAIRAMIAN Ao. P. This is an appeal from an order made by a deputy judge in the Gambia on September 22, 1958, to strike the name of a person enrolled there as a barrister and solicitor off the roll of court, with a direction that the Inn of Court in which he had been called be informed. The proceedings begin with a notice of motion which has this heading : "Before the Honourable the Chief Justice of the Gambia. " In the Matter of Pierre Sarr N'jie, barrister and solicitor of the Supreme Court and "In the matter of rule 7 of Order IX of the 1st Schedule to the Rules of the Supreme Court, 1928. Notice of Motion "Take notice that the Honourable the Chief Justice of the Gambia will be moved," etc. That rule provides that : "The judge shall have power, for reasonable cause, to suspend any barrister or solicitor from practising within the jurisdiction of the court for any specified period, or order his name to be struck off the Roll of Court." The notice was given by the Attorney-General, who said to the deputy judge in his closing address (towards the end): " Cause or matter-this is neither. This is an inquiry merely-before the Chief Justice or the person discharging his function. This is not a motion moving the Supreme Court." Early in the judgment there is this passage: "It will be observed that the notice of motion does not seek to move the Supreme Court, but the Chief Justice of the Gambia. The reason for this is that it is the Chief Justice who is by the Rules of Supreme Court vested with the control of barristers and solicitors." It is clear that the Attorney-General was not moving the court and that the deputy judge was not sitting as the court. Thus the first question is whether a deputy judge can represent the judge (there is only one and he is styled the Chief Justice now) in a matter which is not a proceeding in the court, either as a "cause " or as a " matter " within the definitions in section 2 of the Supreme Court Ordinance (Cap. 5 in the Gambia Laws, 1955).

According to section 4 of the Ordinance- " The Supreme Court shall consist of and shall be held by and before a judge," etc. Section 7 (1) enables the Governor to appoint a deputy judge- " to represent the judge . . . in the exercise of his judicial powers. Under subsection

(3) "The judge ... may direct at what time and place such deputy judge shall sit, and what causes shall be heard before him, and generally make such arrangements as to him shall seem proper for the division and dispatch of the business of the Supreme Court." I think that the aim of section 7 is to make it possible to have someone appointed, in addition to the judge, to deal with cases pending before the court: a deputy judge cannot in my opinion deal with any matter which is not a proceeding in the court. Here the Attorney-General made it clear that his motion was not a motion moving the Supreme Court, and the deputy judge was equally clear that he was not sitting as the court. Ground (7) in the notice of appeal is that- " The deputy chief justice had no jurisdiction to make the order made by him on September 22, 1958." In my opinion this ground succeeds and the appeal should be allowed and the order of September 22, 1958, set aside as being null and void. This leaves the door open for further proceedings and brings up the question of the validity of rule 7 in Order IX, which was canvassed under ground (c) of the second set of grounds of appeal, the objection of the appellant being that the rule is ultra vires. There was an appeal from Antigua against an order of the court disbarring a person who had been admitted to practise as a barrister and attorney ; it is reported as a petition to the Privy Council sub nom. In re the Justices of the Court of Common Pleas at Antigua (1830) 1 Knapp 267, 12 E.R.

321. I am indebted to my learned brother Hurley J.A. for the reference. Lord Wynford said inter alia: " The power of suspending from practice must, we think, be incidental to that of admitting to practise, as is the case in England with regard to attornies. In Antigua the characters of advocates and attornies are given to one person ; the court therefore that confers both characters may for just cause take both away." It is conceded on behalf of the appellant that the Gambia Supreme Court has jurisdiction to suspend a person admitted to practise as a barrister and solicitor. His learned counsel describes it as an inherent jurisdiction, which may well be right. I incline to the view that this jurisdiction was conferred by section 15 of the Ordinance, which enacts that the Supreme Court shall- " possess and exercise all the jurisdiction, powers, and authorities which are vested in or are capable of being exercised by Her Majesty's High Court of Justice in England" etc.

C. A.

IN mE MATIER OF PIERRE SARR N'Jrn. Bairamian Ag.P. C. A.

Viewed on the analogy of solicitors in the light of the year 1888, when the Ordinance was passed, section 72 (1) empowers the judge to make rules of ----- court .... IN THE MATTER OF PIERRE SARR N'Jm. Bairamian Ag.P. "(c) for regulating the qualification, admission and enrolment of barristers, advocates, solicitors and notaries," etc. This presupposes that the Supreme Court can admit persons to practise both as barrister and solicitor, which it does; therefore it can suspend anyone from practising in either or both characters for reasonable cause. It follows that the judge may under section 72 (1) make rules to regulate the cursus curiae on an application to the court to suspend. Such an applica tion begins what is in my view a civil "matter "-a "proceeding in the court not in a cause," within the definition in section 2 of the Ordinance. Cf. Godfrey v. George [1896] 1 Q.B. 48; and rules of procedure would be useful to everyone concerned and may be made at any time. But what Order IX does instead is to provide a rule, namely rule 7, which empowers the judge to suspend. The view of the learned Attorney-General of the Gambia was, and the argument on his behalf before us is that an application to suspend is not a " cause " or " matter " in other words, it is not a proceeding in the court, and when the judge acts under that rule he is not acting as the court ; hence his statement to the learned deputy judge that " this is not a motion moving the Supreme Court." Consequently an order made under that rule is not an order of court. This view is carried into section 14 of the West African Court of Appeal Ordinance (Cap. 6 of the Gambia Laws) which provides that: " An appeal shall lie to the Court of Appeal from any order of the judge suspending a barrister or solicitor of the Supreme Court from practice or striking his name off the Roll, and for the purposes of such appeal any such order shall be deemed to be an order of the Supreme Court." This provision, which was enacted in 1929, was doubtless drafted on the basis that the judge, when acting under rule 7 in Order IX is not acting as the court. There are two occasions where it may be said that he is acting apart from the court: one is when he revokes the appointment of a commissioner of affidavits under section 27 of the Supreme Court Ordinance, which empowers the judge to make such an appointment and to revoke ; the other is when, as my learned brother Ames J.A. pointed out to me, he acts under section 4 of the Notaries Public Ordinance (Cap. 19), which provides that- " Every notary public shall be deemed to be an officer of the Supreme Court, and the judge of the Supreme Court shall have power for reasonable cause to suspend any notary from practising during any specified period, or to order his name to be struck off the Roll of Court." Section 2 empowers the judge to appoint a person to be a notary, and section 4 to suspend him for a time or for always. This Ordinance was passed in 1946, and section 4 is modelled on rules 6 and 7 in Order IX of the Supreme Court Rules, 1928. Under section 4 of that Ordinance the judge will hold an inquiry but not as constituting the court. Likewise under rule 7 in Order IX he will hold an inquiry but not sitting as the court. Such is the view advanced by and for the learned Attorney-General

of the Gambia, and it is on this basis that I shall discuss the validity of that rule. In considering a rule of court one has to look at section 11 (c) and (d) of the Interpretation Ordinance (Cap. 1), which provide that, unless the contrary intention appears- "(c) No subsidiary legislation shall be inconsistent with the provisions of any Ordinance ; "(d) subsidiary legislation shall be published in the 'Gazette' and shall have the force of law upon such publication thereof or from the date named therein." Thus a rule when published has the force of law in so far as it is not incon sistent with, at any rate, the Ordinance under which it is made. (There is no submission that the Supreme Court Ordinance authorises the judge to make a rule which may be inconsistent with the Ordinance so I need not do more than refer to instances of a schedule to an Ordinance which some authority is empowered to alter by subsidiary legislation). Here rule 7 in Order IX has to pass the two tests suggested by (c) of section 11 of the Interpretation Ordin ance: One is that the rule must be intra vires, for otherwise it is inconsistent with section 72 (1) of the Supreme Court Ordinance; the other test is that the rule must not be inconsistent with the Supreme Court Ordinance in any other respect. As the jurisdiction to suspend resides in the court under the Ordinance, a rule which confers a power to suspend on the judge as apart from the court is inconsistent with the Ordinance. The rule does not deal with the procedure to be followed on an application to the court and is not intra vires the rule-making power conferred by section 72 (1). The argument for the Attorney-General of the Gambia, that the word "regulating" in section 72 (1) (c) enables the judge to make rules to "control" those admitted to practice, may take one as far as rule 6, which provides that those enrolled shall be deemed officers of the court, and thus come under its discipline and control ; it does not get over the objection of inconsistency to the validity of rule

7. Before dealing with the other argument for the Attorney-General I shall quote section 72 (3), (4) and (5), which read thus:

(3) " No such rules, or any alteration, amendment or revocation thereof, shall be deemed binding until they shall have been approved by the Legislative Council, and shall have been published in the ' Gazette.'

(4) All such rules, and such alterations, amendments, and revocations thereof, when so approved and published, shall have the same force and effect for all purposes as if they had been made by Ordinance, and shall in like manner come into immediate operation, or on such a day as shall be provided in such rules, subject to disallowances by Her Majesty.

(5) Notwithstanding the provisions of subsection (4) hereof to the contrary, the Rules of the Supreme Court, 1928, shaU be deemed binding and to have come into operation on January 1, 1929, without any publication in the ' Gazette.' " If it is argued, as it was, that the legislature itself enacted the 1928 Rules by reference in Ordinance No. 1 of 1929, which added subsection (5), the argument leads to this awkward result-that no rules can be made to amend

1 S.L.-9 c. A.

IN THE MATTER OF PIERRE SARR N'JIE. Bairamian Ag.P. C. A

IN THE MATTER OF PIERRE SARR N'JIE. Bairamian Ag.P. the Rules of 1928. But there was no such aim in subsection (5). I think that attention to subsections (3) and (4) shows that there are two requisites-approval by the council and publication in the "Gazette." Presumably when the council approves a set of rules, its clerk appends a certificate of the approval, which is published below the rules in the "Gazette." I stressed the word " and" in subsection (5) when reading it. I think that this subsection was designed to cure two deficiencies in the rules-one, that there was no certificate of approval, and the other, that the rules were published on New Year's Day and did not provide that they should come into operation on that day. It is in this light and within these limits that the opening words of subsection

(5) " Notwithstanding " etc.-are in my opinion to be construed. The effect of subsection (5) is to give the Rules of 1928 the same status as any rules might have which had received approval and were published, in accordance with subsection (4). The rules must be treated as if they have been made by Ordinance. That sort of provision resembles the provision canvassed in Institute of Patent Agents v. Lockwood [1894] A.C. 347, the report of which contains at p. 360 some obiter dicta in Lord Herschell's judgment, that one should try to read the rules side by side with the Act but that in a case of conflict the Act should prevail-which is the effect of section 11 (c) and (d) of the Interpretation Ordinance. If rule 7 in Order IX means (as is contended for the Attorney-General of the Gambia) that the judge when acting under it does not act as the Supreme Court in a proceeding pending in the court, the rule is inoperative. No other view of the rule was advanced on his behalf, if I understood the arguments rightly. I must therefore hold that the rule is not a valid rule on that basis. In a sense my views on the rule are obiter, for the ground of allowing the appeal is the one given in the first portion of this judgment. I propose on that ground that the appeal be allowed and the order and direction made and given by the deputy judge on September 22, 1958, be set aside as being null and void. AMES Ao. J.A. I agree with the learned President and my learned brother Hurley that this appeal must succeed on ground