Institute of Chartered Accountants of Sierra Leone V CAPT (RTD) Michael F. Spencer (CIV APP 16 of 2009) [2014] SLCA 6 (20 April 2014)

4 Civ App 16/2009 (3 f IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: INSTITUTE OF CHARTERED ACCOUNTANTS OF STERRA LEONE ~ APPELLANT AND CAPT (RTD) MICHAEL F SPENCER - RESPONDENT COUNSEL: BERTHAN MACAULAY JINR for the Appellant J B JENKINS-JOHNSTON ESQ for the Respondent Ean: A THE HONOURABLE MR JUSTICE N C BROWNE-MARKE, JUSTICE OF APPEAL THE HONOURABLE MRS JUSTICE A SHOWERS, JUSTICE OF APPEAL THE HONOURABLE MRS JUSTICE N MATTURI-JONES, JUSTICE OF + APPEAL . ij , Tipu Lele haet He dy nt Ark Lola / 3 ‘GROUNDS OF APPEAL wh . 1, This is an appeal brought by way of Notice of Appeal dated 8 October, 2008 by the Appellants, the Institute of Chartered “Accountants, Sierra Leone against the Judgment of the High Court, EDWARDS,J Presiding, dated 11 July,2008. The Grounds of Appeal are to be found on pages 139-142 of the Record

2. These Grounds are as follows: 1, The Learned Trial Judge having held that there was no application by the Plaintiff for membership to the Institute of Chartered ‘Accountants of Sierra Leone (the Institute) should have dismissed the Plaintiff's claim in that the Institute could only admit persons to those categories of membership provided for in the Institute of Chartered Accountants of Sierra Leone Act 1988 (The Act) as there was no evidence before the Court the Plaintiff's Application to the “Association of Accountants of Sierra Leone (the Association) was for any one of the categories of membership provided for under the Act. 2 The Learned Trial Judge misdirected himself when he held, inter alia, ’ that one of the issues that fell for determination was: "whether the

: plaintiff met the criteria as per the ICASL Act,1988 50 as to be

. eligible for enrolment and or admission as a member of ICASL.”

7 PARTICULARS The Declaration and Order sought by the Plaintiff in his specially indorsed writ of surumons was not that he was eligible for membership simpliciter.of the institute but that he was eligible for admission as a ‘registered accountant of the Institute: a specific category of membership under the Act: thereby proceeding to grant the Plaintiff a relief that the Plaintiff himself had not sought, to wit, that the Plaintiff be enrolled as a Chartered Accountant of the Institute.

3. Assuming without conceding, that the Plaintiff's application had been . transferred/handed over to the Institute, the Learned Trial Judge erred in law and usurped the functions of the Institute in ordering that the Plaintiff be enrolled as a Chartered Accountant without any independent consideration by the Institute of the application.

PARTICULARS $ The decision in the first instance as to whether a person's application F is successful thereby rendering that person eligible to be enrolled as a 7 chartered accountant is vested in the Council of the Institute as : provided for under the Act.

4, The Learned Trial Judge having rightly held that the Plaintiff was not eligible to be enrolled as a Registered Accountant'erred in law in not dismissing the Plaintiff's case but wrongfully proceeded to order that the Plaintiff be enrolled as a Chartered Accountant.

PARTICULARS,

(A) The Plaintiff in his specially indorsed writ of summons had pleaded that he was eligible for admission as a ‘registered accountant and had not pleaded that he was eligible for admission as a'Chartered Accountant.

(8) There was no evidence before the Learned Trial Judge that the

Plaintiff had applied to be enrolled as ‘chartered accountant’to the Institute or to any entity.

5. The Learned Trial Judge erred when he ordered that the Plaintiff be enrolled forthwith as a Chartered Accountant and a Fellow of the . Institute.

. ce

4 PARTICULARS 4 (A) The plaintiff had not sought any such remedy/relief from the Court and had not amended his specially indorsed (writ) to include such a remedy and Counsel for the Plaintiff in his address to the ‘Court had limited himself to the relief/nemedy prayed for, to wit, that the Plaintiff be admitted as a ‘registered accountant’

(8) The Plaintiff, by the Learned Trial Judge's own findings, was not qualified under Section 3(1)b) of the Act, in that he was not a member of a society or institute of accountants approved by regulations of the Council an association of equivalent status to that of the Institute.

(0) The Plaintiff had not met the criteria set out in section 5 of the Act in that the Plaintiff had not been a member of the Institute for five years preceding the date of the judgment nor of a body approved by the Council of the Institute. 6, The Learned Trial Judge misdirected himself in referring to the Constitution of Sierra Leone,1991, Section 8 (3) when he held that ‘it : becomes relevant to coming to a right conclusion in the handling of L this matter.that the same shall be considered, PARTICULARS (A) The Learned Trial Judge failed to state which recognised ground : of discrimination was in issue in the instant case,

(8) The Learned Trial Judge failed to consider section 14 of the Constitution of Sierra Leone,1991 which provides as follows: “Notwithstanding the provisions of section 4, the provisions contained in this Chapter (which include section 6(3) shall not confer legal rights and shall not be enforceable in any court of law, but the principle contained therein shall nevertheless be fundamental in the governance of the State, and it shall be the duty of Parliament to apply these principles in making laws.

3. On these Grounds, the Appellant asked that the judgment of the Learned Trial Judge be set aside and that judgment be entered for the Appellant with Costs. RESPONDENT'S CASE AT TRIAL : : 4, The Respondent's case at the trial, as recorded in his writ of summons 7 issued on 19 October 2007 and in his evidence, was that he was an

aA ‘Accountant by profession, having graduated summa cum laude Upper 1 . class Honours in Accounting from Bowie State College in the USA in 1977. 7 and having been admitted as a member of the National Society of Public ‘Accountants in the USA in 1981. On his return to Sierra Leone, he was first employed by the then Sierra Leone External Communications ~ Company Limited, SLET, as Chief Accountant/ Secretary, in which position he retired in 2000, In 1984 he applied for membership of the then Association of Accountants, The Association did not respond to his ‘Application. When the ICASL Act came into force in 1988, he got in touch with them, but the new body, i.e. ICASL failed to address his eligibility to become a member of the Institute, However, he continued in practice as ‘an Accountant between 1981 and 2005, in which later year, ICASL notified him by letter that he was not a member of the Institute, and requested that he cease holding himself out as one who was in possession of its practising certificate. The persons in authority in the Institute were the samé persons who had been in charge of the now defunct ‘Association of Accountants, The Respondent made two more requests through respective Solicitors that his eligibility for membership of the ; Institute be determined. The Institute rejected his claims. The . Respondent claimed that by their conduct, the Institute were preventing him from practising his profession and securing his livelihood. He 7 therefore prayed the Court below to Declare that he was eligible for admission to the Institute as a Registered Accountant pursuant to Section 3(1) of the ICASL Act,1988; and for an Order directing the ‘Appellants to enrol and register him as such Registered Accountant of the Institute, and to issue him with a practising Certificate under Section 21 of the Act. APPELLANTS’ CASEQAT TRIAL NS

5. The ‘ole filed a lengthy statement of defence on 14 November 2007. As to the Respondent's averment that he had sent in an Application to the now defunct Association, the Appellants averred that in response to that Application, they had requested the Respondent to provide documentary evidence of his qualifications. They disputed the Respondent's averment that he had sent a letter to the Institute in 1988 as at the date of that letter the Act had not come into force. They averred further that there was no Application from the Respondent . which was before the Institute, for consideration: nor, could the 1984 : Application to the now defunct Association be imposed upon them, They aN

The pages read for this report end here. The judgment continues in the PDF.