Legal - Legal Profession Act,
1960 (Act 32).sections 2 and
8(1) - General Legal Council -
Solicitor’s license - Whether
or not to continue practicing
as a lawyer you must have an
annual valid Solicitor’s license
issued in the prescribed form
specified therein in Section 8
(1) of Act 32. - whether the
failure of a Solicitor to take
out a Solicitor’s license
pursuant to section 8 (1) of Act
32 renders invalid, all the
processes initiated by the said
Solicitor in commencing any
legal process in court or
otherwise such as preparation of
any legal document or
originating process -Whether it
is harsh to visit the
consequences of the Solicitor’s
failure to take out a practicing
license on the client - Whether
or not the Court of Appeal
exceeded its jurisdiction by
departing from and refusing to
be bound by the decision of the
Supreme Court -
HEAD NOTES
The High Court, upon a
preliminary objection that was
taken to the propriety of the
Respondent’s lawyer, Justin
Pwavra Teriwajah in commencing
an action on behalf of the said
Respondent (therein Plaintiff)
against the Appellant (therein
Defendant) on the basis that the
said Respondent’s lawyer did not
have a valid Solicitor’s license
pursuant to Section 8 (1) of Act
32, struck out the said writ of
summons. In other words, the
High Court, Accra, upheld the
preliminary legal objection that
a lawyer who fails to take out
an annual Solicitors license
pursuant to section 8 (1) of Act
32 is not permitted to practice
law which includes preparation
and filing of a writ of summons
on behalf of Henry Nuertey
Korboe, the Respondent herein
An appeal at the instance of the
Respondent herein to the Court
of Appeal, reversed the decision
of the High Court on the grounds
that it would be harsh to visit
the consequences of the
Solicitor’s failure to take out
a practicing license on the
client,
HELD -
There is the need to maintain
high ethical and professional
standards in the legal
profession by ensuring strict
compliance with the requirements
of licensing of persons as
lawyers under Act 32. This will
in addition maintain the
integrity of the legal
profession. There is therefore
the need to maintain high
ethical and professional
standards. In order to achieve
the above, I would endorse an
interpretation of section 8 (1)
of Act 32 such as would give the
words therein, their natural and
plain meanings because they are
not ambiguous and also admit of
no controversy. Taking a cue
also from the Interpretation
Act, Act 792, section 42
thereof, I will mandatorily
interprete “shall” as
used in section 8 (1) of Act 32
and state that the meaning then
is that, the “shall” is
imperative and failure to comply
renders a person unqualified to
practice as a lawyer at all
material times of the voluntary
default until the valid license
is obtained. It is in pursuit of
the above that I am of the firm
view that a Lawyer who defaults
in renewing his practicing
license should not have the
honour of validity ascribed to
processes of any kind and or
description prepared, signed and
originating from such a
defaulting lawyer.
DISSENTING
-
I would conclude therefore that
the failure of a lawyer to take
out a solicitor’s licence should
lead to an adjournment of
proceedings to enable the client
instruct another lawyer, if
necessary but not the
invalidation of the processes
filed for the client. This
applies also to the question of
an unregistered chambers.
In deserving cases the courts
can even resort to contempt
powers, referral to the
disciplinary committee of the
General Legal Council or the
Police, so as to stamp out the
virus of solicitor’s failure to
take out a licence. The Bar in
Ghana should note that, as per
their amicus curiae submissions
in this case, disbarment is a
sanction that is readily
resorted to in Australia and
Canada for practicing despite
failure to take out a practicing
certificate and this sanction,
in fitting cases, can be applied
in Ghana by the appropriate
statutory body.
STATUTES REFERRED TO IN JUDGMENT
Legal Profession
Act, 1960 (Act 32).
LEGAL PROFESSION (PROFESSIONAL
CONDUCT AND ETIQUETTE) RULES,
1969 (LI 613).
Medical and Dental
Act, 1972 NRCD 91
Supreme Court Rules, 1996 C. I.
16
Interpretation Act, Act 792
Rent Act 220
Rent Regulations, 1964 (LI 369)
NATIONAL LOTTO ACT, 2006 ACT 722
CASES REFERRED TO IN JUDGMENT
Akuffo-Addo v Quashie-Idun
[1968] GLR 667
Republic v High Court, Accra
Ex-parte Teriwaja 1st
Applicant, and Henry Nuertey
Korboe 2nd Applicant,
(Reiss & Company Ghana Limited,
Interested Party). J4/24/13
Republic v High Court, Fast
Track Division, Accra, Ex parte
Justin Pwavra Teriwajah (Reiss
and Company Interested Party)
stamp Duty Act 2005 (Act
689)s.51 (2)
AYARNA v AGYEMANG [1976] IGLR
306 CA
ACCAM v GBERTEY [2013 - 2014] 15
SCGLR 343
GAISIE ZWENNES HUGHES & CO v
LODERS CROCKLAAN BV [2012]
ISCGLR 363
AFRANIE II v QUARCOO & OR [1992]
2 GLR 561 SC
REPUBLIC v DISTRICT MAGISTRATE,
ACCRA; EX PARTE ADIO [1972] 2
GLR 125
ADDAI v OKOMFOANKYE & OR [2013 –
2014] I SCGLR 267,
TINDANA NO. 2 v CHIEF OF DEFENCE
STATE & ATTORNEY-GENERAL [2011]
SCGLR 732
AYIWAH v BADU [1963] IGLR 86 SC
GHANA COCOA MARKETING BOARD v
AGBETTOH [1984-86] IGLR 122
AYIWAH v BADU [1963 1 GLR
86, NARTEY-TOKOLI v VOLTA
ALUMINUIM CO. LTD (NO.2)
[1989-90] 2 GLR 341
TAKORADI FLOUR MILLS v SAMIR
FARIS [2005-06] SCGLR 882.
OPPONG v A-G & ORS [1999-2000] 2
GLR 402 SC
FODWOO v LAW CHAMBERS & CO
[1965] GLR 363 SC
REPUBLIC v HIGH COURT,
ACCRA (FAST TRACK DIVISION) EX
PARTE GHANA LOTTO OPERATORS
ASSSOCIATION (NATIONAL LOTTERY
AUTHORITY INTERESTED PARTIES)
[2009] SC GLR 372
NETWORK COMPUTER SYSTEMS
LTD. v INTEL SAT GLOBAL SALES &
MARKETING LTD [2012] 1 SC GLR
218
BELVOIR FINANCE CO LTD v HAROLD
G COLE & CO [1969] 2 ALL ER 904
FRIMPONG v NYARKO [1998-99] SC
GLR 734
BOOKS REFERRED TO IN JUDGMENT
Chambers, 21st
Century Dictionary, Revised
Edition
Black’s Law Dictionary, Ninth
Edition,
DELIVERING THE LEADING JUDGMENT
DOTSE JSC
DISSENTING OPINION
ATUGUBA, JSC:
COUNSEL
NANCY D. AMPOFO (MS) ESQ. FOR THE
DEFENDANT /RESPONDENT/
APPELLANT.
JUSTIN PWAVRA TERIWAJAH ESQ.
FOR THE PLAINTIFF/APPELLANT/
RESPONDENT.
------------------------------------------------------------------------------------------------------------------------------------------------
JUDGMENT
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MAJORITY
OPINION
DOTSE
JSC:
I have had the benefit of the
judgment authored by my very
well respected and illustrious
brother, and President of this
Court, Atuguba JSC.
Save for the conclusions arrived
at by my respected brother that
the appeal herein fails and
should be dismissed, I entirely
agree with the narration of the
facts of the case as well as the
analysis of the laws and the
cases referred to therein.
However, it is quite apparent to
me that one basic reason of my
inability to accept the
conclusion reached by my brother
Atuguba JSC, stems from my
disagreement with the meaning
ascribed to sections 2 and 8(1)
of the Legal Profession Act,
1960 (Act 32). It is worth
observing that, Act 32 was
enacted to consolidate and amend
the laws relating to the legal
profession as has been captured
in the long title and preamble.
Section 2 of Act 32 states as
follows:-
Status of Lawyers
“A person whose name
is entered on the Roll kept
under section 6
(a) is entitled ,
subject to Section 8, to
practice as a lawyer, whether as
a barrister or solicitor or
both, the fees, charges and
disbursement for services
rendered as a lawyer, and
(b) is an
officer of the Courts, and
(c) is subject, when
acting as a lawyer, to the
liabilities that attach by law
to a Solicitor.”
Section 8 (1) on the other hand
provides as follows:-
“A person other than
the Attorney-General, or an
officer of the
Attorney-General’s department,
shall not practice as a
Solicitor unless that person has
in respect of that practice a
valid annual Solicitor’s license
issued by the Council duly
stamped and in the form set out
in the second schedule.”
The crux of the issues raised in
this appeal, in my mind depends
entirely on the meaning ascribed
to the mandatory provisions in
section 8 (1) of Act 32 which
provides that a person other
than the Attorney-General or his
representative shall not
practice as a Solicitor
unless that person has a valid
annual Solicitors license issued
by the General Legal Council.
Chambers, 21st
Century Dictionary, Revised
Edition, page 1089 states the
following as the meaning of
practice, relevant to the
circumstances in which the word
has been used therein in section
8 (1) of Act 32 as;
“to work at or follow an art or
profession,
especially law or medicine.”
Black’s Law Dictionary, Ninth
Edition, by Bryan A. Garner, at
page 9
defines Lawyer as a noun to mean
– “one who is licensed to
practice law.”
On page 1291, the learned author
of Black’s Law Dictionary
describes Practice of Law as
follows:-
“The professional work of a duly
licensed lawyer,
encompassing a broad range of
services such as conducting
cases in court, preparing papers
necessary to bring about various
transactions from conveying land
to effecting corporate mergers,
preparing legal opinions on
various points of law, drafting
wills and other estate planning
documents and advising clients
on legal questions. The term
also includes activities that
comparatively few lawyers engage
in but that require legal
expertise such as drafting
legislation and court rules.”
Section 56 of Act 32, which is
the interpretation section,
defines “lawyer” as follows:-
“for the purposes
of the recovery of fees includes
a person enrolled at the time
the relevant business was done,
and for the purposes of the
preparation of legal documents,
does not include a lawyer for
the time being suspended from
practice.”
Legal document, on the other
hand is also defined by section
56 as meaning,
“ a document, other
than a Will, conferring,
transferring, limiting, charging
or extinguishing, or purporting
to confer, transfer, limit,
charge or extinguish a right,
title or an interest in
property, movable or immovable
or a document, including a
letter indicating that legal
proceedings may be brought
against the person to whom it is
addressed or any other person.”
Practice is also defined by the
same section as “in relation
to a country other than the
Republic, means practice as a
barrister, solicitor or advocate
or in a like capacity, by
whatever name called.”
From the above, it is quite
clear that for a person to
qualify to practice law in
Ghana, he must have been called
to the Bar in Ghana and have his
name on the Roll of Lawyers as
specified in section 6 of Act
32.
It is only such a person, who is
either a barrister, Solicitor or
both who shall be entitled to
have his name on the roll of
Lawyers in conformity with the
Legal Profession Act, 1960 Act
32.
Secondly, a lawyer is also a
qualified person who consults
with clients and prepares legal
documents for and or acts for
them in a professional manner on
their behalf.
Thirdly, for such a person to
continue practicing as a lawyer
he must have an annual valid
Solicitor’s license issued in
the prescribed form specified
therein in Section 8 (1) of Act
32. Thus, there are control
mechanisms that have been put in
place to regulate the conduct of
lawyers to ensure their
continuous enrolment at the Bar,
subject to conditions stated
therein.
Indeed, there are other
pre-conditions that have to be
met before a person is granted
the valid Solicitor’s license
pursuant to sections 8 (2) (3)
(4) and (5) of Act 32. However,
since the issues germane to this
appeal are not necessarily
linked to those sections, I will
decline to make any further
comments herein.
The question that begs for an
answer in this appeal, is
whether the failure of a
Solicitor to take out a
Solicitor’s license pursuant to
section 8 (1) of Act 32 renders
invalid, all the processes
initiated by the said Solicitor
in commencing any legal process
in court or otherwise such as
preparation of any legal
document or originating process?
In order to bring the conduct of
the Respondent’s lawyer into
context herein, it is
appropriate to recount some of
the salient facts germane to the
instant appeal as follows:-
FACTS OF THE CASE
The High Court, upon a
preliminary objection that was
taken to the propriety of the
Respondent’s lawyer, Justin
Pwavra Teriwajah in commencing
an action on behalf of the said
Respondent (therein Plaintiff)
against the Appellant (therein
Defendant) on the basis that the
said Respondent’s lawyer did not
have a valid Solicitor’s license
pursuant to Section 8 (1) of Act
32, struck out the said writ of
summons.
In otherwords, the High Court,
Accra, upheld the preliminary
legal objection that a lawyer
who fails to take out an annual
Solicitors license pursuant to
section 8 (1) of Act 32 is not
permitted to practice law which
includes preparation and filing
of a writ of summons on behalf
of Henry Nuertey Korboe, the
Respondent herein
An appeal at the instance of the
Respondent herein to the Court
of Appeal, reversed the decision
of the High Court on the grounds
that it would be harsh to visit
the consequences of the
Solicitor’s failure to take out
a practicing license on the
client, purportedly, following
decisions in Akuffo-Addo v
Quashie-Idun [1968] GLR 667
and unreported Ruling of
this Court, dated 11th
December 2013, Suit No.
J4/24/13 Republic v High Court,
Accra Ex-parte Teriwaja 1st
Applicant, and Henry Nuertey
Korboe 2nd Applicant,
(Reiss & Company Ghana Limited,
Interested Party).
PRELIMINARY
OBSERVATIONS
When the conduct of what the
Respondent’s lawyer did by the
preparation and filing of the
Writ of Summons at the High
Court is brought under close
scrutiny, it becomes apparent
that what the learned counsel
actually did amounted to
practicing as a lawyer. In that
respect therefore, it is clear
that, having already lost his
right as a lawyer to practice
law because of his inability and
or failure to take out a
Solicitor’s license pursuant to
Section 8 (1) of Act 32, the
issue that arises is, did the
said Solicitor have any
authority to prepare any
originative process like a writ
of summons or practice law
simpliciter?
GROUNDS OF APPEAL
At this stage, it is necessary
to consider the grounds of
appeal filed by the appellant
before this court, in order to
answer the points of substance
in this appeal.
i.
”The Honourable Court
of Appeal exceeded its
jurisdiction by departing from
and refusing to be bound by the
decision of the Supreme Court in
the case of Republic v High
Court, Fast Track Division,
Accra, Ex parte Justin Pwavra
Teriwajah (Reiss and Company
Interested Party)
ii.
The Court erred in law
when it gave a modern purposive
approach interpretation to
Section 8 (1) of the Legal
Profession Act 1960 and
dismissed the Preliminary
Objection raised by the
Respondent and thereby validated
the incompetent Notices of
Appeal filed by Justin Pwavra
Teriwajah on 8th July
2013 at a time that he did not
have a Solicitor’s License.
iii.
The Honourable Court of
Appeal erred in law when it
granted a waiver and/or immunity
to Justin Pwavra Teriwajah and
all Lawyers from complying with
the mandatory provisions of
Section 8 (1) of the Legal
Profession Act, 1960 (Act 32)
and Rule 4 (4) of the Legal
Profession (Professional Conduct
and Etiquette) Rules 1960 (LT
613).
iv.
The Honourable Court of
Appeal erred in Law when it read
a meaning and intendment of the
Legislature into Section 8 (1)
of Act 32 and held that Lawyers
could practice and sign legal
documents and court processes
and file same in court even when
they did not have a valid
Solicitor’s License and
practiced from unregistered
Chambers.
v.
The Honourable Court of
Appeal erred in law when it
validated the incompetent Notice
of Appeal filed on 8th
July 2013 and proceeded to grant
the Appeal in part by making an
order for the incompetent writ
of summons in suit number AL
22/2014 filed on 29th
April 2013 to be reinstated to
the Court’s list.
vi.
The Honourable Court of
Appeal erred in law and or
exceeded jurisdiction when they
proceeded to give Practice
Directions contrary to the
decision of the Supreme Court in
the Ex-parte Teriwajah case to
allow Lawyers to prepare and
sign documents and also practice
without Solicitors Licenses and
to practice from unregistered
chambers.
vii.
The Honourable Court of
Appeal erred in law when it held
that the cost of GH¢1,000
awarded personally against
Teriwajah was validly awarded by
the Court below and yet
proceeded to set aside the award
of the cost.
viii.
The Honourable Court of
Appeal erred in Law when it
failed in its duty to enforce
the compliance by the Plaintiff
and his Lawyer who were the
parties in the ex-parte
Teriwajah case with the decision
of the Supreme Court dated 13th
December 2014 which was binding
on them.
ix.
The Honourable Court of
Appeal erred in law when it held
that Justice Edward Amoako
Asante gave a wrong
interpretation of section 8 (1)
of Act 32 and Order 75 rule 6
(1) of the High Court Civil
Procedure Rules (C.I. 47).
x.
The Honourable Court of
Appeal erred in law when it held
that there was nothing in
section 8 (1) of the Legal
Profession Act, 1960 (Act 32) to
disqualify lawyers from
practicing without a practicing
licence and that Act 32 merely
provided criminal sanctions and
did not invalidate or nullify
processes filed.
xi.
The Honourable Court of
Appeal erred in law when it held
that the learned High Court
Judge imported an interpretation
into section 8 (1) of Act 32
which was not the intention of
the Legislature and that Section
8 (1) of Act 32 was aimed at the
General Legal Council
disciplining Lawyers by applying
criminal sanctions and not to
invalidate or nullify processes
filed by lawyers without a valid
Practicing License because it
would work great injustice on
the Client.
xii.
The Judgment is against
the weight of the evidence
xiii.
Further grounds of Appeal
would be filed on receipt of the
record of Appeal
The following additional ground
of appeal was subsequently filed
by the appellant
xiv.
The learned Court of
Appeal Judges erred in law when
they requested for and relied on
oral submissions by Amicus
Curiae from the Bar and also
written submission from Lawyer
O.K. Osafo Buabeng filed on 6th
May 2014 which same was also not
served on the
Defendant/Respondent.”
RELIEF’S SOUGHT BY
APPELLANT FROM THIS COURT
Thereafter, the appellant prayed
this honourable court to grant
him the following reliefs:-
i.
“A reversal of the
decision of the Court of Appeal.
ii.
An order confirming the
decision in the Republic v
High Court Fast Track Division
Ex-parte Teriwajah suit
number J4/24/2013, that a lawyer
cannot practice without a valid
Solicitor’s License issued for
the current year of practice and
that any document signed or
filed by the Lawyer in
contravention of Section 8 (1)
of Act 32 and L.I. 613 is
invalid, incompetent, null and
void.
iii.
An order setting aside the
Practice Directions and rules
made by the Court of Appeal
under Rule 7 of C. I. 19.”
From the above grounds of
appeal, it appears to me that
learned counsel for the
appellant sought to kill a fly
with a sledge hammer.
This is because all the 14
grounds of appeal could easily
have been subsumed under one
ground of appeal for purposes of
judicial economy and clarity of
thought.
This court has in several
decisions, times without number,
reiterated the fact that grounds
of appeal must be formulated in
compliance with the rules of
court.
For example, Rule 6 (4) of the
Supreme Court Rules, 1996 C. I.
16 states as follows:-
“The grounds of
appeal shall set out concisely
and under distinct heads the
grounds upon which the appellant
intends to rely at the hearing
of the appeal, without any
argument or narrative and shall
be numbered seriatim, and where
a ground of appeal is one of law
the appellant shall indicate the
stage of the proceedings at
which it was first raised.”
See also Rule 6 (5) of C.I. 16.
My personal observation is that,
learned counsel for the
appellant over reacted to the
decision of the Court of Appeal
in the many and repetitive
grounds of appeal filed.
From the above original and
additional grounds of appeal
referred to supra, it is quite
evident that, the Court of
Appeal correctly identified the
issues germane in the appeal
before them when they stated in
their unanimous judgment as
follows:-
“In the face of
section 8 (1) quoted earlier in
this judgment and L.I. 613, what
happens to process originated
and filed in court by a lawyer
who has fallen foul of their
provisions failing to procure
his practicing license? Should
the process or processes signed
and filed be struck out and also
deny audience to such a lawyer
in this court.”
The reference therein to section
8 (1) is to the Legal Profession
Act, 1960 (Act 32) and that to
L.I 613 is to the Legal
Profession (Professional Conduct
and Etiquette) Rules, 1969 (L.I.
613)
The question that the Court of
Appeal asked itself which I have
referred to supra appears to me
to have been earlier answered by
my respected brother Anin-Yeboah
JSC when he delivered the
unanimous opinion of the
Supreme Court in the Ruling in
the unreported Civil motion No.
J4/24/2013 intitutled
Republic v High Court, (Fast
Track Division) Accra Ex-parte
Justin Pwavra Teriwajah (1st
Applicant) Henry Nuertey Korboe
(2nd Applicant) Reiss
and Co. Ghana Limited,
(Interested Party) dated
11/12/2013 stated in
respect of section 8 (1) of Act
32 as follows:-
“The interpretation of this
section is not ambiguous. It
simply means that one cannot
sign documents or represent a
party as a lawyer in court
unless he has obtained a valid
Solicitor’s license for that
purpose. The section also sets
the duration of the license,
which must be annual.”
I am of the considered view
that, whenever a Lawyer by his
own acts of default finds
himself or herself in breach of
section 8 (1) of Act 32, then it
follows that he automatically
loses his license to practice as
a Solicitor or Lawyer. The
consequence thereof is that,
such a lawyer must be deemed not
to have any authority whatsoever
to prepare an originating
process in any court process or
legal document on behalf of any
client or represent any such
client in his capacity as a
lawyer. The operating words of
section 8 (1) of Act 32 are
“a person other than
the Attorney-General… shall
not practice as a Solicitor
unless..”
Indeed, the reference from
Black’s Law Dictionary already
referred to supra is clear that
Respondent’s lawyer was
practicing law by his conduct.
This is because the conduct of
the Respondent’s lawyer in
preparing the Respondent’s writ
of summons, amounts to the
conduct of professional work of
a duly licensed lawyer which
forms part of what is defined as
practice of law.
In essence, once Justin Pwavra
Teriwajah lost his license at
the material time to practice as
a lawyer when he prepared and
filed the process for and on
behalf of the Respondent, the
said processes and appearance of
the said lawyer must be deemed
to be invalid for all purposes.
As a matter of fact, courts of
law have no option other than to
hold that any such defaulting
lawyer should not be permitted
to practice law because of the
mandatory shall used therein.
The rationale for the above
conclusion stems from the fact
that, having lost his right to
practice law pursuant to section
8 (1) of Act 32, it is apparent
that no validity flows from any
process or appearance that such
a lawyer will offer any client.
It is unfortunate that a client,
through no fault of his, would
have to suffer the consequences
of his defaulting lawyer.
The Interpretation Act, 2009 Act
792 provides in section 42 that
in an enactment the expression
“may” shall be construed
as permissive and empowering and
“shall” as imperative and
mandatory. It appears therefore
that courts, must interprete
“shall not practice” in
section 8 (1) of Act 32
mandatorily to achieve the
stated and desired meaning
ascribed to it.
In these circumstances all the
legal authorities that have been
referred to by all the learned
counsel except appellant’s
counsel as well as by the amici
curiae did not really address
the point of substance.
Indeed, as was stated by
Anin-Yeboah JSC, the words in
section 8 (1) of Act 32 are not
ambiguous. I will add that, the
said section admits of no
controversy whatsoever.
As a matter of fact, when the
Supreme Court, as per its
decision in Civil Motion No.
J4/24/2013 dated 11/12/2013 in
the ex-parte Justin Pwavra
Teriwajah case spoke with one
voice through my respected
brother Anin Yeobah JSC, the
point was made very clear that
if a lawyer is in default of
section 8 (1) of Act 32, that
lawyer cannot sign any legal
document or represent a party as
a lawyer in court. The clearest
indication had been given that
the Respondent’s lawyer indeed
acted as a Professional lawyer
considering his conduct in the
matter. If by his own default,
Justin Pwavra Teriwajah lost his
right at that material time to
practice as a lawyer, afortiori,
he cannot act for any person as
such in that professional
relationship.
The simple consequences of the
above are that all processes
originated by him for the
Respondent in the High Court and
thereafter are deemed to have
been invalid, null and void.
A critical and thorough reading
of the decision of the Full
bench in the Quashie Idun
v Akufo-Addo case
already referred to supra,
indicates that the court clearly
frowned upon and deprecated the
invitation and allusion that
Judges could grant waiver to
defaulting lawyers or even
condone their illegal acts
prohibited under Act 32.
Amissah JA, speaking on behalf
of the Court at page 688
re-emphasised the position of
the court thus:-
“And where the
balance is between inconvenience
or even pecuniary harm to a
party on the one hand as opposed
to the condonation of law
breaking on the other, as
appears to be the case here, the
courts should not lend their
assistance to the breaking of
the law.:”
The above decision also clearly
stated that, it would be wrong
to assume that only criminal
sanctions have been imposed for
breaches of Section 8 (1) of Act
32 as are provided in section 8
(6). Indeed, the civil sanctions
have already been stated in
section 8 (1) of the law in
that, a defaulting Solicitor or
lawyer loses his right to
practice as a lawyer. Aside
that, if one indeed is in
breach, there is also a
criminal sanction which follows
a successful criminal
prosecution.
It must be noted here that,
criminal liabilities have to be
well laid out because of
Constitutional provisions to
that effect. Reference to
article 19 (11) of the
Constitution 1992 which provides
as follows:-
“No person shall be
convicted of a criminal offence
unless the offence is defined
and the penalty for it
prescribed in a written law.”
The specific provisions in
section 8 (6) of Act 32 which
states as follows therefore
satisfies the above
constitutional provision.
“A person who
practices in contravention of
this section commits an offence
and is liable on conviction to a
fine not exceeding two hundred
penalty units and shall not
maintain an action for recovery
of fees, reward or disbursement
on account of, or in relation
to, an act or proceeding done or
taken in the course of that
practice.”
An analogy can also be made of
similar provisions in the
Medical and Dental Act, 1972
NRCD 91 which is also a
Legislation regulating Medical
and Dental practice in Ghana.
Under section 20 of NRCD 91, the
Medical and Dental Council is
enjoined to provide three
classes of registers of members,
namely, standing,
temporary and provisional.
Section 40 of the same NRCD 91
also states that “a practitioner
is not entitled to
(a)
Practice medicine or
dentistry
(b)
Recover in a court a
charge or cost mentioned in
section 39 or
(c)
Sign a certificate or document
required by law to be signed by
a practitioner, unless that
practitioner is registered,
under, and if registered, to the
extent only allowed by this
Act.”
Like the Legal Profession Act,
the Medical and Dental Act, NRCD
91 also has detailed criminal
sanctions for practitioners who
are in default.
The analogy I wish to draw is
that, both the Legal and Medical
Profession have a registration
mechanism. Default of these
results in a member not only
losing the right to practice,
but also likely to suffer
criminal sanctions.
The intention to regulate these
two professions is therefore
very clear and apparent.
It is therefore to be noted that
both civil and criminal
sanctions are available for
breaches under Act 32.
RATIONALE FOR CIVIL
SANCTIONS
It has been strongly urged that,
because of difficulties which
may be encountered by clients
for whom an unlicensed lawyer
has acted for, the processes
prepared by the said lawyer
should not be invalidated. I do
not subscribe to these views,
because,
1.
The general public who
engage lawyers to act for them
need to be protected from
persons who are not qualified at
that material time. This is
because, the legal profession is
an honourable and learned
profession. For these reasons,
the public must be made aware of
persons who for one reason or
the other are no longer
qualified to be on the roll of
lawyers. If a lawyer has failed
to obtain his practicing license
as provided for under the law,
then afortiori, he loses his
qualification at that material
time. Strict compliance with the
law as is stated in section 8
(1) of Act 32 is what will
ensure that unqualified persons
do not practice law when they
are not permitted to. There
should be a mechanism by which
all such defaulting lawyers will
be publicly identified.
2.
The licensing regime,
which requires that persons who
do not obtain valid Solicitor’s
licenses for a given year should
not be permitted to practice law
is a self regulatory mechanism
of the legal profession that
needs to be strictly adhered to.
What will be the future of the
legal profession, if persons who
voluntarily refuse to obtain and
or renew their practicing
licenses have the stamp of
validity ascribe to their work
irrespective of their breach?
Chaos and confusion will be the
order of the day.
3.
There is the need to
maintain high ethical and
professional standards in the
legal profession by ensuring
strict compliance with the
requirements of licensing of
persons as lawyers under Act 32.
This will in addition maintain
the integrity of the legal
profession. There is therefore
the need to maintain high
ethical and professional
standards.
In order to achieve the above, I
would endorse an interpretation
of section 8 (1) of Act 32 such
as would give the words therein,
their natural and plain meanings
because they are not ambiguous
and also admit of no
controversy. Taking a cue also
from the Interpretation Act, Act
792, section 42 thereof, I will
mandatorily interprete “shall”
as used in section 8 (1) of Act
32 and state that the meaning
then is that, the “shall”
is imperative and failure to
comply renders a person
unqualified to practice as a
lawyer at all material times of
the voluntary default until the
valid license is obtained.
The Courts of law, such as this
apex court, must lend support to
the General Legal Council in
their bid to enforce laws on
maintenance of professional
rules on ethics and integrity.
It is in pursuit of the above
that I am of the firm view that
a Lawyer who defaults in
renewing his practicing license
should not have the honour of
validity ascribed to processes
of any kind and or description
prepared, signed and originating
from such a defaulting lawyer.
Before I conclude this appeal, I
wish to congratulate all who
have submitted amicus curia
briefs, especially Nene
Amegatcher, immediate past
President of the Ghana Bar
Association.
CONCLUSION
For the above reasons, I will
allow the appeal. The Court of
Appeal judgment of 15th
May 2014 is hereby set aside. I
will in its place order that a
lawyer who has not taken out a
Solicitor’s License in any year
unless granted a wavier by the
General Legal Council for any
length of time, cannot practice
as a professional lawyer in any
court of competent jurisdiction
in Ghana and or sign any legal
documents.
In that respect, the writ of
summons filed by Justin Pwavra
Teriwajah for the Respondent
herein initiating the suit in
the High Court is accordingly
struck out as having been filed
without authority or license.
In this particular instance, I
have formed the opinion that the
Respondent with full knowledge
of the disabilities that attach
to his lawyer decided to cling
to him nonetheless. He appears
to me to be the architect of
this whole drama. I will
accordingly mulct him and his
lawyer in very punitive costs.
(SGD) V. J. M. DOTSE
JUSTICE OF THE
SUPREME COURT
ANSAH JSC.
This an
appeal by the
defendant/respondent/appellant
from the ruling of the Court of
Appeal (civil division) dated 15th
May 2014. The grounds of appeal
are legion and are that:
i.
The Honorable Court
of Appeal exceeded the
jurisdiction by departing from
and refusing to be bound by the
decision of the Supreme Court in
the case of Republic v High
Court Fast Track Division Accra;
ex parte Justin Pwavra Teriwajah
(Reiss &Company interested
party).
ii.
The Court erred in
law when it gave a modern
purposive approach
interpretation to Section 8 (1)
of the Legal Profession Act,
1960, and dismissed the
Preliminary objection raised by
the respondent and thereby
validated the incompetent Notice
of Appeal filed by Justin Pwavra
Teriwajah on 8th July
2013 at a time that he did not
have a Solicitor’s License.
iii.
The honorable Court
of Appeal erred in law when it
granted a waiver and/or immunity
to Justin Pawvra Teriwajah and
all lawyers from complying with
the mandatory provisions of
Section 8(1) of the Legal
Profession Act, 1960 (Act 32)
and Rule 4(4) of the Legal
Profession Act, 1960 Act 32 and
Rule 4 (4) of the Legal
Profession (Professional Conduct
and Etiquette) Rules 1969 (LI
613).
iv.
The honorable Court
of Appeal erred in law when it
read a meaning and intendment of
the legislature into Section
8(1) of Act 32 and held that
lawyers could practice and sign
legal documents and Court
processes and file same in court
even when they did not have a
valid Solicitor’s License and
practice from unregistered
Chambers.
v.
The honorable Court
of Appeal erred in law when it
validated the incompetent Notice
of Appeal filed on 8th
July 2013 and proceeded to grant
the Appeal in part by making an
order for the incompetent writ
of summons in suit number AL
22/2014 filed on 29th
April 2013 to be reinstated to
the Court’s list.
vi.
The honorable court
of Appeal erred in law and/or
exceeded their jurisdiction when
they proceeded to give Practice
Directions contrary to the
decision of the Supreme Court in
the ex parte Teriwajah case to
allow Lawyers to prepare and
sign documents and also practice
without Solicitors Licence and
to practice from unregistered
chambers.
vii.
The honorable Court
of Appeal erred in law when it
failed in its duty to enforce
the compliance by the plaintiff
and his lawyer who were the
parties in the ex parte
Teriwajah case with the decision
of the Supreme Court dated 13th
December 2014 which was binding
on them.
viii.
The honorable court
of Appeal erred in law when it
failed in its duty to enforce
the compliance by the plaintiff
and his lawyer who were the
parties in the ex parte
Teriwajah case with the decision
of the Supreme Court dated 13th
December 2014 which was binding
on them.
ix.
The honorable Court
of Appeal erred in law when it
held that Justice Edward Amoako
Asante gave a wrong
interpretation of Section 8(1)
of the Legal Profession Act 32
and Order 75 Rule 5 (1) of the
High Court Civil Procedure Rules
(CI 47).
x.
The Honorable Court
of Appeal erred in law when it
held that there was nothing in
Section 8(1) of the Legal
Profession Act, 1960 (Act 32) to
disqualify lawyers from
practicing without a practicing
license and that Act 32 merely
provided criminal sanctions and
did not invalidate or nullify
processes filed.
xi.
The Honorable Court
of Appeal erred in law when it
held that the learned High Court
judge imported an interpretation
into section 8(1) of Act 32
which was not the intention of
the Legislature and that Section
8(1) of Act 32 was aimed at the
General Legal Council
disciplining lawyers by applying
criminal sanctions and not to
invalidate or nullify processes
filed by Lawyers without a valid
practicing License because it
would work great injustice on
the client.
xii.
The judgment is
against the weight of evidence.
xiii.
Further grounds of
appeal would be filed on receipt
of the record of Appeal.”
The
appellant filed additional
grounds of appeal that:
“A The learned Court of
Appeal Judges erred in
law when they requested for and
relied on oral submissions by
Amicus Curiae from the bar and
also written submissions from
lawyer O. K. Osafo- Buabeng
filed on 6th May 2014
which was also not served on the
defendants/respondent.”
“ brief facts of the case”
I shall
henceforth call the
plaintiff/appellant/respondent
the respondent and the
defendant/ respondent/appellant
the appellant respectively in
this delivery and state the
brief facts of the case are that
the respondent filed a writ of
summons in the Fast Track
division of the High Court
division, Accra, on 29th
April 2013 claiming against the
appellant herein as follows:
“a
Specific performance of the
contract for the transfer of the
title of the late Major George
Awuni in the property which is
the subject matter of this suit
to the plaintiff and to put the
plaintiff in possession of the
same;
b. Damages for breach of
contract, and,
c.
Costs.”
The brief
facts of the case are that the
plaintiff/appellant/respondent
(hereinafter called the
respondent), sued out a writ of
summons in the registry of the
Fast Track Division of the High
Court Accra, on the 29th
April 2013, claiming for the
following reliefs:
“a. Specific performance of the
contract for the transfer of the
title of the late Major George
Awuni in the property which is
the subject matter of this suit
to the plaintiff and to put the
plaintiff in possession of the
same;
b. Damages for breach of
contract, and
c. Costs.”
After the
writ of summons, statement of
defense and counterclaim had
been filed, the respondent
raised issues that the
plaintiff’s action was
incompetent on the grounds that:
“1. Justin Pwavra the
plaintiff’s lawyer had no valid
practicing Solicitors License
for 2013, and also
2. That Justin Pwavra was
practicing from Joekap Chambers
which was not registered by the
General Legal Council at the
date the writ of summons was
issued.”
The
issues were based on section
8(1) and (2) of the Legal
Profession Act, 1960, Act 32,
which read:
“ A person, other than the
Attorney-General, or an officer
of Attorney-General’s
department, shall not practice
as a solicitor unless that
person has in respect of that
practice a valid solicitor’s
license issued by the Council
duly stamped and in the form set
out in the Second Schedule.”
Secondly, the respondent
purported to file another
objection this time based on the
grounds that after the court had
upheld a preliminary objection
in an affidavit in opposition to
an application to strike out the
plaintiff’s writ of summons and
also that at all material times
his chambers called ‘Joekap’,
was not registered with the
General Legal Council, under
Rule 4(4) of the Legal
Profession (Professional Conduct
and Etiquette) Rules, 1969, (LI
613), which read …: “…”,
Aggrieved
by rulings of the learned High
Court judge, the respondent’s
lawyer drafted and filed a
Notice of appeal to the Court of
Appeal.
I have
stated the facts giving rise to
the appeal; and also the grounds
of appeal and concluded that the
gravamen of the appeal is the
legal effect of a process signed
by a lawyer who has not been
certified in accordance with the
law regulating legal practice:
I also
state I have had the benefit of
reading before-hand the opinions
by my respectable brethren and
president of the panel, Atuguba
and Dotse and Yeboah JJSC
dissenting, respectively.
The issue
is relatively novel in our
reports so much that I decided
to put my opinion in writing,
terse as it may be.
Section
8(1) of the Legal Profession
Act, 1960, (Act 32), provided
that:
“8
practicing certificate”
“(1) A person, other than the
Attorney General, or an officer
of the Attorney-General’s
department, shall not ‘practice
as a Solicitor’ unless that
person has in respect of that
practice, a valid annual
Solicitor’s license issued by
the Council duly stamped out in
the second schedule.”
The
section poses no difficulty to
understand. In my opinion, it
means, apart from the
Attorney-General, or an officer
in the Attorney-General’s
office, for a person to practice
as a solicitor, that person must
have, a valid solicitors license
issued by the Council, duly
stamped and in the form set out
in the second Schedule of the
Act.
Section 8
(6) of the Act provided that:
“(6) A person who practices in
contravention of this section
commits an offence and is liable
on conviction to a fine not
exceeding two hundred penalty
units and shall not maintain an
action for the recovery of fees,
reward or disbursement on
account of, or in relation to,
an act or proceeding done or
taken in the course of that
practice.”
Practicing law in contravention
of this section, that is,
without a practicing certificate
is criminalized by law and a
person found liable on
conviction, suffers a fine not
exceeding two hundred penalty
units; he shall not maintain an
action for recovery of fees,
reward or disbursement on
account of or in relation to an
act or proceeding done or taken
in the course of or taken in the
course of that
practice.”
The Legal
Profession Act, 1960,
consolidated and amended the law
relating to the legal
profession. Section 8(6) of the
Act criminalized and prescribed
the penalty for practising in
contravention of section 8
without a practising
certificate. It may be noted
that the section prescribed
penalties for practicing in
contravention of the section on
the requirement of a practising
certificate.
I ought
to observe that the Act did not
provide for the effect of such
failure on processes filed by a
solicitor without a licence.
Akuffo-Addo and others v
Quashie-Idun and others [1968]
GLR 667 CA (Full Bench) did not
specify any either even though
the court made sound
pronouncements on the matter
before it.
In the
course of hearing the appeal,
this court decided to and did
receive further submissions on
the issue from counsel as amicus
cureae in its efforts to untie
the knotty issue raised in the
appeal. In response counsel
accepted the call in the best
tradition of the profession and
furnished us with notable
submissions. We owe counsel
tons of gratitude for their
respective responses.
Reading
the submissions submitted to us
it seem to me counsel took the
view that practicing without a
valid license is forbidden by
law, and even if it is not
written in black and white in
the law that such practice is
forbidden, it is doubtful if any
process meant for court and
emanating from the practice is
tainted thereby and equally
forbidden from service. I agree
with and adopt the meaning of
practicing adopted by the
learned Jones Dotse JSC in his
opinion. Practising without a
valid license is not only
criminalized; any process borne
out there from is equally
tainted; it is the fruit of the
forbidden tree; it ought not to
be touched, put in the mouth or
swallowed, it is poison and must
be spewed out of the mouth.
After
studying the Legal Profession
Act, 1960, (Act 32) and the
Legal Profession (Profession
Conduct and Etiquete) Rules,
1969, LI 613, I unreservedly
endorse the conclusion by Anin
Yeboah JSC in his opinion that
a solicitor who is not qualified
to practice by section 8 of the
Legal Profession Act, Act 32, to
practice, any process that he
has filed without a license to
practice, should not be given
not be given any effect in law.
Legal profession is perhaps the
most honorable profession in the
world and has for centuries seem
to be so…..”
I also
proceed to allow the appeal so
as to enforce the legal
provisions passed to regulate
the legal practice.
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
ANIN
YEBOAH, JSC
–
I had the opportunity of
reading the opinion of my worthy
brother Dotse, JSC and I
entirely agree with him that the
appeal ought to be allowed. The
facts of this case appear to be
simple and the president of this
court, in his usual clarity,
adequately captured same in his
opinion. I therefore need not
to repeat the facts.
The appellant in this case has
urged on this court that a
failure on the part of a
solicitor to obtain a
solicitor’s license should
nullify the processes prepared
by such solicitor. This
position taken by the appellant
is shared by the Ghana Bar
Association which prepared
amicus brief to assist the
court. It is, however, the duty
of this court to determine this
crucial issue.
As a member of the panel in
REPUBLIC v HIGH COURT,
ACCRA; EX PARTE TERIWAJAH and
HENRY NUERTEY KORBOE (REISS & CO
GHANA LIMITED (INTERESTED
PARTY)) unreported as Suit
No. J4/24/2013, I had the
privilege of delivering the
ruling in that application.
This appeal which is before us
is from the Court of Appeal,
Accra, which was called upon to
interpret section 8(1) of the
Legal Profession Act, (Act 32)
of 1960 and the effect of a
process filed by a lawyer who
has not procured a solicitors’
license. Before us in this
appeal, learned counsel for all
the parties have put in a lot of
industry to assist this court in
determining the only issue at
stake. Before I proceed to
offer my reasons in support, I
wish to point out without any
inhibitions whatsoever that the
legal profession, and the
practice of law in Ghana for
that matter, are regulated by
statutes. The common law does
not regulate legal practice and
the legal profession in this
country. Any decision that
should be given in this case, in
my respectful opinion, should
centre on the interpretation of
the relevant statutory
provisions regulating the
profession and its practice in
this country.
In my respectful view, the Legal
Profession Act, 1960 (Act 32)
and the Legal Profession
(Professional Conduct and
Etiquette) Rules, 1969 LI 613
and other amendments, if any,
should attract the attention of
this court in resolving the
crucial issue before us, not the
several foreign cases cited to
assist us, which do not bind us.
In my respectful opinion, it is
plain that the Legal Profession
Act, 1960 (Act 32) which is the
principal statute, was enacted
primarily to regulate the legal
profession and instil some
discipline in the profession.
That was the purpose for which
the Act was enacted. A careful
reading of section 8 (1) which
deals with solicitors’ license,
which is in controversy in this
appeal clearly shows the purpose
for which the statute was
enacted by Parliament. For a
detailed appreciation of this
delivery I propose to state the
section in controversy in full.
Section 8(1) states as follows:
“A person other than the
Attorney-General or an officer
of his department shall not
practice as a solicitor unless
he has in respect of such
practice a valid annual license
issued by the General Legal
Council to be known as a
“Solicitors License” in the
form set out in the second
schedule to this Act [deleted by
stamp Duty Act 2005 (Act
689)s.51 (2) ] (emphasis mine).
I am finding it very difficult
to appreciate whether this clear
and unambiguous provision in
controversy calls for any
interpretation to deny its
effect. In my view, it is a
straightforward and clear
prohibition against solicitors
who upon failure to procure a
solicitor’s license are
prohibited from practicing as
solicitors. An exemption has
been given to the
Attorney-General and officers of
its department. The case of
AKUFFO ADDO & ORS v
QUARSHIE-IDUN [1968] GLR 667
[Full Bench] which was cited by
the president of this court
appears to be the first case in
which the said section in
controversy was considered.
The case did not, however, make
any pronouncement on the
validity of a process filed in
judicial proceedings by a lawyer
who has failed to obtain a
solicitors’ license. In the
opinion of the Court of Appeal,
the process should not be
declared as void. They have
given their reasons for that
stance which I respectfully
disagree, as, agreeing with them
will not promote the purpose for
which the statute was enacted.
As pointed out earlier in this
delivery, the purpose for which
this statutory provision was
enacted and which is before us
for our consideration is to
regulate and instil discipline
in the practice of the legal
profession. It must also be
noted that a careful reading of
Act 32 would reveal that even
the legal right of Counsel to
sue for legitimate legal fees
due and owing by a client is
also regulated. It was based on
this provision, that is,
sections 30 of Act 32 that the
oft-quoted case of AYARNA
v AGYEMANG [1976] IGLR
306 CA was decided. One would
have expected, that, in cases
whereby a solicitor was
contracted by a client for legal
services, his legal fees upon
default on the part of the
client, the solicitor should
have the right to sue in
contract without any inhibitions
whatsoever. In Ghana any step
undertaken by a solicitor to
resort to legal action for his
outstanding legal fees must
comply strictly with the
relevant provision in section 30
of Act 32. I have taken time in
this delivery to demonstrate how
solicitors in Ghana are not all
that free to resort to the
common law to enforce a contract
against a client.
The clear provision under
consideration has put some
procedural hurdles on the way to
recover legal fees duly earned
by a solicitor. Indeed recent
decisions of this very court in
cases like: ACCAM v
GBERTEY [2013 - 2014] 15
SCGLR 343 and GAISIE
ZWENNES HUGHES & CO v LODERS CROCKLAAN BV
[2012] ISCGLR 363 are clear and
manifest the thinking of the
courts in Ghana to strictly
enforce the clear and
unambiguous provisions of the
statute. The crucial issue of
whether or not the process filed
by a solicitor without license
should be declared null and void
has been resolved by the worthy
brother with which I entirely
agree. In my respectful view, a
solicitor qua solicitor, must
first and foremost be a
qualified solicitor under the
statutory provisions in force
before he undertakes any
solicitor’s work in Ghana. The
procurement of the annual
license to me is a sine qua non
for the practice as a solicitor
for a period. It is a statutory
pre-condition imposed on
solicitors in clear and
unambiguous terms that should
not call for any interpretation
whatsoever.
It must be pointed out that in
law, if statutory pre-conditions
which are mandatory in terms but
are not fulfilled, the person
entitled to take a step under
the statute would not have any
authority to do so. It was one
of the grounds that this very
court reviewed its judgment in
AFRANIE II v QUARCOO &
OR [1992] 2 GLR 561 SC when
section 17(1) (h) of Act 220 and
regulation 18 of the Rent
Regulations, 1964 (LI 369) which
was a statutory pre-condition
was ignored. Another case worth
citing is REPUBLIC v
DISTRICT MAGISTRATE, ACCRA; EX
PARTE ADIO [1972] 2 GLR 125
which also speaks of mandatory
pre-conditions in statutes that
should be complied with before
steps could be taken. In this
regard the courts have shown
remarkable consistency.
In my respectful opinion,
section (8) of Act 32 must be
complied with by every solicitor
before he undertakes any
solicitor’s work. A solicitor
without any solicitor’s license
has no statutory power to appear
in court or prepare any process
as a solicitor within a period
of time. Any interpretation
that seeks to relax this clear
and unambiguous provision would
obviously run counter to the
purpose for which the statute
was enacted for the regulation
and discipline of the
profession. In this appeal,
what the respondent seeks to
urge on this court is that the
“sins of the solicitor who is in
default for failing to take a
solicitor’s license should not
be visited on the head of the
poor client”. I will take some
time to demonstrate that this is
not always the case in this
country and indeed our Law
Reports are replete with
countless cases in which actions
have been dismissed based on
lack of diligence on the part of
solicitors. It is only in
trivial infractions that the
poor client is spared.
However, in my respectful
opinion, this should not be a
basis for this court to dismiss
this appeal. In the usual
course of administering justice
in any adversarial system, the
law has on countless occasions
visited the sins of a solicitor
on his client. Appeals that are
filed outside the time frame set
down by the mandatory rules of
court are struck out freely
without any considerations of
the hardships and far-ranging
consequences that the result may
occur to the client. See the
case of JOSEPH (per lawful
attorney) ADDAI v
OKOMFOANKYE & OR [2013 –
2014] I SCGLR 267, TINDANA
NO. 2 v CHIEF OF DEFENCE
STATE & ATTORNEY-GENERAL
[2011] SCGLR 732 are few cases
in point. It is also settled
law, that, amendments applied
for and successfully granted but
not effected by filing the
amended processes are also
declared void when solicitors
with full instructions to
conduct the case fail to comply
with the rules.
See AYIWAH v BADU
[1963] IGLR 86 SC GHANA COCOA
MARKETING BOARD v
AGBETTOH [1984-86] IGLR 122
and CATHLINE & OR v
AKUFFO-ADDO [1991] 2GLR 292
CA. It is also the principle of
law that failure on the part of
a solicitor to even
cross-examine a witness on an
issue would result in dire
consequences to the client. See
AYIWAH v BADU
[1963 1 GLR 86, NARTEY-TOKOLI
v VOLTA ALUMINUIM CO. LTD
(NO.2) [1989-90] 2 GLR 341
and TAKORADI FLOUR MILLS
v SAMIR FARIS [2005-06]
SCGLR 882. This court, on
procedural grounds dismissed a
constitutional case of OPPONG
v A-G & ORS [1999-2000] 2
GLR 402 SC when counsel for a
plaintiff had resorted to a
procedure which was most
irregular and contrary to the
procedural rules of this court.
Justice has always been
administered according to laid
down rules. Indeed, I am
compelled to think that in the
contemporary situation, justice
could not be administered if
there are no rules regulating
the procedure which solicitors
are trained for. A solicitor
who in the course of handling a
brief for and on behalf of a
client who misconducts himself
is subject to the disciplinary
sanctions imposed on him in the
legal profession Act, Act 32 of
1960. The common law reserves
the right of the client to sue a
solicitor who out of negligence
fails to conduct his case with
such professional diligence
expected of a solicitor who has
been instructed by the client.
In the case of FODWOO v
LAW CHAMBERS & CO [1965]
GLR 363 SC, the client whose
case had not been properly
conducted by the solicitors he
had engaged, successfully sued
the law firm for professional
negligence.
I have cited the above case to
demonstrate that litigants or
clients are not bereft of
remedies if a solicitor
misconducts himself in
performance of his duties. In
my respectful opinion, it would
defeat the purpose for which the
Legal Profession Act, Act 32 of
1960 was passed if this court
proceeds to endorse the position
put forward by the respondent in
this appeal. If this court is
to endorse what the Court of
Appeal said, then no default on
the part of any solicitor should
ever result in the loss of
cases; for cases are conducted
on behalf of the clients and
they benefit from or burdened by
the outcome. That was not the
intendment of the framers of the
law and that could not be
sustained in any formal
profession governed by rules.
As a court, we must enforce
statutes passed by the law
makers without any inhibitions
whatsoever. The president of
this court in the celebrated
case of REPUBLIC v
HIGH COURT, ACCRA (FAST TRACK
DIVISION) EX PARTE GHANA LOTTO
OPERATORS ASSSOCIATION (NATIONAL
LOTTERY AUTHORITY INTERESTED
PARTIES) [2009] SC GLR 372
said at page 397 as follows:
“It is communis opinio among
lawyers that the courts are
servants of the legislature.
Consequently any act of a court
that is contrary to a statute
such as Act 722 s. 58 (1) – (3)
is, unless expressly or
impliedly provided, a nullity”.
A breach of section 8 of Act 32
is a clear breach of a statute
regulating a profession of which
we are part. In the very same
case Date-Bah JSC minced no
words and said at page 401 as
follows:
“No judge has authority to
grant immunity to a party from
the consequences of breaching an
Act of Parliament. But this
was the effect of the order
granted by the learned judge.
The judicial oath enjoins judges
to uphold the law, rather than
condoning breaches of Acts of
Parliament by their orders. The
end of the judicial oath set out
in the second schedule of the
1992 Constitution is as follows:
“I will at all times uphold,
preserve, protect and defend the
Constitution and laws of the
Republic of Ghana”. This oath
is surely inconsistent of an Act
of Parliament”
This court will be granting
clear immunity to solicitors who
are prohibited by mandatory
provisions of a statute to
freely engage in the practice of
the law if we dismiss this
appeal. In the more recent case
of NETWORK COMPUTER SYSTEMS
LTD. v INTEL SAT GLOBAL
SALES & MARKETING LTD [2012]
1 SC GLR 218 at 230, the worthy
president of this court had this
to say:
“A court cannot shut its eyes
to the violation of a statute as
that would be very contrary to
its raison d’etre. If a court
can suo motu take up the
question of illegality even on
mere public policy grounds, I do
not see how it can fail to take
up illegality arising from
statutory infraction which has
duly come to its notice…”
Breach of section 8 of Act 32 is
clearly an illegality which
should not be endorsed by this
court. In the case of
BELVOIR FINANCE CO LTD v
HAROLD G COLE & CO [1969] 2
ALL ER 904, Donaldson J (as he
then was) had this to say at
page 908 as follows on
illegality:
“Illegality, once brought to
the attention of the court,
overrides all questions of
pleadings…”
What the respondent is inviting
this court to do in this appeal
is for this court to shut its
eyes when the very statute
passed to regulate the
profession of which we are part
is violated with impunity by the
very people who are on oath to
uphold it. In the judgment of
the Court of Appeal, the court
said as follows:
“We find no reason to import
into this enactment invalidation
of processes issued and filed by
an unlicensed lawyer. Any
importation may be at odds with
the whole scheme of the statute
and in so far as it will
result in injustice to parties
before the court should be
avoided as not the intended by
the legislature”
I have great respect for the
panel of the Court of Appeal who
sat on the appeal, but this
portion of the ruling with due
respect, overlooks the basic
principle of law that justice
should be administered within
the law. The law is as it is.
In FRIMPONG v NYARKO
[1998-99] SC GLR 734 this very
court was confronted with a
problem whereby applying the law
would have severe consequences
on the party but Wiredu JSC (as
he then was) said at page 742:
“The notice of appeal also
contravenes the mandatory
provision of rule 6(1) of CI 16
thereby shutting appellants
from receiving a hearing in this
court. This raises an issue
of jurisdiction and puts the
desire to do justice in this
case out of consideration by
this court. The justice to
be dispensed is justice within
the law and not one of
sympathy. Judicial sympathy,
however plausible can never be
elevated to become a principle
of law. The appellants
are out of court, and their case
would deservedly be put out of
court in accordance with law”
As a solicitor who is not
qualified to practice within a
time frame is prohibited by
section 8 of the Legal
Profession Act, Act 32 to
practice, any process that he
has filed without a license to
practice, should not be given
any effect in law. Legal
profession is perhaps the most
honourable profession in the
world and has for centuries
seems to be so. It is my wish
therefore that as a privileged
few, we must uphold all what the
profession stands for and what
has made it to survive the
centuries with reverence in
every country in the world.
With this, I proceed to allow
the appeal so as to enforce the
clear provisions of the statute
which was passed to regulate
this noble profession.
(SGD) ANIN
YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
DISSENTING OPINION
ATUGUBA, JSC:
THE FACTS
The facts of this case
arise from a chequered course of
litigation but those proximate
to this appeal are that Avril
Lavelace-Johnson J.A sitting as
an additional High Court Judge
in the High Court, Accra; (Fast
Track Division) upon preliminary
objection thereto, struck out
the respondent’s writ of summons
on the ground that his lawyer
did not have a valid solicitor’s
licence at the date he issued
the said writ. Upon appeal by
the respondent the Court of
Appeal reversed the ruling of
the trial judge, holding that it
would be harsh to visit the
consequences of a solicitor’s
failure to take out a practicing
licence on the head of the poor
client and that the decisions in
Akufo-Addo v Quashie-Idun
and the Teriwagah case
did not go that far. Hence this
ultimate appeal to this court by
the appellant. Although this
matter would seem to be settled
48 years ago in Akufo-Addo v
Quashie-Idun (1968) GLR 667
(Full bench) it still rages on
today. The same issue arose in
Republic v High Court, Accra
Ex parte Teriwaja and Henry
Nuertey Korboe (Reiss & Company
Ghana Limited Interested Party,
suit no J5/7/2014 and this court
approved and followed the
decision in Akufo-Addo v
Quashie-Idun, supra.
In that case the
appellants unsuccessfully
challenged the legality of a
circular issued by the Judicial
Secretary on the authority of
the General Legal Council and
the Chief Justice to the courts
advising them to deny audience
and legal propriety, to,
documents prepared by,
defaulting lawyers.
THE LEGAL ISSUE
The principal issue
arising from this appeal is
whether the failure of a lawyer
to take out a solicitor’s
licence under s.8 of the Legal
Profession Act 1960 (Act 32)
vitiates legal processes
undertaken by such a lawyer.
The relevant provisions of
that statute are as follows:
“8.
Practicing certificate
(1)
A person, other than the
Attorney-General, or an officer
of Attorney-General’s
department, shall not
practice as a solicitor
unless that person has in
respect of that practice a valid
annual solicitor’s licence
issued by the Council duly
stamped and in the form set out
in the Second Schedule.
x x x
(5) The Council may,
before issuing a solicitor’s
licence to a person, require
that person to produce evidence
specified by the Council showing
that that person has not been
found guilty of professional
misconduct in the Republic or in
any other country.
(6) A person who
practices in contravention of
this section commits an offence
and is liable on conviction to a
fine not exceeding two hundred
penalty units and shall not
maintain an action for the
recovery of fees, reward or
disbursement on account of, or
in relation to, an act or
proceeding done or taken in the
course of that practice.(e.s)
The Parties’ Rival Contentions
In the present case the
appellant, the Attorney-General
and the Ghana Bar Association,
the amici curiae at the
invitation of this court, have
taken the view that the failure
of a solicitor to take out a
solicitor’s licience is to
nullify processes prepared by
such a solicitor. The
Respondent naturally disagrees
with them and contends that
Akufo-Addo v Quashie-Idun
and the Teriwaja case,
supra did not go to such a
length. The respondent contends,
in effect that the sins of
counsel with respect to a
solicitor’s licence should not
be visited on the head of the
poor client.
Conflicting foreign authorities
In a full and fair amicus
curiae brief submitted by Nene
Amegatcher on behalf of the
Ghana Bar Association he sets
out two streams of foreign
judicial decisions with regard
to this matter. The English
Courts support the stance of the
respondent.
Mr. Amegatcher filed many
Australian authorities but even
though severe sanctions
including disbarment were
imposed on the defaulting
lawyers in those cases, they did
not touch on the invalidation of
the processes undertaken by the
said lawyers.
However in the brief submitted
by the Attorney-General reliance
has been placed on Yonge vs
Tonybee (1910) 1KB 215,
Neary vs Adu-Gyamfi, 270 Va.
28, 613 S.E 2d 429 (2005) a
decision of the Supreme Court of
Virginia and Jones v Jones,
49 Va. App. 31, 635 S.E 2d 694
(2006) a decision of the Court
of Appeal of Virginia, as
authorities to the effect that
the failure of a lawyer to take
out a practicing certificate
invalidates the processes
undertaken by that lawyer.
Counsel’s reliance on the
Tonybee case, supra is
clearly by way of analogy as
that case turned on appearance
filed by solicitors on behalf of
their client who, unknown to
them was a certified lunatic and
subsequent to the said
appearance further procedural
steps were taken by the
parties. Upon discovery of the
fact of lunacy the processes
pursuant to the said appearance
on behalf of the defendant were
nullified and the solicitors
were mulcted in costs. However
the analogy is false, given the
different legal context of the
present case. If a process does
not lie because of some
insurmountable legal obstacle,
cadit quaestio. In any
case the stance of the
Tonybee case in favour of
invalidation of processes
pursued without the authority of
the client or detrimental to his
legal welfare is protective and
not destructive to the client.
The Preferable English view
After very anxious
consideration of this matter I
hold that the English view of
this matter is the preferable
one. As was stated per Sowah
JSC as he then was delievering
the judgment of the Supreme
Court in Gwira v State
Insurance Courporation
(1984-86) I GLR 132 at 137,
though Ghanaian courts are not
bound to follow English
decisions in principle,
decisions of English courts have
great persuasive influence in
shaping our own decisions unless
“they are considered wrong or
inappropriate to our
circumstances”. (e.s)
The rationale for this
favourable attitude of our
courts to English decisions has
been succinctly explained by
Amua-Sekyi J as he then was, in
Amponsah v Appiagyei and
Others (1982-83)1 GLR 96 at
110-111 as follows:
“Decisions of the Court of
England are not binding on us,
but we cannot shut our eyes
to the fact that in many spheres
our laws are modeled on those of
England. Let us bear in
mind the wise counsel of Sowah
J.A. (as he then was) in
Pokua v. State Insurance
Corporation (supra) on the
attitude we should adopt towards
decisions of the English
courts. After pointing out that
our Act of 1958 is almost a
verbatim reproduction of English
statutes, he said at p. 386,
C.A:
“It is of course correct that
our courts are not bound to
follow decisions of foreign
courts and are free to chart
their own course; and so be it;
but where the foreign piece of
legislation is in pari
materia with similar, it
does seem prudent to have regard
to the experience of those who
have chartered the same course
before and to observe in
what manner we are in agreement
with them or otherwise; and it
is in this spirit that our
courts should examine foreign
decisions bearing upon the Act
now under consideration. I do
not consider that English words
must necessarily alter their
meaning simply because the
countries using the language
might make different social and
economic circumstances.”
If the decision of the English
Court of Appeal in Carpenter
v Ebble-white (supra) had
been properly considered, and
that of the same court in
Post Office v. Norwich Union
Fire Insurance Society Ltd. (supra)
been brought to their notice,
I doubt not but that our Court
of Appeal would have given those
decisions the weight they
deserved and applied them to the
case before them.”(e.s)
This has further been
strengthened by Osei-Hwere and
Aikins JJSC in the celebrated
case of Afraniell v Quarcoo
and Another (1992)2 GLR 561
SC. At 604 Osei-Hwere JSC said:
“The word “landlord” appears in
both section 17(1)(g) and (h) of
Act 220. The English
authorities like sharpe v
Nicholls [1945] KB 382, CA
and the many other authorities
which follow it, like Baker v
Rosenberg [1947] KB 371, CA
have excluded personal
representatives who are not
beneficially entitled to the
premises as landlords under the
provisions of section 3(1) and
Sched 1, para (h) of the
Rent and Mortgage Restrictions
(Amendment) Act, (1933). That
section is not dissimilar to our
section 17(1)(g) of Act 220.
We have not dared to pronounce
these English decisions to be
wrongly decided. If they are
right and their interpretation
of “landlord’ can well apply to
section 17(1)(h) of Act 220 then
there can be no legal
justification nor is there any
rhyme nor reason for saying that
their interpretation of
“landlord” cannot apply also to
section 17(1)(h) of Act 220
where the same landlord requires
the premises for a different
purpose.”(e.s)
It is hardly necessary to
state that s.8 of Act 32 is in
pari materia with the
English legislation.
Indeed in Akufo-Addo v
Quashie-Idun, supra, the
Court of Appeal (Full Bench)
relied on the English case of
Richards v Bostock (1914) 31
TLR 70 to support its decision.
Amissah J.A delivering the
unanimous judgment of the court
stated at 682 thus:
“It has been suggested on behalf
to the plaintiffs that it is not
the duty of the Chief Justice or
the Judicial Secretary to
enforce the Income Tax Decree.
And that the Decree provide
penalties for its breach. But
even if the Chief Justice or the
Judicial Secretary or for that
matter the General Legal Council
is not the appropriate authority
for initiating penal proceedings
against lawyers who infringe the
Decree, they are not prevented
from discouraging breaches. And
here the case of Richards v
Bostock (1914) 31 T.L.R. 70
is in point. In that case it
appeared during the course of a
trial that the plaintiff’s
solicitor held a country
certificate only, although
his address on the writ was
given as a London address in
“Lombard Street E.C. “The
judge though holding that the
solicitor was committing an
offence and therefore liable
to a penalty, ordered the
case to stand over so that the
plaintiff might be able to
consult another solicitor.
The judge was not deprived of
his power to refuse to continue
with the case merely because of
the penalty attached to the
offence the solicitor was
committing.”(e.s)
It is instructive to set
out in full the facts and
decision of Richards v
Bostock at 70 of the report
as follows:
“In a case in which during the
course of the trial it appeared
that the plaintiff’s solicitor
held a country certificate only,
although his address on the writ
was given as “Lombard-street,
E.C., “the Judge, though
holding that the solicitor was
committing an offence, declined
to dismiss the action, but
ordered the case to stand over
so that the plaintiff might be
able to consult another
solicitor.
A question of interest to the
legal profession arose in this
case, which was concerned with
the rights of the parties in
certain land situated at Cross
Keys. The Hon. Frank Russell,
K.C., and Mr. G. D. Johnston
appeared for the plaintiff; Mr.
Micklem, K.C., and Mr. H. Church
for the defendant.
Before Mr. FRANK RUSSELL had concluded
his opening speech on behalf of
the plaintiff, Mr. MICKLEM took
the objection that the
plaintiff’s solicitor was not in
a position to instruct counsel
and that the proceedings could
not continue.
By the Stamp Act, 1891, section
43, a person practicing as a
solicitor without having a duly
stamped certificate was liable
to a penalty and could not
recover costs. In the present
case the solicitor held a
country certificate only, upon
which,, according to the
schedule to the Act, stamp duty
of £6 was payable ; but his
address on the writ was given as
Lombard-street, E.C., and for a
solicitor practicing within 10
miles of the General Post
Office, London a certificate
bearing stamp duty of £9 was
necessary.
The case was then adjourned so
that the Judge might consider
the matter.
After the adjournment MR.
JUSTICE ASTBURY said that he had
now consulted the officials of
the Law Society and his
colleagues, and that there was
no precedent under which the
question could be dealt with.
He was satisfied, however,
that the solicitor was
committing an offence, and this
must be prevented. He did not
wish the plaintiff himself to so
suffer, and he would order the
case to stand over. The
plaintiff could then consult
another solicitor or take
whatever steps he thought best.
Mr. MICKLEM, K.C. – I ask
that the action be dismissed on
the ground that the proceedings
are void.
MR JUSTICE ASTBURY – No;
in Sparling v Brereton
([1866] L.R., 2 Eq., 64),
where a solicitor had not
renewed his certificate,
Vice-Chancellor Wood refused to
invalidate proceedings begun by
the solicitor on behalf of a
defendant, saying;-“It
would be most mischievous indeed
if persons without any power of
informing themselves on the
subject should be held liable
for the consequences of any
irregularity in the
qualification of their solicitor.”
” (e.s)
It is also instructive to
set out the reasoning of Wood V.
C. in Sparling v Brereton,
supra, partially quoted by
Astbury J in Richards v
Bostock, supra, as set out
by Amegatcher in his amicus
curiae brief as follows;
“Sir W. Page Wood, V.C.,
delivered his Ruling in the
following words at page 67:
“The cases at common law seem
to show that although great
difficulties are thrown in the
way of any recovery of his costs
by a Solicitor who acts for a
client without being duly
qualified, the proceedings
themselves are not void. It
would be most mischievous,
indeed, if persons, without any
power of informing themselves on
the subject, should be held
liable for the consequences of
any irregularity in the
qualification of their
Solicitor. As against third
parties the acts of such a
person acting as a Solicitor are
valid and binding upon the
client on whose behalf they are
done. A client who might
ascertain by inquiry that his
Solicitor was on the roll, would
have no means of finding out if
his certificate was taken out
and stamped at the proper time.
I do not, therefore, think
myself justified in interfering,
because, at the time when the
appearance which it is sought to
vacate was entered, the
Solicitor had no certificate.
The result of the authorities is
thus stated by Erle, J., in
Holgate vrs. Slight 21 L.J.
(Q.B.) 74: “It seems to me,
therefore, that an attorney,
though uncertificated, may do
acts in his capacity of
attorney, but that the result
will be that he will, in such a
case, lose his fees.” (e.s)
The learned Vice-Chancellor
concluded:
“I should be injuring both
plaintiffs and defendants if I
were to hold that the absence of
a certificate had the effect of
invalidating all proceedings
taken in the suit”.”(e.s)
It is noticeable that in
the case of Richards v
Bostock, supra, the judge,
upon noticing the truncated
ambit of the solicitor’s licence
of the plaintiff’s solicitor did
not nullify the proceedings so
far based on the licence of the
plaintiff’s solicitor but merely
“ordered the case to stand
over so that the plaintiff might
be able to consult another
solicitor”
I however, with respect,
disapprove of the way Erle J put
the matter in Holgate vrs
Slight, supra, since it is
inter alia, plainly criminal for
an uncertificated attorney to do
acts in his capacity as
attorney. However the law as
regards the consequences of a
solicitor’s failure to take out
a solicitor’s license seems to
remain settled as stated supra.
Thus in his amicus curiae brief
Mr. Amegacher states thus:
“The learned authors of
Halbury’s laws of England in
their commentary on the effect
of a lawyer practicing without a
valid practicing certificate
which is the equivalent of our
solicitor’s licence, state in
44 Halbury’s Laws of England (4th
Edition) Paragraph 353 and 354
as follows:
353. Unqualified persons acting
as solicitors in litigious
maters.
Subject to certain exceptions no
person is qualified to act as a
solicitor unless he has been
admitted as a solicitor, his
name is on the roll of solicitor
and he has in force a practicing
certificate authorizing him to
practice as a solicitor.
“Unqualified person” means a
person who is not so qualified
to act as a solicitor. A body
corporate cannot be qualified to
act as a solicitor, and may be
prosecuted for pretending to be
qualified.
Proceedings are not invalidated
between one litigant and the
opposite party merely by reason
of the litigant’s solicitor
being unqualified, for example
by his not having a proper
practicing certificate in force.”
It is also noteworthy that
the Attorney-General in his
brief noted that one of the
judges in the Virginia Court of
Appeal’s decision in Jones v
Jones, supra dissented from
the majority view which held
that processes undertaken by an
unlicensed solicitor are a
nullity.
Inherent statutory support for
the Respondent’s contention.
It is noticeable that the
ire of the Legal Profession Act,
1960(Act 32) is heavily weighted
against the defaulting solicitor
in paternalistic protection of
the supine and vulnerable
client. Hence s.8(5) and (6)
provides as follows:
“8.
Practicing certificate
x x x
(5) The Council may,
before issuing a solicitor’s
licence to a person, require
that person to produce evidence
specified by the Council showing
that that person has not been
found guilty of professional
misconduct in the Republic or in
any other country.
(6) A person who
practices in contravention of
this section commits an offence
and is liable on conviction to a
fine not exceeding two hundred
penalty units and shall not
maintain an action for the
recovery of fees, reward or
disbursement on account of, or
in relation to, an act or
proceeding done or taken in the
course of that practice.”(e.s)
In particular s.8(6) by
providing inter alia that a
person who unlawfully practices
law “shall not maintain an
action for the recovery of fees,
reward or disbursement on
account of, or in relation to,
an act or proceeding done or
taken in the course of that
practice” incorporates the
doctrine that the parties are
not in pari delicto in
the statutory breach and does
not hold the documents or acts
of the defaulters as vitiated to
the detriment of the client and
others affected by such
documents or acts, but only
debars the defaulter from
recovering any “fees, rewards or
disbursement on account of, or
in relation to, an act or
proceeding done or taken in the
course of that practice.”
Again sections 30 and 31
further illumine the
paternalistic stance of the
legislation in favour of the
client. They are as follows:
“30.
Bill of fees
(1)
A lawyer is not entitled to
commence a suit for the recovery
of fees
for a business done as a
barrister or solicitor until
the expiration of one month
after the lawyer has served on
the party to be charged a bill
of those fees.
(2)
The bill shall be signed by the
lawyer, or in the case of a
partnership by a partner
personally or in the name of the
partnership, and shall be
enclosed in or accompanied by a
letter signed in like manner
referring to the bill.
31. Application to tax bill
Where the party to be charged
applies to the Court within the
month referred to in section 30,
the Court may refer the bill
and the demand of the lawyer to
be taxed and settled by the
taxing officer of the Court.”
In Ayarna v Agyemang
(1976)1 GLR 306 C.A, which has
been followed consistently in
this court, it was held that the
Act was so protective of the
client against the solicitor
that even if the fees had been
agreed between the lawyer and
client the sections still
applied and the fees charged
could still be taxed down. The
benign protective thrust of Act
32 in favour of the client
against the solicitor has
further been laid bare by Dr.
Date-Bah JSC delivering the lead
opinion in Nartey v Gati
[2010] SCGLR 745 (Sophia Akuffo,
Brobbey, Ansah, R.C Owusu,
Dotse, Anin Yeboah,
Baffoe-Bonnie and Gbadegbe JJSC,
concurring), at 758 thus:
“In Ayarna v Agyeman
[1976] 1GLR 306, the Court of
Appeal held that the true object
of section 30(1) of the Legal
Profession Act, 1960 (Act 32),
was to enable the court to
oversee and supervise the
charging of professional fees if
a dispute arose between a lawyer
and his client as to the quantum
or propriety of the fees charged
and that compliance with section
30(1) of Act 32 was a mandatory
pre-condition for the
commencement of an action by a
lawyer to recover his fees.
This decision provides a
rational and legitimate basis
for differential treatment
between lawyers and their
clients. Parliament,
with a view to protecting the
interest of clients of lawyers,
has thought it fit to enact
section 30(1) of Act 32. This
is a legitimate use of the
legislative authority which is
not inconsistent with article
17(1) whose meaning has been
explained above.
In other words, the
inequality or discrimination
necessitated by section 30(1) of
the Legal Profession Act, 1960
bears a just and reasonable
relation to the purpose of that
provision, which is to protect
the clients of lawyers.
The provision does not, thus,
provide for unlawful
discrimination or unlawful
inequality. It represents
justifiable discrimination; it
is neither arbitrary nor
unreasonable. Indeed, article
109(1) of the 1992 Constitution,
expressly gives Parliament the
authority to regulate
professional, trade and business
organizations. That article
therefore confirms the
interpretation of article 17(1)
which has been laid out above.”
(e.s)
Furthermore O.75 r.5(1)
(a) (b), (4) and (5) of the High
Court (Civil Procedure) Rules,
2004 strengthen the foregoing
construction of Act 32, for it
is trite law that subsidiary
legislation must be read
together with the substantive
Act and may be explanatory of
each other, except where there
is an inconsistency.
They are as follow:
“5. Removal
of Lawyer from record
(1)
Where
(a)
a lawyer who acts for a party in a
cause or matter dies or becomes
bankrupt or cannot be found
or fails to take out a
practicing certificate or
has been struck off the roll of
lawyers or has been suspended
from practicing or has for any
other reason ceased to practice;
and
(b)
the party has not given notice of
change of
lawyer or notice of intention to
act in person in accordance with
rule 3,
any other party to the cause or matter
may apply to the Court for an
order declaring that the lawyer
has ceased to be the lawyer
acting for the first-mentioned
party in the cause or matter,
and the Court may make an order
accordingly.
x x x
(4) Where the Court makes
an order under this rule, the
Registrar shall immediately
notify every party to the cause
or matter, who has filed an
appearance, of the making of the
order.
(5) An order made under
this rule shall not affect the
rights of the lawyer and the
party for whom the lawyer acted
as between themselves.”
It will be seen that O.75
does not invalidate the
processes filed by a solicitor
who has failed to take out a
practicing certificate. O.75
r.(5) may even be said to
contravene s.8(6) of Act 32 but
“the rights of the lawyer and
the party” therein referred to
ought to be construed as not
derogating from s.8(6) of Act
32.
In the circumstances the
courts should so construe the
provisions of Act 32 so as to
insulate the client against the
statutory failings of counsel,
ut res magis valeat quam
pereat. This results from a
construction of the whole
purpose and design of the Act.
See by analogy Benneh v The
Republic (1974)2 GLR 47 C.A
(Full Bench) and Pauley v
Kenaldo Ld. (1953) 1 WLR
187.
That when the purpose of a
statute is clear it is that
purpose which is enforced by the
courts, especially in recent
times throughout the common law
world, rather than the bare
literal words of the statute, is
incontrovertible. Thus in
Alawiye v Agyekum (1984-86)1 GLR
179 C.A at 187 Osei-Hwere J.A
(as he then was) delivering the
judgment of the Court of Appeal
stressed that the protective
statutory prerequisites for the
recovery of rented premises from
a tenant should not be lightly
taken as proven, as follows:
“We think that we would be
taking a view simple to the
extreme to hold that those
matters contained in the
plaintiff’s affidavit, if even
the trial court was entitled to
take them into consideration,
afforded sufficient evidence.
The Rent Act, 1963 (Act 220)
may well be described as the
charter of the liberties of the
tenant. It contains many
onerous provisions for the
protection of the tenant.”(e.s)
Act 32 plainly stands in
consimili casu.
It is such an approach
that leads courts to
characterize statutes as
mandatory or Directory and their
breaches as irregularities or
vitiating.
It is true that in some of
my judgments I have made
statements to the effect that a
court cannot shut its eyes to
the breach of a statute. But
their context matters. In a
supervisory jurisdiction context
the remedy of certiorari,
because of its prerogative
peculiarity, remains
discretionary even though the
proceedings in respect of which
it is invoked are a nullity.
Thus in Republic v Circuit
Court, Accra; Ex parte
Komeley Adams & Others
(Komietteh Adams (substituted
by) Otsiata IV Interested Party)
(2012) 1 SCGLR 111 at 116 I
stressed thus: “It must be
remembered that the
prerogative origin of the
prerogative orders of
certiorari, mandamus, etc
holds that it is a specialized
residual jurisdiction and
therefore has some peculiarities
which the ordinary remedies of
the courts do not entail.”
(e.s)
The peculiarity of the
supervisory jurisdiction was
also stressed, (though erosion
has since set in) by Cecilia
Koranteng-Addow J in Republic
v GIHOC; Ex parte Amartey Kwei &
Ors. (1982-83)IGLR510.
Hence by contrast under
ordinary common law principles a
court has no discretion with
regard to the setting aside of
its order that is null and void.
Even there see Ampofo v
Samanpa (2003-2004)2 SCG LR
1153.
In other contexts if there
is implication in the statute
itself, as here, against
attaching nullification to its
infraction, cadit quaestio.
The interpretation adopted by my
brethren in the majority in this
case reflects the lamentation of
the very distinguished American
jurist, Benjamin Nathan Cardozo
quoted per Abban JSC in New
Patriotic Party v
Attorney-General (1993-94)2
GLR 35 S.C at 118 thus:
“Judges march at times to
pitiless conclusion under
the prod of remorseless logic
which is supposed to leave them
no alternative. They deplore
the sacrificial rite. They
perform it nonetheless, with
averted gaze, convinced as they
plunge the knife, that they obey
the bidding of their office.
The victim is offered up to the
gods of jurisprudence on the
alter of regularity.”
However at 127 of the same
report, Amua-Sekyi JSC quoted a
panacea to such situations from
Taylor JSC’s dissenting judgment
in Kwakye v Attorney-General
(1981) GLR 944 at 1070 as
follows:
“In my humble opinion, the
function of the Supreme Court in
interpreting the Constitution or
any statutory document, is not
to construe written law merely
for the sake of law; it is to
construe the written law in a
manner that vindicates it as an
instrument of justice. If
therefore a provision in a
written law can be interpreted
in one breadth to promote
justice and in another to
produce injustice, I think the
Supreme Court is bound to select
the interpretation that advances
the course of justice unless, in
fact, the law does not need
interpretation at all but rather
specifically and in terms
provide for injustice.”
(e.s)
The justice of this case
should not be far to seek.
Since this court unanimously
held in Nartey v. Gati,
supra, that it is constitutional
for Act 32 to discriminate
against the solicitor in
protection of the client it is
just that this court held
against a solicitor who mounts
an action against a client for
fees without complying with s.30
of Act 32 in that case which was
followed in Gaisie Zwennes
Hughes & Co v Loders Oracklaan
BV (2012)1 SCGLR 363 and
Accam v Gbertey (2013-2014)1
SCGLR 343 but should protect the
client against the solicitor’s
excesses.
Indeed the English
decisions I have set out supra,
show that s.8 of Act 32 can be
interpreted in a way that avoids
injustice and therefore an
alternative construction that
leads to injustice must be
avoided.
General common Law Principles
The courts generally are
loath to visit the wrongdoing of
a person on another where the
latter is not in position to
control the acts of the former.
See Ameyibor v Komla
(1980)GLR 20 C.A, Gyamera v
Brefo (1984-86) 1 GLR 110
C.A and Republic v High
Court, Kumasi; Ex parte Ackaah
(1995-96)1 GLR 270 S.C. And
so the familiar judicial saying
that the sins of counsel should
not be visited on the head of
the poor client, see Republic
v. Asokore Traditional Council;
Ex parte Tiwaa (1976)2 GLR
231 at 238 C.A.
As was agonized by Page
Wood V.C in Sparling v
Bereton, supra, the client
cannot know of the default of
the lawyer in taking out a
solicitor’s licence. In our
simple Ghanaian society this is
even more so.
Conclusion
Since Ghanaian statutes,
especially in the formative
years of our legal system, are
often patterned on English
legislation, it is reasonable to
hold that when the Legal
Profession Act, 1960 (Act 32)
was being introduced it stood to
be influenced by the English
decisions referred to supra,
dating from 1866 to 1914 rather
than decisions from America,
Australia, etc which are of very
recent vintage. In any event,
since upon scrutiny, it will be
realized that though the Court
of Appeal in Akufo-Addo v
Quashie-Idun upheld the
propriety of the implementation
of the circular of the General
Legal Council regarding the
representation of clients in
court and the preparation of
legal documents by defaulting
lawyers, it also approved and
applied the English decision of
Richards v Bostock,
supra, that decision [i.e
Akufo-Addo v Quashie-Idun),
means that (1) a solicitor who
defaults to obtain a licence
cannot continue as solicitor for
his client in court but that (2)
processes undertaken by him for
his client will not be
invalidated. The Teriwaja
case which approved the decision
in Akufo-Addo v Quahsie-Idun,
therefore also has the same
meaning.
It is true that the client
can sue his defaulting solicitor
for damages arising out of his
default to take out a
solicitor’s licence, but I do
not think that the decisions I
have referred to were arrived at
in ignorance of that remedy.
Such a remedy may prove to be
vacuous since the defaulting
solicitors, like many of their
Australian counterparts, may be
impecunious. In any event if
for his default to obtain a
solicitor’s licence the
solicitor is open to a
multiplicity of sanctions why
should the poor client be left
to only one perilous remedy of
an action against the defaulting
solicitor in the face of a high
voltage possibility that he is
non dignis litis?
However as stated supra, the
tenor, scheme, context and
purport of Act 32 are to invest
the client with protective
devices against the vices of his
solicitor. When the purpose of
a statute is clearly ascertained
it must be so construed as to
effectuate that purpose, see
Benneh v The Republic
(1974)2 GLR 47, CA (full bench),
supra. Indeed in Amegatcher
v Attorney-General (2012) 1
SCGLR 679 at 686 Dr. Date-Bah
JSC forcefully stated thus:
“…. a literal reading of article
88(5) of the 1992 Constitution
cannot be allowed to stand in
the way of the aspiration of
the people, expressed in an
acknowledged core value of the
Constitution. If the plain
meaning of a constitutional text
runs counter to a core value of
the Constitution, it calls for
reflection and a purposive
interpretation to reconcile the
particular core value or
aspiration of the people with
the language employed in the
text with a view to
extracting a meaning by a
process of interpretation that
expresses the spirit of the
Constitution.” This
mutatis mutandis is also
applicable to ordinary statutory
construction.
Again in In re
Presidential Petition (No.
4); (2013) Special Edition 73 at
1471 also said: “In modern
times, the courts do not apply
or enforce the words of statutes
but their objects, purposes
and spirit or core values.”(e,s)
All this has the modern ample
support and requirements of
s.10(4) of the Interpretation
Act (2009) Act 792.
I would conclude therefore
that the failure of a lawyer to
take out a solicitor’s licence
should lead to an adjournment of
proceedings to enable the client
instruct another lawyer, if
necessary but not the
invalidation of the processes
filed for the client. This
applies also to the question of
an unregistered chambers.
In deserving cases the
courts can even resort to
contempt powers, referral to the
disciplinary committee of the
General Legal Council or the
Police, so as to stamp out the
virus of solicitor’s failure to
take out a licence. The Bar in
Ghana should note that, as per
their amicus curiae submissions
in this case, disbarment is a
sanction that is readily
resorted to in Australia and
Canada for practicing despite
failure to take out a practicing
certificate and this sanction,
in fitting cases, can be applied
in Ghana by the appropriate
statutory body.
Commendation
I wish to thank the amici
curiae, i.e. the
Attorney-General and Nene
Amegatcher (on behalf of the
GBA) for their diligent briefs
which have greatly helped us to
resolve this thorny issue.
However, for all the
foregoing reasons I would
dismiss the appeal.
(SGD) W. A.
ATUGUBA
JUSTICE OF THE SUPREME COURT
AKAMBA,
JSC:
I have been privileged to have
read the opinion of my esteemed
brother and President of this
court, Atuguba, JSC, dismissing
the appeal as well as the
opinions of my able and equally
respected brothers Dotse and
Anin Yeboah, JJSC to the
contrary. After reading the
divergent views, I have had but
anxious moments trying to
unravel the core issue in this
discourse. I would not be
serving my conscience right by
simply associating myself with
one of the two divides without
assigning my own reasons for the
stance I take. Also, considering
the serious implications this
action has on the development
and conduct of the legal
profession in Ghana and our
jurisprudence in this area of
the law, I deem it appropriate
to state my views which I
proceed to do.
The facts of this case are
succinctly stated in the
judgment of the President. This
matter comes on appeal from the
Court of Appeal. The matter
calls for a close look at the
statutes that regulate the Legal
Profession in Ghana. At the
Court of Appeal, the court was
called upon to interpret section
8 (1) of the Legal Profession
Act (Act 32) of 1960 and the
effect of a process filed by a
lawyer who has not procured a
solicitor’s license. Also
relevant to this discourse is
the Legal Profession
(Professional Conduct and
Etiquette) Rules, 1969 LI 613.
The Legal Profession Act 1960,
Act 32 was passed to consolidate
and amend the law relating to
the legal profession. Under
section 1 of the Act, the
General Legal Council is
conferred with the power to
regulate the affairs of the
profession. Section 1 (1) (b) of
the Act mandates the General
Legal Council to be concerned
with the legal profession and
particularly with upholding
standards of professional
conduct.
Section 2 of Act 32 states as
follows:
Status of Lawyers
“A person whose name is entered
on the Roll kept under section 6
(a) is entitled, subject
to Section 8, to practice as a
lawyer, whether as a barrister
or solicitor or both, the fees,
charges and disbursement for
services rendered as a lawyer,
and
(b) is an officer of the
courts, and
(c) is subject, when
acting as a lawyer, to the
liabilities that attach by law
to a Solicitor.”
S. 8 (1) of Act 32 also provides
as follows:
“A person, other than the
Attorney General or an officer
of Attorney-General’s
department, shall not practice
as a solicitor unless that
person has in respect of that
practice a valid annual
solicitor’s license issued by
the Council duly stamped and in
the form set out in the Second
Schedule.”
This provision is clear and
unambiguous but that is what
circumscribes its present
difficulties. In other words,
underlying its simplicity comes
its complexity.
In the case of Republic v High
Court, Accra; Ex Parte Teriwajah
and Henry Nuertey Korboe (Reiss
& Co, Ghana Ltd (Interested
Party) unreported Suit No
J4/24/2013 delivered on 11th
December 2013 we unanimously
held that the respondent, not
having obtained his solicitor’s
licence for the year under
consideration could not be
granted audience before the
courts. That case did not
determine the fate of processes
filed by an aberrant solicitor
or lawyer. Therein lies the
difference between what was
determined in the aforementioned
case and the present case in
which the core issue for
determination is what happens to
processes filed by such lawyer
following his disbarment from
audience by the courts.
The present case calls for an
interpretation of the relevant
provisions of Act 32 and in
particular sections 1 (b) and 8
(1) of Act 32 quoted supra. The
Act mandates any person, other
than the Attorney General or an
officer in his department to
practice as a solicitor only
upon (that person) obtaining a
valid annual license issued to
him/her by the General Legal
Council, in the form set out in
the 2nd Schedule. Section 8 (6)
prescribes a penalty for a
defaulting person practicing as
a lawyer. There is equally a
penalty prescribed for a person
who is not enrolled as a lawyer
but prepares any document for
reward or pretends to be a
lawyer. (See Section 9 of Act
32). In the present stalemate it
is important to interpret the
provisions of this Act to
achieve the purpose for which it
was enacted. The purpose is
obvious from a reading of the
Act which was enacted to
regulate the practice of the
legal profession. Reading the
legislation as a whole the
target of this legislation
becomes obvious. Aside that, the
wording of sections 8 and 9 of
the Act in particular, discloses
those who are targeted by those
sections and for that matter the
whole legislation - lawyers or
members of the legal profession.
Viewed from this standpoint one
can begin to appreciate the
decision in Akuffo-Addo vs
Quashie Idun (1968) GLR 667. The
court upheld the view that the
Chief Justice as the foremost
upholder of the law and the
General Legal Council with the
charge to supervise the conduct
of lawyers are duty bound to see
that lawyers do not break the
law. Amissah JA, delivering the
judgment of the court cited
reliance on the English case of
Richards v Bostock (1914) 31 TLR
70 which is relevant to our
discussion on the point of
interpreting the extent of
section 8 (1) of Act 32. In that
case it appeared during the
course of a trial that the
plaintiff’s solicitor held a
County Certificate only,
although his address on the writ
was given as a London address in
‘Lombard Street E.C.’ The judge
though holding that the
solicitor was committing an
offence and therefore liable to
a penalty, ordered the case to
stand over so that the plaintiff
might be able to consult another
solicitor. The judge was not
deprived of his power to refuse
to continue with the case merely
because of the penalty attached
to the offence the solicitor was
committing.” (e.s)
The authors of Halsbury’s Laws
of England provide a very useful
commentary on the effect of a
lawyer practicing without a
valid practicing certificate
which is equivalent to our
solicitor’s license. In the 44
Halsbury’s Laws of England (4th
Edition) Paragraphs 353 and 354
it is stated thus:
“353. Unqualified persons acting
as solicitors in litigious
matters.
Subject to certain exceptions no
person is qualified to act as a
solicitor unless he has been
admitted as a solicitor, his
name is on the roll of
solicitors and he has in force a
practicing certificate
authorizing him to practice as a
solicitor. “Unqualified person”
means a person who is not so
qualified to act as a solicitor.
A body corporate cannot be
qualified to act as a solicitor,
and may be prosecuted for
pretending to be qualified.
Proceedings are not invalidated
between one litigant and
opposite party merely by reason
of the litigant’s solicitor
being unqualified, for example
by his not having a proper
practicing certificate in
force.”
EFFECT OF INFRINGEMENT OF S.8
(1)
Any interpretation to the effect
that a person who infringes s. 8
(1) of Act 32 be not only
amenable to suffer the penalty
attached thereto but to extend
to all processes filed by him
would be outrageous. The fact
of the matter is that when a
lawyer files process on behalf
of a client, he does so as an
agent of the client. The lawyer
does not own the processes.
Those processes belong rather to
the client on whose behalf they
were filed. It is for that
reason that a lawyer is entitled
to sue for his fees under normal
conditions where the lawyer has
satisfied certain preconditions
laid in the Act. However, where
the lawyer has failed to comply
with section 8, the lawyer
suffers the penalties provided
in section 8 (6) of the Act. The
relevant provisions of section 8
(6) of Act 32 states the
following:
“A person who practices in
contravention of this section
commits an offence and is liable
on conviction to a fine not
exceeding two hundred penalty
units and shall not maintain an
action for the recovery of fees,
reward or disbursement on
account of, or in relation to,
an act or proceeding done or
taken in the course of that
practice.”
It is instructive to note that
the errant lawyer cannot
maintain an action for recovery
of fees for anything done in
relation to the proceeding or
taken by him which to my mind is
part of the sanction such lawyer
suffers. Were it intended that
the client should also be
mulcted; the section would have
specifically stated so, even
though the client could not be
sanctioned without first being
given a hearing in his defence.
It is trite to observe that
when a client discontinues with
the services of a lawyer, the
client is entitled as of right
to the return of his brief. The
brief constitutes all processes
conducted on his behalf prior to
the disengagement of their
relationship.
Black’s Law Dictionary, Eight
Edition by Bryan A Garner,
defines brief as:
“A written statement setting out
the legal contention of a party
in litigation, esp. on appeal; a
document prepared by counsel as
the basis for arguing a case,
consisting of legal and factual
arguments and the authorities in
support of them. -Also termed
legal brief; brief of argument.
A process on the other hand is
defined as:
“The proceedings in any action
or prosecution <due process of
law>. 2. A summons or writ, esp.
to appear or respond in court<
service of process>. The term
‘process’ is not limited to
‘summons’. In its broadest sense
it is equivalent to, or
synonymous with, ‘procedure’ or
‘proceeding.’ Sometimes the term
is also broadly defined as the
means whereby a court compels a
compliance with its demands.”
It is equally instructive to
refer to the Legal Profession
(Professional Conduct and
Etiquette) Rules, 1969 (LI 613)
rule 5 thereof which deals with
‘Briefs and Pleadings” as
follows:
“Rule 5 - Briefs and Pleadings.
(1) A lawyer in practice is
bound to accept any briefs in
the Court in which he professes
to practise at a proper
professional fee depending on
the length and difficulty of the
case. Special circumstances may
justify his refusal at his
discretion to accept a
particular brief.
(2) A lawyer should be
separately instructed and
separately remunerated by fees
for each piece of work done, and
he shall not undertake to
represent any person, authority
or corporation in all their
court work for a fixed annual
salary. But a lawyer may accept
a retainer for advice.
(3) Where a lawyer withdraws
from a case and returns the
client's brief, it is his duty
to hand it back to the client
from whom he received it. A
lawyer who accepts a brief is in
a confidential position, and he
shall not communicate to any
other person the information
which has been confided to him
as such lawyer; and he shall not
use either such information or
his position as a lawyer to his
client's detriment. The duties
here stated continue after the
relation of lawyer and client
has ceased.
(4) The papers in a brief
delivered to a lawyer are the
property of the client, and the
lawyer has no right to lend them
to any person without the
consent of the client.
(5) A lawyer shall not accept a
brief limiting his ordinary
authority, or take a subordinate
position in the conduct of a
case or share such conduct with
the client even if the litigant
is himself a lawyer; and he
shall not accept a brief on the
condition that his discretion as
to offering no evidence is
fettered.
(6) A lawyer who finds on
receiving a brief that another
lawyer has previously been
retained shall not accept the
brief without—
(a) communicating in the first
instance with the lawyer who
first handled it; and
(b) enquiring whether he has any
objection to his accepting the
brief.
Such communication shall be by
the latter lawyer to the former
one direct, and not through his
clerk.
(7) If the first lawyer does
indicate any objection to the
brief being taken away from him,
the second one ought, where
practicable, to ascertain from
the client what are the exact
reasons why the brief has been
taken away from the first
lawyer; and unless a
satisfactory explanation is
given shall refuse or return the
brief.
(8) A lawyer is, in all his
practice, but especially with
regard to settling and signing
of pleadings, under
responsibilities to the Court as
well as to his client. He shall
not put into a pleading any
allegation which is not
supported by the facts which are
laid before him by his client.
If on the material before him
there is no cause of action or
no defence in law, he may ask
for further instructions to find
if more material can be
obtained; and if it cannot, he
may advise his client
accordingly. In particular,
where a lawyer is instructed to
allege fraud, he shall not
subscribe to such an allegation
without having before him clear
instructions that the client
does wish to allege fraud and
will support the allegation in
the witness-box. In addition the
lawyer must have before him
material which, as it stands,
establishes a prima facie case
of fraud. If the material before
him is not sufficient in his
view to warrant the allegation,
he shall advise his client that
this is his view and that he
cannot put his signature to the
pleadings if it is to contain
that charge.” (Underlined for
emphasis)
It is therefore clear that the
section under consideration,
when determined purposively, the
processes filed on behalf of the
client remain the property of
the client for the purposes for
which they were filed. The
lawyer who filed those processes
remains dis-barred subject to
other initiatives that the
General Legal Council may make.
The General Legal Council cannot
lapse in its oversight role and
rather support an interpretation
that would carry out its role
for it by shifting
responsibilities elsewhere. It
is the duty of the General Legal
Council to invoke the
appropriate sanctions against
aberrant lawyers.
DOES S. 8 SUPPORT FORFEITURE OF
PROCESS FILED ON BEHALF OF
CLIENT?
What purpose would be served by
extending the punishment for
infringing s. 8 to affect the
client who is not required by
law to satisfy any statute prior
to engaging the services of any
lawyer? Any attempt to extend
such punishment to the client
may deprive him of the timeous
filing of processes and
therefore the right to a fair
hearing. In other words it may
lead to a deprivation of
substantive rights of the
client. It is equally
instructive to state that in
interpreting a statute, it is
not only the black letter law
that should be considered.
Equally relevant to the
interpretation is the social
context element. Thus
considered, the peculiar
environment in which the law was
adopted bears consideration. In
this context the fact that the
majority of the citizenry of
this country are illiterate does
not commend itself to an
interpretation that seeks to
deprive a client of processes
filed on his behalf solely
because the lawyer whose
services he engaged turned out
not to have his solicitor
license in place. The loss or
forfeiture of fees by a lawyer
who had not obtained his
solicitor’s license prior to the
filing of processes on behalf of
his client in addition to the
fine stipulated in s 8 (6) of
the Act is sufficient punishment
for such lawyer. Should the
General Legal Council form the
opinion that the penalty
prescribed under the present law
is inadequate, proper steps
ought to be initiated to amend
the Act. It is quite disquieting
and indeed dreadful to suggest
that by engaging the services of
a lawyer despite the knowledge
that such lawyer had been
disbarred for not possessing his
license, the client ought to be
equally punished by striking out
the processes filed on his
behalf in order to satisfy the
desire to bring sanity to the
legal profession. As between the
lawyer and the client, who
advises the other on the law?
The lawyer has been trained at a
great expense either to himself
or the state or both, to offer
professional and/or legal advice
ostensibly for a fee hence he
cannot allow himself to be
dictated to even to the point of
infringing the law which he
professes to uphold. The lawyer
must suffer for his disobedience
alone and not drag his ignorant
client with him. I am yet to
learn of a ‘client’ on whom a
person unqualified to practice
dentistry, (for failure to
register under the Medical and
Dental Act, 1972, NRCD 91)
having already repaired and
fixed artificial teeth, is
ordered to surrender the
artificial teeth as a punishment
for the actions of the
defaulting dentist. To my mind,
the aberrant dentist suffers the
punishment prescribed under the
Decree alone. It does not extend
to whatever ‘unauthorized’
practice that has already taken
place.
The case of Ashley v General
Legal Council (2007-2008) SCGLR
443 is quite apposite. In this
case Ashley was appointed to the
Ghana bench as magistrate
following advertisements in the
local newspapers. He was
appointed as a Magistrate Grade
II in 1977, became a Magistrate
Grade I in 1979 and a Circuit
judge in 1986. After fifteen
years’ service on the bench,
objection was raised to his
continued service on grounds
that his name was not on the
Roll of Lawyers in Ghana and
also that he did not possess a
University degree prior to his
entry on the bench. He was
retired in 1992. The case
centred on the issue that the
appellant Ashley was not
qualified to be enrolled on the
Roll of Lawyers in Ghana in
terms as required by section 3
(4) and 4 of Act 32, of the
Legal Profession Act, as
inserted by paragraph (a) and
(b) of NLCD 213 and as such
could not be appointed to any
position on the bench apart from
a district magistrate grade II.
This court held that the
appellant’s appointment to the
Ghana bench beyond the
Magistrate grade II level was
made in breach of the law (the
Legal Profession Act, Act 32 as
amended) and could not found any
estoppel against the General
Legal Council as urged by the
appellant. The court also stated
that this case could not form a
basis for any compensation as
counsel tried to urge upon the
court. This case exemplifies the
intendment of the Legal
Profession Act, Act 32 which is
to regulate the conduct of
lawyers and not beneficiaries of
the lawyers work. In the Ashley
case the disqualification of
Ashley beyond his Magistrate
grade II position did not affect
the functions he performed while
unqualified as a Magistrate
Grade I and as a Circuit Judge.
The reason being that the
legislation targets the lawyer
and not the beneficiary of
his/her services, though
rendered while unqualified.
Ashley was promoted beyond the
Magistrate Grade II level on the
assumption that his name was on
the Roll of Lawyers in Ghana.
His name could be on the Roll of
lawyers if he held a degree in
law, which was not the case.
Nevertheless he rose to become a
Circuit judge. He rendered
several decisions and orders all
the while when he was not
qualified for those positions.
His decisions, orders and other
official renditions were not
nullified when he was retired
for his disqualification in
terms of the entry requirements.
The reason being that he was the
person who had infringed the
legislation and consequently had
to suffer the penalty alone and
not the society at large that
benefitted or suffered from his
actions.
For the above reasons I
associate myself with the
reasons and conclusions of My
Lord President, Atuguba, JSC,
that this appeal be and is
hereby dismissed.
(SGD) J. B. AKAMBA
JUSTICE OF THE
SUPREME COURT
AKOTO – BAMFO (MRS), JSC
I have
had the benefit of reading
before-hand the well-reasoned
opinions of my respected
brothers. Even though I agree
with the reasons admirably set
down by them that full effect be
given to the provisions of
Section 8(1) of the Legal
Profession Act, 32 of 1960, it
is my considered view that
nullifying processes filed on
behalf of clients by such errant
lawyers, would be manifestly
unjust to the said client.
Requiring
an ordinary person in need of
legal services to embark upon an
inquiry as to whether or not the
intended lawyer has obtained the
requisite annual license in a
society in which there is a
dearth of database on licensed
legal practitioners would be an
arduous task.
It is for
these reasons that I agree with
the conclusions of my respected
brothers Atuguba and Akamba,
JJSC, that processes filed by
such a lawyer should not be
nullified.
(SGD) V. AKOTO
– BAMFO (MRS)
JUSTICE OF THE
SUPREME COURT
COUNSEL
NANCY D. AMPOFO (MS) ESQ. FOR THE
DEFENDANT /RESPONDENT/
APPELLANT.
JUSTIN PWAVRA TERIWAJAH ESQ.
FOR THE PLAINTIFF/APPELLANT/
RESPONDENT. |