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Colonial Cases

Lewis v. Bonyun, 1879

[legal practitioners]

Lewis v. Bonyun

Windward Islands Court of Appeal
Fleming A.C.J., 1879
Source: W.H. Greaves, Report of Judgments of Windward Islands Court of Appeal (Gale, 1905)

 

 

ST. VINCENT, 1879.

LEWIS, Appellant. v. BONYUN, Respondent.

Action for penalty - Construction of penal statutes - Qualifications of legal practitioners - Right of Court to determine who shall practise therein.

   FLEMING, Acting C.J. Barbados.  This is an appeal from a decision of the Chief Justice of this island, who refused a rule nisi for a new trial under the following circumstances.

   A complaint was brought against the present respondent against the present appellant, under section 11 of an Act of this island of 15th October, 1860, for having drawn a deed for reward without being duly qualified.  The Chief Justice gave judgment in favour of the plaintiff.  A rule nisi for a new trial was moved for on the grounds that the judgment was against the weight of evidence and contrary to law, but it was refused.  Hence this appeal.

   The principal point in dispute is whether the present appellant was or was not qualified, under the Act before mentioned, to draw the deed on question.  The Chief Justice held he was not.  In order to decide this point it was necessary to examine the Act No. 168 of 1860, as also certain rule of Court connected with it.  Section 11 of the Act provides as follows:

"If any person shall presume to plead or practise the law in this Island, or give advice in any law affair whatever, or make or draw any deed, will, or other legal instrument for fee or reward until he hath obtained the approbation of the court and hath qualified in the said court by taking the following oath, he shall forfeit the sum of £20 for each offence, one half for the public fees of this island, and the other half to such person as shall inform  and sue for the same, to be recovered by action of debt or assumpsit, &c."

A certificate of having taken the oath referred to is requited to be filed in the secretary's office.

   Was then the appellant qualified under this section to draw the deed in question, which it is not denied he has drawn?  Section 8 of the court Act, No. 168 of 1860, provides as follows:-

"In cases not herein or hereby sufficiently provided for, it shall be in the power of the justices of the court, or the majority of them, whereof the Chief Justice shall be one, to make and establish general rules for guiding the practice of the court, etc. 

   Provided always that, before any such rule shall take affect, the same shall be laid before the Legislature for approval, and if any such rules shall be disallowed by Her Majesty, or by resolution of either branch of the Legislature, the same shall have no force or effect whatsoever.

   Provided always that such resolution, whereby such disallowance by either branch of the Legislature shall be dignified, shall be passed within four months after the same rules shall have been submitted for approval, and, if no such resolution shall be passed within the time aforesaid, the rules so submitted for approval shall take effect from the expiration of such four months, etc.  Provided that until any new rules shall take effect, whereby the present rules of the said court shall be abrogated, the rules now in force shall remain and continue in force until such new rules shall take effect, " etc,.

   Certain rules of court were passed in the year 1860, one of which was as follows:-

"It is ordered that no person be admitted for the time to come to practise as counsel and attorney in the courts of common law held in and for this island and its dependencies without being well-known, and of a fair and irreproachable character, and unless he shall produce authentic certificate of having been entered in one of the Four Inns of Court in the Kingdom of Great Britain, or of the King's Inn in the Kingdom of Ireland, and of having kept twelve Commons there," etc.

   The appellant was not qualified under this rule, but, being desirous of practising the law in this island, applied to the Supreme Court to allow him to do so, notwithstanding the existence of the rule.  On the 6th April 1866 the court, having heard his application, granted the petitioner's prayer, stating that, notwithstanding the above-mentioned rule, it had been the practice, for many years past, to admit persons of unexceptionable character, though not qualified under the rule to practise, and the court ordered that the rule in question be allowed so far as to admit Mr. Lewis as a [practitioner.  On the 5th June 1866 the appellant presented himself before the court, took the necessary oath as a practitioner, returned thanks to the court for having relaxed the rule in his favour, and was congratulated by the court on his admission. A certificate of his having taken the oath was filed in the secretary's office. 

   On the 11th July 1866 the order of the court, or altered rule, was brought before the St. Vincent House of Assembly for confirmation, but was not approved of.  In these facts the counsel for the respondent has argued that the so-called altered rule having been disallowed by the House of Assembly, the appellant had no right to practise, his right to do so having depended upon the decision of the House of Assembly with regard to the alteration of the rule. 

   The appellant, on the other hand, has argued that it was altogether unnecessary to have had the rule in question submitted for the approval of the Legislature.  That the admission of practitioners is an inherent and sole power vested in judicial tribunals, and the mere fact of having made such rules as are mentioned, and of having submitted them to the House of Assembly, cannot deprive the Court of any rights inherent to it, or prejudice a person who in virtue of such rights has been accorded certain privileges.  The case of D'Allain vs. Le Breton, 11 Moore's P.C. 64 was cited to show that the discretionary powers of courts with regard to practitioners will not be interfered with.

   I think there can be no doubt as to the general principle put forward by the appellant, viz: that the question of admitting practitioners is one for the courts themselves to decide.  The Legislature can, by an express Act, of course, deprive them of this right, and the real point at issue seems to be whether the Legislature here has sufficiently deprived the Supreme Court of this island of a right it would otherwise possess, or whether the court has, by any action on its part, done anything sufficient to deprive itself of that right.

   Now if we look at the Act of 1860 we shall find that section 11 expressly relates to the admission of practitioners, making the only necessary preliminary to practise the taking of an oath, and the filing of the oath in the secretary's office.  Here we find a precedent expressly laid down by the legislature, and, notwithstanding any inherent right a court may have to admit practitioners, I am quite prepared to say that in presence of this requirement the court could not say "We will receive so and so to practise without his taking any oath."  This would be contrary to the express law and beyond the power of the court's authority.  But it is another question whether, having arranged on certain rules bearing more or less on this section of the Act, such are rules which necessarily come within the meaning of section 8, and which under that section requires the sanction of the Legislature.  I do not think they are.

   What rule does section 8 really refer to?  It refers, in the words of the section, to general rules for guiding the practice of the Court in cases not herein or hereby sufficiently provided for.  Now the admission of practitioners is a case herein, i.e., in the Act provided for, viz: by section 11, and is not therefore, in my opinion, a case which really required any rules under section 8 to be submitted to the Legislature.  It may indeed be questionable whether section 11 of the Act, which defined certain things only to be necessary previous to a person practising, would not have repealed by implication any previous rules on the subject which required more, supposing them to have had any legislative force as regards practitioners. It has been remarked, and very correctly so, that the penalty of £20 can only be recovered for breach of section 11 of the Act.  What does this section after all require?  It requires, in the first place, the approbation of the courtly.  Can it be said that in this instanced the court's approbation was not given?  The appellant petitioned the court to be received, the court grants his petition, he thanks the court for admitting him, and the court then congratulates him.  It seems to me if this is not approbation it is difficult to understand what is.

   In the second place this section requires a person before practising to qualify himself - how? by taking a certain oath, and having the same filed in the secretary's office.  This was done.  The appellant, therefore, obtained, in my opinion, the approbation of the court.  There is no doubt that he took the oath, and that such was duly filed.

   I am therefore of opinion that he could only have incurred the penalty under section 11 of the Act for having failed to observe one or the other of its requirements.  This he did not do, and I cannot see how the passing of a rule of the court, and the subsequent submission of it to the legislature, which seems to me to have been in this particular matter unnecessary, can affect a person so as to make him liable to penalties specifically provided in a penal section of a stature for the non-observance of other things.  But if it is necessary, as contended by the respondent, that no one could, previous to 1868, practise the law, notwithstanding the permission of the court, without the sanction of the legislature, it is difficult to see how, for example, the counsel for the respondent himself is duly qualified.  He, and several others, is is admitted, have been allowed to practise, without ever having troubled the legislature for permission.  It was argued that they do so in virtue of certain rules of court, passed in 1868, which do not, as did the rules of n1860, require to be submitted to the Legislature. 

   I must say I cannot see any reason why, if the rules of 1860 require, as regards this matter, the sanction of the legislature, the rules of 1868 do not equally do so.  The preamble, as it were, of the rules of 1868 is as follows:

"Whereas by the Court Act, 1860, and by the Common Law Procedure Act, 1865, it is provided that in cases not sufficiently provided for by the said acts, it should be in the power of the justices of the court or the majority of them, to make and establish general rues for guiding the practice and pleadings of the court.  It is ordered, &c."

These rules, therefore, are made in virtue of the Acts of 1860 and 1865, and, if the Act of 1860 required any rule relating to practitioners to be submitted to the legislature, no less so does section 117 of the Common Law Procedure Act of 1865.

   It is not necessary for me to enter into the 7th ground of the appellant's reasons of appeal.  I need only say that, where it is intended to set up a special defence, all that is required, under section 121 of the Act of 1860, which is very similar to the section 76 of the English County Court Act 9 and 10 Vic. c.95, is that notice thereof shall be given,  The object, undoubtedly, of the above sections is to avoid the technicalities of pleading, and of the provisions of section 121 of the Act if 1860 had been, in this instance, complied with instead of putting in a formal plea the difficulty with regard to the replication would not have arisen.  There is no doubt that, under section 119 oven the Act of 1860, the evidence should be confined to the demand or cause of action as stated in the summons; but, on the other hand, the very object of obliging a defendant to give notice of special defence must be to allow the plaintiff at the time of hearing of the case, to meet that defence, and, to such extent, to offer evidence which in the absence of such notice, he might have been required to offer.

   The appeal in this case is from the refusal of the Chief Justice to grant a rule nisi for a new trial.

   I am of opinion that the rule nisi should have been granted, and that, therefore, this appeal be allowed with costs.

   GRESHAM. C.J. Grenada.

   This was an action brought by the respondent against the appellant in the Supreme

Court of Judicature (Summary Jurisdiction) for penalties under the 11th section

of the Courts Act, 1860.  That section enacts that

"if any person should presume to plead or practise the law in this island, or

give advice in any law affair whatever, or make or draw any deed, will, or

other legal instrument for fee or reward until he hath obtained the approbation

of the court, and hath qualified himself in the said court by taking the

following oath, he shall forfeit the sum of £20 for each offence, &c."

   The section concludes by enacting that a "certificate of the taking such oath must be filed in

the secretary's office before any person shall be reckoned or esteemed qualified," &c. No

 penalty appears to be imposed for not complying with this portion of the section although

 the plaintiff in the court below has included it in his complaint.

   The defendant pleads what he calls a special defence, but which in effect amounts to no mire than the general issue.  The plaintiff filed a replication seeking to bring the effect of the 8th section of the Court Act to support his complaint.  It is clear that no such replication is allowable under the Court Act.  However, no application was made by the defendant to the court below to strike it out, and it remains upon the record.  It may, however, be treated as a nullity, and no notice of it, as a replication, need be taken by this court.

    The trial came on in due course, and a verdict was found for the plaintiff, whereupon the defendant applied for a rule nisi for a new trial, which was refused by the court below, upon which the defendant brought this present appeal.

   It is a well established rule of our courts of law that penal statutes must be construed strictly, and that nothing out of the section imposing the penalty can be available for supplementing it.  It was in evidence that the defendant had actually obtained the approbation of the court, and had  qualified himself in the said court by taking the said oath, and, if it were necessary in order to avoid the penalty, had filed, in the secretary's office, a certificate of the taking such oath.  It is clear so far that the defendant had complied with the requirements of the 11th section, and, therefore, had not rendered himself liable to the penalty imposed by that section.  The plaintiff relied upon the effect of the 8th section, and, altho' it could not be made available by way of replication, it was competent for him to argue that if his construction of it was correct, the non-compliance with the terms of the 8th section rendered of none effect what the plaintiff had done under the provisions of the 11th section.

   By the 8th section it is provided that the court may make and establish general rules for guiding the practice of the court and to approve or direct the forms of process issuing out of the said court, &c.  It is further provided that, before any such rules shall take effect, the same shall be laid before the Legislature for approval, and that, is disallowed by Her Majesty, or by resolution of either branch of the legislature, the same shall have no force or effect whatsoever; which disallowance by either branch of the Legislature shall be signified within 4 months.

   The court submitted the suspension of the 1st rue of court regulating the admission of practitioners to practise in the court, to the Legislature, and, without waiting the expiration of 4 months, as required above, admitted the defendant: who complied with the requirements of the 14th section.  Within the 4 months the Legislative Assembly disallowed the suspension of the 1st rule.

   The plaintiff contends that the defendant was not, in consequence of this disallowance, properly, or at all, a legally qualified practitioner of the court, and had incurred the penalty for which he was then sued.  Assuming that the contention of the plaintiff as to the inability of the defendant to practise in the court, is correct, it does not necessarily follow that he has incurred the penalties under the 11th section, and I am of opinion that he has not.

   Upon a consideration of the wording of the 8th section of the Court Act, I am of opinion that the general rule No. 1 for regulating the admission of practitioners in the Supreme Court is not included in its operation, and that it was not necessary for such rule to be submitted to the legislature.  Rule No. 1 is not a rule for guiding the practice of the court, nor one for approving or directing the forms of process issuing out of the court, &c.  The section itself evidently contemplates and provides for these two purposes only, by expressly stating, at the commencement "In cases not herein or hereby sufficiently provided for &c."

   I am, therefore, of opinion, upon the whole case, that the defendant is, to all intents and purposes, a legally qualified practitioner of the courts of the island of St, Vincent, and has not rendered himself liable for the penalties under the 11th section of the Court Act, 1860.

   This is an appeal against a refusal of a rule nisi for a new trial.  Had that rule been framed as as to have included, in the alternative "or to set aside the verdict for the plaintiff and enter one for the defendant," this court could have dealt finally with the case, all the facts and merits being fully laid before the court.  As it is, all this court can do is to say that the appeal be allowed, and that a rule nisi for a new trial be granted, and that with costs.

ARMSTRONG, C.J., St. Lucia.

This is an appeal in an action instituted by the respondent, as a public informer, in the Supreme Court (Summary Jurisdiction) against appellant, who is charged with having drawn a deed for fee and reward, and having thereby incurred a penalty of £20 under section 11 of the Court Act, 1860.

   The plaintiff alleged, by his statement or plaint:

1st. That appellant Lewis for a reward of thirty shillings drew an indenture or mortgage on a piece of land in Kingstown.

2nd. that he had not obtained the approbation of the court.

3rd. That he had not qualified himself in the court by taking the required oath.

4th. that he had not filed a certificate that he had taken such oath, and that by reason of the premises he, Lewis, had incurred a penalty of twenty pounds.

   Had these allegations been proved, the appellant would have been liable to the penalty.  He would have violated clause 11 of the Court Act, 1860, the only clause which fixes the penalty.  Clause 11, being a penal clause, must be construed strictly.

"A penal law," says Dwarris, "shall not be extended by construction.  The law of England does not allow of constructive offences, or arbitrary punishments.  No man incurs a penalty unless the act which subjects him to it is clearly both within the spirit of the statute and the letter of the statute imposing such penalty."

   "If these rules are violated," said BEST C.J. , in the case of Fletcher v. Lord Sondes, 3 Bing. 580, "the fate of accused persons is decided by the arbitrary decisions of Judges, and not by express authority of the law."

   I find that the appellant in this case was admitted an attorney of the Supreme Court of this Colony, that he did qualify himself by taking the oath of office, and that a certificate of his having taken the oath was duly filed in the secretary's office.  Having  done all that the law required, this appellant, according to the very letter of the Act, could make or draw and deed for fee or reward.  The pretention of the respondent that the power given to the court by the 8th section of the Act of 1860, to make rules for guiding the practice of the court, subject to their being laid before the legislature, necessarily excludes the right of the court to appoint an attorney an officer of the court, cannot be sustained.  The Judges in almost all, if not in all, the colonies have the power given them to make rules of practice, subject, in some cases, to their disallowance by the Governor in Council, in others by the Legislature.  The rules made by the Judges in England cannot be laid before Parliament.  No one in England has imagined that the power to make rules for the guidance of the court deprived the Inns of Court of their right to admit solicitors.

    It appears that the appellant was admitted a barrister and attorney of the Supreme Court by the judges on the 26th April v1860.  The Court, after admitting the appellant, ordered that the rule should be forwarded to the Governor to be laid before the Legislature.  The written rule of the 26th April, a copy of which was submitted to the Legislature, contains no reference to the legislature.  It is signed by only two judges.  The House of Assembly acted upon it as if it was sufficient, and, as far as it could express an opinion, objected to the admission of appellant.  The Court, without waiting the action of either branch of the legislature, on the 5th June 1866 ordered that the rule should be published.  Mr. Lewis took the oath of office, and the Chief Justice and Assistant Justices offered their congratulations to Mr. Lewis.  There cannot be stronger evidence of the opinion of the whole court, and that it was perfectly aware of the inherent right it enjoyed and of its determination to enjoy them.

   I am of opinion that the judgment appealed from should be reversed, and the present appeal maintained with costs in favour of the appellant.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School