Wakilii

Advocate v Advocates Committee (Civil Appeal No. 26 of 1955)

East African Court of Appeal · [1955] EACA 300 · 1955 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from disciplinary proceedings in the Supreme Court of Kenya following a report by the Advocates' Committee under the Advocates Ordinance 1949
Decision
The advocate's admonishment by the Supreme Court was upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that in disciplinary proceedings involving deceit or moral turpitude, the standard of proof approximates to that required in civil fraud cases—higher than the balance of probabilities but not as high as beyond reasonable doubt. The Court's function in reviewing such proceedings is akin to confirmatory or revisional jurisdiction, making it a second appellate tribunal that will only intervene where the lower tribunals have distinctly erred. On the facts, the Court found no such error and upheld the finding that the advocate intended to mislead the court by suppressing disclosure of a prior adverse judgment. The appeal was dismissed.

Outcome

The advocate's admonishment by the Supreme Court was upheld

Facts

An advocate practising in Kenya was the subject of disciplinary proceedings following a report by the Advocates' Committee. The advocate had represented Mrs. Shantaben in deportation proceedings. After an adverse judgment by Cram J. on the merits, the advocate brought a fresh application before Hooper J. seeking similar relief on different procedural grounds. In affidavits and oral submissions before Hooper J., the advocate failed to disclose the full scope and effect of the prior adverse judgment by Cram J., though he made passing references to the existence of that case. The Advocates' Committee found that the advocate intended to deceive and mislead the court. The Supreme Court endorsed this finding, concluding the advocate had committed professional misconduct by deliberately intending to mislead Hooper J., and ordered the advocate to be admonished. The primary facts were agreed; the dispute centred on the inferences to be drawn from those facts.

Issues

  1. What standard of proof is required in disciplinary proceedings against an advocate for professional misconduct involving an element of deceit or moral turpitude?
  2. What is the function of the Court of Appeal in reviewing concurrent findings of fact by the Advocates' Committee and the Supreme Court in disciplinary proceedings?
  3. Whether the advocate committed professional misconduct by intending to mislead a Judge of the Supreme Court through non-disclosure of a prior adverse judgment.
  4. What is the correct method of intituling disciplinary proceedings under the Advocates Ordinance?

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Disciplinary Proceedings — Advocates — Standard of Proof
In proceedings against an advocate for professional misconduct involving an element of deceit or moral turpitude, the standard of proof required approximates to the standard required by a civil court before finding against a party on an issue of fraud. The standard is not as high as that required in a criminal case (beyond reasonable doubt) nor so low as that in a civil case decided on the balance of probabilities.
Disciplinary Proceedings — Advocates — Appellate Review Function
The function of the Supreme Court in disciplinary proceedings under the Advocates Ordinance, upon receiving a report from the Advocates' Committee, is more akin to the exercise of confirmatory or revisional jurisdiction than a trial in first instance. The Court of Appeal's status in reviewing such proceedings is therefore nearer to that of a second appellate tribunal than a first. Before reversing concurrent findings of fact by the Advocates' Committee and the Supreme Court, it must be shown that they have distinctly erred.
Disciplinary Proceedings — Advocates — Nature of Proceedings
Disciplinary proceedings against an advocate under the Advocates Ordinance are not governed by the rules of criminal law, whether or not such proceedings can properly be described as quasi-criminal. The High Court's jurisdiction in such matters is disciplinary, not criminal.
Appellate Review — Concurrent Findings of Fact
An appellate court will very rarely interfere with concurrent findings of fact by two lower tribunals unless such findings are vitiated by some error of law or the tribunals have so distinctly erred as to justify saying that the concurrent findings ought not to stand. This principle applies with particular force where the first tribunal is a specialized body with knowledge and experience peculiarly within the profession concerned.
Disciplinary Proceedings — Intituling of Proceedings
The correct method of intituling disciplinary proceedings under the Advocates Ordinance is a matter requiring consideration. The recognized form in England for appeals from orders of the Disciplinary Committee under the Solicitors Acts does not intitule the appeal as between parties but rather uses the form 'In the matter of C.D., a solicitor, and In the matter of the Solicitors Acts'.

Legislation cited (4)

  • Advocates Ordinance 1949 s.9(3)(iii)
  • Immigration Regulations reg.22(4)(b)
  • Indian Evidence Act s.40
  • Solicitors Acts 1932 to 1941

Cases cited (9)

  • In re A Solicitor [1945] KB 368
  • In re Hardwick A Solicitor (1883-4) 12 LR QB 148
  • Ex parte Renner [1897] AC 218
  • In re Cooke (1888-9) 5 TLR 407
  • Kashyap v R (1944) 25 ILR Lah 408
  • Benmax v Austin Motor Co Ltd [1955] 1 AE 326
  • Owners of P. Caland v. Glamorgan S.S. Co. Ltd.
  • McIntyre Bros. v. McGavin
  • In re a Solicitor (1)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Advocate v Advocates Committee (Civil Appeal No. 26 of 1955) [1955] EACA 300 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.