11 / 328
is framed accordingly ; but the need for establishing
such special circumstances as a basis of exercising
the inherent jurisdiction was in fact conceded,
and
the decision should not, it is
thought, be
regarded as deciding that the special circumstances
required by that enactment must be established if
the inherent jurisdiction is to be exercised.)
(In
Re A Solicitor (1961) 2 All England Reports, 321.)
DISCIPLINE
IN
THE
PROFESSION
EXERCISED BY JUDGES IN COLONIAL
TERRITORIES
By the common law of England judges had the
right to determine who should be admitted to
practise as barristers and solicitors, and, as incidental
thereto, the right to suspend or prohibit from
practice.
In England this power has been for a
very long time delegated, so far as barristers are
concerned, to the Inns of Court, and for a much
shorter time, so far as solicitors are concerned, to
the Law Society. In the colonies the judges have
retained this power in their own hands, at any
rate in those colonies where the profession is
"fused." This principle was enunciated by Lord
Wynford in 1839 on a petition from Antigua (i
Knapp 267) in these terms :
"In the colonies there
are no Inns of Court but it is essential for the due
administration of justice that some persons should
have authority to determine who are fit persons to
practise as advocates and attorneys there. Now
advocates and attorneys have always been admitted
in the colonial courts by the judges, and the judges
only. The power of suspending from practice must,
we think, be incidental to that of admitting to
practice, as is the case in England with regard to
attorneys." The foregoing summary of the position
is derived from the judgment of the Judicial Com–
mittee of the Privy Council, delivered by Lord
Denning, in Attorney-General of Gambia
v.
N'Jie
(1961) 2 W.L.R. 845.
In that case the Board (Lords Radcliffe, Denning
and Guest) held that the power vested in the Chief
Justice of the Supreme Court of Gambia
to
suspend or strike off the roll a legal practitioner
was a judicial, not an administrative power. The
respondent, a member of the English bar, who
had been struck off by a deputy judge of the Supreme
Court, successfully appealed to the West African
Court of Appeal, which held that the judge only
had jurisdiction to represent the Chief Justice "in
the exercise of his judicial power," and that the
power to strike off a legal practitioner was not such.
This last proposition did not commend itself to the
Board. It was true that in these cases the judge did
not sit as a court of law ; he was not deciding an
issue between parties; there was no prosecutor
as in a criminal case, nor any plaintiff as in a civil
suit. Indeed the fact that the judges were themselves
always made respondents in these cases was an
implicit recognition
that, when exercising
this
jurisdiction, they did not sit as a court of law but
as a disciplinary authority. That had been judicially
decided as regards West Africa in Macauley
v.
Sierra Leone Supreme Court Judges (139 L. T. Rep.
314; (1928) A. C. 344). The legislature, following
that case when setting up the West African Court
of Appeal, provided that an appeal should lie 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 that for the purpose
of such an appeal any such order "shall be deemed
to be an order of the Supreme Court." That section
the very section under which the present respon–
dent appealed to the Court of Appeal showed,
clearly enough, that the legislature did not regard
the decision of the judge in such a case as a decision
of the Supreme Court, but as a decision of the judge
as a disciplinary authority.
But it did not follow, as the West African Court
of Appeal thought, that in these cases the judge was
not exercising judicial powers. The essential words
in the Supreme Court Ordinance were "the judicial
powers of the judge," and it appeared to the Board
that in this context a judge exercised judicial powers
not only when he was deciding suits between
parties but also when he exercised disciplinary
powers which were properly appurtenant to the
office of a judge. The power was analogous to
that exercised by a judge in ordering
the legal
practitioner whom he considered to have been
guilty of professional misconduct to pay the costs,
or in committing him for contempt of court. More–
over, it was open to one who had been suspended or
struck off to appeal to Her Majesty in Council, and
that necessarily imported that this was the exercise
by the judge of his judicial power, for there was no
right of appeal to the Board from the exercise of an
administrative power. This was a power which it
was competent for a deputy judge to exercise, and
the Board would advise Her Majesty that the
appeal should be allowed and the order of the
deputy judge should be restored.
(The ~Lan> Times,
Volume 231, page 284 May 26th, 1961.)
ACCUSED SENT FORWARD FOR TRIAL
BY ATTORNEY-GENERAL
Mr. Justice Davitt, President of the High Court,
ruled on and June that it was not constitutional for the
Attorney-General
to order the trial of a person
against whom informations had been refused at a
preliminary hearing. Therefore, the trial of Mrs.