Amarfio v. G.L.C. [1991] 2 GLR 479.

COURT OF APPEAL, ACCRA

OSEI-HWERE J.S.C., AMPIAH AND ADJABENG JJ.A.

JUDGMENT OF OSEI-HWERE

Osei-Hwere J.S.C. Section 16(1) of the Legal Profession Act, 1960 (Act 32) provides that a lawyer who has been guilty of grave misconduct in a professional respect (including any conduct which, in pursuance of rules made by the General Legal Council under Part III of the Act, is to be treated as grave misconduct in a professional respect), shall be liable either to have his name struck off the roll of lawyers or to be prohibited from practicing as a lawyer for a period specified in the order suspending him. Part III of Act 32, of course, relates to discipline. Section 23 of Act 32 also provides that the General Legal Council may prescribe standards of professional etiquette and conduct for lawyers, and may by rules made for that purpose direct that any specified breach of the rules shall for the purposes of Part III of the Act constitute grave misconduct in a professional respect.

The disciplinary committee of the General Legal Council derives its authority to receive, investigate and decide on complaints relating to the conduct of a lawyer under Act 32. The rules prescribing standards of professional etiquette and professional conduct for lawyers formulated in pursuance of sections 23 and 53 of Act 32 are contained in the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613). On 18 October 1988 the disciplinary committee of the council notified the appellant of the following charges:

“COUNT 1

Statement of Misconduct

Grave misconduct in a professional respect contrary to section 16 of the Legal Profession Act, 1960 (Act 32).

Particulars of Misconduct

For that you Willie Amarfio, a lawyer, caused to be published an advertiser’s announcement in the People’s Daily Graphic of Saturday, 21 May 1988 to the effect that: ‘A.E. Norteye and his associates are not members of the Adjiwate family as they do not descend from the founder of the Adjiwate (Omaboe) We’, a statement which you knew was not true and calculated to mislead the public, inasmuch as in the civil suit No. Trs. 9/81 between the plaintiff, Nii Okwei Omaboe, and the defendants A.E. Norteye and Others in which you appeared as counsel for the plaintiff, the High Court in its judgment dated 29 February 1984 found that A.E. Norteye and J.A.N. Osuteye (the first and the second defendants) were descendants of the said Adjiwate family by blood

COUNT 2

Statement of Misconduct

Grave misconduct in a professional respect, contrary to sections 23 and 53 of the Legal Profession Act, 1960 (Act 32) and of rule 9(12) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613).

Particulars of Misconduct

For that you Willie Amarfio, a lawyer, in service to your clients caused to be published on behalf of your clients an advertiser’s announcement in the People’s Daily Graphic of Saturday, 21 May 1988 to the effect that: ‘A.E. Norteye and his associates are not members of the Adjiwate family as they do not descend from the founder of the Adjiwate (Omaboe) We’, which said service

to your clients constituted disrespect for the judicial office, inasmuch as you, as counsel for the plaintiff in the civil suit No. Trs. 9/81 between the plaintiff, Nii Okwei Omaboe, and the defendants, A.E. Norteye and Others, knew that in its judgment dated 29 February 1988 the High Court found that A.E. Norteye and J.A.N. Osuteye (the first and the second defendants) were descendants of the Adjiwate family of Osu.”

After the disciplinary committee had held due inquiry into the charges, the committee found the charges proved and directed that the appellant be prohibited from practising as a lawyer for a period of six months. The appellant brought this appeal against the decision of the disciplinary committee. As the charges reveal, they are rooted in a civil suit transferred to the High Court for trial in 1981 and which was concluded by the judgment of Adade J.S.C (sitting as an additional judge of the High Court) on 29 February 1984. In that suit (titled Nii Okwei Omaboe (plaintiff) v. A.E. Norteye and Others (defendants)) the appellant appeared as counsel for the plaintiff. The other defendants sued alongside Norteye, it may be mentioned, were J.A.N. Osuteye, Noi Kwame, B.N. Nortey and S.N. Adumuah as the second, third, fourth and fifth defendants respectively.

The plaintiff sought six reliefs in that suit whereof the last five related to the Adjiwate family house at Osu and the first sought a declaration that the plaintiff is the head of the Adjiwate family. Although the question of the defendants’ membership of the Adjiwate family was not raised as one of the reliefs, yet arising out of the pleadings, it became one of the issues settled for determination. That issue was thus formulated: “whether or not the defendants jointly and severally are natural members of the Adjiwate We family of Osu or at all.”

The learned trial judge resolved all the issues substantially in favour of the plaintiff. He particularly held that the plaintiff was the Osiahene of Osu and the head of the Adjiwate family to whom the defendants, as members of the Adjiwate building committee, must surrender the management of the Adjiwate family house and account. He also found that the first and second defendants, A.E. Norteye and J.A.N. Osuteye, were “members through the male line of the Adjiwate family” but that the same could not be said of the third, fourth and fifth defendants. The defendants appealed against the decision.

The appellant demonstrated at the inquiry before the disciplinary committee that for a long time before and after the judgment of Adade J.S.C., there had been no love lost between the faction championed by A.E. Norteye and that championed by the plaintiff; the appellant

himself being a victim of A.E. Norteye’s disaffection. It was against this back-drop that on 14 May 1988 A.E. Norteye (who now styled himself as Nii Narku Dja Awu, the head of the Adjiwate family of Osu Kinkawe) and others inserted an advertisement in the People’s Daily Graphic publication denouncing, inter alia, the alleged self-imposed status of Nii Ashong Omaboe (who obviously is of the plaintiff’s faction) as regent Osiahene or Osu Mantse.

The advertisement which the appellant caused to be inserted in the same publication seven days later (and which excited the disciplinary proceedings) was the instant reaction to the former advertisement wherein A.E. Norteye (as Nii Narku Dja Awu) did not only proclaim himself as head of the Adjiwate family but also as “the present chairman of the accredited Osu stool djaase.” Indeed, the rejoinder inserted by the appellant, in tune with the former advertisement, essentially related to the Osu stool and its accredited djaase. Nowhere was any reference made to the judgment of Adade J.S.C. in any of the advertisements.

On the contrary, the former advertisement stated that it derived its raison d’etre from the Court of Appeal judgment of 2 February 1988. Accordingly, one would have thought that the opprobrium evoked by the appellant’s answer to that advertised announcement of 14 May 1988 was, if at all, naturally referrable to the Court of Appeal decision of 2 February 1988.

The appellant’s counsel essayed to show that the impugned statement in the advertisement (exhibit B) could not attract any legal sanctions upon any one of the following propositions briefly put: (a) the statement complained of is true; (b) if the statement is not true, the publication will amount to expression of permissible opinion on the status of the persons named; (c) no offence made out if there is doubt whether it is true or false; (d) the publication could be looked at as criticism of the judgment of Adade J.S.C.; and (e) as criticism, it is immaterial whether published in a legal journal or a public newspaper. Counsel for the respondents, of course, could entertain none of these propositions as savouring of any redeeming grace.

Unlike other jurisdictions where professional misconduct may be judged by written and unwritten rules governing the profession which is determined by a man’s “professional brethren of good repute and competence”, our Act 32 offers no carte blanche on which the disciplinary committee charged with the duty of deciding on the professional misconduct of lawyers can freely inscribe what reasonably is to be regarded as such misconduct. Under Act 32, the nature of every professional misconduct must be specified within the four corners of the rules made in pursuance of section 23 of the Act. In other words, no lawyer may be charged with any type of professional misconduct unless it is provided for under the Act or the

legislative instrument made thereunder.

A lawyer against whom a disciplinary committee has directed the taking of disciplinary measures may appeal to the Court of Appeal, as of right, on any question of law and, with the leave of the disciplinary committee or of the court, on any question of fact: see section 21 of Act 32. It does not appear that the applicant sought any leave to appeal. But whether he did so or not it is quite clear that the question whether, in relation to a given matter, the appellant has been guilty of the offence charged is one of mixed fact and law; the question of law being whether, on the facts proved or admitted, the appellant has committed an offence within the provisions and meaning of Act 32.

It will be noted that count 1 charged the appellant for having contravened section 16 of Act 32. That section, it must be observed, does not create any offence but rather prescribes the punishment for “grave misconduct in a professional respect” which the Act does not define. Although section 23 of the Act charges the General Legal Council to legislate on what conduct constitutes grave misconduct in a professional respect, yet when they came out with L.I. 613 they specified in rule 9 certain rules of conduct which, by their breach, constitute only professional misconduct and not grave misconduct in a professional respect, the latter concept being one of weighted degree. I am of the opinion that the charge in count 1 was not properly laid as it did not fit into the statutory framework provided by Act 32.

The charge in count 2 was laid under sections 23 and 53 of Act 32 and rule 9(12) of L.I. 613. Sections 23 and 53 are, of course, only enabling provisions. Rule 9(12) of L.I. 613 states:

“(12) No client is entitled to receive—and no lawyer shall render any service or advice involving disloyalty to the State or disrespect for the judicial office or the corruption of any persons exercising a public or private trust or deception or betrayal of the public.”

Although the marginal notes to rule 9 states that it regulated “Other Professional Misconduct”, yet it is obvious, on reading the sub-rules, that not all of them will attract the stigma of professional misconduct for their infraction. Those that will be so stigmatised have been specifically identified in the body of the sub-rules. Rule 9(12) has not been so identified.

The question then is, whether a breach of rule 9(12) of L.I. 613 amounts to grave misconduct in a professional respect or even a professional misconduct. In my view, the answer is “no.” The sub-

rule, in its true application, is intended to fetter the demands of a client on the service or advice of a lawyer involving those matters stated. But supposing rule 9(12) of L.I. 613 constitutes a grave misconduct in a professional respect by its breach then the next question is, whether the appellant can be found guilty by the advertiser’s announcement he caused to be published. The gravamen of the charge as laid was that the appellant’s service to his client constituted “disrespect to the judicial office.”

I have indicated before that “grave misconduct” has not been defined by Act 32. If I may venture a definition, it means that the conduct complained of was so bad that it would be repugnant to anyone’s sense of justice to ignore it. And as the basis of the disrespect was the published statement laid in the charge, the statement must have been an offensively critical comment of the judicial office: see for instance, Hilborne v. Law Society of Singapore [1978] 2 All E.R. 757. In the absence of any element of abuse, I, for my part, cannot conceive of how a publication which merely contradicts a judge’s finding can amount to a disrespect of judicial office and, therefore, whip up a charge of grave misconduct in a professional respect. The charge clearly fell short of the degree of culpability required to prop it.

It was unfortunate for the disciplinary committee to have raked up with tweezers the judgment of Adade J.S.C. and capitalised on it at the disciplinary inquiry when that decision was of little profit to A.E. Norteye himself and when it had not been referred to in exhibit B for any offensive comment. To conclude, I may permit myself the liberty of recalling dictum of Scrutton L.J. in R v. General Council of Medical Education and Registration of the United Kingdom [1930] 1 K.B. 562 at 569-570 as follows:

“It has been well settled ... that the Council are the judges without appeal of the existence or absence of serious misconduct in a professional respect. [But] [i]n a case where there was no evidence before the Council which would warrant a finding of serious misconduct, the fact that they had found serious misconduct might lead to the conclusion that they had not acted honestly in respect of the charge brought before them: see per Cotton L.J. in Leeson’s case [(1890) 43 Ch. D. 366]. Or it might be contended that the Council have no jurisdiction to decide whether a man is guilty of serious misconduct in a professional respect when there is no evidence before them on which they could come to such a decision.”

Let me hasten to explain that I impute no ill-motive against the committee who are all “men” of great repute and that Scrutton L.J. must be taken to have employed the word “honestly” to mean “frankly.”

For the reasons I have given before, I would allow the appeal. I have read beforehand the judgment about to be read by my brother, Adjabeng J.A. and I entirely agree with him that the appeal ought to succeed on the merits.

JUDGEMENT OF AMPIAH J.A

Ampiah J.A. I agree that the appeal be allowed.

JUDGEMENT OF ADJABENG J.A

Adjabeng J.A. I also agree that the appeal be allowed on the grounds neatly set out in the judgment of my brother Osei-Hwere J.S.C. I wish, however, to add the following observations.

The disciplinary committee in their judgment rightly identified, in my view, the important issue to be resolved in the inquiry, i.e. “whether the publication bore the meaning alleged in the charge.” In their resolution of this issue, they pronounced as follows:

“As to this, we have studied the publication carefully and are satisfied that it went beyond stating that Norteye and his ‘associates’ are not descendants of Nii Okwei Obroni. But in the form of a syllogism, the legal practitioner said:

1. 1. Only descendants of Nii Okwei Obroni are members of the Adjiwate We or Omaboe family.
   2. Norteye and his ‘associates’ are not descendants of Nii Okwei Obroni.
   3. Norteye and his ‘associates’ are not members of the Adjiwate We or Omaboe family.

If the major premise is false, the conclusion must also be false.”

Now, is the major premise false? And did the disciplinary committee demonstrate in their judgment that the major premise quoted above was false?

The only thing I find in the judgment is as follows:

“The finding of Adade J.S.C. was that Okwei Obroni had two brothers, Nortey and Norteye, and that Nortey was the great-grandfather of the complainant, A.E. Norteye. That would make him a member of the family to which Okwei Obroni belonged even though he is not a direct descendant of the said Okwei Obroni.”

Again the question arises from the above finding as to which family Nii Okwei Obroni belonged. Did the committee attempt an answer to this question? I have not found any evidence of this. They have also, in my view, not decided that the major premise quoted above was false. And yet the disciplinary committee concluded their judgment as follows:

“We find that the statement made by the legal practitioner in the People’s Daily Graphic of 21 May 1988 that Norteye and Osuteye are not members of the Adjiwate family of Osu was false and at variance with clear and unambiguous findings of fact made by Adade J.S.C. in his judgment. We accordingly find the charges proved.”

What are these clear and unambiguous findings of fact made by Adade J.S.C.? And, indeed, did the learned judge make any findings of fact which have been contradicted by any statement made by the appellant in the publication in question?

Let me start with the issue which the learned trial judge was called upon to determine. It is this: “(g) whether or not the defendants jointly and severally are natural members of the Adjiwate We family of Osu or at all.” The evidence shows that the Adjiwate family was founded by Nii Okwei Obroni. The judge, in his judgment, stated as follows:

“The plaintiff’s attorney says the Adjiwate family was founded by Okwei Obroni, an ancestor of the plaintiff. He says: ‘None of the five defendants is a member of the Adjiwate family. I am a member of the Adjiwate family.”’

My understanding of this piece of evidence is that the Adjiwate family was founded by the plaintiff’s ancestor, Nii Okwei Obroni. And that none of the defendants in that suit, including the complainant and J.A.N. Osuteye, was a member of that family.

The evidence of the complainant himself shows very clearly that he did not descend directly from the said Nii Okwei Obroni, the founder of the Adjiwate family. The disciplinary committee also observed that “he is not a direct descendant of the said Okwei Obroni.” The complainant, however, claimed blood relationship with Nii Okwei Obroni because his great-grandfather, Nortey, was a brother of Nii Okwei Obroni. And because of this, the complainant claimed that he was a member of the Adjiwate family. But, if the Adjiwate family is a family founded by Nii Okwei Obroni, can the complainant who does not descend directly from Nii Okwei Obroni strictly be said to belong to or be a member of that family? This,

I think, is the crux of the matter.

Now back to the question: What are the clear and unambiguous findings of fact which the learned judge made in respect of the issue whether or not the defendants in that suit, including the complainant, were natural or blood members of the Adjiwate family? It may be recalled that the disciplinary committee claimed in their judgment that

the learned judge had made such findings.

The learned trial judge found in respect of the first defendant, the complainant herein, that: “In all the circumstances the conclusion is inescapable that the first defendant has succeeded in proving that he is a blood relation through the male line of the Adjiwate family.” In respect of the second defendant, the learned judge found:

“On the evidence I am satisfied that the second defendant has succeeded in establishing his blood connection with the plaintiff’s family and I so find.”

It must be mentioned that the evidence before the trial court in that case shows that the second defendant claimed that his great-great-grandfather was a brother of the great-great-grandfather of the plaintiff in that action. What is the meaning of these two findings? They can only mean that the complaint and J.A.N. Osuteye have connection with or are connected to the Adjiwate or Omaboe family by blood. A look at the meaning of the words “relation” and “connection” in any standard dictionary will confirm this. That, in my view, is the meaning the trial judge could have had in mind when towards the end of his judgment he said:

“In the result I determine the questions submitted to me for decision as follows:

1. 1. The first and the second defendants, A.E. Norteye and J.A.N. Osuteye, are members through the male line of the Adjiwate family of Osu ...”

It must be observed that the judge never found in his judgment that the complainant and J.A.N. Osuteye were the descendants of the Adjiwate family. His findings were that they were related to the family. It cannot be true, therefore, that the learned judge made the alleged finding stated in the two charges preferred against the appellant “that A.E. Norteye and J.A.N. Osuteye [the first and the second defendants] were descendants of the said Adjiwate family by blood.” If the judge never made such a finding, how can the appellant be said to have contradicted the alleged finding? The simple answer is that he could not have contradicted a non-existent finding.

Even to say that those two defendants are descendants of the Adjiwate family is, in my view, ambiguous.

Does it mean that they descended from the founder of the family, Nii Okwei Obroni, or what? The evidence, as has already been observed, is that they did not descend from him, but that the complainant descended from a brother of Nii Okwei Obroni, while J.A.N. Osuteye descended from a brother

of Nii Okwei’s father. The customary law position is that in a patrilineal family system, every son can originate or start a family, his own family, and only the descendants of that son can be said to belong to that family, even though that son and his descendants may also be said to belong to the wider family originated by his father. The late Justice Ollennu clearly and fully explained and illustrated this in his book, The Law of Testate and Intestate Succession, at 172-173. If the evidence in the case before Adade J.S.C. had been, and the said learned judge found on that evidence, that the Adjiwate family was founded by Noi Dza-Awu, the great-great-grandfather of both the plaintiff, Nii Okwei Omaboe, and the complainant herein, A.E. Norteye, then both the said plaintiff and the complainant would be the descendants of their said great-great-grandfather. And consequently, both would be members of that family. J.A.N. Osuteye would, however, fall outside that family as he descended from a brother of the said Noi Dza-Awu. Unfortunately, that was not the evidence before Adade J.S.C., and he never made any such finding that the Adjiwate family was founded by Noi Dza-Awu. The evidence was that the Adjiwate family was founded by Nii Okwei Obroni, the third son of Noi Dza-Awu. In these circumstances, I do not see anything wrong with the statement which is the subject of these charges. In my view, what the appellant published is true so far as the evidence before Adade J.S.C. was concerned. What he published, the relevant portion, is as follows:

“The general public is hereby informed that the descendants of Nii Okwei Obroni constitute the Adjiwate We or Omaboe family. The said A.E. Norteye and his associates are not members of the Adjiwate family, as they do not descend from the founder of the Adjiwate (Omaboe) We aforesaid.”

With the greatest respect to the disciplinary committee, I think that they were wrong in finding that the appellant was at fault in publishing the above statement.

Another point which, in my view, ought to engage our attention is the fact that the matter before the disciplinary committee was a quasi-criminal one. The learned chief state attorney readily conceded this and agreed that the burden of proof involved here was proof beyond all reasonable doubt. The question then arises, whether even if the publication were to have contradicted the findings allegedly made by Adade J.S.C., the charges had been proved beyond all reasonable doubt? I think that having regard to the findings made by the learned judge, as explained earlier, and the nature of the charges preferred, it cannot be said that the heavy burden involved had been

discharged. The appellant was charged with grave misconduct in a professional respect. It means he was not charged with any mere misconduct. What is grave misconduct in our law? Section 16(1) of the Legal Profession Act, 1960 (Act 32) on which count 1 was based provides that:

“16. (1) A lawyer who has been guilty of grave misconduct in a professional respect (including any conduct which, in pursuance of rules made by the General Legal Council under this part, is to be treated as grave misconduct in a professional respect), shall be liable—

• • to have his name struck off the Roll of Lawyers, or
  • to be prohibited from practising as a lawyer for a period specified in the order suspending him.”

Section 23 of Act 32 empowers the General Legal Council to:

“prescribe standards of professional etiquette and professional conduct for lawyers, and may by rules made for this purpose direct that any specified breach of the rules shall for the purposes of this Part constitute grave misconduct in a professional respect.”’

Section 53 of Act 32 also provides that “the General Legal Council may, by legislative instrument, make rules in relation to any matter referred to in this Act as prescribed.”

Acting under these two sections of Act 32, i.e. sections 23 and 53, the General Legal Council enacted the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613), prescribing standards of professional conduct and etiquette for lawyers. However, the direction in section 23 of Act 32 that breaches of the rules which “shall . . . constitute grave misconduct in a professional respect” be specified has not been complied with. In other words, L.I. 613 has not specified or defined what conduct of a lawyer constitutes grave misconduct in a professional respect. L.I. 613 only talks of professional misconduct not grave misconduct: see rule 9 of L.I. 613. It seems to me, therefore, that what constitutes grave misconduct in a professional respect has not been defined in our law as I am not aware of any such definition in any of our statutes. The result, it seems to me, is that there is a gap in the law which ought to be filled if it is intended that this wrong, i.e. grave misconduct in a professional respect, shall remain in our law. This is because it seems very clear that grave misconduct

in a professional respect is a different and more serious offence than professional misconduct mentioned under L.I. 613.

As I have already shown, I am not satisfied that the appellant committed any offence when he caused the publication of the statement which is the subject matter of the two charges preferred against him as the statement in question is, in my view, true and has not contradicted any findings of fact made by Adade J.S.C. as alleged. In my view, even if I am wrong in my stand, having regard to the findings made by Adade J.S.C., the heavy burden that ought to be discharged by the accusers of the appellant was not discharged. In the circumstances, I am of the view that the disciplinary committee was wrong in finding that the charges against the appellant had been proved. The committee therefore erred in finding the appellant guilty. The appeal therefore ought to be allowed.