Legal
Practitioner struck off Roll-Has
"Acting" Chief Justice authority
to order,-Section ,53 of
Supreme Courts Ordinance
Agreement to share equally
proceeds of speculative actions
Champertous agreement.
Held:
Acting Chief Justice has
authority and
agreement was champertous
but order varied.
There is no
need to set out the facts.
C. E.
Wright (N. J. P. Metzger-Boston
with him) for Wright. E.
S. Beoku-Betts for
Respondent.
The following
joint judgment was delivered:-
KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOJ,D
COA~'I" GHAHAM PAUL, C.J.,
SIERRA LEONE.
In this case
the name of the appellant, which
was on the roll of the Supreme
Court of Sierra Leone, was
struck off the roll by order of
Lane, Acting Chief Justice,
dated the 12th April, 1940.
Against that order he appealed
to this Court, which commenced
the hearing of the appeal on the
20th June, 1940, but being
unable to finish the hearing at
that Session of the Court
suspended the order pending the
completion of the hearing. The
proceedings against the
appellant commenced· with a
motion filed by the
Attorney-General dated the 19th
October, 1939, alleging'
professional misconduct and
improper conduct on the part of
the appellant in that
(1) Whilst
acting as Solicitor for one
Jonathan Josibiah Nicol ill as
action Emanuel Konigbabe Nicol
(by his Attorney Jonathan
Josibiah Nicol) plaintiff and
John Ephaphras Nicol-defendant
1938-N-No. 3 instituted in this
Court he, the said Cyril Bunting
Uogers Wright did improperly
charge a Commission of ten per
cent on the sum of £120
recovered in a judgment in the
said action after he had agreed
to accept and had been paid the
sum of £5 5s 0d for his
professional services in the
said action,
(2) That
whilst acting as Solicitor as
aforesaid, he the said Cyril
Bunting Rogers Wright did
improperly deduct and pay to
himself the sum of £37 15s 2d
from the sum of £120 recovered
as aforesaid on the allegations
that the said sum of £37 15s 2d
represented his cost and ten per
cent commission on the amount of
£120 recovered as aforesaid,
which said cost and commission
he was not entitled to, he
having been paid the sum of £5
5s 0d for his professional
services and in full
satisfaction of all claim for
remuneration for professional
services.
(3) That the
said Cyril Bunting Rogers Wright
contrary to all good and
reputable conduct as a Solicitor
and in a manner disgraceful and
dishonourable to his profession
as a Solicitor in a letter dated
the 10th day of March, 1939, did
make an offer of a champertous
agreement to Jonathan Josibiah
Nicol for whom he was, acting as
Solicitor in an action Jonathan
Josibiah Nicol versus Augustus
N. Jones-1939-N-No. 2 instituted
in this Court that a sum of £15
or £20 should be accepted from
Augustus N. Jone's aforesaid in
settlement of the action and
that after deducting the out of
pocket expenses the balance
shall be equally divided between
the said Cyril Bunting Rogers
Wright and Jonathan Josibiah
Nicol aforesaid.
The motion
was filed in pursuance of the
provisions of section 26 of the
Legal Practitioners
(Disciplinary Committee)
Ordinance. 1938 (No. 24 of
1938). The learned Acting Chief
Justice found the appellant
guilty of professional
misconduct and ordered his name
to be struck off the roll.
On the'
appeal three points were argued
on behalf of the appellant. The
first was" that the learned
Acting Chief Justice " had no
jurisdiction to hear or dispose
of the motion." The contention
upon this point concerns the
interpretation of section 21 of
Ordinance No. 24 of 1938, which
reads:-
" The powers
conferred in the following
sections of this " Ordinance
upon the Supreme Court shall be
exercised by " any two of the
Judges of such Court or by the
Chief Justice " sitting alone."
It was
contended on behalf of the
appellant that the words " Chief
Justice" do not include " Acting
Chief Justice .We cannot agree
with this contention. Section 53
of the Supreme Court Ordinance
(No. 39 of 1932) provides:-
" Whenever
the office of any Judge becomes
vacant, by " death or otherwise,
it shall be lawful for the
Governor to " appoint another
fit and proper person to fill
such office until "His Majesty's
pleasure be known; and in the
case of " temporary illness or
absence of any Judge, it shall
be lawful " for the Governor to
appoint a fit and proper person
to fill "the office of such
Judge until he resumes the
duties thereof .............. "
In pursuance
of these powers the Governor
twice duly appointed Mr Justice
Lane, on the 1st April, 1939,
and on the 1st April, 1940,
respectively, to fill the office
of Chief Justice during the
temporary absence of the
substantive Chief Justice. The
appointments were duly notified
in the Gazettes of the 5th
April, 1939, and 4th April,
1940. All the proceedings in the
Supreme Court took place whilst
one or other of these
appointments was in force. We
are of opinion that the effect
of these appointments was to
confer and impose upon the
Acting Chief Justice all the
powers and duties of the
substantive Chief Justice
including- the powers and duties
conferred and imposed upon the
Chief ,Justice sitting alone by
section 21 of Ordinance No. 24
of 1938.
That disposes
of the first ground of appeal.
the second
point concerned the actual
substance of the charges.
As to this
the appellant appeared before
this Court and very properly
expressed his regret in regard
to the first two. He said: -
" 1 deeply
regret. 1 admit the wrong 1 did
but 1 did not know that " the
charging of a commission in a
contentious matter was improper.
" I know it now and 1 much
regret my action and 1 am
willing to refund " the amount.
1 will refund not only the
commission (£12) but also the
" whole amount £37 15s 2d. 1
thought that 1 should".
He has since
refunded the amount. No more
need he said upon those first
two charges, but upon the third
his counsel has argued that the
proposal made by the appellant
in the letter of the 10th March,
1939, was not of a champertous
agreement at all. 'the relevant
paragraph reads:-
" if in truth
the circumstances of Mr Jones
are so bad my suggt'stiol1 "is
that we accept something between
£15 and £20: so that Wt' first "
deducted your actual out of
pocket expenses and then divide
between us " the balance
whatever that may be in equal
shares".
The
construction which counsel for
the appellant asked this Court
to put upon this paragraph was
the comparatively innocent one
that the appellant was merely'
making a suggestion as to what
his fee should be for his
professional services and how it
should be paid. But this was
obviously not the construction
put upon it by the learned
Acting:, Chief Justice and an
examination of all the
circumstances shows clearly that
it was written in pursuance of a
prior agreement whereby the
appellant and Mr Nicol were to
share equally all the proceeds
of this and other speculative
actions, Mr Nicol providing the
money for the actions and the
appellant doing the work. This
puts a far more serious aspect
upon the appellant's conduct and
we agree with the learned
Acting' Chief Justice that such
an agreement was champertous.
The third point submitted on
behalf of the appellant was that
the extreme penalty of striking
his name off the roll was too
severe. As to this we agree, but
in so agreeing we must not be
taken as holding that the
appellant's conduct can in any
way be condoned or excused. It
was highly reprehensible and
deserves a severe penalty,
though not the extreme penalty.
We vary the
order made by the Acting Chief
Justice and order that in lieu
of the appellant's name being
struck off the roll, the
appellant be suspended from
practising within the
jurisdiction of the Supreme
Court during a period of one
year, such year to run as
follows: -the period between the
date on which the appellant's
name was struck off the roll and
the date upon which the order of
the Acting Chief Justice was
suspended by this Court shall
count towards the year, and
additional time shall start to
run from the date of expiry of
the suspension which the
appellant is now undergoing by
virtue of another order of the
Supreme Court.
There will be
no order as to costs.