Courts – High Court – Stay of proceedings – Whether Court of Appeal has jurisdiction to stay High Court proceedings.

Legal practitioner – Representation – Conflict of interest – Lawyer engaged by family to write to warn trespasser off family lands – Whether lawyer may act for a faction of family litigating with another faction over family lands.

At the hearing of an application in the High Court for contempt between two factions of the Korle We family, arising from a lawsuit over family lands in the High Court, the applicants objected to the representation of the respondents by their lawyer, JR, because he had previously acted as a lawyer for the family and written a warning letter to a trespasser on the family lands. The High Court upheld the objection. The respondents appealed to the Court of Appeal and applied for a stay of proceedings in the High Court pending the determination of the appeal.

Held: (1) The court had no jurisdiction to grant the application. Takyi v Ghassoub (Ghana) Ltd [1978-88] 2 GLR 452, SC applied.

(2) Forster JA dissenting in part; Since JR had acted previously for the family in respect of the disputed land, the fear of the respondents that he might use confidential communication acquired from the family was real.

Cases referred to:

Barker v London & South Western Rly Co (1867) LR 3 QB 91, 8 B & S 645, 37 LJQB 53, 32 JP 246, 16 WR 126, 18 Digest (Reissue) 123.

Buttes Gas and Oil Co v Hammer (No 3) [1980] QB 233, [1980] 3 All ER 475, [1980] 3 WLR 668, 124 Sol Jo 630, CA.

Hurlburt v Hurlburt 128 NY 420, 28 Ne 651, 26 Am St Rep 482 (1891).

Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452, SC.

APPLICATION to the Court of Appeal for stay of proceedings in the High Court pending appeal from a ruling of the High Court.

Fui Tsikata for the applicants.

Nii Aponsah for the respondents.

ESSIEM JA. This is an application by the applicants herein seeking an order to stay all proceedings in the court below in this suit pending the hearing and final determination by this court, of the appeal herein filed on 8 February 1993 from the ruling of the court below delivered on 26 January 1993. The application was accompanied by an affidavit sworn to by Nii Armah alias Todjo in which he averred that upon an objection taken by the respondents to Mr Joe Reindorf appearing for the applicants, the High Court had upheld the objection. The objection was based on an allegation that counsel for the applicants in the court below, Mr Joe Reindorf, had acted for the whole family in a previous matter and that he should not be permitted by the court to appear for a faction of his former clients against the other faction in the instant case before the High Court concerning the same subject matter. The objection was upheld by the court below thus:

“When his [Joe Reindorf’s] attention was drawn to paragraph 2 of exhibit E written by him, he said in 1973 he appeared for a bigger family not belonging to Korle We, who are claiming part of the land. I would think, going by the above, that it is proper and advisable that Mr Reindorf withdraws his representation.”

There is an appeal now pending before this court against that ruling. The purpose of this application is therefore to stay the proceedings before the High Court until the appeal is heard by this court and hopefully to enable Mr Joe Reindorf to appear for the applicants. The application was brought under the Court of Appeal Rules 1962 (LI 218) rule 27 as amended by the Court of Appeal (Amendment) Rules 1975 (LI 1002). I should mention that the court below dismissed an oral application for stay pending appeal.

I have considered the submission of counsel and I am satisfied that the appeal now pending before this court is not frivolous. However I have come to the conclusion that in view of the Supreme Court decision in Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452, this court has no jurisdiction to grant the application to stay proceedings before the High Court pending the hearing and determination of the appeal by Mr Joe Reindorf’s client.

In Takyi v Ghassoub this court granted an application for stay of proceedings in the High Court. On appeal to the Supreme Court, it was held that the ruling of the Court of Appeal was given without jurisdiction and was therefore null and void. The matter had not gone to the court on appeal so it could not have exercised an appellate jurisdiction. It seems that the Court of Appeal entertained the application for stay of proceedings in a purported exercise of its supervisory jurisdiction, which it did not have. In the decision, the Supreme Court did consider the Court of Appeal Rules 1962 (LI 218) as amended by LI 1002. This court is bound by this decision. It seems to me also that the facts deposed to by the parties establish that Mr Joe Reindorf has acted for the whole family in respect of the whole land part of which is now in dispute between them.

The parties were his clients in respect of the land, the subject matter now in dispute between them. It is conceded that Mr Reindorf only wrote a letter to one Okpoti Kojo of Accra on behalf of Korle Webii to assert the title of his clients to a land, which from the affidavits includes the very land now in dispute between the two factions of his former clients. It is true that the people he now acts for are facing contempt proceedings. However, the contempt relates to the very land for which he had acted for the family as a whole. That section of the family which has instructed Mr Joe Reindorf in the defence of the persons now facing contempt proceedings was part of the whole family which instructed counsel to protect their land as evidenced by exhibit E. They certainly must have told counsel the basis of their claim to the land and counsel must have been satisfied with their claim before he wrote exhibit E, which was as follows:

“Sir,

Trespass to Land at Kwabenya

I am instructed by my clients, the Korle Webii of Accra, through Numo Ayitey Cobblah the Korle Wulomo and Mr J A Aryeetey, to write to you as follows:

My clients are co-owners under customary law together with the Ga and Gbese stools, of a large tract of land lying to the north of Accra and stretching from Mukose and Kpehe in the south to Ashongman in the north, and from Odorkor in the west to Kotobabi and Onyatia in the east.

My clients are the caretakers, on behalf of all three co-owners, of the land so described, within which lie the village of Kwabenya and the surrounding lands attached thereto.

My clients have recently noticed that various persons have commenced cultivation of the said Kwabenya lands without my clients’ leave, licence or grant, and that various farmers, to whom my clients have made grants of land for farming, are being disturbed in their possession by some person or persons not thereto authorised by my clients.

On enquiry, my clients have been told that you are the person making the said unauthorised grants and also disturbing the possessory rights of my clients’ grantees.

I am accordingly instructed to demand that you cease forthwith your said unauthorised interference with my clients’ rights in respect of the said lands, and to say that unless your said interference ceases as above demanded, steps will be taken to enforce the said rights of my clients and to bring you to a more reasonable frame of mind.

Yours faithfully,

(sgd) Joe Reindorf.

SOLICITOR FOR KORLE WEBII”

Section 100(1) of the Evidence Decree 1975 (NRCD 323) defines a “client” as a person including a public entity. It defines confidential communication in subsection 1(d) thus:

“a communication is confidential if not intended to be disclosed, and made in a manner reasonably calculated not to disclose its contents, to third persons other than those to whom disclosure is in furtherance of the client’s interest in seeking professional legal services or those reasonably necessary for the transmission of the communication.”

In subsection (2) of the section it is provided:

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication, reasonably related to professional legal services sought by the client, made between the client or a representative of the client and the lawyer or a representative of the lawyer, or between the lawyer and a representative of the lawyer or between the lawyer and a representative of the lawyer and a lawyer representing another person in a matter of common interest with the client or a representative of such lawyer.

Section 102(1) provides:

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing information obtained or work produced by his lawyer or a representative of the lawyer in rendering professional legal services sought by the client.”

It is my opinion that since Mr Joe Reindorf acted for the family as a whole in respect of the land now in dispute between sections of the family and since the contempt proceedings arise out of the dispute between the two sections of the family, the fear of the respondents that he may use confidential communication given him by the united family in the defence of those now facing contempt proceedings may be real. However I do not wish to pronounce on it at this stage but since there is real possibility that this may be the case the objection of the respondents is quite reasonable.

Is there a need for the proceedings to be stayed? I concede that litigants have a right to be represented by counsel of their choice but in the circumstance of the case now before the court below they may do well to instruct another counsel. I therefore do not see any justification or need for granting this application. I therefore refuse it.

AMUAH JA. I agree Mr Joe Reindorf cannot act for and against his client on the same matter.

FORSTER JA. I also agree with the opinion just read, except as regards the finding on the question whether the objection, on grounds of lawyer-client privilege, is reasonable.

It is common cause between the parties that in 1973 Mr Joe Reindorf acted for the wider family against a stranger. In the present action, however what is in issue is a dispute between two families of the 1973 single unit over a portion of the whole land.

The question that must thus be addressed is whether in the circumstances, the 3rd respondent’s plea of legal professional privilege can succeed. I do not think that there is any merit in the claim.

One of the fundamental principles of privilege is that where a lawyer has acted for two clients who share a common interest in the matter submitted to the lawyer for legal advice, as between them, communication is no longer confidential and no privilege therefore arises. In Buttes Gas and Oil Co v Hammer (No 3) [1980] QB 233, it was held that where a solicitor is instructed by two clients, communications between him and one of the clients will not be privilege against the other client in so far as they concern the subject matter in which they are jointly interested, but whether or not the communications are disclosed to the other client they will be protected as against outsiders. See also Barker v London & South Western Rly Co (1867) LR 3 QB 91. The uniformity of the application of the principle in common law countries may be illustrated by reference to the case of Hurlburt v Hurlburt 128 NY 420 Court of Appeal of New York reproduced in McCormick on Evidence - Cases and Materials, 5th ed page 967. Earl J said:

“Here Theran and his father were both interested in the advice which they sought, (from the attorney) and they were both present at the same time, and engaged in the same conversation. Each heard what the other said, so that the disclosures made were not, as between them, confidential, and there can be no reason for treating such disclosures as privileged. It has frequently been held that the privilege secured by this rule of law does not apply to a case where two or more persons consult an attorney for their mutual benefit; that it cannot be invoked in any litigation which may thereafter arise between such persons, but can be in litigation between them and strangers.”

It is therefore a settled principle that when one attorney is employed, communication made to him in his character of attorney for both parties may be used against one of them. The principle is now enacted in section 101(e) of the Evidence Decree 1975 (NRCD 323). It reads:

(e) as to communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer sought by them in common, when offered in any proceeding between any of the clients.”

In this case, the principle discussed above is even of secondary consideration. The primary issue here is whether Mr Joe Reindorf’s mere representation in the contempt matter, and not in the substantive litigation over title to the land in dispute, is a circumstance that could attract the protection secured by the privilege. The plain answer is no; for he does not by that representation in any way threaten a disclosure of any confidential communication obtained by him when he acted as solicitor for both parties against a third party in 1973.

In any event, even where such privilege exists and could legitimately be claimed, the proper stage to pursue the privilege is when disclosure of the communication is threatened or imminent. There is no showing that Mr Joe Reindorf was about to testify as regards any confidential communication, which is loosely and nebulously described as “professional secrets”, nor had any process been served on him compelling him to disclose any confidential communication, as would be the case in pre-trial discoveries or interrogatories.

It is therefore beyond question that the claim of lawyer-client privilege is, in this case, purely illusory. That ground of objection to the representation of Mr Joe Reindorf has therefore no reasonable chance of succeeding.

This court is however incompetent, by want of jurisdiction, to determine the merits of this application. See Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452.