Milicent L. Ojumu v General Legal Council & Anor (CIV APP 46 of 2012) [2017] SLCA 1143 (29 March 2017)

CIV/APP 46/2012 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN MILICENT LEWIS OJUMU (Nee Hamilton-Hazeley) Dr PAUL CHIY CLASS LEGAL - A P P E L L A N T S AND THE GENERAL LEGAL COUNCIL THE CORPORATE AFFAIRS COMMISSION - RESPONDENTS

Coram

The Hon Mrs Justice Nyawo Matturi-Jones JSC The Hon Mr Justice Desmond Babatunde Edwards JA The Honourable Mr Justice A. Sesay JA Ibrahim Sorie Yillah of Tejan-Cole, Yillah and Bangura for the Appellants Yada Hashim Williams of Yada Williams Associates for the Respondents Judgement Delivered this 29th Day of March 2017 APPEAL 1.By Notice of Appeal dated the 18 th of July 2012 the Appellant herein appealed to this Honourable Court against the Judgement of the Hon Mrs. Justice A. Showers JA, as she then was dated 24th May 2012 sitting as a High Court Judge on grounds as set out i n paragraph 3 of the said Notice of Appeal. There were initially 9 grounds of Appeal. These grounds were filed by E. E C Shears Moses but later amended by Serry Kamal a nd Co Solicitors to include four further grounds on the 18 th of October 2012 and most recently after change of Solicitors to the current Solicitors Tejan-Cole, Yillah and Bangura, were reduced to just 4 grounds. This court will not bother to record in this Judgment the previous g rounds of Appeal and will naturally concentrate on the current grounds of Appeal. These are as follows:

GROUND 1 That the learned Trial Judge erred in law and fact when she tri ed and concluded this matter by way of Civil proceedings when the Legal Practitioners Act No 15 of 2000 under which the proceedings were instituted provides that the c onduct complained of in the plaintiff’s Originating Summons, that is, unqualified persons holding themselves out as capable of offering legal services in Sierra Leone shall onl y be tried by way of Criminal proceedings. Ground

2. That the learned Trial Judge erred in law and fact when she a) relied extensively on evidence obtained from the internet without authentication from the author of the said internet evidence to support her findings that the appellants h ad held themselves out as capable or qualified to offer services as barristers and solici tors in Sierra Leone and b) on this basis wrongly entered judgment against the Appellants i n particular the second Appellant when the respondents did not submit in writing or ora lly that the second Appellant was listed in any of these public directories indepen dently, or along with the 1st and 3rd Appellants. Ground

3. That the Learned Trial Judge erred in law when she gave a wide interpretation to the term legal consultants and held that the Legal Practitioners Ac t No 15 of 2000 as it is currently drafted applies to legal consultants. Ground 4

4. That the Judgement is against the weight of the evidence. The Background

2. On the 26 th of September 2011, the Respondent s herein therein plaintiffs had instituted action against the Appellants herein therein the defendants thr ough Originating Summons praying for several declarations and injunctions against the 1 st-3rd defendants now Appellants to the effect that they were offering and representing themselv es to be capable of offering legal services in Sierra Leone. Following the hearing and determ ination of the Action, the

High Court presided by Hon Mrs Justice Adeliza Showers JA as sh e then was gave Judgment in favour of the plaintiff granting all the orders prayed for as follows:

1. A declaration that the 1 st, 2 nd and 3 rd defendants are not eligible to practice law in Sierra Leone or to serve as legal consultants in regard to any client resident in or out of Sierra Leone in respect of work to be done in Sierra Leone.

2. A declaration that the 1 st, 2 nd and 3 rd defendants cannot act in consonance, collaboration or partnership with any legal practitioner regist ered to practice law in Sierra Leone in regard to legal work or consultancies in Sierra Leone

3. A declaration that the 3 rd defendant cannot hold itself out as being eligible to perform legal services / work and /or legal consultancies in Sierra Leone

4. A declaration that it is illegal for the 1 st, 2nd and 3 rd defendants to enter into any fee splitting arrangements with any legal practitioner in Sierra Le one in respect of legal work done or to be done in Sierra Leone .

5. A perpetual injunction restraining the 1 st , 2 nd and 3 rd defendants from holding themselves out as being eligible to practise law in Sierra Leone or to carry out legal consultancies or legal work / services in Sierra Leone.

6. A mandatory injunction compelling the 3 rd defendant to remove from its memorandum of association, website letter heads, flyers or any other adverts any words or phrases tending or purporting to represent that the 3 rd defendant is capable of offering legal consultancies or legal services / work in Sierra Leone.

7. A mandatory injunction compelling the 4 th defendant to remove from the Memorandum of Association of the 3 rd defendant any word or phrases tending or purporting to represent that the 3rd defendant is capable of offering legal consultancies or legal services / work in Sierra Leone

8. A mandatory injunction compelling the 3 rd defendant to remove from its name the word legal which has a tendency to represent that the 3 rd defendant is capable of offering legal consultancies or performing legal services/ work in Sierra Leone.

9. A mandatory injunction compelling the 4 th defendant to remove from the name of the 3rd defendant the word legal which has a tendency to represent tha t the 3 rd defendant is capable of offering legal consultancies or performing legal services / work in Sierra Leone.

10. That the costs of this action be paid by the 1 st , 2 nd and 3 rd defendants jointly and severally to be taxed if not agreed

3. It is against the totality of this judgment and orders that t he Appellants had filed this Appeal on the grounds supra asking that it be set aside/ overtu rned and judgment entered for the Appellants. It behoves this court to address the grounds seriatim. Ground 1

4. On ground one, the A ppellants’ counsel Mr Ibrahim Sorie Yillah argued that the section that criminalises practice by an unqualified person in Sierra L eone, to wit, Section 21 of the Legal Practitioners Act No 15 of 2 000 (hereinafter referred to as the LPA ) only provided for the act of unqualified persons holding themselves as capable of offering legal services as a legal practitioner/ Barrister and solicitor to be punished by c riminal action and has never ever provided that punishment for any violation or infringement of t he law to be via civil proceedings ; and that this being the case, with respect to thi s action for which the plaintiff brought action via an Originating Summons, the civil proceeding s brought by the plaintiff now respondent was ab initio flawed.

5. Secondly, even if, assuming without conceding that the action could have been brought by civil action instead of criminal action then it cannot and shou ld never had been brought through Originating Summons for 2 reasons, viz, i) that the iss ue at hand, to wit, unqualified person offering himself or herself as capable of offering legal services, as alledged, touches and concerns fraud for which by Order 5(2) (b) of the High Court Rules CI No 8 of 2007, any action of this nature, ought to and should have been commenced through a writ of summons and nothing else; the same, not having been so brought, the act ion was in this way also flawed ab initio; ii) that because the action as commenced did not concern the interpretation of a document the same ought not to have been commenced through originating summons. 6.The respondents ’ counsel’s reply was to refer to section 4(1) &(2) of the LPA and its amendments which provided that the 1 st Respondent/plaintiff was not only the governing authority for the conduct of the legal profession in Sierra Leo ne but also equipped by virtue of section 2(1) and (2) of same with the locus standi to institute the said proceedings through the power to sue and or performing all such acts as a body cor porate may by law perform including and not limited to asserting and performing legal rig ht or performing functions through judicial processes to enforce its mandate and obligations under the said Act .

7. Secondly, he argued “Nowhere in the LPA is it provided that the respondent can only bring criminal action in performing its mandate and obligations speci fied in the Act as the

Appellants’ Counsel would want this court to believe. That further, while they cannot deny that section 21 criminalises actions of unqualified persons hol ding themselves out as capable of offering legal services or legal consultancies in Sierra Leone, this does not in any way stop the respondent from instituting civil proceedings as they have done through originating summons claiming the several reliefs in respect of unlawful pra ctice by unqualified persons arguing that the criminal action came under the specific powers of the General Legal Council, the 1st Plaintiff now 1st respondent, and this does not exclude the respondent’s general powers which is equally embedded in the said LPA under Sections 2(1) a nd (2) and 4(1) and (2) thereof. He referred to the Appellants ’ submission that where a conduct is criminalised you cannot bring civil action as they have done, as not only untena ble, but invalid paying reference to the case LAW SOCIETY OF ENGLAND V SHAH(2014) EWHC 4382 CH where the solicitors ’ regulatory authority claimed and was granted an injunction against the defendant to prohibit him, whether directly or through others a cting on his behalf, from amongst other things holding himself out as solicitor, undertak ing any reserved legal activities through anybody authorised by the Solicitors Registr ation Authority, or being employed by or remunerated by, or managing or controlling the p ractice of , a solicitor or anybody regulated by the Law Society. The question that the court addressed was whether the Solicitors Regulation Authority, since the practice by unqualif ied persons was a criminal offence (section 20 of the Solicitors Act 1974), can also seek injunctive reliefs against the defendant and the Court held that they can.

8. This court has studied the synopsis and listened to the argum ents by both counsels. It is clear to this court that the action as brought before it was by and through an Originating Summons and never by criminal action. Was this a wrong procedur e disrobing the court of any jurisdiction to hear and determine the case of the alledged unqualified practice of persons in Sierra Leone under civil procedure? It would seem to us how ever that there should not be much complaints as we are receiving now. The reason is that fir stly, without more, we do agree with the Respondents ’ counsel that the kind of objection being raised now were of the nature that ought to have been brought long before now and not now when the horse has bolted. Also it serves no purpose to argue that criminal action ought to have been brought when the criminal action itself has a penalty that would end up stigmatizing the appellants if found guilty. Not wanting to be accused of making a short thrif t of this ground and the issues raised therewith we are inclined to consider the submissions fu lly in the context in which it was laid before this Honorable Court. While it cannot be denied that it is Section 21 that

criminalises action by unqualified persons was this the only option open to the respondents in terms of action against a person(s) allegedly offering themselv es as capable of practising as a legal practitioner contrary to the LPA? Section 2(1) and (2) o f the LPA No 15 of 2000 provides as follows “2 (1) there is her eby established a body to be known as the General Legal Council. 2(2) The Council shall be a body corporate with perpetual succession and a common seal and capable of suing an d be sued in its corporate name .......and capable subject to this Act of performing all such acts as bodies corporate may by law perform”

9. The effect of this provision it would seem to us is that this section not only establishes the General Legal Council as a body corporate but tells us what it can and cannot do in its widest term and that it can sue and be sued in its corporate name and perform such acts as judicial persons can perform. These clearly would include injunctions and declarations as was done in this case. In BLACK’S LAW DICTIONARY 5TH EDITION sue is defined as ‘’ to institute a law suit against another person. These words clearly as submi tted by counsel for the respondent connote capacity to institute actions, suits or any civil proceedings against any person. The respondents being a creature of statute and a judic ial person it is equipped with such powers to sue and can be sued by judicial/legal persons wh ich it did against 1st, , 2nd and 3rd defendants . 10.Civil action can be brought in 1 of 4 ways viz, by writ of s ummons, originating notice of motion , originating summons or by petition. See Oder 5 of High Court Rules CI No 8 2007. It is the argument by counsel for the Appellants that, if at al l, it must have been brought through civil proceedings, then it ought to have been brought b y a writ of summons and nothing else, as “Offering your self as being capable of performing as a legal practitioner when you are an unqualified person tantamounted to fraud, to wi t, a claim based on fraud which can only be brought through writ of summons. As against this, the respondents counsel says such an argument is misconceived as throughout the proceed ings no issue of fraud was alledged/raised directly or indirectly nor does holding out as being capable of performing legal services / consultancies in any way impute fraud. The afo resaid argument begs the issue of what constitutes fraud. Under BLACKS ONLINE DICTIONARY 2ND EDITION, Fraud is defined as “consisting of some deceitful practice or wilful device resorted to with

intent to deprive another of his right or in some manner to do him injury. As distinguished from negligence it is always positive and intentional s e e t h e c a s e o f MAHER V HIBERNIAN CO 67 NY 292 and MOORE V CRAWFORD 130 US 1229 SUP C T 447 32L ED.878. In the ADVANCED LEARNER’S DICTIONARY NEW 8 TH EDITION @PAGE 595 Fraud is defined as “a person who pretends to have qualities, abilities etc that they do not really ha ve in order to cheat other people”. From the above definitions there cannot be much gainsaying that the case against the appellants concerns and involves fraud in the allegation against them of offering themselves as being cap able of performing legal services and legal consultancies when they are said to be unqua lified persons pursuant to the provisions of the LPA. Thus it is true that the action ought to have been brought by writ of summons, which was certainly not the case, it being brought thr ough originating summons. The only problem is that, it not having been so brought, it is rather too late in the day to bring this as a ground of Appeal. This is so because it not having be en so brought was an irregularity pursuant to Order 2 Rule 1(1) of the HCR 2007. Order 2 rule 1 of the High Court Rules CI No 8 of 2007 provides as follows: “Where in the beginning or purporting to be gin any proceedings or at any stage in the course of or in connection with any proceeding s there has, by reason of anything done or left undone been a failure to comply with th e requirements of these Rules whether in respect of time, place, manner , form or content or in any other respect , the failure shall be treated as an irregularity and shall not nullify the proceedings , any steps taken in the proceedings or any document, judgment or order therein.”

11. Being an irregularity it could be set aside pursuant to Order 2 Rule 1(2) of the HCR 2007 . But for it to be set aside an application must be made to the court pursuant to Order 2 Rule 2 . Order 2 Rule 2 (1) provides that “An application to set aside for irregularity any proceeding, any step taken in any proceeding or any document judgment or orde r therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”.

12. There are 2 grounds for setting aside an irregularity here viz i) unless the application is made within a reasonable time or 2) made before the party apply ing has taken any fresh step after becoming aware of the irregularity. On both ambits the Ap pellants’ case fails. On the

first ambit, the case of REYNOLDS V COLEMAN (1887) 36 CH.D 453CA is a case in point where it was held that it was too late after a year to se t aside service out of the jurisdiction. Here is too late to set aside an Originating Summ ons on the ground that a writ of summons should have been filed after Appeal on a case lost in t he High Court brought through Originating Summons. Worse still, on the 2 nd ambit, the appellants should have become aware of this irregularity or would be deemed to have be come aware of the irregularity from the very beginning but yet still chose to tak e fresh step by filing an affidavit in opposition sworn to on the 24 thof February 2012 to the action through originating summons. They therefore, long before this appeal, waived any ri ght to bring an objection regarding the action being brought by originating summons inste ad of writ of summons which would have been most appropriate in the circumstances. Ag ainst such scenario it becomes ill conceived to say the application must have been bro ught through writ of summons as a ground of appeal. See the cases of BOYLE V SACKER (1888) 39CH.D249. CA AND FRY V MOORE (1889) 23 QBD395 CA where it was held that steps taken with knowledge of an irregularity either with a view to defending th e case on its merits would be taken as fresh steps and would waive irregularities in the inst itution or service of the proceedings.