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Legal Practitioner Legal
Profession (Professional Conduct
and Etiquette) Rules, 1969
[L.I.613] - Legal Profession
Act [Act 32] - Legal Profession
(Professional Conduct and
Etiquette) Rules, 1969
[L.I.613] Rules 2(1) and 9(9) -
HEADNOTES
The applicant, who is a lawyer
by profession, was charged under
two counts of Grave Misconduct
contrary to Rules 2(1) and 9(9)
of the Legal Profession
(Professional Conduct and
Etiquette) Rules, 1969 [L.I.613]
and Section 19(5) of the Legal
Profession Act [Act 32] of 1961
before the Disciplinary
Committee of the General Legal
Council. The applicant, who
initially pleaded ‘Guilty with
Explanation’ to the two charges,
later changed his plea and
pleaded ‘Guilty’ simpliciter to
the two charges. The Committee
convicted him on both counts on
his own plea. Section 16(1) of
Act 32 makes provision for
sanctions that the Disciplinary
Committee could mete out to
lawyers charged before it on the
offence of Grave Misconduct, The
Disciplinary Committee
sanctioned him by imposing a
concurrent sentence of one (1)
year suspension from legal
practice in respect of the first
count and three (3) years
suspension from legal practice
in respect of the second count.
This was on the 1st day
of June 2017. Six days after the
Disciplinary Committee had
imposed its sanctions on the
applicant; i.e. on the 7th of
June 2017, the applicant filed
two separate notices of appeal
against the decision of the
Committee before the Court of
Appeal.-
HELD :-
I think, having taken
judicial notice of the upsurge
of complaints at the General
Legal Council against
professional lawyers for
professional misconduct of late,
it would be in the public
interest if a duly constituted
Supreme Court in its collective
wisdom, is given the opportunity
to pronounce on the point sought
to be appealed against; i.e.
whether the Disciplinary
Committee of the General Legal
Council is a court as envisaged
under rules 8(2) and 9(3) of the
Court of Appeal Rules [C.I. 19]
and whether or not the said
rules are strictly applicable to
appeals emanating from the
Disciplinary Committee of the
General Legal Council to the
Court of Appeal. It is in the
light of the above, that I think
the application before me must
be given a serious thought. I
therefore feel inclined to grant
the application for special
leave to appeal to this Court
against the decision of the
Court of Appeal dated 6th
December 2017 for this Court to
give a final pronouncement on
the points raised by the
applicant. Application
accordingly granted.
STATUTES REFERRED TO IN JUDGMENT
Legal Profession
(Professional Conduct and
Etiquette) Rules, 1969 [L.I.613]
Legal Profession Act [Act
32]
Court of Appeal Rules,
1997 C.I. 19 Rule 8(2)
of the Constitution,
1992131(2);
Courts Act [Act 459/93]
Section 4(5)
Supreme Court Rules, 1996
[C.I. 16]. Rule 7(4)
CASES REFERRED TO IN JUDGMENT
FRIMPONG & Anor v NYARKO
[1998-99] SCGLR 734
NYANTAKYIWAA alias KISSI v
KISSI & Others [1982-83] GLR
480.
DOLPHYNE (NO.2) v
SPEEDLINE STEVEDDORING CO. LTD
[1996-97] SCGLR page 173 @ 174
KOTEY v KOLETEY [2000];
ANSAH v ATSEM [2001-2002] SCGLR
906
OSEI v ANOKYE [2007-2008]
SCGLR 463
MINING & CONSTRUCTION
LIMITED v ANGLOGOLD; (CIVIL
MOTION NO. J8/68/2016, dated
19/05/2016)
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
COUNSEL.
SAMUEL M. CUDJOE FOR THE
APPELLANT/APPLICANT/APPLICANT.
KIZITO BEYUO FOR THE
RESPONDENT/RESPONDENT/RESPONDENT.
APPAU, JSC.:-
The applicant, who is a lawyer
by profession, was charged under
two counts of Grave Misconduct
contrary to Rules 2(1) and 9(9)
of the Legal Profession
(Professional Conduct and
Etiquette) Rules, 1969 [L.I.613]
and Section 19(5) of the Legal
Profession Act [Act 32] of 1961
before the Disciplinary
Committee of the General Legal
Council. The applicant, who
initially pleaded ‘Guilty with
Explanation’ to the two charges,
later changed his plea and
pleaded ‘Guilty’ simpliciter to
the two charges. The Committee
convicted him on both counts on
his own plea. Section 16(1) of
Act 32 makes provision for
sanctions that the Disciplinary
Committee could mete out to
lawyers charged before it on the
offence of Grave Misconduct. It
reads: “A lawyer, who is
found guilty of grave misconduct
in a professional respect,
including a conduct which, in
pursuance of the Rules, is
treated as grave misconduct in a
professional respect, is liable
(a)
To have the name of that lawyer
struck off the Roll of Lawyers,
or
(b)
To be prohibited from practicing
as a lawyer for a period
specified in the order of
suspension”.
The Disciplinary Committee
sanctioned him by imposing a
concurrent sentence of one (1)
year suspension from legal
practice in respect of the first
count and three (3) years
suspension from legal practice
in respect of the second count.
This was on the 1st
day of June 2017. Six days after
the Disciplinary Committee had
imposed its sanctions on the
applicant; i.e. on the 7th
of June 2017, the applicant
filed two separate notices of
appeal against the decision of
the Committee before the Court
of Appeal. The record before me
shows that though the two
appeals were intended to be
filed at the Registry of the
Court of Appeal, they were
indeed filed at the Registry of
the High Court (Human Rights
Division), Accra. They were
however headed: “IN THE COURT
OF APPEAL, ACCRA” and addressed
to “THE REGISTRAR, COURT OF
APPEAL, ACCRA”.
On 13th June 2017;
i.e. six (6) days after the
filing of the two separate
notices of appeal, the applicant
filed at the Registry of the
Court of Appeal two separate
motions for stay of execution
and/or suspension of the
decision of the Disciplinary
Committee pending the
determination of his appeals
before the court. The motions
were placed before a single
justice of the Court of Appeal
per article 138 of the
Constitution, 1992. The single
justice consolidated the two
applications and determined them
in one ruling. He dismissed the
applications on the main ground
that there were no valid appeals
pending before it because the
notices of appeal, though filed
within time, were filed in the
wrong forum. According to the
court per the single justice,
the notices of appeal should
have been filed at the registry
of the General Legal Council for
onward transmission to the Court
of Appeal but not at either the
High Court or the Court of
Appeal. The court relied on Rule
8(2) and 9(3) of the Court of
Appeal Rules, 1997 [C.I. 19] and
the decisions of this Court in
the cases of FRIMPONG & Anor
v NYARKO [1998-99] SCGLR 734
and NYANTAKYIWAA alias KISSI
v KISSI & Others [1982-83] GLR
480.
Rule 8(2) of [C.I. 19] provides:
“The Notice of Appeal shall
be filed in the registry of the
Court below…” whilst
rule 9(3) reads: “An appeal is
brought when the notice of
appeal is filed in the registry
of the Court below”. The ratio
in the Frimpong and Nyantakyiwaa
cases (cited supra) was that for
a notice of appeal to be valid,
it must be filed in the court
below from which the appeal
emanates as provided under the
rules of court but not in the
appellate court which is to
determine the appeal. The
‘court below’ from which the
two appeals referred to above
emanated was the National House
of Chiefs. In the instant case,
the body that heard the
complaints against the applicant
was the Disciplinary Committee
of the General Legal Council.
According to the applicant, the
ratio in the above cases, which
the Court of Appeal relied on,
is not applicable in this case
since the Disciplinary Committee
of the General Legal Council is
not a court as such as provided
under article 126 of the
Constitution, 1992 and Parts One
and Two of the Courts Act, 1993
[Act 459]. However, in its
ruling of 27th July
2017 per the single justice, the
Court of Appeal held as follows:
“Upon examining all the
processes so far filed by the
parties in this application, I
am satisfied that Rule 8(2) of
the Court of Appeal Rules, 1997
C.I. 19 as amended provides: The
Notice of Appeal shall be filed
in the Registry of the Court
below…A flexible, liberal and
purposive interpretation of the
phrase, ‘the Court below’ may
imply a High Court, a Circuit
Court or any quasi-judicial body
where the decision complained of
was heard. In the instant case,
it is not in dispute that the
decision complained of was
determined by the Disciplinary
Committee of the General Legal
Council. Consequently, the
Notice of Appeal should have
been filed at the Registry of
the Disciplinary Committee of
the General Legal Council and
not at the Registry of the Court
of Appeal as the
appellant/applicant did’…The
applicant, having failed to file
the Notice of Appeal in the
proper forum; i.e. the registry
of the Disciplinary Committee of
the General Legal Council, it is
my view that no appeal has been
brought as required by Rule 9(3)
of C.I. 19 which states that an
appeal is brought when the
notice of appeal has been filed
in the Registry of the Court
below. This invalidates the
notice of appeal as it goes to
the root of the appeals”.
The Court of Appeal, duly
constituted, affirmed the
decision of the single justice
when the applicant filed a
reconsideration motion before it
against the decision of the
single justice. The court held
as follows: “…we are
satisfied that the Learned
Single Justice did not err, as
urged on us by the applicant,
when he dismissed the
applicant’s applications for the
reason that the court had no
jurisdiction because there was
no valid subsisting ‘Notice of
Appeal’.
The applicant, not satisfied
with the ruling of the Court of
Appeal, has brought this
application seeking special
leave to appeal to this Court
against the said ruling.
Applicant brought the
application on the strength of
article 131(2) of the
Constitution, 1992; Section 4(5)
of the Courts Act [Act 459/93]
and Rule 7(4) of the Supreme
Court Rules, 1996 [C.I. 16]. The
points applicant raised in his
application were:
1.
The word ‘COURT’ as stated in
rule 8(2) of C.I. 19 can only
refer to a court of competent
jurisdiction and not a
Disciplinary Committee of the
Respondent. The Disciplinary
Committee of the General Legal
Council is therefore not a court
and therefore outside the strict
ambit of rule 8(2) of C.I. 19.
2.
That he made attempts to file
the notice of appeal at the
offices of the General Legal
Council but he was told by an
official of the respondent that
the respondent had no registry
for the filing of appeals so he
should do so at the registry of
the Court of Appeal.
3.
That in the absence of any
specific rules of law relating
to the forum for filing appeals
in respect of decisions of the
respondent, his appeal was
competent and appropriately
filed in accordance with
existing rules of practice and
procedure.
The respondent opposed the
application as incompetent. The
respondent argued that whilst
the applicant did not comply
with rule 7(2) of C.I. 16, he
did not satisfy the conditions
precedent to the grant of
special leave to appeal to this
Court. Curiously, the
respondent, in its affidavit in
opposition filed on 19/01/2018,
did not specifically deny the
depositions made by the
applicant that he attempted to
file the notice of appeal at the
offices of the respondent but he
was warded off by a staff who
said they did not accept for
filing notices of appeal against
the respondent so he should go
to the Court of Appeal. This is
a material fact which the
respondent should have denied in
its affidavit in opposition but
it didn’t. Respondent only
relied on the alleged
impeccability of the ruling of
the Court of Appeal, which was
based on the provisions of rule
8(2) and 9(3) of C.I. 19 as
correctly applied by this Court
in the Frimpong and Nyantakyiwa
cases supra.
Clearly, the applicant is not
deprived by law from bringing
this application before the
Court. Special Leave
applications provided for under
article 131(2) of the 1992
Constitution are, by their
nature and description, special.
They are neither fettered by
rules of practice nor even
legislation. This Court in the
case of DOLPHYNE (NO.2) v
SPEEDLINE STEVEDDORING CO. LTD
[1996-97] SCGLR page 173 @ 174
made that point clear. The Court
held that; in exercising its
unfettered discretion under
article 131(2) of the
Constitution, the Supreme Court
is not bound by any rules of
practice or procedure or any
legislation. This Court
therefore has the power in
appropriate cases, to ignore the
provisions of article 131(1) and
grant special leave to appeal in
respect of appeals from any
judgment or decision of the
Court of Appeal. The Court,
however, does not exercise this
power without any limitation.
The Court is guided by laid down
principles which govern its
decision-making on whether to
grant or to refuse such an
application. These have been
catalogued in the Dolphyne case
(supra) and subsequently applied
by this Court in several cases
including KOTEY v KOLETEY
[2000]; ANSAH v ATSEM
[2001-2002] SCGLR 906 and OSEI v
ANOKYE [2007-2008] SCGLR 463.
These are:
1.
Where the Court finds that there
is a prima facie error on the
face of the record; or
2.
Where a general principle of law
has arisen for the first time;
or
3.
Where a decision by the Supreme
Court on the point sought to be
appealed against would be
advantageous to the public.
I wish to recall a statement I
made in my ruling concerning
special leave applications in
the case of MINING &
CONSTRUCTION LIMITED v
ANGLOGOLD; (CIVIL MOTION NO.
J8/68/2016, dated 19/05/2016):
“The authorities have made it
clear that the discretion of the
Court in entertaining such
applications under article
131(2) of the Constitution, 1992
and rule 7(4) of C.I. 16 is a
perfectly free one, unlimited by
any rules of procedure. The only
question that confronts the
Court for an answer when
considering such applications
is; whether upon the facts of
the particular case or the case
in question, the discretion
should be exercised in
applicant’s favour”.
Commenting on special leave
applications in the case of
KOTEY v KOLETEY [2000] SCGLR 417
at page 422-423, Bamford Adoo,
JSC said: “This leave is
under section 4(5) of the Courts
Act, 1993 [Act 459], not subject
to any condition of appeal under
the rules of court, i.e. [C.I.
16]. It is a special favour
which is given to litigants who
have good and valid appeals”.
The rationale behind the
grant of such applications is
basically to prevent the denial
or failure of justice.
The questions to consider in
this application are:
(i)
Would the applicant be denied
justice if the application is
refused?
(ii)
Has the applicant demonstrated,
through his affidavit in support
and the proposed grounds of
appeal that there would be
failure of justice if his
application is not granted?
It appears to me that article
131(1) of the Constitution, 1992
does not cover proceedings from
the Disciplinary Committee of
the General Legal Council (GLC),
which de facto, is not a lower
court as defined under section
39 of the Courts Act, 1993 [Act
459]. Article 126 (1) of the
Constitution, 1992 provides:
“The judiciary shall consist of
(a) the Superior Court of
Judicature comprising; (i) the
Supreme Court; (ii) the Court of
Appeal; and (iii) the High Court
and Regional Tribunals; (b) such
lower courts or tribunals as
Parliament may by law
establish”. Pursuant to
paragraph (b) of clause (1) of
article 126 of the Constitution
quoted above, Parliament passed
the Courts Act, [Act 459] in
1993. Section 39 of Act 459
established the following as the
lower courts of Ghana in
addition to the Superior Courts
created by the Constitution:
a.
Circuit Courts;
b.
District Courts;
c.
Juvenile Courts; and
d.
The National House of Chiefs,
Regional Houses of Chiefs and
Traditional Councils, to
adjudicate over causes or
matters affecting chieftaincy.
From the provisions of the
Constitution and the Courts Act,
Act 459, whilst the judicial
committees of the Houses of
Chiefs have been categorised as
lower courts created on the
authority of the Constitution,
1992, the Disciplinary Committee
of the General Legal Council has
not been listed as one of such
courts. Again, under the
interpretation section of the
Court of Appeal Rules [C.I. 19],
‘court’ has been defined
to mean “a court of competent
jurisdiction” whilst
‘court below’ means, “the
court from which the appeal is
brought”. Applicant’s
contention is that the
Disciplinary Committee of the
General Legal Council is not a
court of competent jurisdiction
as defined under the Courts Act
and the Constitution therefore
Section 8(2) of C.I. 19 was not
applicable to it. The Court of
Appeal therefore erred in
dismissing his application on
the ground that he had no appeal
pending, because the notice of
appeal was filed in a wrong
forum.
The two cases the Court of
Appeal cited to support its
decision were all matters that
came before the Supreme Court
from decisions of the Judicial
Committee of the National House
of Chiefs. These Judicial
Committees are categorised as
‘courts’ as defined under
section 39 of Act 459 so the two
decisions have statutory
foundations. Decisions from
Judicial Committees of Houses of
Chiefs are therefore quite
peculiar from that of the
Disciplinary Committee of the
General Legal Council. There has
never been an authoritative
decision on the issue before the
Court; i.e. whether or not rule
8(2) is strictly applicable to
appeals from the Disciplinary
Committee of the General Legal
Council, when read together with
section 39 of the Courts Act,
Act 459.
The authorities are legion that
every case must be determined on
its peculiar circumstances and
that no two cases are alike. In
the instant case before this
Court, did the applicant err in
filing the notice of appeal in
the Court of Appeal instead of
at the offices of the General
Legal Council and if yes, was
the error so fundamental or
fatal that the door of justice
should be completely shut
against the applicant from
seeking a redress of any kind
whatsoever, particularly where
he has appealed against the
harshness of the sentence of
three (3) years suspension from
practice? Would the decision to
invalidate the appeal amount to
the denial or failure of justice
in this current era of justice
dispensation when the courts are
being constantly admonished to
ensure that substantive justice,
devoid of form, is done at all
times? Would injustice be caused
to the respondent if rules 8(2)
and 9(3) of C.I. 19 are waived
in applicant’s favour on the
strength of rule 63 so that the
appeal is determined on the
merits? These are some of the
crucial questions that keep
echoing for answers, having
taken cognizance of the peculiar
nature of the matter before me.
In my view, the Court of Appeal
by its decision of 6th
December 2017 has made the
administrative arrangements set
out in the rules of court for
filing appeals to override the
applicant’s substantive right of
appeal and this deserves to be
looked at by the Supreme Court.
Furthermore, I think, having
taken judicial notice of the
upsurge of complaints at the
General Legal Council against
professional lawyers for
professional misconduct of late,
it would be in the public
interest if a duly constituted
Supreme Court in its collective
wisdom, is given the opportunity
to pronounce on the point sought
to be appealed against; i.e.
whether the Disciplinary
Committee of the General Legal
Council is a court as envisaged
under rules 8(2) and 9(3) of the
Court of Appeal Rules [C.I. 19]
and whether or not the said
rules are strictly applicable to
appeals emanating from the
Disciplinary Committee of the
General Legal Council to the
Court of Appeal.
It is in the light of the above,
that I think the application
before me must be given a
serious thought. I therefore
feel inclined to grant the
application for special leave to
appeal to this Court against the
decision of the Court of Appeal
dated 6th December
2017 for this Court to give a
final pronouncement on the
points raised by the applicant.
Application accordingly granted.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SAMUEL M. CUDJOE FOR THE
APPELLANT/APPLICANT/APPLICANT.
KIZITO BEYUO FOR THE
RESPONDENT/RESPONDENT/RESPONDENT.
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