Rep. v. G.L.C.; Ex Parte Aboagye-Da Costa [1989-90] 2 GLR 104.




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Taylor J.S.C. This is a motion for a stay of execution of the order made by the disciplinary committee of the General Legal Council against Mr. A. A. Aboagye-da Costa. By that order he was suspended for twelve months as a legal practitioner in our courts. It was in connection with a charge of professional misconduct under section 9 (7) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613) which he faced on 11 May 1989, the date of the order.

We heard argument this morning but because of the impending legal vacation we adjourned for two hours to consider the application, which we now proceed to dispose of. The gravamen of the charge contained in the particulars is stated as follows:

“Alex Aboagye-da Costa (lawyer) between April 1986 and 1987 at Asamankese in the Eastern Region in his dealings with his client, Nana Bosompem Awuah, did not behave with utmost honesty and frankness.”

This is a charge of misconduct against a professional man, and the practice in our courts is that the burden is on those making the accusation to establish the charge.

This manner of considering cases of misconduct is in consonance with section 15 (1) of the Evidence Decree, 1975 (N.R.C.D. 323). To find out therefore if those with the legal obligation of making out the charge have indeed done so, it is necessary to have a look at the proceedings; but unfortunately in his affidavit in support of his application, the applicant has deposed that he applied for a copy of the record of proceedings and as of now he has not been supplied with the said record. We are consequently in no position to decide whether those in charge of the inquiry did, in accordance with law, fulfil their statutory obligation. And we are not unmindful of the fact that those in charge of the inquiry have the responsibility to supply the record of proceedings.

The application for the suspension or stay of execution of the disciplinary sanction imposed in this case by the disciplinary committee is not unlike an application for bail pending appeal in criminal cases since it is a disciplinary punitive measure taken against a person on a charge of wrongdoing. We think the principles that our courts have built up over the years in applications for bail can mutatis mutandis be applied in such a case. It will be recalled that in State v. Halm, Court of Appeal, 27 July 1967, unreported, Akufo-Addo C.J. said:

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“The grant of bail to a convicted prisoner pending the hearing of his appeal is an unusual course which may be adopted only in exceptional circumstances. Such exceptional circumstances may be that (1) the conviction is prima facie wrong and the appeal therefore has obvious prospects of success. Coupled with this is: (2) the probability that having regard to the shortness of the sentence imposed the hearing of the appeal may be unduly delayed.”

See Fynn v. The Republic [1971] 2 G.L.R. 433 at 451.

In his application the applicant would seem to ask for a stay of execution on two main grounds. The first ground is that as a question of law, the disciplinary committee of the General Legal Council was wrong to hold that the relationship of solicitor and client existed between him and the complainant and that the said relationship was of such a nature as to preclude the applicant from acting for the accused person, Kwabena Okyere, as counsel in a criminal charge which followed a complaint by the said Nana Bosompem Awuah.

Now the crux of the case against the applicant is that the said complainant Nana Bosompem Awuah, in the criminal case in which one Okyere was involved as the accused person, was at the material time his client and that therefore that disabled the applicant from appearing as counsel for the said Okyere. It is in the light of this that one can understand the ground for asking for a stay of the suspension so as to enable the Court of Appeal to pronounce definitively on the legal issue as to whether the said relationship was of such a nature as to justify the disciplinary measure taken against the applicant.

We are in no position to prejudge this issue. A determination of this would necessitate examining the record of proceedings and the evidence adduced. Since the record is not before us we cannot decide the matter one way or the other. Council for the disciplinary committee of the General Legal Council, who appeared at the inquiry, however, has stated with extreme confidence that there is no likelihood of this ground of appeal succeeding and has taken the view that for that reason we should peremptorily refuse the application.

In this respect we recall that in the case of Re Renner (1894) 1 Ren. 113 at 114 decided on 20 September 1894 by the Full Court (coram: Hutchinson C.J. and Hayes Redwar J.) the Full Court on the same date after hearing arguments ordered the “name of Peter Awooner Renner to be struck off the roll of the court” for professional misconduct. Mr. Renner appearing in person asked for leave to appeal to the Privy Council but this was refused on the ground that the Full Court had no power to grant such leave. This decision, the ratio

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decidendi of which the Full Court apparently had so much confidence in, and which it set out fully in its judgment delivered the same day it heard arguments, was considered by the Privy Council on 9 December 1896 where Lord Watson delivering the judgment of the judicial committee of the Privy Council reversed the judgment of the Full Court with “directions to restore the name” of P. A. Renner “to the roll of barristers and solicitors entitled to practice before that court”: see Renner, In re (1896) 1 Ren. 114 at 118, P.C.

This case ought to teach us that the confidence which counsel or even a court may have in the correctness of its decision is not a matter to be seriously taken into consideration when the question in issue is the desirability or otherwise of permitting a disciplinary or punitive measure to be suspended which cannot be recalled after it has operated. See also Martin, In re (1902) 1 Ren. 219 and R. v. Taylor (1909) 2 Ren. 521. We look at the problem therefore from the point of view of the balance of justice. Consider these two alternatives: Suppose the decision suspending the applicant were set aside on appeal, can the applicant in the interest of justice be restored to the position he was in before the order? We think not! But if on the other hand the stay were granted and the decision is not altered on appeal, the applicant can then undergo the punitive measure ordered by the committee and justice will be done to all parties in the two contingencies which we have thus considered. For this reason we think the application deserves to be granted in the interest of justice.

The second ground on which the applicant founds his application is the delay in hearing the appeal which will result in his undergoing the suspension and rendering a successful appeal meaningless. In considering this ground, we find help from Akufo-Addo C.J.’s opinion in the Halm case (supra) and the position on bail applications specifically taken by the High Court case of Fynn v. The Republic [1971] 2 G.L.R. 433 at 456, to the effect that an application for bail ought to be granted:

“If having regard to the sentence there is going to be a considerable delay either in preparing the record of appeal or because of the long vacation and in consequence the hearing of the appeal is likely to be unduly delayed resulting in the appellant serving the whole or substantial portion of his sentence.”

In this case, the long legal vacation will commence on 1 August 1989, i.e. four days from today. The record of proceedings not being ready is through no fault of the applicant. The applicant was suspended for twelve months from 11 May 1989. The superior courts will resume sitting on or about 9 October 1989 when the applicant

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would have undergone five months of the twelve months’ suspension. On that date, it is not certain whether the appeal would come on for hearing. On the basis also of the principle applicable to grants of bail pending appeal in cases of delay in the disposal of such cases having regard to the length of the sentences, we think the application ought to be granted. We therefore order the stay of the twelve months’ suspension of the applicant pending the hearing and determination of the appeal which he filed to the Court of Appeal on 14 June 1989. The application is accordingly granted.

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