Wakilii

Emoru v Attorney General (Constitutional Petition 5 of 1998)

Constitutional Court · [1999] UGCC 3 · 1999 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under article 137 of the Constitution challenging the constitutionality of provisions of the Advocates Act 1970 and Regulations made thereunder.
Decision
Petition dismissed; the challenged provisions of the Advocates Act and Regulations held not inconsistent with the Constitution, allowing the disciplinary proceedings against the advocate to continue.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court dismissed an advocate's petition challenging the Advocates Act 1970 and the Advocates (Disciplinary Committee) (Procedure) Regulations 1974. It held that disciplinary offences under section 73(1) are civil or sui generis, not criminal, so the Disciplinary Committee may try an advocate without prior criminal proceedings; sections 73(2) and 78(2) confer concurrent jurisdiction with the ordinary courts. The impugned provisions embody the features of a fair hearing under article 28, and the Committee's finding of a prima facie case does not destroy its impartiality, just as a trial court's similar finding does not. Section 25(3), limiting appeals to the High Court, is constitutional because appellate jurisdiction is a creature of statute.

Facts

The petitioner, a practising advocate, represented Lira Municipal Council in recovering rates and taxed costs from National Housing and Construction Corporation. After costs were assessed and the corporation appealed and deposited security in the High Court, the petitioner nonetheless initiated garnishee proceedings against the corporation's bank account. The corporation complained to the Disciplinary Committee of the Law Council that the petitioner had misled the court by asserting his client was still owed money. The Committee found a prima facie case and served a charge sheet of four counts: misleading the court, acting fraudulently or improperly, including matters known to be false in an affidavit, and misleading the court by silence. Before the disciplinary hearing commenced, the petitioner filed this constitutional petition challenging provisions of the Advocates Act 1970 and the Disciplinary Committee Procedure Regulations 1974 as inconsistent with the Constitution.

Issues

  1. Whether the disciplinary offences with which the advocate was charged under the Advocates Act are criminal or merely civil 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, by empowering the Disciplinary Committee to act on 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 the Disciplinary Committee, by investigating a complaint, deciding whether a prima facie case exists and then hearing and determining it, loses impartiality in breach of articles 28(1), 42 and 44 of the Constitution.
  4. 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.
  • The impugned provisions of the Advocates Act 1970 and the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 held consistent with the Constitution.
  • Costs of the petition awarded to the respondent.

Key headnotes

Administrative Law — Professional Discipline — Nature of Disciplinary Offences
Disciplinary offences created by section 73(1) of the Advocates Act are civil or sui generis offences for regulating the legal profession, not criminal offences; they are not violations of public law prosecuted at the instance of the state and do not attract the constitutional protections reserved for persons charged with crimes.
Administrative Law — Professional Discipline — Concurrent Jurisdiction with Criminal Courts
Sections 73(2) and 78(2) of the Advocates Act give the Disciplinary Committee jurisdiction over an advocate's misconduct whether or not he has been charged with, convicted of or acquitted of a related criminal offence; a criminal trial need not precede the disciplinary proceedings, the Committee's jurisdiction being concurrent with that of the ordinary courts.
Constitutional Law — Fair Hearing — Disciplinary Tribunals
The procedure prescribed by sections 18 and 19 of the Advocates Act and the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 embodies the essential features of a fair hearing under article 28 of the Constitution, and the exclusion of the Evidence Act by section 18(7) does not by itself amount to a denial of a fair hearing.
Administrative Law — Natural Justice — Bias — Effect of a Prima Facie Finding
A tribunal that finds a prima facie case against a person before hearing the matter does not thereby lose its impartiality, just as a trial court that finds a prima facie case at the close of the prosecution evidence under section 71 of the Trial on Indictment Decree or section 125 of the Magistrates Courts Act does not disqualify itself from continuing with the case.
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 to the highest court; section 25(3) of the Advocates Act, limiting appeals from the Disciplinary Committee to the High Court sitting as a panel of three judges, is consistent with article 50(3) of the Constitution, which entitles an aggrieved person to appeal only to the appropriate court.
Statutory Interpretation — Constitutional Construction — Presumption of Constitutionality
A statutory provision may be declared unconstitutional where its purpose or effect violates a right guaranteed by the Constitution; a petitioner bears the burden of presenting clear and unmistakable evidence of such inconsistency, failing which the presumption of constitutionality prevails.
Administrative Law — Natural Justice — Tribunal as Complainant, Prosecutor and Judge
Where the Law Council is itself the complainant under section 19(1) of the Advocates Act, the Disciplinary Committee—whose members are also members of the Law Council—risks acting as complainant, prosecutor, judge and jury in its own cause; this concern does not arise where, as here, the complaint is brought by an independent third party.

Legislation cited (30)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.28
  • 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
  • Constitution of Uganda 1995 art.104
  • Constitution of Uganda 1995 art.128(2)
  • Constitution of Uganda 1995 art.137
  • Advocates Act 1970 s.15
  • Advocates Act 1970 s.16
  • Advocates Act 1970 s.17
  • Advocates Act 1970 s.18
  • Advocates Act 1970 s.19
  • Advocates Act 1970 s.24
  • Advocates Act 1970 s.25(3)
  • Advocates Act 1970 s.73
  • Advocates Act 1970 s.77
  • Advocates Act 1970 s.78(2)
  • Advocates Act 1970 s.82
  • Advocates (Disciplinary Committee) (Procedure) Regulations 1974 regs 3-7
  • Advocates (Professional Conduct) Regulations 1977 reg.16(1)
  • Penal Code Act s.89A
  • Penal Code Act s.93
  • Penal Code Act s.97
  • Trial on Indictment Decree s.71
  • Magistrates Courts Act s.125
  • Police Statute 1994 s.59

Cases cited (14)

  • Denloye v Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306
  • In re A Solicitor [1960] 3 WLR 738
  • In re a Solicitor [1934] 2 KB 467
  • Leeson v General Council of Medical Education and Registration (1890) 43 Ch D 366
  • The Queen v Gaisford [1892] 1 QB 381
  • Regina v Pembrokeshire Justices, Ex parte Bennell [1959] 1 QB 386
  • Attorney General v Shah (No.4) [1971] EA 50
  • Republic v E.L. Mann [1969] EA 357
  • The Queen v Big M Drug Mart Ltd [1985] 1 SCR 295; (1986) LRC (Const) 332
  • Salvatori Abuki and Anor v Attorney General (Constitutional Case No. 2 of 1997)
  • Hofni Topacho Ongientho and 2 Others v Uganda (Criminal Appeal No. 1 of 1993)
  • Conybeare v The London School Board [1891] 1 QB 118
  • Metropolitan Asylum District v Hill (1881) 6 App Cas 193
  • Viscountess Rhondda's Claim [1922] 2 AC 339
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