THE ATTORNEY GENERAL OF THE GAMBIA V PIERRE SARR N’JIE

POLICY AND PRACTICE LAW REPORTS, 2PLR

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ATTORNEY-GENERAL OF THE GAMBIA

V.

PIERRE SARR N’JIE

PRIVY COUNCIL

3RD DAY OF MAY, 1961

2PLR/1961/3 (CA-E)

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OTHER CITATIONS

2PLR/1961/3 (CA-E)

LEX (1961) – PC 03/05

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BEFORE THEIR LORDSHIPS

LORD RADCLIFFE,

LORD DENNING,

LORD GUEST

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BETWEEN

ATTORNEY-GENERAL OF THE GAMBIA – Appellant 

AND

PIERRE SARR N’JIE – Respondent

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ORIGINATING COURT

THE WEST AFRICAN COURT OF APPEAL

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REPRESENTATION

J. G. LE QUESNE for the appellant.

E. F. N. GRATIAEN Q.C. CEYLON and WALTER JAYAWARDENA for the respondent.

Solicitors: CHARLES RUSSELL AND CO.; A. L. BRYDEN AND WILLIAMS.

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ISSUES FROM THE CAUSE(S) OF ACTION

ETHICS – LEGAL PRACTITIONER: Barrister – Professional misconduct – Disciplinary power of judge to strike name of legal practitioner off the Roll- Exercise by deputy – Whether a judicial power – Gambia.

ETHICS:- Legal practitioner – Professional misconduct – Disciplinary power of judge to suspend or strike off – Supreme Court Ordinance (Laws of the Gambia, 1955, c. 5), s. 7 – Rules of the Supreme Court of the Gambia, 1928, Ord. IX, r. 7.

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PRACTICE AND PROCEDURE ISSUES

APPEAL:- When a person not party to a suit may be allowed to appeal decision arising from that suit – power of the Attorney General thereto

APPEAL:- West Africa – Gambia – Appeal to Privy Council – Competency – Locus standi of Attorney-General – “Person aggrieved” – West African (Appeal to Privy Council) Order in Council, 1949, s. 31.

COURT:- Distinction between administrative and judicial powers of a judge – How conferred – How appealed – Nature of disciplinary proceedings superintended by a judge

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CASE SUMMARY

ORIGINATING FACTS AND CLAIMS

By section 7 of the Supreme Court Ordinance of the Gambia:

“… it shall be lawful for the Governor to appoint a deputy judge to represent the judge of the Supreme Court of the Colony of the Gambia [the Chief Justice] in the exercise of his judicial powers …”;

and by Order IX, r. 7, of the Rules of the Supreme Court of the Gambia:

“The judge shall have power, for reasonable cause, to suspend any barrister or solicitor from practising within the jurisdiction of the court … or order his name to be struck off the Roll of Court.”

The name of the respondent, a member of the English Bar who had been admitted to practice as a barrister and solicitor of the Supreme Court of the Gambia, was, after due inquiry into allegations of professional misconduct by a deputy judge appointed under section 7 of the Supreme Court Ordinance, ordered by him to be struck off the roll of the Supreme Court of the Gambia.

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DECISION APPEALED AGAINST

On his appeal, the West African Court of Appeal set aside the deputy judge’s order on the ground that he had only jurisdiction to represent the Chief Justice “in the exercise of his judicial powers,” and that the power to strike a legal practitioner off the roll was not a judicial power. On appeal by the Attorney-General of the Gambia by special leave:-

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ISSUE FOR DETERMINATION

Whether power to strike a legal practitioner off the roll was not a judicial power.

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DECISION OF THE PRIVY COUNCIL

Held,

(i)      that the power of a judge, sitting as a disciplinary authority, to suspend or strike off a legal practitioner was a judicial power of the judge which it was competent for a deputy judge to exercise.

Order IX, r. 7, was simply a restatement of the inherent power of the judge at common law and was intra vires.

In re Justices of Court of Common Pleas of Antigua (1830) 1 Knapp 267, at 268, P.C.; Har Prasad Singh v. Judges of Allahabad High Court (1931) L.R. 58 I.A. 152 and Macauley v. Judges of the Supreme Court of Sierra Leone [1928] A.C.         344, P.C. considered.

(ii)     further, that the Attorney-General, representing the Crown as guardian of the public interest, was a “person aggrieved” – words of wide import by the decision of the West African Court of Appeal within the meaning of section 31 of the West African (Appeal to Privy Council) Order in Council, 1949, and accordingly had a locus standi to petition for special leave to appeal.

Ex parte Sidebotham (1880) 14 Ch.D. 458, at 465, C.A. and Ex parte Official Receiver, In re Reed, Bowen AND amp; Co. (1887) 19 Q.B.D. 174; 3 T.L.R. 640, C.A. considered.

By section 5 of the West African (Appeal to Privy Council) Order in Council, 1949:

“Applications to the court for leave to appeal shall be made by motion or petition within 21 days from the date of the judgment to be appealed from, and the applicant shall give the opposite party notice of his intended application.”

(iii)    that while a literal construction of section 5 would appear to require that the application itself must be heard within 21 days, all that was intended was that notice should be lodged in the court within 21 days from the date of the judgment appealed from, and a copy served on the opposite party as soon as possible, and in any case within a reasonable time before the date of the hearing.

Judgment of the West African Court of Appeal reversed.

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