WICKRAMARATNE v. CHANDRADEVA

021-SLLR-SLLR-1997-2-WICKRAMARATNE-v.-CHANDRADEVA.pdf


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WICKRAMARATNE
v.
CHANDRADEVA
SUPREME COURT.
FERNANDO. J.,
DHEERARATNE, J. ANDWIJETUNGE, J.
S.C. RULE 2/93 D.
FEBRUARY 5 AND 28.1996.
Judicature Act. No. 2 of 1978, section 42(2) – Supreme Court Rules -Respondent has ceased to be an Attorney-at-Law – Jurisdiction of the SupremeCourt to hold an inquiry – Notaries Ordinance, section 31(26) (a) – Transmissionof duplicates of deeds to Registrar of Lands – Deceitful conduct – Rule absolute -Struck off the Roll proforma.
One W complained to the Bar Association (BASL) on 30.08.91 that he entrustedthe execution of a Deed of Partition to the Respondent C on 16.3.91 and paidRs. 2000/-. It was after much delay and inconvenience that he was able to obtainthe original from C. He applied to the Land Registry for a certified copy for thepurpose of obtaining a Bank loan and was informed on 30.2.91 that the Duplicatehad not been sent to the Land Registry.
BASL fixed the matter for inquiry on 20.6.92, C by letter of 18.6.92 informed theBASL that the Deed had been misplaced and had recently been tendered to theLand Registry. W then made a further application to the Land Registry for acertified copy and was informed on 28.8.92 that the Land Registry had notreceived the duplicate copy of the Deed.
The BASL in its report to the Supreme Court stated that the Respondent hadcommitted acts of deceit and malpractice.
At the Rule inquiry a preliminary objection was taken, that the Court had nojurisdiction to proceed as the respondent had already been removed from theoffice of Attorney-at-Law in S.C. Rule 1/93 on 23.11.94.
Held:
Section 40(1) of the Judicature Act empowers the Supreme Court inaccordance with rules for the time being in force to admit and enroll as Attorney-at-Law persons of good repute and of competent knowledge and ability. Undersection 42(2) Court can suspend such a person from practice or remove him fromoffice where such person has been found guilty of any deceit, malpractice, crime
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or offence. In the present case it became necessary to take proceedings againstthis Attorney-at-Law in respect of several complaints of deceit, malpractice, crimeand offence committed as an Attorney-at-Law. The jurisdiction of the Court in thatregard is referable to section 40(1) under which the Court admits and enrolls aperson as an Attorney-at-Law. Irrespective of the result of each such inquiry, theCourt’s power to inquire into and determine every such matter continuesunabated by reason of the Court having admitted and enrolled such person as anAttorney-at-Law, who at the time of admission was considered by the Court interalia to be a person of good repute and the conduct being investigated by theCourt is qua Attorney-at-Law.
In the matter of readmission, a practitioner’s conduct as an Attorney-at-Lawwhich resulted in removal from the Roll is of absolute relevance. No doubt anAttorney-at-Law already removed from the Roll cannot be removed from suchoffice several times over for other acts of misconduct warranting removal. But theCourt is duty bound to investigate each such matter which has necessitated theissuance of a Rule, both in the interests of the legal profession and of theAttorney-at-Law himself, and simply because the Rule is made absolute inrespect of one matter the Court does not lack jurisdiction in respect of the rest.
As regards the nature of the order that the Court may make in respect of anAttorney-at-Law who has already been struck off the Roll – the Court may in sucha situation make the Rule absolute and direct that his name be struck off the Rollproforma.
Per Wijetunge, J.
“What is of prime importance is the determination of the Court as regards thetransgression and the consequential decision as to whether the conductcomplained of makes the attorney unfit to be on the Roll”.
The respondent had deceived the complainant by stating that the duplicate of theDeed had been sent by her to the Land Registry when in fact she had not doneso, and had persisted in such deceitful conduct. The Attorney-at-Law had alsoattempted to mislead the BASL by stating on 18.6.92 that the duplicate hadrecently been forwarded to the Land Registry.
In the matter of a Rule under section 42(2) of the Judicature Act, No. 2 of 1978.Cases referred to:
In Re Weare (1893) 2 QB 439.
In Re Wilbert [1989] 2 Sri L.R. 18 at 28.
Solicitor General v. Ariyaratne 1 CLW 400.
Bhandari v. Advocates Committee 1956 3 All ER 742.
In re an Advocate 52 NLR 559 at 560.
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W. A. De Vaas Goonewardane for the Bar Association.
A. S. M. Perera ASG with P. A. Ratnayake SSC as amicus curiae.
Sanath Jayatilaka for Respondent.
Cur. adv. vult.
September 20,1996.
WIJETUNGA, J.
Don Ranjith Wickramaratne of 45/5, Temple Road, Kalubowila,Dehiwala, complained to the Bar Association on 30.8.91 that heentrusted the execution of a deed of partition to the respondent on16.3.91 and paid her a sum of Rs. 2000/-; it was after much delayand inconvenience that he was able to obtain the original of the saiddeed No. 683 from the respondent. He applied to the Land Registryfor a certified copy of the deed for the purpose of obtaining a bankloan and was informed by letter dated 30.8.91 that the duplicate hadnot been sent to the Land Registry.
The Bar Association fixed the matter for inquiry on 20.6.92. Therespondent, by letter dated 18.6.92, informed the Bar Associationthat the deed had been misplaced by her and had recently beentendered to the Land Registry. Wickramaratne then made a furtherapplication to the Land Registry for a certified copy and wasinformed by letter dated 28.8.92 that the Land Registry had notreceived the duplicate copy of the said deed.
The Professional Purposes Committee of the Bar Associationwhich inquired into this matter submitted its report which disclosedthat the respondent had committed acts of deceit and malpractice.This Court accordingly decided to take proceedings against therespondent for suspension or removal from the office of Attorney-at-Law under section 42(2) of the Judicature Act, No. 2 of 1978, readwith the Supreme Court Rules, 1978. On 28.6.95 the respondentstated to Court that she had cause to show and the matter wastherefore fixed for inquiry.
On 5.2.96 when the matter was taken up for inquiry, learnedcounsel for the respondent took a preliminary objection (in respect of
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this Rule as well as Rule 1/94 (D) against the respondent) that theCourt had no jurisdiction to proceed with these matters as therespondent had already been removed from the office of Attorney-at-Law in S.C. Rule 1/93 (D) on 23.11.94.
Counsel for the parties having been heard, the Court overruled theobjection and indicated that the reasons therefore would be given inthe final order.
When the inquiry was concluded on 28.2.96, the Court made orderthat written submissions of the Attorney-General and the BarAssociation be filed on 15.3.96 and those of the respondent by1.4.96.
On the application of the State Attorney, further time was grantedfor the written submissions of the parties. The written submissions ofthe Attorney-General were ultimately filed on 4.6.96, but those of therespondent have not been filed up to date, though the Court granteda final opportunity to the respondent on 23.7.96 to file suchsubmissions immediately.
Section 42(2) of the Judicature Act provides that "every personadmitted and enrolled as an Attorney-at-Law who shall be guilty ofany deceit, malpractice, crime or offence may be suspended frompractice or removed from office by any three Judges of the SupremeCourt sitting together.”'
Learned counsel for the respondent pointed to the fact that the'Court had already removed the respondent from the office ofAttorney-at-Law on 23.11.94 and contended that the respondent wastherefore no longer subject to the jurisdiction of this Court undersection 42 of the Judicature Act, as she had ceased to be anAttorney-at-Law. He further submitted that in the event of the presentRule being made absolute, the Court cannot make an order forsuspension or removal of the respondent as she. had already beenremoved from the Roll. It would therefore be an academic exercise,he said, to hold an inquiry in respect of the present Rule or the otherpending Rule No. 1/94 (D).
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Section 40(1) of the Judicature Act empowers the Supreme Court,in accordance with rules for the time being in force, to admit andenroll as Attorney-at-Law persons of good repute and of competentknowledge and ability. Under section 42(2), the Court can suspendsuch a person from practice or remove him from office where suchperson has been found guilty of any deceit, malpractice, crime oroffence. In the present case, it became necessary to takeproceedings against this Attorney-at-Law in respect of severalcomplaints of deceit, malpractice, crime or offence committed as anAttorney-at-Law. The jurisdiction of the Court in that regard isreferable to section 40(1). under which the Court admits and enrolls aperson as an Attorney-at-Law. Irrespective of the result of each suchinquiry, the Court's power to inquire into and determine every suchmatter continues unabated by reason of the Court having admittedand enrolled such person as an Attorney-at-Law, who at the time ofadmission was considered by the Court inter alia to be a person ofgood repute; and the conduct being investigated by the Court is quaAttorney-at-Law.
Counsel's submission also loses sight of the all important questionof re-enrolment. As Dr. Amerasinghe in his “Professional Ethics andResponsibilities of Lawyers" states at page 163 “where an attorneyhas been struck off the roll, all is not lost. He may apply for therestoration of his name to the Roll. As Lord Esher observed in Re-Wearem, if he continues a career of honourable life for so long as toconvince the Court that there has been a complete repentance and adetermination to persevere in honourable conduct, he may beconsidered for readmission, provided the Court should be able to say •with confidence that he can be safely entrusted with the affairs ofclients and readmitted to an honourable profession without thatprofession suffering degradation."
Indeed, it is hardly necessary to stress that in the matter ofreadmission, a practitioner's conduct as an Attorney-at-Law whichresulted in removal from the Roll is of absolute relevance. No doubtan Attorney-at-Law already removed from the Roll cannot beremoved from such office several times over for other acts of
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misconduct warranting removal. But, the Court is duty bound toinvestigate each such matter which has necessitated the issuance ofa Rule, both in the interests of the legal profession as well as of theAttorney-at-Law himself; and simply because the Rule is madeabsolute in respect of one matter the Court does not lose jurisdictionto respect of the rest. It may well be that though the material beforethe Court was prima facie sufficient to issue a Rule, the Court afterinquiry may decide that the Rule be discharged. Such an orderwould certainly ensure to the benefit of the Attorney-at-Lawconcerned, if at a future date he seeks to be readmitted. On the otherhand, if after such inquiry the Court makes the Rule absolute, thatwould equally have a bearing on the question of re-enrolment; theCourt would naturally be more cautious in restoring such a person tothe Roll than another against whom there had been only onecomplaint which resulted in his removal from office. I am, therefore,unable to agree with learned counsel for the respondent that this is amere academic exercise.
As Fernando, J. in Re. Wilbert<2), observes: “these proceedings arenot criminal or penal in nature, but are intended to protect the public,litigants, and the legal profession itself. Over half a century ago, itwas observed in Solicitor General v. Ariyaratne{3 that theseproceedings involve not the question of punishing a man, but quite adifferent question, ought a person against whom such offences areproved, remain on the Roll of an honourable profession?”.
Even as regards the nature of the order that the Court may make inrespect of an Attorney-at-Law who has already been struck off theRoll, I see no impediment to the Court making an appropriate order ifthe facts and circumstances of the case warrant an order for removal.The Court may in such a situation make the Rule absolute and directthat his name be struck off the Roll proforma. What is of primeimportance is the determination of the Court as regards thetransgression and the consequential decision as to whether theconduct complained of makes the attorney unfit to be on the Roll.
It is for these reasons that the preliminary objection of therespondent was overruled on 5.2.96.
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The complainant Wickramaratne stated in evidence that heengaged the services of the respondent to execute a deed ofpartition in March, 1991. He made a payment of Rs. 2000/- to her ather residence for this purpose. The deed was signed by the partiesbut he was unable to recall the date. He obtained the original of thesaid deed from the respondent with great difficulty. The original of thedeed, he said, was presently with the Bank of Ceylon. He producedmarked C1 a copy of deed No. 683 dated 16.3.91 attested by therespondent. He identified the signatures of the parties to the saiddeed of partition as well as that of the respondent who was theattesting Notary.
After the execution of the deed, he requested the respondentseveral times to give him the original deed. Even after visiting herabout 5 or 6 times in this connection, he was unable to obtain theoriginal of the deed. He then made a complaint to the KohuwalaPolice against the respondent. It was thereafter that he was able toobtain the original deed from the respondent in or about June, 1991,which was about 3 months after the execution of the deed.
He met the respondent once again as the Bank required a copy ofthe duplicate of the deed for the purpose of sanctioning a loan. Thatwas in or about July, 1991. The respondent told him that the duplicatehad been sent to the Land Registry. He therefore made an attempt toobtain a copy from the Land Registry by making the appropriateapplication but he was informed that the duplicate had not been sentto the Land Registry. He thereupon went to the respondent’sresidence once again and informed her that the duplicate was notavailable at the Land Registry; but the respondent insisted that it hadbeen sent. He made further inquiries at the Land Registry and learntthat the duplicate had in fact not been sent.
The complainant then made a complaint to the Bar Association byletter dated 30.8.91 (C2). He also obtained an official intimation fromthe Land Registry by letter dated 30.8.91 (C3) which stated thataccording to the records maintained by that office, the duplicate ofdeed No. 683 attested by the respondent had not been received. He
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was thereafter informed by the Bar Association by letter dated
(C4) that his complaint had been referred to the ProfessionalPurposes Committee. He also produced another letter dated 22.9.91(C5) addressed to the Bar Association by him in this connection. Hereceived a letter from the Bar Association dated 29.5.92 (C6)summoning him for an inquiry. He attended the inquiry on 20.6.92 butthe respondent was not present. The members of the Panelinstructed him to obtain a certificate from the Land Registry to theeffect that the duplicate had not been sent. He again made inquiriesin that connection but was informed that the duplicate had not beenreceived by the Land Registry. He produced marked C7 a letter sentto him by the Registrar of Lands dated 28.8.92 stating that theduplicate had not been received at his office. Even subsequently hewas unable to obtain a copy of the duplicate and gave up hisattempts at obtaining the same, four or five months thereafter.
Witness T. D. Samarasekera, the Administrative Secretary of theBar Association produced the letters marked C2, C4 and C5 and acopy of the letter dated 14.2.92 (C8) addressed to the respondentrequesting her to send her observations before 29.2.92; but herobservations (C9) had been submitted only on 18.6.92. By letterdated 29.5.92 (C10) the respondent was informed that an inquirywould be held at 10 a.m. on 20.6.92 at the office of the BarAssociation.
The Courts Officer of the Land Registry, P. L. A. Gomez, referred inhis evidence to the procedure followed by a Notary in respect of adeed attested by him. The Notary was required to deliver to the LandRegistry a list, in duplicate, of the deeds attested by him during theprevious month, before the 15th day of the following month. Therespondent had submitted such a list for the month of March, 1991and had sent only deed No. 698 in respect of that month on 18.5.92.Deed No. 683 (to which the complaint relates) had been sent on
under registered cover, but it had not been submitted with alist either in the year 1991 or 1992. He produced the said deed, witha Rs. 10/- stamp affixed, marked C11, which had been receivedwithout any corresponding list; the respondent had not included that
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deed in the list of deeds executed in March, 1991 or in any listsubmitted up to date. He stated under cross-examination that thesaid deed had been treated as the original.
Learned counsel for the respondent stated to Court that he wasnot leading any evidence on behalf of the respondent.
The respondent had deceived the complainant by stating that theduplicate of the deed in question had been sent by her to the LandRegistry when in fact she had not done so, and had persisted in suchdeceitful conduct.
The respondent had sent this deed to the Land Registry only on19.6.92, about 15 months after she attested the same. The duplicateshould have been sent together with the monthly list for March, 1991,but even the copy sent to the Land Registry in June, 1992 was notaccompanied by the relevant monthly list. As the deed had a Rs. 10/-stamp affixed, it had been referred to the Registration Branch of theLand Registry, presumably on the assumption that it was the originaldeed.
Section 31(26) (a) of the Notaries Ordinance relating to thetransmission of duplicates of deeds to the Registrar of Landsprovides that a Notary “shall deliver or transmit to the Registrar ofLands of the district in which he resides the following documents, sothat they shall reach the Registrar on or before the fifteenth day ofevery month, namely! the duplicate of every deed or instrument(except wills and codicils) executed or acknowledged before orattested by him during the preceding month, together with a list induplicate, signed by him, which list shall be substantially in the formF in the Second Schedule."
There is thus no doubt that the respondent has violated thestatutory requirements relating to the attestation of deeds andinstruments by a Notary. But what is even worse is that she haspersisted in deceiving the complainant by repeatedly stating that theduplicate had been sent to the Land Registry, whereas in truth and infact she had failed to do so, contrary to her duty under Rule 18 of theSupreme Court (Conduct and Etiquette for Attorney-at-Law) Rules,
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1988 which requires an Attorney-at-Law to act with completefrankness and honesty in all dealings with clients. She had alsoattempted to mislead the Bar Association by stating on 18.6.92 thatthe duplicate had ‘recently’ been forwarded to the Land Registry.
The respondent chose not to give evidence before this Court. So,we do not have for our consideration any explanation from her as toher conduct or as to any mitigating circumstances.
In Bhandari v. Advocates Committee(4,l the Privy Council endorsedthe following statement of the law in regard to the degree of proofnecessary in matters of this nature:
“We agree that in every allegation of professional misconductinvolving an element of deceit or moral turpitude a high standardof proof is called for, and we cannot envisage any body ofprofessional men sitting in judgment on a colleague who would becontent to condemn on mere balance of probabilities.”
Bearing that high standard of proof in mind and being equallyconscious that “this Court, in dealing with these applications, mustnot be influenced either by punitive or sympathetic considerations” -(per Gratiaen, J. In re. an Advocate®), I am amply satisfied that theallegations against the resppndent have been established to thathigh standard.
For the reasons aforesaid, I find the respondent guilty of deceitand malpractice under section 42 of the Judicature Act.
The Rule is, therefore, made absolute and though the respondenthas already been removed on 23.11.94 from the office of Attorney-at-Law in Rule 1/93 (D), I order that she be suspended from practice fora period of three years proforma.
The Registrar of this Court is directed to forward a certified copy ofthis judgment to the Registrar-General for appropriate action.
FERNANDO, J. – I agree.
DHEERARATNE, J. – I agree.