SPENCER v INSTITUTE OF CHARTERED ACCOUNTANTS SIERRA LEONE (ICASL) (CC 13/08 )  SLHC 7 (11 July 2008);
SIERRA LEONE No. CC 13/08 2008 SNO. 2
IN THE HIGH COURT OF SIERRA LEONE
CIVIL JURISDICTION BETWEEN: -
CAPT (RTD) MICHAEL F. SPENCER - PLAINTIFF
INSTITUTE OF CHARTERED
ACCOUNTANTS SIERRA LEONE (ICASL) - DEFENDANT
65 SIAKA STEVENS STREET
JAMEA BLYDEN JENKINS-JOHNSTON - For the Plaintiff
SVKHATUMAL - For the Defendant
JUDGMENT DELIVERED THIS 11th DAY OF JULY 2008.
In this case the Plaintiff's claim against the defendant is for the following reliefs:
l.A declaration that the plaintiff is eligible for admission to the Institute as a registered Accountant pursuant to section 3(1) of the Institute of Chartered Accountants Act No 5 of 1988.
2. An order directing the defendants to enroll and register the plaintiff as such registered Accountant of the Institute of Chartered Accountants of Sierra Leone, and to issue him with a practicing certificate under section 21 of the Act accordingly;
3. Any further or other order as the court may deemed just in the circumstances and the costs of the Action.
The Plaintiff called only one witness who was himself Captain retired Michael Fawel Spencer. The defendant defended the action by calling one witness in the person of Mr. Herbert Michael Nelson Okrafor.
THE PLAINTIFF'S CASE
The case of the plaintiff as gleaned from the pleadings, evidence before this court and submissions of the plaintiff's solicitor could be summarized as follows:
An application was made in 1984 to the Association of Accountants Sierra Leone Hereinafter referred to as AASL and by a letter dated the 13th of April 1984 produced and tendered as exhibit A the same was acknowledged by the said AASL in these terms
"I acknowledge of your cheque and membership application form to the above Association.
Your application will be presented to council at the next council meeting. I should be grateful however for documentary evidence of qualification to be forwarded to the secretary at the above address"
Following this application, the plaintiff never in fact made a fresh application to the Institute of Chartered Accountants Sierra Leone hereinafter referred to as ICASL but in fact sent the additional information requested through exhibit A by exhibit B which was done immediately. Later, however, the plaintiff was constrained to send a reminder through exhibit C to ICASL in the form of further supporting documents which had been requested by the letter of 13th April 1984 and that by virtue of the ICASL Act of 1988 the plaintiff ought to become a member of ICASL.
The plaintiff further contended that the plaintiff could and should have been admitted pursuant to the provisions of section 3(2) as a registered accountant and that the reason for this was that of the defendants interpretation of the words in continuous active service to mean in continuous private practice as he had served as chief Accountant of a major public company continuously for a period spanning over 5 years as was the requirement of the said ICASL Act No 5 of 1988
THE DEFENDANT'S CASE
The case of the defendant as borne out from the pleadings and evidence before this court and from the submission of the defendant's Solicitor is that there was no application for membership before ICASL. The Defendant claim Mr. Spencer, the plaintiff applied to become a member of the AASL in 1984 and that by letter of 13th April 1988 the said AASL acknowledged receipt of his application requesting for supporting documents and that this was all. In 1988 by letter dated 29th April 1988 produced and tendered as exhibit C, the plaintiff sent a reminder to ICASL. This letter was addressed to ICASL but ICASL was not yet in existence and moreso different from AASL. They claim that the said exhibit C refers to an application for membership of a different Association AASL, a company limited by guarantee and cannot be for ICASL which is a creature of parliament and which was not even in existence on the date when exhibit C was written by the plaintiff. Further, that the Act which governs and regulates the practice of Accountants in the Republic of Sierra Leone received the Presidential Assent on the 9th of May 1988 and came into effect on the day of publication in the gazette, to wit the 12th May 1988. In such circumstances, the defendant claim there was no application before them and that even to date there is none, as a result of which it becomes impossible for them to register the plaintiff as a member. That in so far as they were concerned, the ACT does not contain any provision whereby ICASL is to be considered the successor of the AASL in the sense that every member of the Association automatically became a member of the ICASL. Thus an application made to the AASL is not automatically inherited by ICASL. Since the application was not made to ICASL it made it impossible for it to be considered and the plaintiff be registered.
The defendant further contended that the plaintiff was not eligible to be enrolled as a chartered accountant under section 3(1) (a) of the said Act nor under section 3(1) (b) or under Section 3(2) as a registered Accountant.
From the facts of this case as gleaned from the pleadings , the witness statements and the oral evidence adduced before this Honourable Court together with the addresses from
both counsels from which I have been able to discern or decipher their separate cases the issues which call for this court's attention and determination are two fold viz:.
Firstly, whether there was an application for membership by the plaintiff to ICASL? and secondly, whether, the plaintiff met the criteria as per the ICASL ACT NO 5 OF 1988 so as to be eligible for enrolment and or admission as a chartered or registered Accountant ?
WHETHER THERE WAS AN APPLICATION FOR MEMBERSHIP BY THE PLAINTIFF TO ICASL?
The answer to this question was that there was no application for membership to ICASL. Worse still, the Plaintiff was not even a member of AASL as his previous application which was acknowledged by exhibit A had not been considered and approved by AASL which even taking the transfer of function provision as contained as part of section 13(2)under section 2(4) of the of the 1st Schedule of the ICASL Act No 5 of 1988 which provides as follows:
"4) the members of the Association shall, on the commencement of this Act , be registered as members of the institute................"
would mean that he could not and should not be registered as a member as he was not prior to the Act coming into effect a member of AASL.
But with all due respect to the case of the defendant the matter goes beyond this. To conclude at this point that because of the aforesaid reasons the plaintiff ought not to be registered would be treating as trivial a matter which calls for much more detailed and animated consideration of an otherwise far from simple matter. To properly address it, would require a departure from a mindless adherence to technicalities were it becomes so apparent that the justice of the case so demands. Here a plaintiff who had gained
necessary qualifications from abroad specifically in the field of Accountancy applied to the body that then regulated the practice of the profession by completing the necessary application forms and forwarding the necessary payment by his cheque. The same was acknowledged as per exhibit A with a request that he should forward supporting documents. By letter dated sometime in April 1984 which was produced as exhibit B, the plaintiff in an attempt to fulfill all righteousness as it were forwarded the said supporting documents and this was done almost immediately .
It was in these terms Dear Mrs. Thomas, I acknowledge receipt of your letter HFT/MK of 13th April, 1984 and enclose documentary evidence of my qualification as requested.
Yours faithfully Michael F. Spencer
The ball was therefore in the court of AASL to take action. What this court knows as gleaned from the evidence is that there was no response from AASL and 1984 was allowed to pass bye with no action from them in confirming his membership. In 1985 AASL did not budge. In 1986 AASL was not bothered and in 1987 they continued their now deep sleep into oblivion. In 1988 there was the impending or imminent replacement of AASL BY ICASL and in an attempt to rouse AASL from slumber the plaintiff was constrained to write on the 29th of April 1988 to ICASL / AASL .The letter to ICASL was in these terms:
C/o S.L.E.T. LIMITED
7 WALLACE JOHNSON STREET