G.B.A. & Anor. v. Ward-Brew [1993-94] 2 GLR 509.

GHANA BAR ASSOCIATION AND ANOTHER v WARD-BREW [1993-94] 2 GLR 509.

JUDGMENT OF OMARI-SASU J

STATUTORY REF.
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Omari-Sasu J. This is an interlocutory application on notice by the defendant-applicant (hereinafter referred to as the applicant) praying this court for an order to strike out the plaintiff-respondent’s writ of summons and statement of claim in the action herein as being vexatious and an abuse of the process of this court.

The applicants contend that the plaintiff-respondent (hereinafter referred to as the respondent) is a member of the first applicant-association and as such a member, the respondent is bound by the provisions of the first applicant’s constitution and all regulations made thereunder. Further, it is said the basis for the respondent’s pending action is his alleged disqualification by the second applicant from contesting for the post of national secretary of the first applicant-association; but as the respondent and others filed defective papers and the respondent, like the others, was given a chance to rectify the defects and yet he failed to respond to the call, his writ and statement of claim should be struck out.

From paragraph (5) of the second applicant’s affidavit in support of the present application, he additionally says:

“The grounds of the respondent’s disqualification were:

“(a) Non-compliance of his sponsors with the financial regulations of the first applicant association; and

“(b) The respondent’s violation and non-observance of

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resolutions of the first applicant association, eg the respondent’s appearance before the public tribunal.”

Finally it was vehemently canvassed by the applicants that their electoral regulations contained domestic remedies which aggrieved candidates for elections were expected to exhaust and since the respondent failed to avail himself of any of these, his present action should be struck out under Order 25, r 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).

On the respondent’s part, he is of the view that the three allegations made against him and his nominators, namely that he filed detective papers; that he himself and his nominators were not of good standing and that he had acted in open defiance of a resolution of the applicants asking members of the applicant-association not to appear before the public tribunals of Ghana are all different ways of stating only one case—to wit, that the respondent had been challenged the legality of the applicants’ said preventive resolution in his pending declaratory action and since the substantive action has not been heard, his writ and statement of claim should be retained under Order 25, r 5 of LN 140A.

Finally, the respondent admits he has not exhausted any of the domestic remedies mentioned under regulation 8 of the Regulations on the Qualifications, Nomination and Election of National Officers of the Ghana Bar Association (which came into force on 1 November 1988) because neither the electoral officer, the electoral committee nor the general council of the bar have power to annul the resolution in question, which resolution was passed by an annual conference; for the said resolution raises grave legal and constitutional issues involving the right of a lawyer to practise before any of the legal forums of the Republic within the framework of the legal institutions set up by statute, which issues cannot be answered by the domestic remedies in the applicants’ said regulations, which regulations also completely oust the jurisdiction of the courts of the land. To the respondent, the applicants’ said domestic remedies must be pronounced void as being contrary to public policy.

It is trite law that parties to a contract and members of private associations like the applicants’ association are free to determine to finality the facts governing the relationship of the parties to a contract or of their members and other associations but they cannot determine to a finality, to the exclusion of the courts, the legal rights of their members; if they do, such a determination will be contrary to public policy and

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invalid. This view is supported by a host of authorities and I may (to mention only a few) cite the following: Lawlor v Union of Post Office Workers [1965] All ER 1175; and Leigh v National Union of Railwaymen [1968] 3 All ER 1249.

The success or failure of the applicants’ present application depends basically on whether or not the alleged domestic remedies mentioned in regulation 8 of the electoral regulations of the Ghana Bar Association which the respondent failed to avail himself of before instituting the present action are valid or should be declared invalid as offending against public policy.

In this regard, I propose to examine regulation 8 of the applicants’ said regulations vis-à-vis the relevant regulations contained in the Privy Council case of White v Kuzych [1951] AC 585 which forms the locus classious of the applicants’ contention. Regulation 8 of the applicants said electoral regulations states:

“(i) Any candidates dissatisfied with the decision of the Electoral Officer or an Assistant Electoral Officer with regard to his nomination may appeal against such decision within seven (7) days of the communication to him of the decision in whatever form to the
Electoral Committee which shall take a decision thereon within fourteen (14) days of the receipt of such appeal.

(ii) A person dissatisfied with the decision of the Electoral Committee in his nomination on appeal from the Electoral Officer or Assistant Electoral Officer may lodge a further appeal with the General Council of the Bar within seven (7) days of the communication to him of such decision in whatever manner and the General Council of the Bar shall, within fourteen (14) days of the receipt of such appeal, determine the same and such determination shall be final and conclusive and shall not be open to question anywhere
else.”

(The emphasis is mine.) It should be observed that the above provisions which constitute the alleged domestic remedies of the applicants which govern cases of disqualifications in their elections do clearly show that whether the cases appealed against contain only facts or are made up of law or mixed law and facts, the aggrieved appellant cannot resort to any court action against the Ghana Bar Association or against the electoral officer or electoral assistant.

The relevant provisions in White v Kuzych (supra) which the

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applicants have invited me to adopt as a yardstick are articles 26 and 22 of the byelaws of the trade union of the parties in that case. Article 26 states:

“if a member so found guilty by a general business meeting [of any offence] and feels that the decision is unfair, or the penalty too severe, he may, within sixty days, file an appeal in writing with the executive of the Shipyard General Workers Federation.”

By the oath of obligation taken by a member of the union, and by which under article 22 he was contractually bound, he promised:

“That I will not become a party to any suit at law or in equity against this Union or Federation, until I have exhausted all remedies allowed to me by the said constitution and bye laws.”

(The emphasis is mine).

It is plain from the above provisions in White v Kuzych (supra) that there is a domestic remedy, ie recourse to the executive of the Shipyard General Workers Federation but this should be exhausted and if the member is again found guilty and he is dissatisfied then he may resort to court action. This case is clearly distinguishable from our case, for whereas an aggrieved member of the trade union in White v Kuzych (supra) has the hope of reaching the court if he fails in his appeal to his federation, an aggrieved member of the Ghana Bar Association cannot sue the association in court for redress even if the case under review involves law. In the English Court of Appeal case of Lee v Showmen’s Guild of Great Britain (supra) at 1180-1181 the court, per Lord Denning LJ (as he then was), stated the principle of law very clearly as follows:

“Although the jurisdiction of a domestic tribunal is founded on contract, express or implied, nevertheless the parties are not free to make any contract they like. There are important limitations imposed by public policy. The tribunal must, for instance, observe the principles of natural justice. They must give the man notice of the charge and a reasonable opportunity of meeting it. Any stipulation to the contrary would be invalid . . . Another limitation arises out of the well-known principle that parties cannot by contract oust the ordinary courts of their jurisdiction . . . They can, indeed, make the tribunal the final arbiter on questions of facts, but

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they cannot make it the final arbiter on questions of law”.

(The emphasis is mine.)

In this regard, I declare regulation 8 of the applicants’ electoral regulations invalid. The issue of disqualification of the respondent for his said appearance before the public tribunal definitely involves an examination of very crucial legal and constitutional questions and it is sad that the applicants have prevented their members, including the respondent, from recourse to court action. I declare the ouster of the jurisdiction of the courts in the said regulation 8 of the applicants’ electoral regulations as void since the ouster clause offends against public policy.

Another reason for the disqualification of the respondent is that he has failed, together with his sponsors, to comply with the financial regulations of the applicant-association. The respondent vehemently denies this and says that his sponsors and himself were financial and that they were not in default of any financial regulations of the applicants. From the affidavits filed by the parties, I find as a fact that the truth or falsity of this allegation can only be adequately ascertained after formal evidence is heard in the substantive case.

The applicants contend that the respondent’s action is vexatious and an abuse of the process of the court and so it should be struck out under Order 25, r 4 of LN 140A. This rule states:

“4. The Court or a Judge may order any pleading to be stuck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just”.

(The emphasis is mine.) The natural question one would ask here is, is the respondent’s action vexatious?
And does it constitute any abuse of the legal process of the court? It should be observed that the respondent’s action in substance seeks a declaration from this court against his disqualification from standing election as general secretary of the applicant-association and another declaration that a resolution of the applicants preventing their members from attendance at public tribunals set up under the Public Tribunal Law, 1982 (PNDCL 24) is invalid. I have said sufficiently enough about the applicants’ electoral rules and regulations and I now turn to their resolution against the attendance of their members at the public tribunals.

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To succeed in their application, the applicants must show that the respondent’s declaration he seeks is vexatious. According to the Concise English Dictionary of Current English (4th ed), p 1426 a vexatious action is one which is “annoying, harassing and distressing” for its triviality. The Annual Practice (White Book) (1960 ed), Part 1, p 576 comments on Order 25, r 4 which is on “frivolous or vexatious action” and says a judicial discretion must be used in determining whether the action complained of is in fact vexatious or unsustainable. This view is in consonance with section 27 of our Interpretation Act, 1960 (CA 4) which provided that: In an enactment made after the passing of this Act “may [shall be construed] as permissive and empowering.”

A cursory look at PNDCL 24 shows that section 17 thereof contains the following provisions:

“17. Any person whose conduct is the subject of enquiry or trial under this Law, or who is in any way implicated or concerned in the matter under enquiry shall be entitled to be represented at a tribunal by counsel of his own choice, and any other person who may consider it desirable that he should be represented by counsel shall be allowed to be represented by counsel of his own choice.”

(The emphasis is mine.) Again, rule 5(1) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 LI 613 provides: -

“5. (1) A lawyer in practice is bound to accept any briefs in the Court in which he professes to practice . . . Special circumstances may justify his refusal at his discretion to accept a particular brief.”

From the two legal provisions cited above, are the applicants saying that the respondent should not be heard if he complains that they are wrongfully punishing him for practicing his profession in legal forums where the law allows the presence of counsel? In the considered view of this court, the application by the applicants for the striking out of the respondent’s action fails, as the arguments advanced in support of the application are unmeritorious. The applicants must defend the pending action. The respondent is entitled to costs of ¢50,000 against the applicants.

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