On 7 may 2017, the Ghana Law Hub published an article under the heading, “Can a law firm sign a legal process?”In that article, Y. Edinam Cofie discussed a High Court decision in which Justice Bright Mensah came to the conclusion that a “person” as referred to in the Legal Professions Act (Act 32) referred only to a lawyer and did not cover a law firm. As a result, a law firm could not purport a sign a legal process.
Ghana Law Hub’s attention has been drawn to a Court of Appeal decision which raises a number of interesting points with regards to the question of whether a law firm can sign a legal process.
In this case, a writ was issued by “Poku & Associates”. The Defendant did not object to the validity of the writ (at the earliest opportunity). Rather the Defendant in his Statement of Defence mentioned in passing that the writ of summons was defective and invalid because it was issued by Poku & Associates. The Defendant went on to argue in his written submissions that the writ was invalid since it was issued by a law firm and not a lawyer. Counsel for the Defendant relied on Order 4 Rule 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) which provides that “subject to these rules, any person may begin and carry on proceedings in person or by a lawyer.” This provision made the Defendant come to the conclusion that it was only a lawyer or a plaintiff in person who could issue the writ and not the law firm.
The trial judge accepted the Defendant’s argument that the writ of summons was defective and dismissed the case. It must be pointed out that the Plaintiff at some point attempted to amend the writ in order to add his name “Edwin Nyamaa Poku” to the writ of summons. But the amendment application failed.
The Plaintiff appealed the decision of the trial judge. Amongst the grounds of appeal was the issue of whether the trial judge was justified in dismissing the case on the grounds that the writ (as issued) was incompetent because it was signed by a law firm.
The Court of Appeal was unequivocal in its judgment. The three-member panel (made up of Ayebi JA; Tokornoo JA and Domakyaareh JA) declared that the trial judge was wrong in declaring that the writ was invalid. And here is why.
First, the Court of Appeal was concerned about the timing of the objection. In the Court of Appeal’s view, the proper time to attack any process which is alleged to be defective is at the time of its issue. In other words, anyone who has an issue with a writ can attack it by entering conditional appearance (as provided for under Order 9 Rule 8 of CI 47).
“It is at this stage” the court pointed out “that a Defendant who genuinely sees that a writ is defective ought to speak up. When such an application is presented to the court at that time, the court’s decision would be premised on the narrow evidence of the process that lies before it”.
The court continued: “However, where as in this case, the Defendant throws in one paragraph about defects in the writ in his Statement of Defence, yet chooses not to present this issue as a preliminary point for decision by the courts and fully participates in the trial to the end only to spring the technical argument that the Writ is defective, a court is duty bound to carry a deep consideration of doing substantial justice in the heart when considering such an issue”.
In the court’s mind, with the passage of time and the filing of further processes by counsel for the Plaintiff, the trial judge had enough information on record to determine who the lawyer was. In the court’s own voice: “having waited till addresses to raise the matter of the persons who issued the writ, the court had more than adequate evidence to appreciate who the ‘Poku’ in ‘Poku & Associates’ was.” The Court of Appeal acknowledged that its conclusion would have been different if the objection was raised earlier.
“Now if the application to strike out the Writ had been presented timeously as expected under Order 9 Rule 8, the only evidence the court would have had would be the Writ, and the court would be in no error to have confined himself only to the Writ in determining who actually issued this Writ”, the Court noted.
The Court of Appeal also disagreed with the ease with which the trial judge agreed with counsel for the Defendant that “Poku & Associates” was a law firm. According to the court, there was no evidence that Poku & Associates is an incorporated entity that will make it different from the lawyer. According to the Court,
“There was no evidence that the name ‘Poku & Associates’ is the name of a firm registered in whatever legal vehicle. If it is a registered business name, then behind that name would be a human being trading in that business name, what is a law firm? Is any grouping of lawyers a law firm? This query I have raised is aimed at showing that it is not enough to listen to objections raised in Addresses that the words ‘Poku & Associates’ reflect the name of a law firm and agree with same, without being sensitive to the fact that such a conclusion may be simplistic, erroneous, unjustified and injurious to the legal fraternity.”
In the court’s view, the determination of the nature of a law firm is a question of fact and is not to be based on unproven suppositions.
“The court should have recognised that this issue of Poku & Associates’ being a firm is a matter of fact, and not of law, and as required by the rules of natural justice, he needed evidence on the nature of identity of the business called Poku & Associates before he could conclude as he did in his judgment, that it is a law firm”.
So there you have it. The Court of Appeal’s position could be summed up as follows: (1) raise the objection to the writ at the earliest opportunity or forever hold your peace; (2) don’t hide your objections in your pocket and hope to give a technical knockout to your opponent late in the day – it may well fail; and (3) the question of whether a vehicle is a law firm or not is a question of fact and evidence may be required to answer that question.
 Xin Bin Zhang v Nkrumah K Jones (Civil Appeal No. H1/76/2016). The ruling was given on 12 April 2017