In The Matter Of Cyril Bunting Rogers Wright, Solicitor And In The Matter Of The Legal Practitioners (Disciplinary Committee) Ordinance, 1938 (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

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 actionsChampertous 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., GOLD COAST, GRAHAM 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 in 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 Rogers 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 Od for his professional services in the said action.
2. That whilst acting as Solicitor as aforesaid, he the said Cyril Bunting Rogers Wiight did improperly deduct and pay to himself the sum of £37 150 2d from the sum of £120 recovered
3. as aforesaid on the allegations that the said sum of £37 150 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 Od for his professional services and in full satisfaction of all claim for remuneration for professional services.
4. i3) 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. Jones 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 Josibiab Nicol aforesaid.
5. 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.
6. 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 :—
7. ” 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.”
8. 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 :—
9. ” Whenever the office of any Judge becomes vacant, by ” death or otherwise, it s4a1.1 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
10. lf
11. ” thereof
12. 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

In the matter of Cyril B. Rogers ‘Fright, Solicitor, at.19

appointments were duly notified in the Gazettes of the 5th April, In the matter

of Cyril

1939, and 4th April, 1940. All the proceedings in the Supreme B_unti_ng

Court took place whilst one or other of these appointments was in Rogers force. We are of opinion that the effect of these appointments was ^Wrig^ht‘

etc

to confer and impose upon the Acting Chief Justice all the powers Solicitor, .

and duties of the substantive Chief Justice including the powers Kingdon, and duties conferred and imposed upon the Chief Justice sitting a Pndtrides alone by section 21 of Ordinance No. 24 of 1938. Graham Paul

C.JJ.

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 :—

” I deeply regret. I admit the wrong I did but I did not know that ” the charging of a commission in a contentious matter was improper. ” I know it now and I much regret my action and I am willing to refund ” the amount. I will refund not only the commission (£12) but also the ” whole amount £37 158 2d. I thought that I should “.

He has since refunded the amount. No more need be 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 iot of a champertous agreement at all. The relevant paragraph reads :—

” If in truth the circumstances of Mr Jones are so bad my suggestion ” is that we accept something between £1.5 and £20: so that we first ” deduct 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 chainpertous. 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 higly reprehensible and deserves a severe penalty, though not the extreme penalty.