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L'Okucha Emoru v Attorney General (Constitutional Petition 5 of 98)

Constitutional Court · [1999] UGCC 2 · 1999 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under article 137 challenging the constitutionality of provisions of the Advocates Act 1970 and the Advocates (Disciplinary Committee) (Procedure) Regulations 1974
Decision
Petition dismissed; the impugned provisions of the Advocates Act 1970 and the Regulations made thereunder held consistent with the Constitution

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Holding

The Constitutional Court dismissed the petition, holding that offences under the Advocates Act are civil disciplinary offences, not criminal offences, so the fair-trial guarantees attaching to criminal charges did not bar the Law Council's Disciplinary Committee from determining them. The Committee enjoys concurrent jurisdiction with the criminal courts and need not await a prior criminal conviction. A finding of a prima facie case, made after the advocate has answered, does not destroy the Committee's impartiality, and excluding the Evidence Act does not deny a fair hearing. Appellate jurisdiction being a creature of statute, limiting appeals to the High Court is constitutional. The impugned provisions were held consistent with the Constitution.

Facts

The petitioner, a practising advocate, represented Lira Municipal Council in proceedings against National Housing and Construction Corporation. After the Corporation appealed a costs assessment and deposited security, the petitioner nonetheless initiated garnishee proceedings to attach the Corporation's bank account, alleging non-payment. The Corporation complained to the Disciplinary Committee of the Law Council that the petitioner had deliberately misled the court. The Committee notified the petitioner, received his answers, and found a prima facie case, summoning him on four counts: misleading court, acting fraudulently or improperly, including false matter in an affidavit, and misleading court by silence. Before the disciplinary hearing commenced, the petitioner filed this constitutional petition challenging the Advocates Act provisions and Regulations that empowered the Committee to try him, contending the charges were criminal in nature and could not be heard by the Committee before an ordinary criminal court determined his liability.

Issues

  1. Whether the offences charged against the petitioner under the Advocates Act are criminal offences or civil/disciplinary offences.
  2. Whether sections 18, 19 and 73(2) of the Advocates Act, and regulations 3-7 of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974, empowering the Disciplinary Committee to hear and determine complaints amounting to criminal charges before criminal liability is determined by an ordinary court, are inconsistent with articles 28, 42, 43, 44 and 128(2) of the Constitution.
  3. Whether sections 18 and 19 of the Advocates Act, by permitting the same Committee to receive the complaint, decide on a prima facie case, and hear and determine the complaint, deprive the advocate of an impartial tribunal contrary to articles 28(1), 43 and 44 of the Constitution.
  4. Whether the exclusion of the Evidence Act from proceedings before the Disciplinary Committee under section 18(7) denies the advocate a fair hearing.
  5. Whether section 25(3) of the Advocates Act, limiting appeals from the Disciplinary Committee to the High Court, is inconsistent with articles 40(2), 42, 43, 50(1), 50(3) and 21 of the Constitution.

Orders

  • Petition dismissed.
  • Costs awarded to the respondent.

Key headnotes

Constitutional Law — Fair Hearing — Distinction Between Criminal Offences and Professional Disciplinary Offences
Disciplinary offences created under the Advocates Act are civil, sui generis offences and not criminal offences, so the constitutional guarantees attaching to a person charged with a criminal offence do not bar their determination by the Disciplinary Committee.
Administrative Law — Professional Discipline — Concurrent Jurisdiction of Disciplinary Tribunal and Criminal Courts
The Disciplinary Committee has concurrent jurisdiction with the ordinary criminal courts over offences under the Advocates Act, and an advocate may be proceeded against before the Committee whether or not he has been charged with, convicted of, or acquitted of any related criminal offence.
Constitutional Law — Natural Justice — Impartiality — Effect of a Prima Facie Finding
A tribunal that finds a complaint discloses a prima facie case, after the affected party has been given an opportunity to answer, does not thereby become partial, just as a trial court that finds a prima facie case at the close of the prosecution case is not disqualified from continuing the trial.
Constitutional Law — Fair Hearing — Exclusion of the Evidence Act From a Domestic Tribunal
The exclusion of the Evidence Act from proceedings before a domestic disciplinary tribunal does not deny a fair hearing, since application of the Evidence Act is not itself a guarantee of a fair trial and its relaxation facilitates the conduct of an inquiry.
Constitutional Law — Right of Appeal — Appellate Jurisdiction as a Creature of Statute
Appellate jurisdiction is a creature of statute and there is no inherent right of appeal; a statutory provision limiting appeals from the Disciplinary Committee to the High Court is not inconsistent with the Constitution, as article 50(3) requires only an appeal to the appropriate court, not the highest court in the land.
Statutory Interpretation — Constitutional Construction — Purpose and Effect Test
The rules of statutory interpretation apply to constitutional construction, and a statutory provision may be declared unconstitutional where its purpose or effect violates a right guaranteed by an article of the Constitution.

Legislation cited (37)

  • Advocates Act 1970 s.15
  • Advocates Act 1970 s.16
  • Advocates Act 1970 s.17
  • Advocates Act 1970 s.18
  • Advocates Act 1970 s.18(2)
  • Advocates Act 1970 s.18(3)
  • Advocates Act 1970 s.18(7)
  • Advocates Act 1970 s.19
  • Advocates Act 1970 s.19(2)
  • Advocates Act 1970 s.19(3)
  • Advocates Act 1970 s.19(4)
  • Advocates Act 1970 s.25(3)
  • Advocates Act 1970 s.73(1)
  • Advocates Act 1970 s.73(2)
  • Advocates Act 1970 s.78(2)
  • Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (SI 79 of 1974) regs 3, 4, 5, 6 and 7
  • Advocates (Professional Conduct) Regulations 1977 reg 16(1)
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.28(3)(a)
  • Constitution of Uganda 1995 art.28(12)
  • Constitution of Uganda 1995 art.40(2)
  • Constitution of Uganda 1995 art.42
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.50(1)
  • Constitution of Uganda 1995 art.50(3)
  • Constitution of Uganda 1995 art.128(2)
  • Constitution of Uganda 1995 art.137
  • Penal Code Act s.89A
  • Penal Code Act s.93
  • Penal Code Act s.97
  • Trial on Indictment Decree s.71
  • Magistrates Courts Act 1970 s.125
  • Evidence Act

Cases cited (14)

  • In re A Solicitor [1960] 3 WLR 738
  • Denloye v Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306
  • The Queen v Gaisford [1892] 1 QB 381
  • Leeson v General Council of Medical Education and Registration (1890) 43 Ch D 366
  • Regina v Pembrokeshire Justices, Ex parte Bennell [1959] 1 QB 386
  • In re a Solicitor [1934] 2 KB 467
  • Republic v E.L. Mann [1969] EA 359
  • The Queen v Big M Drug Mart Ltd [1986] LRC (Const) 332
  • Salvatori Abuki and Another v Attorney General (Constitutional Case No. 2 of 1997)
  • Attorney General v Shah [1971] EA 50
  • Conybeare v The London School Board [1891] 1 QB 118
  • Hofni Topacho Ongientho and Others v Uganda (Criminal Appeal No. 1 of 1993)
  • Metropolitan Asylum District v Hill (1881) 6 App Cas 193
  • Viscountess Rhondda's Claim (1922) AC
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