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JUDGMENT
SOPHIA
ADINYIRA (MRS.) J.S.C.:
In 1959, the plaintiff/appellant
(hereinafter appellant) was
enrolled as a student in the
Middle Temple, England. By 1965,
he had passed all the prescribed
examination papers except one
paper in which he was referred.
In 1972 he passed his referred
paper and was called to the
English Bar that same year. In
1977 the appellant was appointed
to the Bench in Ghana as a
District Magistrate Grade II.
Thereafter he was appointed as a
District Magistrate Grade 1 in
1979 and a Circuit Court Judge
in 1986 respectively. After 15
years of service on the Bench,
the appellant claimed he was
being considered for appointment
to the High Court when an
objection was raised that he was
not on the Roll of Lawyers in
Ghana and he also did not
possess a university degree. On
the basis of these objections
the plaintiff was retired from
the Bench in 1992. After he left
the Bench he was appointed a
Notary Public but this was also
revoked in 1998 on the grounds
that he was not a legal
practitioner. Being dissatisfied
with this treatment, which he
considered, was discriminatory;
the appellant mounted an action
at the High Court Accra
claiming: (to be inserted)
The
defendants/respondents
(hereinafter respondents)
stoutly resisted the appellant’s
claim on the main ground that
though the appellant was called
to the English Bar in 1972 he
was not qualified to be enrolled
on the Roll of Lawyers in Ghana
as he did not meet the
requirements under the Legal
Profession Act (Amendment) No2
Decree, 1967, NLCD
213(hereinafter NLCD 213). The
High Court dismissed the
appellant’s action. The
appellant again lost on appeal
to the Court of Appeal but was
granted leave to appeal to the
Supreme Court.
We do not
expect to set out here the
numerous grounds of appeal filed
by the appellant, which in our
opinion are winding and more of
arguments and narratives rather
than proper grounds of appeal.
They will be referred to in the
course of this judgment. The
whole of the appellant’s case
throughout the trial and his
grounds of appeal can be
succinctly captured in just two
issues. They are, (i) whether
the appellant who was enrolled
in the Middle Temple in 1959 and
was called to the English Bar in
1972 was caught by NLCD 213
which was passed in 1967 but
came into effect in 1971 and
(ii) whether the respondents
were estopped from retiring the
appellant from the Bench on the
basis that he did not possess a
university degree and was not on
the Roll of Lawyers in Ghana,
after they have appointed him on
the terms of their own
advertisement.
Before
resolving these issues, it would
be convenient to look at the
legal requirements that a person
who has qualified to practice as
a lawyer abroad should satisfy
before he could practice in
Ghana. The relevant legislation
is the Legal Profession Act,
1960, Act 32 (hereinafter
referred to as the Act).
This is a consolidated Act,
relating to the legal profession
whereby the General Legal
Council as established and
already in existence is
responsible for the legal
profession and in particular,
(a) for the organization of
legal education, (b) for
upholding standards of
professional conduct and (c) for
enrolment of lawyers.
Counsel for
the respondents, Mr Andrew Ofoe
Amergatcher, in his statement of
case set out clearly the
legislative history and reforms
that was a prelude to the
enactment of NLCD 213, and which
we think would be of interest to
any student of the legal history
of Ghana. I will therefore quote
him in extenso as it has much
bearing on this case. Counsel
first dealt with
pre-independence legislation.
He said:
“The qualification for
practicing law in Ghana has not
been static. It has followed a
slow evolution, in which the aim
has often been to ensure that
practitioners were better
educated and conversant with our
laws. The first lawyers were
purely self-educated Africans
who specialised in the
presentation of cases in the
courts of the British
settlements from 1853 onwards.
In 1864, a court order required
that these attorneys, as they
were called, take licences.
Colonial Legislation
The Supreme Court Ordinance,
1876, tried to regularise the
legal profession. It gave the
Chief Justice power to enrol
persons who had been admitted to
practice as barristers,
advocates or solicitors to
practise in the country.
Legal Practitioners Ordinance
1931 Cap 8
In
1931,
the Legal Practitioners'
Ordinance was passed "to amend
the law relating to legal
practitioners and especially to
make provisions for the
establishment of a Disciplinary
Committee.”
According to Section 3, " The
Chief Justice may, in his
discretion, approve, and enrol
to practise as a barrister and
solicitor any person who is
entitled to practise as a
barrister in England, Northern
Ireland or in the Republic of
Ireland or as an advocate in
Scotland, and who by the
production of testimonials or
otherwise satisfies the Chief
Justice that he is a person of
good character"
Counsel then gave a narration of
post independent legislation in
which he talked about the
Legal Practitioners Act No 22
of 1958 and the Legal
Profession
Act,
1960, Act 32
“Post Independence Legislation
The Legal
Profession
Acts of 1958 and 1960 removed
the discretion of the Chief
justice and placed it in the
hands of the General Legal
Council. In this connection, the
Legal Profession Act 1960 stated
under s. 3(2) that: “A person
may, at the discretion of the
General Legal Council, be
enrolled if he satisfies the
Council—
(a)
that he is of good character,
and
(b)
that he is qualified to practise
in any country having a
sufficiently analogous system of
law and that his qualifications
are such as to render him
suitable for enrolment, and
fulfils such conditions, whether
as to status or proficiency, as
may be prescribed
Subsection (2)(b) shows that the
qualification was no longer
limited the United Kingdom of
Great Britain and Ireland. It
has been broadened to include
any country with analogous
system of laws etc.”
He then came to two important
amendments to the Legal
Profession Act, 1960, Act 32,
which includes NLCD 213. He
said:
1967 No 1 and No
2
Amendments
(a)
By a first amendment in 1967
the condition as to status and
proficiency as stated above were
repealed.
(b)
However in the same year, in
December, 1967 by the Legal
Profession Act (Amendment No. 2)
Decree, 1967,”
NLCD 213, “two important
conditions were added which
imposed further conditions
namely that:
•
A person who has qualified
abroad was required in addition
to have completed a course in
customary law
•
He must also be a holder of a
university degree.
Accordingly the following
sections were inserted in the
principal act.
(a) "(4)
Notwithstanding
any other provision
of this Act a person
shall not be enrolled under
subsection (3)
of this section unless
and until he has satisfactorily
completed a course
of lectures in customary
law and in such other subjects
as the General Legal Council
may prescribe
of not less than three
months' duration at a school
of law or other place
of instruction specified
by the General Legal Council."
(b)"
With effect from the first day
of January, 1971 a person shall
not be qualified for enrolment
under any provision of this Act
unless that person is a holder
of a degree from a university
approved by the General Legal
Council.
(My
emphases)”
This amendment No. 2 is NLCD
213, which is now consolidated
in Act 32, as section 3(4) and
Section 4 respectively.
This
case was determined on legal
arguments on issues that were
set down after summons for
direction at the trial. One of
the bone of contention which has
dragged the parties up the
ladder of litigation to this
Court is as we set out earlier:
(i) whether the appellant who
was enrolled in the Middle
Temple in 1959 and was called to
the English Bar in 1972 was
caught by NLCD 213 which was
passed in 1967 but came into
effect in 1971. This can be
gleaned from the narrative words
of ground 1 of the appeal
as follows:
“The Honorable Trial Judge
should have appreciated that
once the appellant had already
gained admission to the approved
law school and was on his way to
becoming a professional lawyer
he already had acquired accrued
rights which were irreversible
and could not be taken away from
him save passing his
professional examinations.”
It is not in dispute that the
appellant was called to the
English Bar in 1972 and was
therefore qualified to practice
as a lawyer in UK. However in
our considered opinion, what
Counsel for the appellant failed
to appreciate by setting out on
this sort of ground of appeal
and in his narrations in
grounds 3, 4, 5, 6,7, and 8
is that every country has its
own requirements for persons
wishing to practice the
recognised professions such as a
lawyer, judge, doctor, engineer,
or architect, within its
jurisdiction. Under section 2 of
the Act a person is
entitled to practice as a lawyer
in Ghana only if his name is
entered on the Roll of Lawyers
of Ghana. However such a person
in addition to other conditions
specified in the Act, is
required under section 4 of the
said Act to possess a
university degree approved by
the General Legal Council in
order to qualify for enrolment.
For purposes of emphasis section
4 is restated:
Section 4. “With
effect from the first day of
January 1971 a person shall not
be qualified for enrolment under
any provision of this Act unless
he is the holder of a degree
from a university approved by
the General Legal Council;”
In the teeth
of this clear and unambiguous
provision of Section 4 of the
Act [NLCD 213 (b) 1967], Counsel
for the appellant argued that
the appellant was already
enrolled in a law school in
1959, and therefore NLCD 213 [b]
1967 which changed the
conditions of enrolment to the
Bar in Ghana was not applicable
to him. At the trial and on
appeal counsel argued that the
law was discriminatory,
retrospective and
unconstitutional. We are not in
no uncertain terms persuaded
with this line of arguments, and
we consider these criticisms to
be uninformed and misguided.
In our
opinion enrolment per se in a
law school and for that matter
in any educational institutional
does not create any right to
becoming a professional.
Enrolment in an appropriate
educational institution rather
creates an opportunity for the
student to undergo a course of
studies leading to a chosen
profession or career upon the
passing of the requisite
examinations. A right might
accrue only after such a student
has passed the relevant
professional examinations and
fulfilled all other conditions
prior to enrolment and to the
satisfaction of the appropriate
body authorised by law so to do.
The appellant cannot therefore
claim any accrued rights to
being a lawyer by merely
registering in the Middle Temple
in England in 1959 for which
NLCD 213 cannot take away.
Counsel’s reference to Article
107 of the 1992 Constitution is
therefore irrelevant and of no
consequence.
In some
jurisdictions even though a
person is a qualified lawyer, or
possessed a law degree from
outside, he or she might be
required to take a full law
degree course without any
exemptions before that person
can practice as a lawyer in that
country. In some other
jurisdiction like Ghana, a
holder of an analogous
qualification may only be
required to satisfactorily
complete a course of not less
than 3 months in customary law
and in other subjects such as
Ghana Legal System and Family
Law prescribed by the General
Legal Council at a school of
law. Where the qualification is
not from an analogous
jurisdiction the person may have
to take the professional
examination with some exemptions
in certain subjects.
On
the facts of the case the
appellant was called to the
English Bar in 1972, a year
after NLCD 213 has come into
effect; the law therefore
affected him. Accordingly before
he could be enrolled to the
Ghana Bar he was required, under
the Act, to possess a University
degree among other requirements.
The appellant did apply to the
General Legal Council while he
was a Circuit Court Judge to be
enrolled in the Law School to
undertake the three months
course before enrolment and his
request was refused because he
did not possess a degree. The
letter from the Secretary to the
General Legal Council, Exhibit
6, dated 17 February 1992
stated:
“Dear Sir,
YOUR APPLICATION FOR ENROLMENT
The General
Legal Council has considered
your application and has decided
that as you do not possess a Law
Degree, you cannot be admitted
to the Ghana School of Law to
undertake the three months
course prior to enrolment.
2.
Furthermore the Council is
unable to grant you any
dispensation.
Yours
Faithfully.
Sgd.
(AL-HAJI
DRAMANI YAKUBU)
SECRETARY
General Legal
Council”
Though the
appellant did not possess a
degree from any university,
Counsel tried to argue that Part
1of the English B.L.
qualification was equivalent to
a University degree. He sought
to rely on Exhibit 10, a letter
dated? January 1993 from the
Council of Legal Education in
England to formulate numerous
grounds of appeal, in grounds 3,
4, 5, 6 and 7 of the notice of
appeal which is, captured rather
clumsily in ground 3 in
part that:
“The Council
of Legal Education in England
made it abundantly clear that at
the time the appellant was
admitted he did not have a
University degree and further
told the General Legal Council,
the respondents herein that
completion of the Bar Part1 in
England is equivalent to a
University degree in England.
The appellant by all standards
in England and Ghana therefore
is not bound to have a
University degree, he having
been admitted to the Inns of
Court in 1959 long before the
1967 enactment.”
With due respect to Counsel,
Exhibit 10 did not say that the
completion of
Part 1 of the B.L.
qualifications in England was
equivalent to a University
degree. The letter merely stated
that the "standard required in
Part 1 was the same as normally
found in the correspondent
subjects in the law degree taken
in an English university." And
as counsel for the respondent
rightly pointed out “The whole
question of determining how many
of these subjects and other
requirements would lead to being
awarded a degree by a British
University was not dealt with”
in the letter. In actual fact no
University awarded the appellant
a degree based on his passing
the Part 1 examination. Counsel
cannot insist that the
respondents ought to consider
the Part 1 of the Bar as
equivalent to a university
degree.
At the time the appellant was
enrolled to the English Bar in
1972 the requirements for a
citizen who qualified outside
Ghana to be enrolled on the Roll
of Lawyers in Ghana had
dramatically changed from the
time he got admission at the
Middle Temple in 1959 in England
to study law. Even in England
there were concerns during that
period, about the educational
qualifications of persons
admitted by the Inns of Court to
read law. A Committee
on Legal Education for Students
from Africa
was therefore set up in October
1960 with Lord Denning as
Chairman. Among its terms of
reference, the Committee was “to
consider and report as soon as
possible what facilities ought
to be made available to provide
any additional training, either
in the United Kingdom or
elsewhere, which may be required
to ensure that persons who
obtain their legal profession
possess the knowledge and
experience required to fit them
for practice in the special
conditions of the territories in
which they are to practice.”
Ghana was mentioned in this
report (presented to the U.K.
Parliament in January 1961) to
be among countries that are
“making plans to provide for
higher education inside Africa
and there will follow a radical
revision of the qualification to
practice.”
As narrated by Counsel for the
respondents, Ghana undertook a
series of legislative reforms to
ensure that persons enrolled to
practice as lawyers had the
adequate intellectual training
and practical experience.
We therefore hold that once
the appellant did not qualify as
a lawyer before paragraph (b) of
the Legal Profession Act
(Amendment) (No. 2) Act, 1967
(NLCD 213) came into effect in
1971, he was required to possess
a university degree and also to
undertake the prescribed 3
months course at the Ghana
School of Law in customary law
and other prescribed subjects by
the General Legal Council. Until
he fulfilled these conditions he
cannot be enrolled on the Roll
of Lawyers in Ghana and
accordingly cannot practice as a
lawyer in Ghana, even though he
is a member of the English Bar.
It is still not too late for the
appellant to take the several
opportunities available for
mature students at the numerous
universities in the country, to
pursue a degree in any
discipline, as the Act
graciously did not insist on a
law degree.
For the above reasons we find no
merit in this appeal and we
accordingly dismiss ground 1
of the appeal. For the same
reasons we dismiss grounds 3,
4,5,6,7, and 8 of
appeal as without merit.
The
other issue left to resolve is
whether the 1st
respondents was estopped from
retiring the appellant from the
bench on the basis that he did
not possess a university degree
and was not on the roll of
lawyers after they have
appointed him on the terms of
their own advertisement.
This is covered by ground 2
of the appeal, which in the
usual style of counsel was not
formulated as a ground of appeal
but as a narrative.
Ground 2 is in relation to the
advert, Exhibit 17, which was
placed in the newspaper by the
Judicial Service on vacancies
for District Magistrates Grade
II. The qualification for the
advertised post said:
QUALIFICATIONS
Applicants must be
Ghanaians:
a.
on the role of lawyers in Ghana,
or
b.
qualified outside Ghana but not
enrolled in Ghana, or
c.
qualified or about to qualify in
Ghana but not yet enrolled.
Counsel for the appellant urged
upon this Court that once the
appellant applied for this
position and was appointed a
District Magistrate Grade II, he
had acquired legal rights on the
Bench and the respondents are
estopped from reversing these
rights and taking them from him.
Counsel for the respondents
responded to this argument that
the advertisement was no
contract and it was not meant to
override the law, which takes
precedence over any
misrepresentation. Counsel is
right to say that the advert was
not a contract but we do not
agree with him that the advert
was a misrepresentation. These
are our reasons. There appeared
side by side in Exhibit 17
another advert for the
appointment of District
Magistrate Grade I. The
qualification was simply; “The
applicants must be Ghanaians
enrolled on the Roll of Lawyers
in Ghana, and be of at least 3
years standing as legal
practitioners.” The appellant
was a lawyer of more than three
years standing at the English
Bar at the time but we believe
he could not and did not apply
for that position as he was then
not on the Roll of Lawyers in
Ghana. He was qualified to apply
for the position of a District
Magistrate Grade II as he fitted
category (b) of the advert which
was, “qualified outside Ghana
but not enrolled in Ghana”,
There is no misrepresentation in
the qualification for such an
appointment as the position of
Magistrate Grade 11 at the time
was usually filled by lawyers
with less than 3 years standing
at the Bar, and until recently
even non lawyers could be
appointed as lay magistrates
The pertinent issue to be
discussed here is whether; it is
a requirement that a person
seeking an appointment to the
Bench from the position of
District Magistrate Grade I up
to the position of a Justice of
the Supreme Court of Ghana
should have his or her name on
the Roll of Lawyers in Ghana.
Counsel for the appellant
clouded this issue with the
complaint that other eminent
jurists without degrees were
allowed to remain on the Bench
whilst the appellant was
discriminated against. See
relief 6 of the endorsement on
the writ of summons. This
statement coming from a very
senior counsel is rather very
unfortunate and also uninformed,
as, the names of these eminent
jurists he mentioned were
already on the Roll of Lawyers
in Ghana, years before NLCD 213
was passed in 1965 and before it
came into force in 1971.
Under the 1992 Constitution and
the Courts Act, 1993 Act 459 and
before then the Courts Act of
1972, the various provisions in
these laws on the qualification
for appointments to the Bench
merely mention that the person
must be of “high moral character
and proven integrity” and of a
certain number of “years
standing as lawyer”. The number
of "years standing as a lawyer”
required for appointment in
respect of the Supreme Court,
Court of Appeal and High Court
Justices respectively are not
less than”15, 12, and, 10 years
respectively; and 5 and 3 years
in respect of a Circuit Court
Judge and District Magistrate
respectively.
Though neither the Constitution
nor the Courts Act explicitly
mentions that the person being
considered for appointment to
the Bench must be on the Roll of
Lawyers in Ghana, yet the
practice has been that such a
person is required to be on the
Roll of Lawyers in Ghana. This
makes sense, as one of the
criteria for appointment to the
Bench is that the person must be
a lawyer with the requisite
experience at the bar; and since
under the Legal profession Act a
person can only practice in
Ghana after he has been enrolled
on the Roll of Lawyers (after
satisfying all the necessary
conditions under the said Act)
then logically such a person
being considered for appointment
to the Bench ought to have his
name on the Roll of Lawyers in
Ghana. This applies to both
lawyers in private and public
service, and bearing in mind
that, service on the Bench is
reckoned as law practice. In the
present case the appellant was
not qualified to be enrolled on
the Roll of Lawyers in terms of
Sections 3 (3) and Section 4 of
the Act (NLCD 213) and as such
could not be appointed to any
position on the Bench apart from
a District Magistrate II.
.
The trial judge was therefore
right in holding that: “So in
effect whilst the defendants
were justified in appointing the
plaintiff as a District
Magistrate Grade II in 1976,
they acted contrary to the law
when they subsequently appointed
him to positions which he was
not qualified to hold under the
law. … Plaintiff cannot acquire
any rights vested or accrued
from acts which were a nullity
or void from the beginning.’’
The learned Justices of the
Court of Appeal were also right
in their view that the
appellant’s appointment was made
in breach of the law and that
would not form and could not be
the foundation of a plea of
estoppel. We also add that this
could not form a basis for
compensation as Counsel tried to
argue before us though he did
not make a claim for such a
relief. We therefore hold that
the respondents are not estopped
from retiring the appellant from
the Bench. The best the Judicial
Council could do in the
circumstances was to offer him
another position in the Service,
as it was not prudent to demote
him to District Magistrate Grade
II, a position he can legally
fill. In any event, the
appellant was offered the
position of a Supreme Court
Registrar a position analogous
to a Circuit Court Judge a
position he was holding before
he was retired, but he declined.
We do not find any merit in this
ground of appeal and it is
accordingly dismissed. The whole
appeal therefore fails. The
Judgement of the Court of Appeal
affirming the decision of the
High Court is hereby affirmed.
SOPHIA O. A. ADINYIRA
JUSTICE OF THE SUPREME COURT
S. A.BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME CODURT
R. T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
S. K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. T. N.
WarBrew for Appellant.
Mr.Andrew
Amegatcher for Respondents.
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