The Jurisprudence of Section 8 of the Legal Professions Act 1960 (Act 32) (Solicitors Licence) – A Review of The Judicial Pendulum Under Ghana Law 

“When the ghosts from the past stand in the path of justice, clanking their medieval chains, the proper course of the judge is to pass through them undeterred.” Lord Atkin in United Australia Limited v Barclays Bank Limited [1941] A.C 1

INTRODUCTION

Justice Benjamin N Cardozo observed in the case of In Re Rouss^[1] that, “Membership of the Bar is a privilege burdened with conditions.” The practice of law is highly regulated by legislation and guided by long held traditions of the Bar. One of such is the requirement of lawyers to have a license to practice the law for a particular year. The Legal Profession Act^[2] provides that, apart from the Attorney-General^[3] and officers of the Attorney-General’s Department, every lawyer must have an annual license to be able to practice his or her trade in Ghana. This all-important pre-requisite to practice law and the effect of not having same have engaged the minds of the courts in Ghana with varied positions on this subject. The general, dominant and current position of the law seems to be that, if a lawyer does not have the annual license to practice in a particular year, that lawyer cannot practice or represent clients before the courts, (it is uncertain the application of the effect of this requirement to non-litigation practitioners). The courts in Ghana seem unanimous on the fact that a lawyer without a valid annual solicitor’s licence is incapable of practice for that year. The point of divergence has been what happens to previous processes filed by unlicensed lawyers?Whether the processes are also invalidated or the processes filed can be saved despite the lawyer’s unlicenced status. While some judicial decisions invalidate such processes, others take a contrary view and argue that such processes must be saved. The Author herein intends to look at the various cases on this subject matter under Ghana law and review how their Lordships have treated same. Also, he examines whether the application of the requirement of solicitor’s licence is discriminatory against litigation practitioners, discusses whether the application of same works injustice and argues that the proper position of the law ought to be that while the lawyer cannot practice without a valid annual solicitor’s licence, the previous processes filed by such an aberrant lawyer, in the interest of justice, must not be invalidated, because after all, the sins of a lawyer cannot be visited on the clients as said in several cases including without limitation the case of Aryeetey v SSNIT.^[4]

Requirement of Solicitors Licence for Practice of the Law.

The practice of the law is the noble profession.^[5] The possession of an annual solicitor’s licence is a sine qua non to one’s ability to practice as a lawyer. The relevant provision under the Legal architecture in Ghana is section 8 of the Legal Profession Act, 1960 (Act 32) which section has been the subject of several judicial decisions and the Author proposes for purposes of this paper to reproduce the said provision in extenso with emphasis on subsection 1 and 6 due to its centrality to this paper. 

Section 8(1) provides that, “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.” 

Section 8(2) “A person shall not be issued with a solicitor’s licence unless that person has been previously enrolled as a lawyer under section 3.” 

Section 8(3) A person who has not previously been entitled to practice as a solicitor in the Republic and who does not hold a qualifying certificate but has, after qualification, attended and satisfactorily completed post final professional qualifying course approved by the Council, shall not be issued with a solicitor’s licence unless that person satisfies the Council that since qualifying as a lawyer, that person has read for a period of not less than six months in the chambers of another lawyer of not less than seven years standing approved by the Council. 

Section 8(4) A person who holds a qualifying certificate and who has been enrolled as a lawyer under section 3 may be issued with a solicitor’s licence, but that person is not entitled to establish an office as a solicitor unless the Council is satisfied that that person has read for a period of not less than six months in the chambers of another lawyer of not less than seven years’ standing approved by the Council. 

Section 8(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 be found guilty of professional misconduct in the Republic or in any other country. 

Section 8(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 unit 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.” (Emphasis mine.)

The same Legal Profession Act in section 2 provides on the status of a lawyer thus: “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, and to sue for and recover the fees, charges and disbursements 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. 

The above provision is to the effect that, without a valid practicing licence for a particular year, a lawyer is not entitled to practice law for the particular year. To show that one is licenced to practice for the year, lawyers usually disclose their practicing or solicitors licence numbers on processes they file in the court and in the event that an issue or a challenge is raised as to whether the lawyer does not have the licence, the onus falls on the person challenged to produce or provide positive evidence that he or she has obtained the licence for that particular year and is therefore entitled to so practice. Failure to disclose the Licence Number on processes itself does not mean one does not have the licence to practice. It may at worst raise a rebuttable presumption. If challenged and positively proved, entitles the lawyer to practice for the year in question.

Analysis of Case law in Ghana under Section 8 of Act 32

It seems to the Author from a careful review of the Ghana Law Reports, that the first time in Ghana’s legal history that this matter of failure to have a solicitor’s licence came up was in the case of Akuffo-Addo & Others v Quashie-Idun and Others^[6] before the Full Bench of the Court of Appeal coram Amissah J.A, Kingsley-Nyinah. Archer, Baidoo and Annan JJ, judgment dated 22^nd July 1968. In that case, the Plaintiffs who were lawyers of considerable repute had sued the Chief Justice, the Judicial Secretary and the General Legal Council challenging a circular that had been issued by the General Legal Council through the Judicial Secretary to all the courts not to grant audience to lawyers who had not taken out their solicitors licences. The said notice which was sought to be challenged by the Plaintiff read thus, “I am issuing to all courts in this country a list of those lawyers who have actually taken out licences. All lawyers are informed that on the authority of the council and with the approval of his Lordship the Chief Justice, the judges and magistrates of this service are being advised that no lawyer should be granted audience in any court until his name is on the said list or he provides his solicitor’s licence in court. Practicing lawyers are also reminded that this prohibition extends to all forms of lawyers’ normal work and not only to appearances in court.” The Plaintiffs took issue with this and challenged same in the court.

The Court however held among others that, “Under the Income Tax Decree, 1966 (N.L.C.D. 78) para. 81 lawyers in private practice were required to register with the Commissioner for Income Tax unless they were obliged by some other enactment to be registered or licenced by any other person or authority. The Legal Profession Act, 1962 (Act 32), s. 8 also made it a pre-condition to practice that every person other than an officer of the Attorney-General’s Department must have an annual practicing certificate entitling him to practice in the capacity of barrister or solicitor or both. Without this he could not practice as a lawyer regardless of the nature of his practice….” The Author stresses that by virtue of the Interpretation Act the usage of ‘he or his’ implies both genders.^[7] The Court further held that, “A lawyer cannot practice without solicitor’s licence 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.” This case set the tone in Ghanaian jurisprudence on the application and legal effect of Section 8 of Act 32 and it is instructive to note that the application of this section was not limited to only courtroom or litigation practitioners, but to all practitioners of the law, whether transactional, commercial or even legal academics if being qualified as a lawyer is a sine qua non to be so appointed, because the said section does not show any distinctions between the various aspects of legal practice. The Legal Profession (Professional Conduct and Etiquette Rules) 2020 LI 2423 provides that, “A lawyer in practice is a lawyer who is engaged in the teaching of law.”^[8]After their Lordships decision in the case of Akuffo Addo and Others vrs. Quarshie Idun and Others supra, have come several cases on section 8 of Act 32, some of which will engage the mind of the Author in this paper. 

The case of Republic v High Court, Ex Parte Teriwajah and Henry Nuertey Korboe (Reiss & Co Ghana Limited) (Interested Party)^[9] is perhaps the foremost and oft cited case on the legal effect of section 8 of Act 32. In that case, as before the Supreme Court, the applicant therein, a practicing lawyer filed an application to the Supreme Court seeking to invoke its Supervisory jurisdiction under Article 132 of the 1992 Constitution. This arose from a case before the High Court a suit entitled Reiss & Company Ghana Limited v Henry Nortey Korboe and 2 Others^[10] with a claim for a liquidated demand. Upon defendants being served, they engaged the services of the applicant,^[11] who at the time material was and is still a practicing lawyer as counsel. Upon being engaged as counsel, the applicant therein detected that some orders made in the case prior to being engaged were palpably irregular, as a result of which he filed an application to vary or vacate the said irregular orders. This was where the whole issue began. The said application was seriously opposed and contested by the Interested Party who filed a notice of preliminary objection and an affidavit, the basis of the objection was that the 1^st applicant had not disclosed his solicitor’s licence number for the year in issue (2013) on his motion paper. It was the contention of the Interested Party that, having not disclosed his licence number, the applicant therein was incompetent to sign a motion paper since same contravenes section 8(1) of the Legal Profession Act. The learned trial court proceeded to enforce the statute and therefore held that there was a breach of section 8 of Act 32 and hence dismissed the application to vacate or vary the orders the applicant sought to impugn by his application. In the course of the hearing, the learned applicant had raised the issue of the constitutionality of the Second Schedule and section 8 of Act 32 as same in his view contravened article 107(b) of the 1992 Constitution to the extent that it mandated the General Legal Council to issue licence to take retrospective effect. It was the refusal of the trial High Court to make a referral to the Supreme Court for determination of the constitutional issue that brought about this instant suit. On the issue of interpretation, the Supreme Court took the view that none had arisen. The apex Court said, “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 licence for that purpose. The section sets the duration of the licence, which must be annual…”.  This case is oft cited for the position that failing to obtain a solicitor’s licence for a particular year renders an otherwise qualified practitioner impotent to practice. The position was also established that the duration of the licence is from the 1^st day of January to 31^st day of December of the year in question, contrary to the view canvassed by the applicant that its duration is annually from the time of application or renewal to the same time in the following year (12 months from renewal). The Supreme Court speaking through Anin Yeboah JSC (as he then was) remarked thus, “The Second Schedule of the legislation sets out the period when the word ‘annual’ stated therein commences and ends. In fact, the Act indicates that the solicitor’s certificate should expire on the 31^st day of December every year. This means that the annual solicitor’s certificate to entitling, persons to practice as solicitors must commence at the beginning of each year and expire on the last day of the year. In my view, this is very clear and is not subject to any form of interpretation as suggested by counsel for the defendant. This means that it is at one’s own peril or disadvantage to apply for and obtain the solicitor’s certificate mid-year or in the last quarter of the year as was done by the defence counsel.”

In the related case of Korboe v Amosa^[12], a case that travelled from the High Court through to the Supreme Court upon review, the High Court presided over by Lovelace Johnson JA (as she then was)^[13] upon a preliminary objection, struck out the respondent’s writ of summons on the grounds that the lawyer who issued the writ did not have a valid licence at the date he issued the writ. Upon appeal, the Court of Appeal reversed the ruling of the trial Judge and held 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. The Court of Appeal had the occasion to determine the legal effect of processes filed by a lawyer who fails to take out a licence for a particular year. The Court of Appeal held that the processes filed by the erring lawyer ought not be invalidated.^[14] The Supreme Court had earlier in the case of Ex Parte Teriwajah^[15]supra, in the view of the Author settled the issue of the applicability of section 8 to a lawyer who fail to obtain a licence for the year in question as well as the duration of the solicitor’s licence so obtained. But as Akamba JSC reminds us in his dissenting view in Korboe v Amosa, “Ex Parte Teriwajah did not determine the fate of processes filed by an aberrant solicitor or lawyer”. This was what, in the Author’s respectful view, the Court of Appeal sought to do in the case of Korboe v Amosa,^[16] by filling in the lacuna. The Author takes the view that the decision of the Court of Appeal, although was subsequently reversed by the Law Lords in the Supreme Court^[17], accords with fairness to the clients, than the view taken by the majority decision of the Supreme Court. The Court of Appeal took the view with which the Author agrees, that, per section 8(1) of Act 32, any lawyer who signs processes without licence is not qualified to do so, however whatever process or document he or she has worked on must be saved. In other words, the previous processes filed should not be invalidated on account of the failure of the lawyer to renew his or her solicitors licence. Their Lordships at the Court of Appeal, coram, Abban JA, Ofoe JA and Torkornoo JA (as she then was),^[18] had this to say in that regard:

“Reading the whole section 8(1) within the entire Act 32 there is no clear intention of the legislature to nullify proceedings filed by an unlicenced solicitor who is denied authority to practice as a solicitor. It is our opinion that if the legislature wanted to declare such proceedings null and void it would have said so, the term nulland void, not an unknown term to the legislature. What the legislature chose was criminal sanctions against such lawyers and this is provided for in section 8(6) of Act 32. When it is noted that the prohibition from practice without a licence, covers legal practice beyond the courts it becomes easier to accept the interpretation that the legislature did not intend invalidating such questionable processes by this section 8 (1). Few of other legal practice can be mentioned are issuance of letters, preparation of property and other commercial documents, offering legal advice, serving as company directors and serving as secretaries to other companies and institutions. What then happens to any such documents and legal practice involving an unlicenced solicitor wherever they are and if any such documents happen to come before the courts? Should they be invalidated? For instance, a conveyance is registered and tendered for use in a property trial. This document has been registered some years ago but it happened to have been prepared by a lawyer who had no licence to practice at the time of its preparation. Should this document be declared invalid and expunged from the records because it was prepared by an unlicenced lawyer at the time? What would be the fate of the client who cannot be blamed for this lapse of the solicitor? Could that be the intendment of Parliament when they provided for in section 8(1) of Act 32? Again under the Court of Appeal rules, time for filing interlocutory appeals is limited to 21 days, no extension is allowed. What happens to a process signed and filed, like a notice of appeal by an unlicenced counsel within 21-day period but which is subsequently found to be incompetent and therefore struck out? The client will find himself completely out of the Court of Appeal through no fault of his. We think that, as stated in the Supreme Court case of Amuzu v Oklikah (1997-1998) 1 GLR 109 courts should strive to give an interpretation of a statute to avoid absurdities, injustices and unconscionability.” Their Lordships continued thus, “…We find no reason to import into this enactment invalidation of processes issued and filed by an unlicenced lawyer. Any importation may be at odds with the whole scheme of the statute and in so far it will result in injustice to parties before the court should be avoided as not intended by the legislation….” The Author wholeheartedly agrees with and endorses the view of the Court of Appeal regarding the effect of processes filed by an erring lawyer for his or her clients. 

Upon further appeal in the Korboe v Amosa to the Supreme Court^[19], their Lordships by a 4 – 3 majority, Atuguba, Akamba and Akoto Bamfo JJSC dissenting. Their Lordships reversed the decision of the Court of Appeal that sought to save the processes filed by the erring lawyer who failed to comply with section 8 of Act 32. The apex Court re-stated the position that the failure to obtain the licence also invalidates the previous processes filed by the erring lawyer. Although the bench was presided by Atuguba JSC, the majority view was led and read by the respected Dotse JSC with the concurrence from Ansah JSC (may his gentle soul rest in peace)^[20] , Anin Yeboah JSC (as he then was) and Baffoe-Bonnie 

Dotse JSC had this to say among others that, “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 licence 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”.

On the effect of such a failure on processes filed, his Lordship posited thus, “It has been strongly urged that, because of the difficulties which may be encountered by client for whom an unlicenced 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 licence as provided for under the law, then a fortiori, 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 licencing regime, which requires that persons who do not obtain valid solicitor’s licence for a given year should not be permitted to practice law is a self-regulatory mechanism of the legal profession that need 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 licences have their 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 licencing 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.”

The Author agrees with the dictum of Dotse JSC on the strict enforcement and compliance of section 8(1) of Act 32, but the point of sharp departure is that enforcement should not affect the innocent client, because that sanction of invalidating the previous processes has no basis in the Legal Profession Act 1960 (Act 32).  The Author also fails to see how invalidating the previous processes filed by an erring lawyer brings sanity in the noble legal profession. That approach, of invalidating the said processes, only works unwarranted injustice to the innocent client, in the Author’s respectful view. As if what Dotse JSC had said was not enough, his Lordship Julius Ansah JSC delivered himself thus, “Practicing without a valid licence 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.” 

The Author wonders if such processes are forbidden fruits and ought to be spewed out of the mouth, whether the filing fees paid by the client to the state through the judiciary will also be refunded and spewed out of the mouth together with the invalidation of the processes? The maxim of equity applied with the necessary modification is that he who seeks equity must do equity and he who comes to equity must come with clean hands. The processes in the Author’s respectful view cannot be invalidated yet the fees they paid to the state through the court by way of filing fees are not refunded. His Lordship Ansah JSC continues thus “After studying the Legal Profession Act 1960 (Act 32) and the Legal Profession (Professional Conduct and Etiquette) Rules, 1969, L.I 613, I unreservedly endorse the conclusion by Anin Yeboah JSC in his opinion that a solicitor who is not qualified by section 8 of the Legal Profession Act, Act 32 to practice, any process that he has filed without a licence 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 seem to be so.” In his concurring opinion, Anin Yeboah JSC on his part said:

“Therefore 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 licence 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… 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 licence 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…” 

The majority view leads one to enquire whether the invalidation of previous processes which is seen as forbidden fruit should not also come with the refund from the state of all fees paid by the client of the erring lawyer whose processes are invalidated? When processes are filed for clients, fees are payable and same depends on the claims of the party. The amounts payable as filing fees depend on the claims being made by a party and governed by the Civil Procedings (Fees and Allowances) (Amendment) Rules, 2014 CI 86, which spells out various fees a client must pay before processes are filed. If the processes are fruits of the poison tree and must not be eaten, and must be spewed out of the mouth, then the Author suggests so must the filing fees be spewed out and refunded by the state (through the Court) to the innocent litigant. The Author humbly submits that, it is a grievous sin to invalidate the processes because it is a fruit of the poisoned fruit and yet the client is not given back the monies paid for filing those processes.

The minority view in that case, which the Author shares, endorses and greatly aligns with what was read by the venerable Atuguba JSC and supported by Akamba and Akoto-Bamfo JJSC. The minority in the apex court took the view, with varied analysis that the failure to procure the solicitor’s licence must not affect or invalidate processes filed by the erring lawyer. In that regard. Atuguba JSC will speak thus, “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 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 the amicus curiae submissions in this case, the 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.”

Akamba JSC, on his part introduces his dissenting view with a difficulty in appreciating the position taken by the majority when he says, “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 JSC 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 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 law, I deem it appropriate to state my views…. His Lordship Akamba continues thus, “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) The Republic v High Court (Fast Track Division) Henry Nuertey Korboe [2014] 68 G.M.J S.C this court 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 the aberrant solicitor or lawyer. Therein lies the difference between what was determined in the aforesaid 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 of Act 32 and in particular sections 1(b) and 8(1) of Act 32 quoted supra. The Act mandates any   person, other the Attorney General or an officer in his department to practice as a solicitor only upon (that person) obtaining a valid annual licence issued to him by the General Legal Council in a form set out in the 2^nd Schedule….”

Akamba JSC continued that, “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 purposes for which they were filed. The lawyer who filed those processes remains disbarred subject to other initiative 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.”

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 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 on which the law was adopted bears consideration. In this context the fact that 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 licence in place. The loss or forfeiture of fees by a lawyer who had not obtained his solicitor’s licence 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 has been disbarred for not possessing his licence, 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 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 who 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 repaired and fixed 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 Author takes the pain to quote in extenso the view of the minority not only because he associates with them but also because it interprets the law in a way that accords with good conscience and avoids visiting unwarranted injustice on the innocent client, who may have no means of verifying the qualification status of the lawyer. It is in doubt, even among the learned and educated who seek medical care, how often we consider whether the medics who attend to us in our ailment or duly qualified practitioners or have the requisite licence to practice. 

It is also instructive in the Author’s view to note, that invalidating the previous processes filed brings unnecessary costs and expenses, brings undue delays and waste of time to the client. The High Court rules^[21] that guide civil proceedings in Ghana provides that, “These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expenses, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”^[22]. When previous processes filed by an erring lawyer are invalidated, it leaves the innocent client with an option to either engage another lawyer who is duly licenced and qualified to commence the action for him or her, or as would be suggested by some majority justices, can maintain an action against the erring lawyer. This brings about unnecessary delay and puts the innocent client to unnecessary expense among other hardships. That in the Author’s view sins against the overriding principle in the application of the Civil Procedure Rules. 

The Supreme Court had another opportunity through review in the case of Korboe v Amosa^[23] in which the apex Court^[24] by majority decision dismissed the review application. It is trite learning that an applicant for a review application must fulfil the test in Rule 54 of the Supreme Court Rules C.I 16, failing which the review application must fail. The said rule 54 provides that, “The Court may review any decision made or given by it on any of the following grounds – (a) exceptional circumstances which have resulted in a miscarriage of justice; (b) discovery of new and important matter or evidence which after the exercise if due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given.”^[25] The majority^[26] took the view that the applicant had woefully failed to show that the court committed any error of law, or that a miscarriage of justice has occurred…. In other words, he has failed to establish the merits of his application and the same must, therefore, be refused as failing to satisfy the terms of Rule 54 of the Supreme Court Rules.” The minority^[27] on the other hand were of the view that the applicant has fulfilled the test under Rules 54 of C.I. 16 and therefore the review application ought to be granted. 

Their Lordships in the minority, with whom the Author agree, took the view that invalidating the processes filed by the erring lawyer was not only tantamount to visiting the sins of counsel on the innocent client, but also amounted to the judiciary trying to re-write the statute, which is with celestial respect not within the domain of their lordships. So holding will imply that, the court, by its decision and the nullification of the previous processes filed, has either indirectly added a subsection 7 to section 8 of Act 32 or extended the scope of sub section 6 of Section 8, either of which the Author submits is without foundation in law. The Author associates in this regard with the dictum of the respected Professor Kludze JSC when he with admirable clarity posited in the case of the Republic v Fast Track High Court, Accra, Ex Parte – Daniel^[28], cited with approval by Appau JSC in Korboe v Amosa (in the review application) thus, “In the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the law-giver was mistaken or unwise. Where the words of a statute are unclear or ambiguous, it is only then that we must try to apply the well-known cannons of construction to ascertain and enforce the law. Where the words of a statute are clear, our duty is to enforce the statute as written. This is the fundamental rule of constitutional and statutory interpretation… We must not insert our own words or remove words from the legislation in order to arrive at a conclusion that we consider desirable or socially acceptable. If we do that, we usurp the legislative function which has been consigned to the legislator…” 

The three arms of Government have their specific functions they perform in the democracy, although the Author acknowledges that there are checks and balances and interdependencies amongst the three arms. In the attempt to interpret statutes and even the constitution, it is not the role of the judiciary to re-write what the law maker has written especially when there is no lacuna or absurdity. His Lordship Kludze in Ex Parte Daniel said again in this regard thus, “We cannot, under the cloak of constitutional interpretation rewrite the constitution of Ghana. Even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the law giver dislikes its terms or because we suppose that the law giver was mistaken or unwise…. ” The Author is not and cannot be oblivious of the position of the law that a superior court has every jurisdiction unless that which has been expressly excluded while a lower court’s jurisdiction is limited to what has been expressly provided as held in the case of Timitimi v Amabebe,^[29] this however does not entitle superior Courts with perpetual respect to their Lordships to spread their tentacles to areas beyond their reach such as amending statutes passed by the legislature or seeking to do so judicially when there is no basis for such.

His Lordship Appau in his dissenting view poses the question,” …for what purpose was the Legal Profession Act, Act 32 passed? In other words, who are the targets of the law? As the majority rightly stated, it was enacted for the regulation and discipline of the profession. It is meant to regulate the practice of law by members of the profession to avoid any abuse. This means that it is only members of the profession that have to suffer the consequences of any breach of its provision, not outsiders.” The Author shares this view and argues that the position the majority in both the ordinary bench and review bench relative to the invalidation of previous processes filed by an erring lawyer is without basis merit in the law and rather produced unwarranted hardships on the clients and hence injustice to them.

The implications of the approach of the majority leaves questions unanswered when followed to its logical conclusion. For instance, if a lawyer without a valid annual licence in a criminal suit, secures a bail for an accused or completes a trial and secures a positive outcome for the accused (acquittal and discharge), will the trial be nullified, for the accused to be re-tried because his previous counsel was not licenced at the time of the conduct of the trial? Is the Will of a testator going to be invalidated because it was drafted at the time the lawyer who drafted it hadn’t renewed his annual solicitor’s licence? There has been instances where people who are not even qualified lawyers have been caught and arrested and tried for personation, what happens to the previous processes or works done by such unqualified persons? So if persons who are not called to the Bar or qualified as lawyer personate lawyers and are arrested and their previous conduct and processes are not invalidated or nullified, why would that of a duly qualified lawyer, on the Roll of lawyers suffer invalidation of previous processes filed, for want of annual solicitor’s licence for a particular year?

The Author also is fortified that the interpretation by the majority did not take into consideration the purpose of the said section. Section 10 (4) of the Interpretation Act^[30] provides that, “Without prejudice to any other provision of this section, a court shall construe or interpret a provision of the constitution or any other law in a manner (a) that promotes the rule of law and values of good governance, (b) that advances human rights and fundamental freedoms, (c) that permits the creative development of the provisions of the constitution and the laws of Ghana, and (d) that avoids technicalities and recourse to niceties of form and language which defeats the purpose and spirit of the Constitution and laws of Ghana”.

Visiting the sins of Counsel on the Client

Lord Denning MR in his seminal book, the Discipline of Law, said “When an officer of the court itself makes a mistake, the consequences should not be visited on the unfortunate litigant, but they should be remedied by the court itself.”

Clients engage lawyers to represent and act for them in certain transactions and cases. When lawyers err in their professional duties and the law provides sanctions for such errors, it should not be visited on the innocent clients. The phrase has therefore been that; the sins of the lawyers must not be visited on the clients. In the case of Republic v Asokore Traditional Council, Ex Parte Tiwaa^[31], the respected Apaloo was clear when he said that, “The respondent took every conceivable step to have her injustice righted, and although certain faulty steps were taken in pursuit of this goal, the faults were her lawyer’s and it could hardly be right to penalize her for the procedural inadequacies of her legal adviser.” In the case of Aryeetey v SSNIT^[32], the Supreme Court speaking through Dotse JSC said, “Despite all the tardiness on the part of the Defendants Solicitors, I am of the considered view that, the sins of Counsel of parties cannot be visited on their clients.”, The Author takes notice that while Dotse JSC took this position in Aryeetey v SSNIT, his position in Korboe v Amosa seems opposite. 

The Author is not unaware of the fact that the principle that the sins of counsel cannot be visited on the clients is without exceptions. If the sin of the counsel is a deliberate sin, negligent or that the client contributed to same, then it ought not be applicable. Hence in the Author’s view it may not be out of place to visit the intentional, deliberate sin of a lawyer on an indolent client.

Proposed Remedies to injured clients.

The proponents of the majority view who advocate that the previous processes filed by the erring lawyer on behalf of the innocent client can have a cause of action in negligence against the erring lawyer.

The law reports are not bereft of cases in which professionals have been sued for negligence. A party can commence an action in negligence against his lawyer. In the case of Fodwoo v Law Chambers^[33], the plaintiff retained the defendant law firm to prosecute an insurance claim for the recovery of his losses. Several lawyers in the defendant law chambers worked on the brief but the lawyer who finally handled the brief was one Mr. Ampaw. Judgment was given against the plaintiff because the lawyer failed to prove the actual loss sustained by the plaintiff. The claim could have been proven if the lawyer had submitted certain documents that was given to him by the plaintiff which he failed to tender in evidence at the trial. The plaintiff then sued the firm in respect of the lawyer’s negligence in proving his losses. The trial High Court dismissed the action but successfully appealed to the Supreme Court which held among others that, “a lawyer can be sued in negligence on his conduct of a case and negligence of one partner of a firm of solicitors is the negligence of the whole firm for which the latter can be sued…. In undertaking their client’s business legal practitioners guarantee the existence and employment of skill and diligence on their part. Where an injury was sustained by a client in consequence of the absence of either, the delinquent legal practitioner is responsible to his client for the injury…” The court continued, “We think that in a fast developing country like our own, where the numerical strength of the legal profession is on the increase, it is in the public interest that professional standards should be closely watched and that lapses in lawyers must be seriously viewed and where, as here, such lapses result in grave financial losses to lay clients, they must be adequately compensated.” While the Author agrees with the decision in this case and the remedy it provides to innocent clients, the Author takes the view that the previous processes filed by an unlicenced lawyer should not be invalidated ipso facto only for the innocent client to engage another lawyer to re-file same and even consider taking an action against the previous erring lawyer. The Author is not oblivious of the cost implications in these ventures and the economic situations of such clients to put them to such expenses should they decide to vindicate their rights, through the option of filing a law suit against his or her previous lawyer. Even if such clients can afford, the Author submit respectfully, that it is not a judicious use of resources and if same can be avoided by not invalidating the previous processes, that accords with justness and good sense.  

Prescribed sanctions for practicing in breach of Act 32 known to law

The law itself provides sanctions for lawyers who practice in breach of section 8 by not obtaining the requisite annual solicitor’s licence. The Author notes that those sanctions did not include the invalidation of previous processes. The legal profession Act provides in section 8(6) that, “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.” So right in the same section 8 of Act 32 are prescribed two measures that are punitive enough for the lawyer, (committing an offence and inability to sue for recovery of fees). The law maker could have added the nullification of the previous processes if that was what was intended. The rule of interpretation (expressio unus est exclusion alterius) is, that the express mention of one is deemed to exclude the other. The Expressio Unus Est Exclusio Alterius Rule is further explained by the respected Sir Justice Dennis Dominic Adjei^[34] (to whom the Author owes his appreciation of the law of Interpretation) in his book Modern Approach to the Law of Interpretation in Ghana at page 150 thus, “The rule states that the mentioning of one shows an intention to exclude the others not mentioned. The maxim applies to the interpretation of statute and other documents. It is literally explained as the express mention of one thing is the exclusion of the other”. The law proceeds to provide that, “Where a person who is not enrolled practices as a lawyer or prepares a document for reward directly or indirectly to be used in or concerning a cause or matter before a court or tribunal, that person commits an offence and is liable on first conviction to a fine not exceeding one hundred penalty units and for a subsequent offence, to a term of imprisonment not exceeding six months, or to a fine not exceeding two hundred penalty units or both the fine and the imprisonment.”^[35] It continues thus, “Where person who is not enrolled willfully pretends to be, or takes or uses a name or title or description implying a qualification or recognition to act as a lawyer or barrister or solicitor, that person commits an offence and is liable to a fine not exceeding one hundred penalty units or to a term of imprisonment not exceeding six months or to both the fine and the imprisonment.” The Author also calls in aid and is further fortified by another aid to interpretation referred to as the Ut Res Mages Valeat rule, which means that a document must be construed in a manner that would save or validate it rather than rendering it void. His Lordship Justice Sir Dennis Dominic Adjei in his seminal book, Modern Approach to the Law of Interpretation in Ghana, explains this aid to interpretation in page 146 of his said book thus, “This maxim is invoked in cases where the text is susceptible to two meaning and one of them would save the document whiles the other meaning would render it void. In such a case, the Court is to choose the meaning that would save the document or the law.” It is the view of the Author that the section 8 of Act 32 is not susceptible to two meanings and even if it so, the interpretation that would save the document or the law is preferred to the interpretation that would invalidate same.

The Author submits humbly that it was never the intention of the first Republican legislature that enacted the Legal Profession Act in 1960, neither is it the intention if subsequent Parliaments to nullify or invalidate processes filed by lawyers who do not obtain annual licence for their practice. Indeed, in writing this paper, the Author sighted the Legal Profession (Amendment) Bill 2018, whose purpose is to amend the Legal Profession Act, 1960 (Act 32) to provide for additional requirements for admission into the Ghana School of Law, training of lawyers with reference to pupilage, requirements for solicitors licence and the discipline of lawyers (emphasis mine.). Although this amendment has not been effected, a reading of the memorandum to the Bill shows that Clause 1 of the said Bill seeks to amend Section 8 of Act 32 which is the fulcrum around which the Author’s paper revolves. However, there is no attempt in the said memorandum to amend the said section 8 to include the invalidation and nullification of previous processes filed by an erring lawyer who had failed to obtain his annual solicitor’s licence.

From both section 8 and 9 of Act 32, the law maker provides adequate sanctions for both the erring lawyer who fails to obtain a practicing licence in breach of section 8 and the unqualified who pretends to be qualified and practices the law unlawfully. In none of these instances did the law maker prescribe the sanctions as invalidating the previous processes filed. With regard to the application of section 8, the Author enters the room with their Lordships in the majority in the Ex Parte Teriwajah and Korboe v Amosa line of cases, but exits through different doors with regard to the effect of such failure on the processes filed, regarding that the Author exits the door with the minority view that saves those processes.

Curing the mischief in the effect of the application of section 8 of Act 32

Until this time, the position of the law was settled albeit in the Author’s view yielded some injustice to clients, it was settled that the effect of failing to procure solicitor’s licence under section 8 of Act 32 disables the practitioner from practicing, from further representing the client, and also invalidated previous processes filed by the erring lawyer. The Author takes the view that the effect of that, was to visit the sins of the lawyer on the innocent client, contrary to the earlier indication by the Supreme Court in cases like Aryeetey v SSNIT [2013] 57 GMJ 1 SC @ p 38, per Dotse, Republic v Asokore Traditional Council, Ex Parte Tiwaa [1976] 2 GLR 231 per holding 1 among others. 

The Author agrees with the learned jurist, Alexander Osei Tutu^[36] who in his recent book, Contemporary & Evolving issues in Civil Procedure and Litigation, 2024, when he said “The Supreme Court might have realized the negative effect of the Korboe v Amosa cases could have on innocent litigants.” The Supreme Court has recently in other cases say that the effect of failing to obtain a solicitors licence under section 8 of Act 32 ought not to be applied retrospectively to affect processes filed by the erring lawyer.

Nana Ampofo Kyei Baffour v Justmoh Construction Co. Ltd and 4 Others^[37]  is one case in which the court ruled against a preliminary legal objection on the basis that the Counsel, Hansen Kwadwo Kodua Esq. (to whom the Author owes his knowledge of land law) did not have a solicitor’s licence and neither did he belong to a registered chambers when he commenced the action. In this case the objection or challenge was made on an appeal. The ground of objection was reported thus, “1. Hansen Kwadwo Kodua Esq. did not have a current valid annual Solicitor’s Licence for the 2013 year when he purported to filed the Writ of Summons and the Amended Writ of Summons, contrary to section 8(1) of the Legal Profession Act, 1960 (Act 32). 2. Hansen Kwadwo Kodua Esq. was not member of any professional Chambers duly registered with the General Legal Council for the 2013 legal year when he purported to file the Writ of Summons and Amended Writ of Summons contrary to Rules 4(1) and 4(4) of Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613). The court expressed surprise as to the time the objection was raised and their Lordships said that, “We are surprised that this preliminary objection is being raised at this last stage as counsel for the plaintiff, had raised a similar point at the Court of Appeal and repeated it before us as an additional ground of appeal. The objection appears to be tit for tat and shows lack of candour on the part of both lawyers. Though an objection such as this goes to the validity of processes filed by a solicitor and could therefore be raised at any stage of the proceedings, the best practice in our opinion, is for the point to be raised at the earliest opportunity and at the early stage of the proceedings at the trial court.” Indeed, to answer the objection, Hansen Kwadwo Kodua Esq. had to demonstrate that he had actually applied for his solicitor’s licence and chambers registration but hadn’t received same due to administrative challenges at the office of the General Legal Council and not through any fault of his. Dismissing the preliminary objection, the Supreme Court said thus, “We note that the counsel for the plaintiff added his 2012 solicitor licence number to the statement of claim filed on 17/1/2013. The letter supra shows counsel for the plaintiff applied and paid for his licence in 2013 but due to bureaucratic delay by the issuing authority the licence was issued in 2014. We take judicial notice of the fact that in 2013, there was a backlog in the issuance of solicitor’s licences and solicitors who had proof of having paid for renewal or issue of licence to practice were not penalized by the courts.” The Author commends their Lordships for the stance they took in this matter especially by taking judicial notice of the bureaucratic situations at the time and not visiting the consequences on the innocent client especially so when counsel had demonstrated an effort to procure same.

In the case of Amoakohene v Amoakohene^[38] the Supreme Court speaking through Dordzie (Mrs.) JSC said,…”On the authority of this court’s decision in the case of the Republic v The Registrar and President of National House of Chiefs & Others Ex-parte – Ebusuapanyin Kojo Yamoah (Substituted by Ebusuapanyin Ekow Abaka); Nana Abor Yamoah – Applicant (2018) 126 G.M.J. 1 S.C…. the mere non-endorsement of solicitor’s licence number on a writ does not render the writ a nullity. That the solicitor who issued the writ has no practice licence is a statement that required proof. The issue was not raised in the trial where evidence could have been led to establish the alleged facts.”

The apex Court in the case of Republic v The Registrar and President of National House of Chiefs & Others Ex-parte – Ebusuapanyin Kojo Yamoah (Substituted by Ebusuapanyin Ekow Abaka); Nana Abor Yamoah – Applicant ^[39] had said that the mere non-endorsement of a lawyers licence number does not render the process a nullity. Evidence must be led to establish that the said lawyer did not have a licence at the tome the process was prepared and filed. 

On the basis of the above decisions, (Amoakohene v Amoakohene and Republic v The Registrar and President of National House of Chiefs & Others Ex Parte Ebusuapayin Kojo Yamoah), the Author is of the view that any objection on the default of section 8 of Act 32 must be raised timeously during trial for evidence to be led to establish whether a lawyer has the licence to practice for a particular year or not, and not raised at a later time where evidence cannot be led for the fact to be established.

The case of Henry Reiss Henry Okaikwei vrs Madam Rosina Attoh Koikor Konuah^[40] is another case in which the issue of solicitor’s licence was raised on appeal before the Court of Appeal^[41]. The material facts of the case relevant to this terse paper were that, the appellant filed as part of the grounds of appeal, the trial judge below erred when he waived the invalid solicitor’s licence to practice of 1^st defendant’s counsel. Counsel for the appellant argued that the issue of nullity of proceedings can be raised at any stage of the trial even at the appellate court or any anytime and that illegality overrides all pleadings. It was contended that the 1^st defendant’s counsel concerned, Nathaniel Myers (of blessed memory)^[42] lacked capacity to enter appearance because at the time he did he had no practicing licence for the year. Per the Record of Appeal, counsel entered appearance on 26^th March 2015 but the solicitor’s licence number showed on the process was GAR 0922/2014, a 2014 licence which had expired on 31^stDecember 2014 and therefore invalid at the time the appearance was filed. Appellant contended that the issue of nullity of proceedings is one that goes to the root of the case and cannot be ignored by the court. In support of this position, appellant cited Section 8 of Act 32 and case law such as Korboe v Amosa and Akufo Addo v Quarshie Idun cited supra and concluded that being a violation of statute, a court cannot shut its eyes to same since that will be contrary to the raison d’etre. Although counsel for respondent did not file a written address, the record showed that at the time 1^st defendant counsel filed defence on 15^th May 2015, he had obtained a valid solicitor’s licence which he quoted on the processes filed as Licence Number GAR12262/15. The processes cannot be deemed null and void for lack of lawyer’s practicing licence. All subsequent processes were filed by lawyers who had valid licences as shown on the Record of Appeal. According to the Court of Appeal, the learned trial judge in dealing with the issue rightly observed that appellant’s counsel brought in the issue of invalid licence too late in the day hence pulling a surprise on the 1^st defendant. The Court of Appeal was concerned that, instead of amending his pleadings to incorporate new facts that arose in cross-examination, counsel waited until the time for filing his written submission, but to do so amounts to introducing fresh evidence in the submission which is not allowed. The court said that, the Korboe v Amosa decision was a 4-3 majority decision which had some of the seasoned judges of the apex court at the time dealing with the matter. The outcome indicates that the instances where processes filed by counsel who have no licence on behalf of clients should be declared a nullity should be the clearest of cases. In instances where there are doubts as in this case i.e. Myers had a valid licence when filing a statement of defence, Zuta Plhar & Anyadi both had licences when filing subsequent pleadings, the Korboe & Amosa & Akufo Addo vs. Quarshie-Idun cases cannot be applied in such circumstance.” To the Author’s mind, the import of this dictum is that the decisions in Korboe v Amosa line of cases must not be applied on a wholesale basis but same must be applied in its proper context. The Court continued that, again counsel for appellant who is seeking his pound of flesh has not fully complied with the rules and has breached some of the rules like attaching evidence, i.e. General Legal Council search report, to a written address. This is a court of law, a court of equity and a court of justice and he who comes to equity must come with clean hands.”

The Court of Appeal referred to the case of Nana Ampofo Kyei Baffour vs. Justmoh Construction & Others,^[43] which case is a new development on the Korboe v Amosa case and cited with approval the dictum of their Lordships in a clarion call for reform thus, “We recall our jurisprudence in cases such as Henry Nuertey Korboe vrs Francis Amosa, Civil Appeal No. J4/56/2016 SC delivered on 21^st April 2016 (unreported) where we held in effect that a lawyer without a valid solicitor’s licence for any particular year, as required by Section 8(1) of Act 32, cannot practice as a lawyer in any court or prepare any process as a solicitor within the particular period of non-compliance and that any process originated by such a solicitor is a nullity. This clearly may seem to be an injustice to the litigant and the solution does not lie in expecting a litigant to verify beforehand the credentials and legal capacity of his lawyer and of his chambers, to perform the services he is engaged to undertake. Objections taken to non-compliance with section 8(1) of Act 32 keep cropping up which cause delay in the delivery of justice. Perhaps it is about time for the Rules Committee to make amendments to Order 2 rules 5(1)(b) and 7 of the High Court Civil Procedure Rules, 2004 (C.I. 47) on endorsement and the issue of writ respectively^[44]”. The court concluded thus, “This is a clear indication that a determination that counsel filed a process when he had no valid licence should not be taken lightly because of the serious consequences it has on the litigant. We therefore conclude that the trial judge did not err in law when he waived the alleged invalid solicitor’s licence to practice of the 1^st defendant’s original Counsel.” The appeal therefore failed.

In the most recent High Court decision in the case of The Republic v John Kingsley Arthur and Another, Nana Amakye II, Ex Parte Nana Kwamena Ekuntan II (Chief of Dwomo) Suit No. E9/13/2024 dated 29/04/2024, the respected judge, Osei Hwere J, confronted with this challenge was obviously in a judicial dilemma between doing substantial justice or following precedent. The learned judge in the Author’s respectful view followed precedent rather than doing justice based on the peculiar facts before the Honourable Court. The facts of the case were that, in a contempt application case, respondent’s counsel applied to the Honourable Court for an order to set aside the contempt application. The gravamen of the application as seen from the affidavit was that, the application for contempt was incurably bad and defective since same is laden with statutory breaches and procedural irregularities. Key amongst the respondent/applicant’s counsel’s contention was that, the applicant/respondent’s application was contrary to statute in particular section 8(1) of the Legal Profession Act 1960 (Act 32) and other judicial precedent, in the sense that the application for committal for contempt was filed by the applicant/respondent’s lawyer who did not have a valid solicitor’s licence at the material time of filing. It was the contention that by virtue of such a breach, the application was incurably bad and same could not be cured under the rules of the Honourable Court. In opposition to the application, the applicant for the contempt application and respondent to the instant application, argued that at the time of filing the application, he had not obtained his licence for the year 2024 the failure to do so was due to maintenance shutdown and upgrade on the portal of the Ghana Bar Association where the renewal takes place. It was the case that due to the said maintenance shutdown, which was communicated to all lawyers by the Ghana Bar Association, it made it impossible for most lawyers including himself to obtain his 2024 licence before the end of the year 2023. Applicant/Respondent’s counsel contended that as soon as the upgrade was completed in January 2024 there was a rush by lawyers on the platform which caused a traffic but he was able to obtain his licence by the third week of January. It was his contention therefore that since the inability to renew was beyond his control and not his doing he could be spared.

In making a determination, the learned Osei Hwere J, pointed to the Second Schedule to the Legal Profession Act to the effect that the solicitor’s licence is issued for a period of one year ending 31^st December as was so held in the case of the Republic v High Court Accra, Ex Parte Teriwajah.^[45] Accordingly the licence shall be renewed annually hence filing court processes without a valid licence shall be deemed a violation of the Legal Profession Act in particular section 81(1) of same as previously cited. His Lordship taking judicial notice of the challenges arising from the shutdown of the Ghana Bar Association Platform, this is what the Honourable Court had to say, “In the instant case, it became impracticable for lawyer for the applicant to renew his solicitor’s licence timeously. This was through no fault of the lawyer but due to system failure of the GBA portal. The court has taken judicial notice of the occasional occurrence of this technological glitch which leave lawyers frustrated in their desire to renew their licences.” In resolving this quagmire, the learned judge poses the question thus, “The profound question is: can technology failure be used s basis for non-compliance with statutory requirement particularly section 8(1) of the Legal Profession Act?” Stated differently, can a lawyer file a process with the previous year’s licence number pending the issuing of a new licence number? The simple answer is “No.” The Author respectfully suggests that, the proper formulation of the question ought to be, “Can a lawyer file a process with the previous year’s licence number pending the issuing of a new licence number, which has been applied for but not yet issued due to technological challenges not from the lawyer and beyond his or her control?” Rather than the learned judge seeing the peculiar facts, his Lordship proceeded to resolve the issue by, with respect to his Lordship, simplifying the issue in the application as one being of noncompliance with a statutory provision and whether it has the effect of invalidating the contempt application. The court took the view and said thus, “We are servants but not masters of statute.” Hence in the view of the court, unless the statute itself creates an exception for noncompliance, the court shall not entertain any excuse from a defaulting party. To the mind of the court therefore, since the breach in this instant case is a breach of a substantive statute as opposed to a procedural rule, failure to comply would nullify the application and same cannot be cured by Order 81 of C.I.47. In the case of Republic v High Court Accra, Ex Parte All gate Co. Ltd^[46] the court distinguished the legal effect between a breach of procedural rule which can be cured or remedied and breach of statutes which cannot be cured or remedied. His Lordship feeling bound by judicial precedent took the view that he had no discretion and accordingly set aside the application for contempt.

A careful reading of the dictum of the learned judge showed the judicial dilemma and quagmire he found himself in. Had he had a discretion, it seems to the Author that he would have saved the processes having regard to the special circumstances the reason why the lawyer could not obtain his licence for the year 2024, but feeling compelled by precedent from higher authority he fell bound, although in the Author’s view, he could have distinguished this case and departed. In fact, the Author contends with respect that, his Lordship could have done substantial justice in that regard because there was judicial precedent he could have fortified himself with and he could have distinguished Ex parte Teriwajah and Korboe v Amosa line of cases. It was Lord Denning who said, “The doctrine of precedent does not compel your Lordship to follow wrong path until you fall over the edge of the cliff. As soon as you find that you are going in the wrong direction, you must at least be permitted to strike off in the right direction, even if you are not allowed to retrace your steps.”^[47] The Author is of the view that His Lordship could have fortified himself by distinguishing the Ex parte Teriwajah and Korboe v Amosa line of cases, pass through the ghosts of the past precedent undeterred. 

The learned judge, realizing the difficulty in the case proceeded to make some recommendations for legislative reform which ought to be considered in the view of the Author. He commented thus. “I must concede that the application of the law in this instant case has occasioned a harsh result. In spite of this, there was no room for any contrary conclusion by the court, as the law, they say, “is what it is and not what it ought to be”. To ensure just results in the application of our solicitor’s licensing regime, there is the need for a rethink of the existing regime. There is the need to mitigate the legal fallout from technology failure. Beside the GBA putting in place a robust IT system for easy accessibility and results, the situation calls for amendment of the law to cater for administrative delays in issuing of licences. After all, the law being an instrument for change, is an effective tool in the resolution of problems in all aspects of life. Consequently, it is proposed for legislative change that within two-month period immediately following the expiration date of the active licence (i.e. January and February), a lawyer should be allowed to use the previous year’s solicitor’s licence to file processes provided he or she has applied (or attempted to apply) for a renewal of his or her licence.” He continues thus, “Also, within the two months’ grace period, a lawyer who uses the previous year solicitor’s number to file a process in court must depose to an affidavit indicating the fact that he or she has applied for a renewal of the previous years’ licence and is awaiting a new license number. An affected lawyer may also depose to the fact that it has become impracticable to apply for a solicitor’s license due to administrative lapses (including technology failures) on the part of the licensing authority. These measures may go a long way to ensure that qualified lawyers practice their profession seamlessly.”

The Author takes the view that, His Lordship could have taken judicial notice of the challenges counsel claimed he faced including the network challenges and accommodated the Applicant as the Supreme Court did in the Justmoh case supra and fortify himself thereby. 

Limited and selective application of section 8(1) of Act 32

The practice of the law is wide as the ocean. Indeed, litigation, dispute resolution and for that matter court room practice is only a minute aspect of legal practice. There are transactional lawyers, corporate lawyers, lawyers in academia, lawyers in the security and other services among others. This shows how broad legal practice goes. Black’s Law dictionary, Ninth Edition, by Bryan A. Garner describes practice of law thus, “The professional work of a duly licenced 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 in but that require legal expertise such as drafting legislation and court rules.”

The application of section 8 of the Legal Profession Act applies to all lawyers with the express exception of the Attorney-General and the officers of the Attorney-General’s Department. Black’s law dictionary defines a lawyer to mean, “one who is licenced to practice law.” However, not much is heard of the application of section 8(1) to lawyers in other areas of practice aside litigation or court room practice. It seems to the Author that, there may be transactional lawyers who may not have renewed their solicitor’s licence and nothing may happen to that transaction. Lawyers in Academia^[48] (where being a lawyer is a sine qua non) may keep teaching even if they have not renewed their licence to practice for a particular year and that may go unnoticed as long as the disclosure of one’s licence number is not a requirement as it is for court room practitioners. Lawyers may draft transactional documents, conveyances, legal opinions without the procuring solicitors licence without any challenge to the documents drafted. A lawyer may draft a Will for a testator without having renewed his or her licence, but the Will so drafted will not be invalidated for the testator’s estate to fall into intestacy. There is also not any evidence of such a challenge to a lawyer to practice aside those faced by courtroom practitioners. The Author suggests that, as held in the case of Akuffo Addo and Others v Quarshie Idun and Others^[49] thus, “The Legal `Profession Act, 1960 (Act 32), s. 8 also, made it a pre-condition to practice that every person other than an officer of the Attorney-General’s Department must have an annual practicing certificate entitling him to practice in the capacity of barrister or solicitor or both. Without this he could not practice as a lawyer regardless of the nature of his practice”, the rule in section 8 of Act 32 in its enforcement must be extended to legal practitioners outside the court room.

It is doubtful if the application of the legal effect of the cases cited above can be applied to transactions advised on by unlicensed lawyers. If a lawyer without a licence drafts or reviews an agreement for a client and it is found out later, would the agreement or the review of same be invalidated because the lawyer who drafted or reviewed it had not renewed his or her licence? If a corporate lawyer reviews an agreement and renders advice in respect of an agreement to the benefit of a client, will the review and advice thereon be rendered a nullity because the lawyer did not renew his licence. If a lawyer serves as a transactional advisor in a major transaction, would the advice be nullified because the said lawyer has not renewed his licence? Under the current Land Act^[50], “A conveyancing shall only be prepared by a legal practitioner in terms of the Legal Profession Act, 1960 (Act 32)”.^[51] If a conveyance is done by an unqualified lawyer or a qualified but an unlicenced lawyer for a client, and years later it is discovered that the lawyer at the time was not qualified to practice law or was unlicenced to practice, would the conveyance be invalidated as a consequence of this argument? Therein lies the difficulty in the logical application of the Ex Parte Teriwajah line of cases.

Reminder to members of the bar to apply for licence for the ensuing year.

It is apposite that practitioners are reminded that as the year come to a close, it may be important to start the application for solicitors licence for the ensuing year to avoid the challenges discussed above. Failing to do so may expose one to some of these avoidable challenges, with serious consequences not only on the lawyers qua lawyers, but may extend to the client, who may suffer avoidable losses and may vent their spleen on lawyers with a law suit. Fortunately, the Ghana Bar Association (GBA) consistent with its practice has published notices for lawyers to start applying for the licences for the impending year. These notices are usually and commendably sent by the GBA towards the end of the legal years usually during or after the annual GBA Bar Conference in September. These days, thanks to the administration of learned seniors Anthony Forson Jnr. Esq.^[52] and his successor Yaw Acheampong Boafo Esq.^[53], lawyers can apply for their licences virtually and same is instantly issued without any delay, of course subject to technological uncertainties. But as encountered in the case of The Republic v John Kingsley Arthur and Another, Nana Amakye II, Ex Parte Nana Kwamena Ekuntan II (Chief of Dwomo) Suit No. E9/13/2024 dated 29/04/2024, in the event of technology failure, lawyers who wait to apply last minute may face some challenges. It is therefore advisable in the Author’s view if members of the bar can take steps to apply for same in November and December ahead of January. Alternatively, lawyers if they have any processes to file can file same in December with their current licences so that in January there will not be challenges should there be technological hitches. It seems to the Author that the courts are even fatigued with determinations of these challenges on failure to procure solicitor’s licence. This is what their Lordships said in the oft cited case of Korboe v Amosa, “Finally, if the applicant (or any member of the public for that matter), whether out of difference or ignorance, fails to exercise his clear right to verify the credentials and legal capacity of his lawyer to perform the services he is engaged to undertake, that cannot give rise to an exceptional circumstance which has resulted in miscarriage of justice such as would merit the exercise of our review jurisdiction. Any injustice (if there be any, and I say there is none) in the matter has been generated by the unlicenced solicitor, not this Court.^[54]”

Conclusion

It is the submission of the Author that, although the position that a lawyer without solicitors’ license is not entitled to practice and represent clients, when processes have been filed by that lawyer, the disqualification of that lawyer to practice must not negatively affect the innocent client, but rather the previous processes should be saved as was held by the Court of Appeal in the Korboe v Amosa decision. The affected client can proceed to engage the services of another lawyer who is duly licenced to practice law in that year. That way the law is applied in respect of the lawyer and justice is served the innocent and unsuspecting client. The Author suggests that if the intention of the law maker is to invalidate previous processes filed, then an amendment to the Act 32 may be considered to cater for this effect. Failing to do so would be visiting the sins of counsel on the unsuspecting client, without a basis in the Act which is itself a sin, and that would not be fair in the respectful view of the Author.

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^[1] 221 NY 81, 84 [1917]

^[2] 1960 (Act 32)

^[3] Principal legal adviser to the Government under Article 88(1) 1992 Constitution of Ghana

^[4] [2013] 57 GMJ 1 SC @ p 38, per Dotse

^[5] Sophia Akuffo CJ  (https://www.ghanaweb.com/GhanaHomePage/features/Cutting-short-the-ambition-of-students-who-wish-to-become-lawyers-in-order-to-preserve-the-prestige-of-the-legal-profession-787046)

^[6] [1968] GLR 667 CA Full Bench

^[7] Section 41 Interpretation Act 2009 (Act 792) “Words in an enactment importing (a) make persons include female persons; and (b) female persons include male persons.”

^[8] Rule 2(1)(e) Legal Profession (Professional Etiquette Rules) 2020 L/I 2423

^[9] Suit No, J4/24/2013 dated 27^th April 2016.

^[10] Suit No. AC 54/2009 before the Fast Track Division of the High Court Accra

^[11] Justin Pwavra Teriwajah Esq, without whom the jurisprudence of Solicitors licence in Ghana cannot be fully discussed in the Author’s humble view.

^[12] [2016] 101 G.M.J 1

^[13] Her Lordship has since been appointed to the Supreme Court of Ghana

^[14] [2014] 78 G.M.J 193 CA

^[15] [2014] 68 G.M.J 1 SC

^[16] [2014] 78 G.M.J 193

^[17] [2016] 101 G.M.J 1

^[18] She became a Justice of the Supreme Court and has since been appointed as the Chief Justice of the Republic of Ghana

^[19] Coram Atuguba, Ansah, Dotse, Yeboah, Baffoe Bonnie, Akoto Bamfo and Akamba JJSC

^[20] My Lord Julius Ansah recently was called to eternity and his burial held on the 22^nd November 2024.

^[21] C.I. 47 2004

^[22] Order 1 Rule 1(2) of the High Court (Civil Procedure) Rules, 2004 (CI 47) 

^[23] Review Motion No. J7/8/2016 judgment dated 20^th July 2016

^[24] Atuguba JSC (Presiding), Akuffo (Ms) JSC, Ansah JSC, Dotse JSC, Anin Yeboah JSC, Baffoe-Bonnie JSC, Akoto-Bamfo (Mrs.) JSC, Akamba JSC and Appau JSC

^[25] Rule 54 of the Supreme Court Rules 1996 (C.I 16) 

^[26] Atuguba with whom Akuffo, Ansah, Dotse, Anin Yeboah, Baffoe-Bonnie agreed

^[27] Led by Appau JSC with whom Akoto-Bamfo and Akamba JJSC agreed in dissenting

^[28] [2003-2004] 1 SCGLR 365 at page 370

^[29] [1953] 14 WACA 374

^[30] 2009 (Act 792)

^[31] [1976] 2 GLR 231 at holding 1

^[32] [2013] 57 GMJ 1 SC @ p 38, per Dotse

^[33] [1965] GLR 363

^[34] Justice of the Court of Appeal

^[35] Section 9(1) of Legal Profession Act 1960 (Act 32)

^[36] Justice of the Court of Appeal

^[37] (CM J4/51/2016) dated March 21, 2017

^[38] [2020] 162 191

^[39] (2018) 126 G.M.J. 1 S.C

^[40] Unreported Suit No. H1/76/2023 judgment of the Court of Appeal dated 30^th March 2023

^[41] Coram Poku Acheampong JA (Presiding), Aryene J.A and Asare Botwe J.A

^[42] Passed away on the 12^th January 2020

^[43] Civil Appeal No. J4/51/2016 dated 14/6/2017

^[44] Dictum of Sophia Adinyira JSC in Nana Ampofo Kyei Baffour vs. Justmoh Construction & Others

^[45] [2014] 68 G.M.J S.C

^[46] [2007-2008] SCGLR 1041

^[47] Ostine (Inspector of Taxes) v Australia Mutual Provident Society (1960) A.C 459

^[48] Rules 2(1)(e) of L.I 2423

^[49] [1968] GLR 667

^[50] Land Act 2020 (Act 1036)

^[51] Section 33 of Land Act 2020 (Act 1036)

^[52] GBA President 2018 to 2021 under whose term the Bar saw the introduction of a lot of digitalization of its processes

^[53] Immediate Passed GBA President 2021 to 2024 who continued and championed the digitalization agenda commenced by his predecessor President, Anthony Forson under whose tenure he was the GBA National Secretary and was instrumental in this digitalization agenda for the GBA.

^[54] Dictum of Sophia A.B. Akuffo JSC (as she then was)