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By her writ of summons, issued
on 12-03-2010, the plaintiff,
Vida Agyekum Acheampong, claims
against the General Legal
Council and George Sarpong,
Director of Legal Education,
jointly and severally, the
following reliefs:
i.
A declaration that the decision
of the Board of Examiners that
the plaintiff should pay the sum
of GH¢12,900.00 as a condition
precedent to being called to the
Ghana Bar is null and void and
of no legal effect, as the same
was made without jurisdiction
and also in contravention of the
plaintiff’s unfettered right of
review and/or appeal against the
findings and recommendations of
the Ali-Nakyea Abdallah
Committee;
ii.
A declaration that the Director
of Legal Education has no
capacity, in the absence of
compliance with the procedure in
Rules 22 and 23 of the Code of
Conduct of the Ghana School of
Law, to make any report to the
General Legal Council which has
the effect of influencing the
latter not to call the plaintiff
to the Ghana Bar.
iii.
A declaration that the Director
of Legal Education’s refusal or
failure to ensure that the
plaintiff’s petition against the
Ali-Nakyea Abdallah Committee’s
findings and/or recommendations
are properly heard and
determined, amounts to a breach
of the rules of natural justice;
iv.
A declaration that there is no
legal impediment standing in the
plaintiff’s way from being
called to the Ghana Bar at the
next call ceremony and
accordingly the plaintiff is
entitled to be called to the
Ghana Bar at the next call
ceremony;
v.
An order directed to the General
Legal Council and the Director
of Legal Education to ensure
that the plaintiff is duly
enrolled on the Roll of Lawyers
in Ghana at the next call to the
Bar scheduled for April, 2010,
there being no legitimate
impediment or legal obstacle
standing in the plaintiff’s way.
The case of the plaintiff is
that, at all material times
between 2007 and 2009, she was a
student of the Ghana School of
Law and became President of its
Students’ Representative Council
(SRC) from 2008 to 2009. In
February, 2009, the Director of
Legal Education set up a
committee (the Ali-Nakyea
Abdallah Committee) to conduct
an administrative enquiry into
allegations of financial
impropriety leveled against the
plaintiff by some members of the
SRC. Purporting to have
conducted the said
administrative enquiry, the
committee submitted its report,
signed and dated 27-03-2009 by
its chairman, to the Director of
Legal Education, which report
contained adverse findings
against the plaintiff, with
recommendations, inter alia,
that the plaintiff should be
made to refund the total sum of
GH¢12,900.00, being alleged
funds unaccounted for by the
plaintiff.
Upon receipt of the committee’s
report, and without any
reference whatsoever to the
plaintiff, the Director of Legal
Education referred same to
Justice Amonoo-Monney, a retired
Justice of the Court of Appeal
(not Supreme Court as alleged by
plaintiff) to review it, in
consequence of which the latter,
without any reference whatsoever
to the plaintiff, purported to
review it and, having done so,
submitted his report, dated
27-04-2009, to the Director of
Legal Education.
Following from the review
report, by a letter of
27-05-2009, the registrar of the
Ghana School of Law notified the
plaintiff that she was under the
Director of Legal Education’s
instructions to implement the
committee’s recommendations and
that the Director of Legal
Education was conscious of the
plaintiff’s right to petition
against the findings and/or
recommendations of the
committee’s report and/or
request a review of same or
submit receipts to justify any
expenditure which the plaintiff
incurred but could not submit to
the committee’s sittings. The
plaintiff was, further, advised
that the Director of Legal
Education would only take a
final decision on the report
after receipt of petitions or
application for review from the
plaintiff and other affected
students, which instructions
were confirmed in the main by
the Director of Legal
Education’s letter of
02-06-2009.
In consequence of the above, the
plaintiff, by letter of
29-06-2009, with supporting
documentary evidence, petitioned
for a review of the findings
and/or recommendations of the
committee. The plaintiff,
further, and without prejudice
to her rights at law as well as
her right to have the
committee’s findings and
recommendations reviewed, by
letters of 17-08-2009 and
22-09-2009, offered to refund an
amount of GH¢6,000.00 as full
and final satisfaction of her
liability under the committee’s
report, which offer the Director
of Legal Education firmly
rejected by a letter of
06-10-2009.
The plaintiff, also, as a result
of the Director of Legal
Education’s failure to react to
her petition for review, by
letters dated 22-09-2009 and
05-02-2010, reminded the
Director of Legal Education to
take action on her said
petition. However, without
attempting to address the issues
raised by the plaintiff in any
way, and in contravention of the
plaintiff’s unfettered right of
review and/or appeal, the
Director of Legal Education, by
letter of 17-02-2010, notified
the plaintiff that the Board of
Examiners of the Ghana School of
Law had taken a decision that
the plaintiff should pay the sum
of GH¢12,900.00 as a condition
precedent to the plaintiff’s
call to the Ghana Bar and that
unless the plaintiff does that
he would be unable to recommend
to the General Legal Council
that the plaintiff should be
called to the Ghana Bar.
The plaintiff contends,
therefore, that the Director of
Legal Education’s letter of
17-02-2010 was premeditated and
intended to stampede and
blackmail the plaintiff into
accepting the Director of Legal
Education’s illegal demand and
relieve him of the necessity of
due process. Or in the
alternative, contrary to Rules
22 and 23 of the Code of
Conduct, the Director of Legal
Education has constituted
himself into a one-man committee
and evinced a clear intention in
the nature of an imposition of a
disciplinary sanction to
dis-recommend the plaintiff to
the defendant and thereby
prevent the plaintiff from being
called to the Ghana Bar. The
plaintiff has suffered distress
and continues to suffer distress
as a result of the Director of
Legal Education’s conduct. Thus,
the plaintiff’s instant action
for she was duly qualified and
entitled to be enrolled on the
Roll of Lawyers in Ghana.
The defendant denies that the
plaintiff was duly qualified and
thus entitled to be called to
the Ghana Bar for, apart from
passing of exams, the person
must satisfy the defendant that
he/she is of good character. The
defendant scheduled 29-03-2010
to decide on the eligibility or
otherwise of the plaintiff to be
called to the Ghana Bar but
before that the plaintiff
instituted this action which is
thus premature, unwarranted and
is only calculated to pre-empt
the defendant from carrying out
its statutory functions on the
subject.
It is, further, the case of the
defendant that the Director of
Legal Education at all material
times acted purely in his
official capacity as such the
reliefs sought and the matters
raised can be dealt with without
making him a party to the suit.
The joinder of the Director of
Legal Education is thus
unnecessary, embarrassing and
will unduly delay the fair trial
of the suit. It is misconceived
and an abuse of the process of
the court.
The defendant contends, again,
that the Director of Legal
Education acted properly in
accordance with the Code of
Conduct of the Ghana School of
Law. In the process, he set up
the Ali Nakyea-Abdallah
Committee of Enquiry to
investigate the allegation of
financial impropriety leveled
against the plaintiff by some
members of the student body. The
committee report of 27-03-2009
revealed several acts of
misconduct and/or impropriety on
the part of the plaintiff and
recommended, inter alia, that
the plaintiff should refund the
sum of GH¢12,900.00, not
properly accounted for. The
report was also subsequently
reviewed by Justice
Amonoo-Monney who confirmed the
findings of the committee and
its recommendations. The
Director of Legal Education, by
memorandum dated 27-05-2009 and
addressed to the registrar,
formally directed the registrar
that in fairness to the affected
students, copies of the report
should be made available to them
for their reaction and the
registrar complied.
The defendant admits that the
plaintiff petitioned for a
review of the findings and/or
recommendations of the Ali
Nakyea Committee and her offer
to refund the amount of
GH¢6,000.00 as full and final
satisfaction of her liability
under the committee’s report
which the Director of Legal
Education rejected. However, the
petition for review was
overtaken by her offer for
reparation. The Director of
Legal Education subsequently
informed the plaintiff that the
decision that the plaintiff
refunded the GH¢12,900.00 was
taken collectively by the Board
of Examiners of the Ghana School
of Law and not he alone. He,
therefore, notified the Board of
Examiners on the matter. The
Board of Legal Education agreed
that the Board of Examiners
could recommend plaintiff’s
disqualification for entry to
the Bar but the matter ought to
be separated from the
publication of the plaintiff’s
results. The plaintiff’s results
were, thus accordingly,
published leaving the matter of
payment of the GH¢12,900.00 as a
pre-condition for being called
to the Bar to be met by the
plaintiff.
The Director of Legal Education
communicated the plaintiff’s
offer to pay GH¢6,000.00 as
satisfaction of the amount
outstanding to the Board of
Examiners. At the meeting, held
on 14-09-2009, the Board of
Examiners decided that the
GH¢6000.00 could be accepted
subject to confirmation from the
Ali Nakyea Committee that the
outstanding amount had been
revised from GH¢12,900.00 to
GH¢6,000.00. However, by letter
dated 22-09-2009, the chairman
of the committee indicated that
the committee had not revised
its findings. The plaintiff was
duly notified by letter dated
27-02-2010 of the Ali
Nakyea-Abdallah Committee’s
decision.
Before the Ali Nakyea
Committee’s decision not to
revise the amount was
communicated to the plaintiff,
the latter had, by letter dated
10-02-2010 to the Director of
Legal Education, reminded him of
the matter. The plaintiff, by
another letter of 25-02-2010,
notified the secretary of the
defendant of the matter. The
defendant, at its meeting held
on 26-02-2010, decided that the
Director of Legal Education
should furnish the defendant
with all the relevant documents
on the matter to enable the
defendant consider same. The
Director of Legal Education
complied and the matter was
slated for discussion by the
defendant at its meeting on
29-03-2010. Before that date,
the plaintiff, on 12-03-2010,
instituted this action.
The defendant thus contends that
the plaintiff’s instant action
is misconceived and a vain
attempt to overreach the
decision of the defendant which
is the sole competent statutory
body that has the power to
determine the eligibility of
persons being called to the Bar.
The action is premature as no
decision has been taken by the
defendant on the eligibility of
plaintiff or otherwise to be
called to the Bar.
The defendant, finally, contends
that the plaintiff failed and/or
refused to avail herself of
procedures contained in the Code
of Conduct for the review of
disciplinary action by aggrieved
persons, that is to say that the
plaintiff did not exhaust
internal/domestic remedies. The
defendants, thus, counterclaim
for the following reliefs:
1.
A declaration that the plaintiff
is not entitled to be called to
the Bar until a formal decision
on the matter has been taken by
the defendant.
2.
A declaration that the instant
suit is premature, unnecessary
and embarrassing in as much as
that the defendant has neither
considered the plaintiff’s case
nor made a decision as to her
eligibility or otherwise to be
called to the Bar.
3.
Such further or other reliefs as
in the circumstances may appear
just.
At the application for
directions, the following issues
were set down for trial.
i.
Whether or not the plaintiff is
entitled to a presumption of
good character and be called to
the Ghana Bar pending the final
determination of any enquiry
against her;
ii.
Whether or not the plaintiff’s
offer of reparation after
petitioning for review of the
Ali Nakyea Committee’s findings
and recommendations compromised
the petition;
iii.
Whether or not the averments in
paragraph 23 of the defendant’s
statement of defence is
prejudicial to the fair hearing
and determination of any
administrative enquiry founded
on the allegations against the
plaintiff ; and
iv.
Any other issues arising on the
pleadings.
Paragraph 23 of the statement of
defence states as follows:
“… Assuming without admitting
that the plaintiff has suffered
as alleged or at all, same has
been occasioned by her
misconduct by assuming the role
of the treasurer to the SRC
Accounts and withdrawing funds
thereon ostensibly for projects
which were neither executed nor
carried out with the knowledge,
or concurrence of the other SRC
executives.”
The plaintiff sought directions
by way of an order that the
points of law raised by the
issues be set down for hearing
and disposed of forthwith and
that the determination of the
said issues dispose of the whole
trial. The plaintiff, again,
sought for an order that the
evidence of any fact which any
party relies upon or intend to
rely upon for the due
presentation of its case may be
received at the trial by the
production of any documents or
entries in books or as the party
requires as appropriate.
On 19-07-2010, this court,
pursuant to Order 33, rule 3 of
the High Court (Civil Procedure)
Rules, 2004 (C.I. 47), set down
the issues stated above and
ordered that the whole matter be
disposed of by legal arguments
and requested counsel to file
their submissions. On
01-10-2010, counsel for
plaintiff filed his submissions
and same was served on the
counsel for defendants, the
Attorney-General, on 04-10-2010.
Counsel for defendants, on
15-10-2010, filed her
submissions by which she raised
preliminary legal objection to
the jurisdiction of this court
to hear the entire case and
asked that the preliminary legal
objection should be taken first.
On 21-10-2010, this court
ordered that the preliminary
legal objection should be taken
together with the issues that
have been set down for hearing.
Aggrieved by this order, the
defendant, on 01-11-2010,
applied to the Supreme Court for
judicial review for an order of
prohibition to restrain this
court from hearing and
determining this case on the
following grounds:
“a) That the learned trial judge
has no jurisdiction to pronounce
on a matter that is wholly
within the discretion of the
applicant herein and of which
the applicant is seized.
b)
That the learned trial judge has
no jurisdiction to grant the
reliefs being sought by the
plaintiff.”
On 07-12-2010, the Supreme Court
struck out the defendant’s
application for judicial review
as same was withdrawn. This,
thus, paved the way for the
consideration of this case, by
way of the legal arguments
submitted.
Before going into the merits of
the case, it has to be noted now
that this court, in its ruling
on an interlocutory application
by the plaintiff on 12-04-2010,
took the view that, by the
provisions of the Legal
Profession Act, 1960 (Act 32),
the Director of Legal Education
is just an employee or servant
of the defendant. He cannot sue
or be sued in the performance of
his functions as he is an
officer of the defendant. That
all the acts and omissions of
the Director of Legal Education
complained of by the plaintiff
in this action occurred in his
official capacity. As such, it
is, therefore, wholly untenable
for the plaintiff to join him to
this action. His name was,
accordingly struck out from the
suit leaving the General Legal
Council, as the only defendant.
It also has to be noted that the
plaintiff’s reliefs (iv) and (v)
were dismissed in the said
ruling. For the purposes of
clarity of thought, I would
hereunder restate the said
reliefs.
“(iv) A declaration that there
is no legal impediment standing
in the plaintiff’s way from
being called to the Ghana Bar at
the next call ceremony and
accordingly the plaintiff is
entitled to be called to the
Ghana Bar at the next call
ceremony;
(v) An order directed at the
defendants to ensure that the
plaintiff is duly enrolled on
the Roll of Lawyers in Ghana at
the next call to the Ghana Bar
scheduled for April, 2010, there
being no legitimate impediment
or legal obstacle standing in
the plaintiff’s way.
With the dismissal of the above
two reliefs, the only other
reliefs the plaintiff seeks and
for which this judgment would be
concerned with are the
following:
“(i) A declaration that the
decision of the Board of
Examiners of the Ghana School of
Law that the plaintiff should
pay the sum of GH¢12,900.00 as a
condition precedent to being
called to the Ghana Bar is null
and void and of no legal effect,
as the same was made without
jurisdiction and also in
contravention of the plaintiff’s
unfettered right of review
and/or appeal against the
findings and recommendations of
the Ali-Nakyea Committee;
(ii) A declaration that the
Director of Legal Education has
no capacity, in the absence of
compliance with the procedure in
rules 22 and 23 of the Code of
Conduct of the Ghana School of
Law, to make any report to the
defendant which has the effect
of influencing the defendant not
to call the plaintiff to the
Ghana Bar.
(iii) A declaration that the
Director of Legal Education
refusal or failure to ensure
that the plaintiff’s petition
against the Ali-Nakyea
Committee’s findings and/or
recommendations are properly
heard and determined, amounts to
a breach of the rules of natural
justice.”
This matter would thus be dealt
with in respect of the three
outstanding reliefs of the
plaintiff and the defendant’s
counter-claims. The legal
submissions of both counsel
would only be considered if they
relate to the above outstanding
reliefs of the plaintiff and the
defendant’s counter-claim.
The whole dispute arose as a
result of allegations of
financial malfeasance against
the plaintiff which culminated
in the setting up of the
Ali-Nakyea Abdallah Committee of
Enquiry which made adverse
findings against the plaintiff.
The findings and
recommendations, among others,
were that the plaintiff
embezzled an amount of
GH¢12,900.00 which amount she
should refund. The Board of
Examiners of the Ghana School of
Law decided that the plaintiff
refunds the said sum of money
before she would be recommended
for the call to the Ghana Bar.
The plaintiff petitioned for a
review of the findings and
recommendations and also offered
to pay a reparation of
GH¢6,000.00. The offer of
reparation was refused. However,
her request for review has not
been considered. In fact, it was
decided that the full amount of
GH¢12,900.00 be paid as a
precondition for the plaintiff’s
call to the Ghana Bar.
Be that as it may, the
defendant, by letter dated
04-03-2010, informed the
Director of Legal Education that
the defendant at its meeting,
held on 26-02-2010 (mistakenly
written as 26-03-2010), had
discussed the issue of the
plaintiff’s call to Ghana Bar
and had decided that the
director furnishes it “with all
the relevant documents on the
matter to enable it consider
same and take a decision at the
next meeting of the Council (the
defendant) to be held in March,
2010”. The Director of Legal
Education, by his letter of
09-03-2010, duly furnished the
defendant with the said
documents.
The defendant, after receiving
the relevant documents stated
above, was yet to hold its
meeting on 29-03-2010 to discuss
the plaintiff’s call to the
Ghana Bar when the plaintiff
issued this writ on 12-03-2010,
claiming the reliefs stated
hereinbefore.
In resolving the issues involved
in this dispute, I find the
introduction to the “Code of
Conduct of the Ghana School of
Law” quite inspiring and which
is worth quoting. It states
thus:
“The standard of conduct
expected of a student of the law
school is the same as that
expected of a member of the
Ghana Bar. Any standard short of
that is an indication of the
student’s unsuitability for
an eventual call to the Bar
…” (my emphasis)
The undisputed facts in this
case are that the Director of
Legal Education set up the
Ali-Nakyea Abdallah Committee
to, among other matters,
investigate allegations of
financial impropriety against
the plaintiff who was then the
SRC President of the Ghana
School of Law and other members
of the SRC. One of the
complaints of the plaintiff for
which she seeks a declaration to
that effect is that the Director
of Legal Education failed to
comply with rules 22 and 23 of
the Code of Conduct of the
school. These rules state as
follows:
“22. The Director of the School,
on behalf of the Board of Legal
Education shall be immediately
responsible for initiating the
appropriate disciplinary
process.
So however that apart from a
reprimand only, the Director
shall constitute a panel
comprising himself as Chairman,
two senior members of the
academic staff and two student
representatives, nominated by
the S.R.C. executive to discuss
and decide on the appropriate
disciplinary measure.
Final responsibility for any
measure, however, shall rest
with the Director.
23. For the purposes of
discipline, the Director shall
have power:
(i) to reprimand only;
(ii) in the alternative, to
reprimand and, in addition,
suspend any student for a
maximum of one school term;
(iii) to recommend to the Board
of Legal Education that any
student
(a)
be suspended for more than one
school term.
(b)
be disrecommended for immediate
or eventual call to the Bar;
(c)
be dismissed altogether.”
It is obvious from the facts of
this case that the Director of
Legal Education was not a
member/chairman of the
Ali-Nakyea Abdallah Committee as
mandatorily required by rule 22
of the Code of Conduct.
Furthermore, the decision to
recommend or disrecommend a
person for call to the Ghana
Bar, arising out of any
disciplinary proceedings, by
rule 23 of the Code of Conduct,
is mandatorily done by the
Director of Legal Education and
no other person or body. The
facts of this case, however,
shows that the Board of
Examiners were instrumental in
disrecommending the plaintiff
for the call to the Ghana Bar.
The status of the Board of
Examiners is not known to the
Legal Profession Act, 1960 (Act
32). Neither is it known to the
Code of Conduct. So, it is not
clear where the Board of
Examiners derives its powers
from. Whatever the case, the
Director of Legal Education
stood by the stand taken by the
Board of Examiners not to
recommend the plaintiff to the
defendant for the call to the
Ghana Bar if the latter did not
refund the sum of GH¢12,900.00.
This is confirmed by the
Director of Legal Education’s
letter of 17-02-2010, referred
to earlier on.
The plaintiff, again, complains
that she was prevented from
exercising her right of review
and/or appeal against the
findings and recommendations of
the Ali-Nakyea Abdallah
Committee. The provisions for
review and appeal are provided
in rules 24 and 25 of the Code
of Conduct and they state as
follows:
“24. Except in a case of a
reprimand, an application for a
review of any disciplinary
action taken against a student
shall lie as of right WITHIN TWO
WEEKS of such action, to the
Board of Legal Education.
The application shall state
reasons for dissatisfaction with
the disciplinary action.
25. An appeal shall lie as of
right from a decision of the
Board of Legal Education to the
General Legal Council. Such an
appeal shall be brought within
ONE MONTH of the Board’s
decision and state reasons for
dissatisfaction with the Board’s
decision.”
From the undisputed facts of
this case, the Director of Legal
Education did not make any
recommendation to the Board of
Legal Education and the latter
did not hear any application for
review for any aggrieved party
to appeal to the defendant.
What happened was that the
Director of Legal Education, by
letter dated 17-02-2010,
informed the plaintiff that, if
she failed to refund the sum of
GH¢12,900.00, he would be unable
to recommend her to the
defendant for her to be called
to the Ghana Bar. It was after
the Director of Legal
Education’s letter and after the
defendant’s letter of 04-03-2010
requesting the Director of Legal
Education to “furnish it with
all the relevant documents on
the matter to enable it consider
same and take a decision at the
next meeting of the Council to
be held in March, 2010” that the
plaintiff hurriedly instituted
this action. So, no decision has
been taken by any person or body
recommending that the plaintiff
should not be called to the
Ghana Bar.
Following from the above
findings of facts, it is my view
that, firstly, the Ali-Nakyea
Abdallah Committee was not
properly constituted as it did
not include the Director of
Legal Education as a
member/chairman as mandatorily
required by rule 22 of the Code
of Conduct.
Secondly, the Director of Legal
Education did not at any time
make any recommendation to the
effect that the plaintiff should
not be called to the Ghana Bar.
At best, he evinced an intention
to do so but did not carry out
his intention before the
plaintiff instituted this
action.
Thirdly, without any
recommendation by the Director
of Legal Education to the Board
of Legal Education, the
plaintiff could not have applied
for a review pursuant to rule 24
of the Code of Conduct. Indeed,
the purported invitation to the
plaintiff by the Director of
Legal Education to apply for a
review or appeal was misdirected
as he did not make any
recommendation to the Board of
Legal Education disrecommending
the call of the plaintiff to the
Ghana Bar. Of course, there was
no appeal to the defendant of
any matter from the Board of
Legal Education.
Fourthly, the Board of Examiners
have no power to determine
whether the plaintiff should be
called to the Ghana Bar or not.
That decision is for the
defendant to take based on two
considerations, namely:
(a)
that the plaintiff is of good
character.
(b)
that the plaintiff is a holder
of a qualifying certificate
granted by law (See Section 3
(1) of Act 32).
The defendant did not take any
decision pursuant to section 3
(1) of Act 32 for which the
plaintiff was aggrieved to
challenge the defendant’s
decision. The plaintiff’s action
was, therefore, premature.
Fifthly, the actions or
omissions of the Board of
Examiners and the Director of
Legal Education are of no
consequence as regards the
decision of the defendant to
call the plaintiff to the Ghana
Bar.
Accordingly, the plaintiff’s
other claims are incompetent and
the same are also dismissed.
The defendant on the other hand
has made a case to entitle it to
its counterclaim. The defendant
is, therefore, entitled to
judgement as follows:
1.
It is hereby declared that the
plaintiff is not entitled to be
called to the Ghana Bar until a
formal decision on the matter
has been taken by the defendant.
2.
It is further declared that the
instant suit is premature,
unnecessary and embarrassing in
as much as the defendant has not
made a decision as to the
plaintiff’s eligibility or
otherwise to be called to the
Ghana Bar.
COUNSEL:
1. Mr. Kweku Y. Paintsil for
Plaintiff.
2. Mrs. Sylvia Adusu, Principal
State Attorney, (Vivian A. Ofori,
State Attorney, with her) for
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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