(COURT OF APPEAL)

MOHAMED ABDALLA EL MISHAWI v. THE BAR ADMISSION

COMMITTEE

AC-REV-381-1968.

Principles

  Jurisdiction—Competence of High Court to entertain an application for an action for declaration Judgment—Declaratory judgment—Application for a correct interpretation of the law must be entertained

  Advocate—Whether Bar Admission Committee may refuse to entertain an application against cancellation of licence of an advocate disbarred by a Court of Discipline— Advocates Ordinance, 1935, S. 7

A Court of Discipline duly convened under the Advocates Ordinance, 1935, convicted applicant and consequently cancelled his licence to practise and ordered his name to be struck off the Roll of Advocates. Applicant submitted an application under the Advocates Ordinance 1935, S. 7, and requested his name to be re-entered in the Roll. The application was rejected. Applicant then applied to the High Court asking for a declaration interpreting the relevant parts of the Advocates Ordinance s.1935, 7. The High Court dismissed the application on the ground that the decision of the Bar Admission Committee was a purely administrative act, and asserted that it could not interfere in its supervisory capacity not even through the action for declaration as long as the administrative tribunal was acting in a purely administrative capacity on application to the Court of Appeal.
Held: (i) The court below went wrong when it decided that it has no jurisdiction to entertain an application for an action for a declaration. Even if the act is purely administrative the action for a declaration will be available to throw light on the rights and duties of the wronged citizens.

(ii) The Bar Admission Committee is under a duty to entertain the application of an applicant to be enrolled and that his previous disbarment does not disqualify him per se from having his name restored as a new applicant

Judgment

Mohamed Yousif Mudawi J. March 9, 1969 :—Appellant, Mohamed Abdalla El Mishawi, is a trained lawyer who until July 12, 1965, had been earning his living as a practising member of the Sudan Bar. However, for some reason or other before July, 1965, he got into trouble in connection with his profession. A Court of Discipline was duly convened under the Advocates Ordinance 1935. The court convicted him on July 12, 1965, and consequanntly cancelled his licence to practise and ordered that his name be struck off the Roll of Advocates.

About a year or so later appellant made an application to the Committee (popularly known as the Bar Admission Committee) and requested them to re-enter his name in the Roll of Advocates under the Advocates Ordinance, s. 7. The Committee on November 11,, 1967 informed appellant that the Advocates Ordinance did not provide for an appeal against or cancellation of the order of the Court of Discipline that disbarred him and, therefore, the appellant’s “difficulties cannot be cured.” The

application was therefore rejected.

   Appellant quite understandably did not let the matter rest there. He went to the High Court on November 19, 1967, and stated that the Bar Admission Committee had jurisdiction to entertain his application to have his name entered into the Roll of Advocates under the Advocates Ordinance, s. 7, and that their decision not to consider his application was a wrong interpretation of the law. He therefore requested the court to make a declaration interpreting the relevant part of the Advocates Ordinance, i.e. section 7.

On July 27, 1968, the High Court dismissed the application on the ground that the decision of the Bar Admission Committee was neither judicial nor quasi-judicial. It was a purely administrative act. The High Court in characterising the act of the Committee as administrative relied wholly on Lord Herschell’s observation in a similar case that justices of the peace in deciding whether to grant liquor licences were not acting judicially because there was no us inter partes before them, that is, there was no dispute between two parties. Abdel Mageed Hassan J. asserted that the court could not interfere in its supervisory capacity as the administrative tribunal was acting in a purely administrative capacity.

Applicant was naturally not satisfied. He brought the matter to the Court of Appeal and asked for a revision of the High Court’s decision.

Applicant made it quite clear before this court that he was not challenging the correctness of the decision of the Court of Discipline. He told us he was only interested to know whether according to the Advocates Ordinance he was entitled to have his application to be reinstated in the Roll of Advocates entertained by the Bar Admission Committee. I must at the beginning of the discussion of this case clarify the legal

position of the Bar Admission Committee, its structure and functions. This committee is undoubtedly a statutory creature created by the Advocates Ordinance with specific functions laid down in the said Ordinance. The most important among these functions is the duty to entertain applications to be granted licences to practise by men trained in the law. The amended section 7 of the Advocates Ordinance, specifies the conditions with reference to which the decision to grant or to withhold the grant of a licence must be made. The section reads as follows:

"7.(1)The Committee in respect of Civil law and the Grand Kadi in respect of Islamic law shall, subject to a maximum period of twelve months’ practice with an advocate who has been in practice for five years or more issue a licence to practice to any Sudanese who applied for either licence if he:

a. possesses adequate academic legal qualifications; and

b. is of good character.

(2)  In the case of an applicant who is not a Sudanese the Committee or the Grand Kadi, as the case may be, shall be competent to issue a licence provided that the applicant satisfies the conditions and possesses the qualifications prescribed by them respectively.”

Another function of the Committee is its power to appoint Courts of Discipline to punish members of the Bar who offend against the ethics of the profession as by law established.

Although I have great misgivings as to the accuracy of the High Court’s opinion about the definition of a judicial function and its views about the test of Jig inter partes as expounded by Lord Herschell, I think I am in a position to avoid—in this case at least—the unpleasant task of meddling in time-honoured controversy over what is meant by acting judicially, quasi-judicially or purely administratively. The characterisation of the functions of the Bar Admission Committee might have been important had the appellant brought his action under the orders in forms of writs of certiorari, mandamus, etc. In this case I would have resigned myself submissively to this task for these writs do not come into play unless the court is satisfied that the act complained of is judicial or quasi- judicial. In purely administrative acts the court is not permitted to tread through prerogative writs.

But in this case the appellant, I think wisely and shrewdly, avoided the prerogative writs and resorted to the modern and all-embracing action for declaration. The action for declaration is very liberal and uninhibited. It is not hedged with the burdens and conditions that surround prerogative writs. It does not quash. It does not cancel. It does not order. It only declares rights and duties and shows what the law with regard to a particular point really is.

For this reason it has of late been used quite frequently by men who shy away from the acrimonious atmosphere of formal litigation and who want in a friendly manner to know what their legal rights and duties are. Applicants for this action need not prove that the act complained of is judicial or quasi-judicial. Even if the act is purely administrative the action for a declaration will be available to throw light on the rights and duties of the wronged citizens.

Lord Justice Denning, the chief architect of the modern development of the concept of the action for declaration in his book Freedom under the Law on page 126 made the following statement:

“Just as the pick and shovel are no longer suitable for the winning of coal so also the procedures of mandamus, certiorari and actions on the case are not suitable for the winning of freedom in the new age. they must be replaced by new and up-to-date machinery; by declarations, injunctions and actions for negligence.”

In the case of Pyx Granite Co. Ltd v. Ministry of Housing and Local Government (1958) 1 Q.B. 554 Lord Denning also stated:

“It is one of the defects of certiorari that it so often involves an inquiry into the distinction between judicial acts and administrative acts which no one has been able satisfactorily to define. No such difficulty arises with the remedy by declaration which is wide enough to meet this deficiency. It applies to administrative acts as well as to judicial acts whenever their validity is challenged because of a denial of justice or for other good reasons.”

Professor Sir Carleton Kemp Allen in his classic work Law in the Making, p. 561 observes:

“Declaration or Declaratory judgment is a very elastic remedy to define the rights of parties even though the dispute between them has not reached an actual joinder of issue. It is equitable in origin, is essentially discretionary and is available to any person who can show that he has a particular interest in the subject-matter under dispute, it can apply equally to quasi-judicial and to administrative procedures and is available against individuals, corporations, public authorities, tribunals, ‘including domestic tribunals.’”

I had to quote these lengthy statements by various legal authorities to bring home the elasticity and the wide area covered by the action for declaration.

These quotations prove beyond any doubt that this action is a comfortable umbrella that protects the citizens from any encroachment made by the modern state on the rights of the individual. The functions of the modern state have grown so enormously that for better or for worse it

is enabled by legislation to interfere with the daily life of the citizen. Unless some strict control is exercised to restrict the activities of this modern ‘Genghis Khan” the citizens of the modern states will be reduced to a state of mass slavery. One of the modern protectors of the citizen is the action for declaration.

In view of the above, I am of opinion that the court below went wrong when it decided that it had no jurisdiction to entertain an application for an action for a declaration. All the authorities go against this decision. The High Court is certainly competent in this case to entertain the appli cation and declare the law. The application of the appellant is very simple. He claims that the Bar Admission Committee failed to exercise a duty imposed upon it by law: a duty to entertain his application to have his name entered into the Roll of Advocates in accordance with qualifications and conditions imposed by the Advocates Ordinance s.1935, 7. He therefore, requests the court to clarify the position and declare the law on the point.

In the opinion of this court the Bar Admission Committee is legally bound in accordance with the Advocates Ordinance 1935, S. 7 to entertain an application to practise as an advocate made to it by a Sudanese who possesses adequate academic and legal qualifications and is of good character provided that he had for a maximum period of twelve months been training with an advocate of five years’ standing. The Bar Admission Committee is bound by law to entertain such an application. But if the Committee after considering the application rejects it on the ground that the conditions laid down by section 7 were not satisfied, then if it follows the rules of natural justice and does not commit a mistake of law on the face of the record, its decision is incapable of being impeached.

In this case Mishawi applied to the Committee to have himself enrolled. The Committee said it cannot review the decision of the Court of Discipline that disbarred him. But Mishawi is not challenging the decision of the court of Discipline. He is only making an application like any new applicant. Surely the Advocates Ordinance, s. 7 does not make a previous disbarment a disqualification for entertaining an application to be re admitted. Disbarment may be evidence to negative good character which is a condition of admission. But it is not per se an impediment. Again it is the opinion of this court that the Advocates Ordinance, s. 15 does not contemplate disbarment for life. It says:

“A Court of Discipline ... may.. . admonish an advocate or suspend him for a period not exceeding three months or cancel the licence to practise of any advocate and order his name to be struck off the Roll of Advocates.”

The last type of punishment i.e. the cancellation of the licence should not be construed as a cancellation for life. It is not. If the legislature intended it to be for life it ought to have expressly said so. The legislature definitely does not or should not intend to deprive a man of his right to practise his profession for life. The legislature is not so cruel and oppressive as to make such a cruel and oppressive legislation. The right of a citizen to practise his profession is as sacred as his right to life, liberty and property. He cannot be deprived of it for life by a side wind or by implication. Of course the legislature can deprive all citizens of all their rights. But if it intended to do so it must make its intention clear and by express and specific words. In this case, I see no such clear or express or specific words. This being the case, I am of opinion that there is no law to bar the Committee from entertaining the application to be enrolled by a disbarred advocate even if that application was made one day after the disbarment. But of course the committee is perfectly entitled to reject the application and to say to the advocate “You are not fit. You are not of good character. You committed such and such an act and you were disbarred yesterday.”

But if the advocate applies two or three years later, for example, the Committee may say to him “you were disbarred some years ago. We are of opinion that you are now reformed. The sins for which you were disbarred were purged. So we are going to enter your name in the Roll.”

It all depends of course on the absolute discretion of the Committee to conclude whether the applicant was reformed or not.

In view of the above, it is declared that the Committee is under a duty to entertain the application of appellant to be enrolled and that his previous disbarment does not disqualify him per se from having his name restored as a new applicant. But the committee has a discretion to conclude either that the sins for which he was punished were purged and he became of good character and so enters his name in the Roll or that he still needs more time to reform his character and prove his worth, before his name is reinstated.

Galal Ali Lutfi 1. March 9, 1969 :—I agree with the conclusion arrived by my learned colleague Mudawi J.

Salah Eddin Hassan J. March 9, 1969 :—I entirely agree with the able judgment of my learned colleague and I would like to say the following. The matter of this application is a very delicate point which needs careful consideration. The grievance of applicant could be sum marised as follows. A Court of Discipline duly convened under the Advocates Ordinance 1935, convicted him on July 12, 1965, and con-

 sequently cancelled his licence to practise and struck his name off the Roll of the Advocates.

Approximately one year later applicant submitted an application under the Advocates Ordinance, s. 7, to the Bar Admission Committee and requested them to consider his application with a view to re-enter his name in the Roll of Advocates—On November 11, 1967, the Bar Admission Committee informed applicant that they cannot consider his application so long as he was disbarred by a Board of Discipline convened under the Advocates Ordinance, 1935. In other plain words they meant to say that an order of disbarment by a Board of Discipline convened under the Advocates Ordinance is disbarment for life and the disbarred is disqualified from making any further application for ever. Against this interpretation of the law adopted by the Bar Admission Committee applicant submitted his application to the High Court maintaining that this interpretation was erroneous and asking for a declaration as to the correct interpretation of the law. The High Court rejected the application, whence this appeal. The High Court relied on the assumption that the Bar Admission Committee is neither a judicial nor a quasi-judicial body but purely administrative and as such the High Court has no jurisdiction to entertain any application against its decisions.

There is no need to repeat the meaningful arguments propounded by my learned colleague, the President of this court, and I will just suffice myself by saying that applicant did not apply for revising the decision of the Bar Admission Committee but only sought a correct interpretation of the law. No doubt there is nothing in the Advocates Ordinance I935 which lays down that disbarment by a Board of Discipline is disbarment for life. Moreover, there is nothing in the Advocates Ordinance which indicates whether expressly or by implication that an Advocate who has been disbarred and struck off the Roll is disqualified from making any application under the Advocates Ordinance, s. 7, throughout his life.

According to this section any person who

(a) Possesses adequate academic and legal qualifications; and

(b) Possesses adequate practical experience; and

(c) Is of good character

is entitled to apply to the Bar Admission Committee for a licence to practise and the Committee is bound to consider the application with a view to satisfying itself as to these requisites and then decide. Once a decision is taken, I doubt very much whether the High Court or any other court has jurisdiction to revise it. This has not been done due to an erroneous interpretation of the law. The High Court can no doubt issue a declaration as to the correct interpretation of the law and is not fettered by the fact that the wrong interpretation was made by a purely administrative body.