Jones v. Buckle & Ors. [1977] 2 GLR 145.

 JUDGMENT OF OWUSU-ADDO J

Owusu-Addo J. I have chosen to preface this ruling with a quotation from Cordery on Solicitors (5th ed.) at p.118, from which I have derived some assistance in my attempt to resolve the issues raised herein. It reads:

“The relationship existing between a solicitor and his client is recognised in equity as a fiduciary one imposing on the solicitor special obligations. In his dealings with his client the solicitor must exercise the utmost good faith, and in any financial transaction with his client (save as to costs for work done) there will be a presumption that such transaction should not be upheld unless the solicitor can establish that it was effected by the free exercise of the client’s will and without any influence on the part of the solicitor.”

I do not find it necessary here to reproduce the facts averred in the pleadings of this suit. What I am called upon to decide as preliminary issues raised herein, are: (1) whether Messrs. Gaisie, Zwennes and Hughes, a reputable firm of solicitors, are competent to act as solicitors for the first defendant, and (2) whether Mr. Brodie-Mends is competent to appear either as solicitor or counsel for reasons which I shall relate later. There are in effect two preliminary objections, the first being against the appearance of Messrs. Gaisie, Zwennes and Hughes as solicitors and the second directed against Mr. Brodie-Mends both in his capacity as solicitor and counsel for the first defendant.

What provoked this objection in limine is that on 8 June 1976, a motion on notice seeking an order for interim preservation of the subject-matter of the litigation was filed on behalf of the first defendant by Messrs. Gaisie, Zwennes and Hughes. The motion was brought under the High Court (Civil Procedure) Rules, 1954 (L.N.140A), Order 50, r.1, and hearing was fixed for Monday, 12 July 1976. Mr. Brodie-Mends having announced himself as counsel for the first defendant-applicant, Mr. Cann in a rather serious mood got up and objected vehemently to his appearance in the suit. His main reason was that some time in 1974 he did introduce a member of the plaintiff’s family to Mr. Brodie-Mends with a view to representing them. He accepted the introduction and acted. It was on the strength of the introduction that Mr. Brodie-Mends wrote a letter to the first defendant on a letter head of Messrs. Gaisie, Scheck & Co., inviting him for discussion. It is marked exhibit A and the contents read:

“Dear Sir,

We are writing on the instructions of the following persons, all principal members of the Efiekessim section of Ebiradze stool family of Cape Coast:

Mr. D.E. Asamoah, Mrs Comfort Quarcoo, Mrs. Grace Daitey, Mr. F.G. Asamoah, Mr. Emmanuel Asamoah, Mr. K.B. Asamoah, Miss Elizabeth Asamoah, Miss Effua Ansah, Mesdames Effua Kokuanoah, Araba Ken, Adjuah Yabah, Ekua Eson, Ekua Mensimah, Adjuah Kakraba, Effuah Amoaba, Nana Essie, Ekua Forbah, Araba Kwekuenyiwa, Adjua Kakraba and Mr. E.E. Otoo.

According to our instructions, the government paid to you the sum of ¢22,000.00 (twenty-two thousand cedis) in August 1972 as part payment of compensation for the acquisition of property belonging to the Ebiradze paramount stool family of Cape Coast.

Our clients have reason to believe that since then a further sum has been paid to you.

It is our clients’ complaint that up to now you have not rendered account to any of them, though they are all entitled to shares in the moneys paid to you by the government.

We have therefore been instructed to call upon you, and we hereby do call upon you to render accounts in respect of the said sums of money paid to you by the government as compensation for the

Ebiradze stool property acquired by the government within two weeks of the date hereof.

Our instructions are peremptory, and unless we hear favourably from you within two weeks of the date hereof, we shall take legal proceedings against you to compel you to render accounts.”

In reply to exhibit A the first defendant wrote to Mr. Brodie-Mends. The letter is marked exhibit B and was formulated as follows:

“Dear Sir,

Reference your letter No. GS/POD/74 dated 5 April 1974.

Please inform each and everyone of your clients that I am prepared to meet each and everyone of them at our family house, Efiekessim in the presence of the other members of the family on a date and a time convenient to them.”

At the instance of Mr. Brodie-Mends, a letter dated 17 April 1974, and marked exhibit C was sent to one Mary Dawson Amoah. Its contents are: “I have received a reply from Mr. Buckle in reply to the letter sent to him on your instructions. Kindly arrange to see me for some discussions.”

From these exhibits, it is apparent that Mr. Cann’s objection against Mr. Brodie-Mends’ representation for the first defendant turns mainly on the previous communication that had taken place between Mr. Brodie-Mends and a member of the plaintiff’s family whose very interest he is now opposing in this suit against the first defendant.

Referring to the pleadings, there is no gainsaying that the subject matter of the complaint represented to Mr. Brodie-Mends by Mary Dawson Amoah, on behalf of the plaintiff’s family, is more or less the same as the one in the present dispute. But Mr. Brodie-Mends’s stand is that when Mr. Cann introduced the said lady to him in 1974, he acted on her behalf by writing exhibit A to the first defendant. To his knowledge, the whole contest is between Efiekessim and the rest of the family. Having received exhibit B from the first defendant he wrote to Mary Dawson Amoah and her daughter to come and meet the first defendant but he did not hear from them again until a much later date when they called to collect all their papers. He said that before accepting to hold brief for Mr. Tsegah, the solicitor who entered appearance and filed a statement of defence on behalf of the first defendant, he went through the brief and felt satisfied that his earlier conduct would not be in conflict with the present one.

I shall first of all deal with the competency of Messrs. Gaisie, Zwennes and Hughes to act as solicitors for the first defendant. After the plaintiff’s writ of summons had been served on the defendants, the first defendant entered appearance by his solicitor, Mr. S.A. Tsegah of Accra. A statement of defence dated 8 November 1975, was filed on his behalf by the same solicitor. From the records, on 9 February 1976, Mr. Brodie-Mends on behalf of the first defendant’s solicitor applied to the registry for a search and his two subsequent appearances in court were on behalf of the first defendant’s solicitor, Mr. Tsegah.

Up to date Mr. Tsegah has not withdrawn his representation as solicitor for the first defendant, and no notice of change of solicitors or appointment of additional solicitors has been filed. But it happened that on 8 June 1976, Messrs. Gaisie, Zwennes and Hughes filed a motion for an order for preservation of the subject-matter of the litigation and signed as solicitors for the first defendant.

At this stage I shall refer to the relevant procedural law on change of solicitors. It is provided under Order 7, rr.2 (1)-(3), 3 and 4 (1) of the High Court (Civil Procedure) Rules, 1954, and is formulated as follows:

“2. (1) A party suing or defending by a solicitor shall be at liberty to change his solicitor in any cause or matter, without an order for that purpose, but unless and until notice of any change of solicitor is filed and copies of the notice are lodged and served in accordance
with paragraphs (2) to (5) inclusive of this rule, the former solicitor shall (subject to the provisions of rules 3 and 4 of this Order) be considered the solicitor of the party till the final conclusion of the cause or matter.

(2) Notice of any change of solicitor shall be filed in the Registry of the appropriate court.

(3) Where a party, after having sued or defended in person, appoints a solicitor to act in the cause or matter on his behalf, he may give notice of the appointment, and the provisions of this rule relating to a notice of change of solicitor shall apply to a notice of appointment of solicitor with the necessary modifications . . .

3. (1) Where a solicitor who has acted for a party in a cause or matter has died or become bankrupt or cannot be found or has failed to take out a practising certificate or has been struck off the roll of solicitors, and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of rule 2 of this Order, any other party to the cause or matter may, on notice to be served on the first- named party personally or by prepaid post letter addressed to his last-known place of address, unless the court or Judge otherwise directs, apply to the court or Judge for an
order declaring that the solicitor has ceased to be the solicitor acting for the first-named party in the cause or matter, and the court or Judge may make an order accordingly.

(2) Where the order is made, the party applying for the order shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the said order and procure the order to be entered in the appropriate office mentioned in
rule 2(2) of this Order and leave at the said office a certificate signed by the applicant or his solicitor that the order has been duly served as aforesaid. Thereafter unless and until the first party shall either appoint another solicitor or else give such an address for service
as is required of a party acting in person, and shall comply with the provisions of rule 2 of this Order relating to notice of appointment of a solicitor or notice of intention to act in person, any documents in respect of which personal service is not requisite may be

served on the party so in default by being filed with the proper officer.

(3) Any order made under this rule shall not affect the rights of the solicitor and the party for whom he acted as between themselves.

4. (1) Where a solicitor who has acted for a party in the cause or matter has ceased so to act and the party has not given notice of change in accordance with the provisions of rule 2 of this Order, the solicitor may on notice to be served on the party personally or by prepaid post letter addressed to his last-known place of address, unless the court or Judge otherwise directs, apply to the court or Judge for an order to the effect that the solicitor has ceased to be the solicitor acting for the party in the cause or matter and the court or Judge may make an order accordingly:

Provided that unless and until the solicitor has –

(a) served on every party to the cause or matter (not being a party in default as to entry of appearance) a copy of the said order; and

(b) procured the order to be entered in the Registry of the appropriate court; and

(c) left at the said office a certificate signed by him that the order has been duly served as aforesaid; he shall (subject to the provisions of rules 2 and 3 of this Order) be considered the solicitor of the party to the final conclusion of the cause or matter.”

Considering the above quoted rules, I hold the view that the representation of Messrs. Gaisie, Zwennes and Hughes does not accord with the usual practice in the High Court and is therefore incompetent, since Mr. Tsegah has not withdrawn as solicitor for the first defendant and no notice appointing them as solicitors has yet been filed. I therefore uphold Mr. Cann’s submission that Messrs. Gaisie, Zwennes and Hughes are not competent to file a motion as solicitors for the first defendant.

Now I come to the most sensitive matter, namely, whether Mr. Brodie-Mends ought to be allowed to appear either as counsel for the first defendant or on behalf of the solicitor for the first defendant.

I think it is opportune at this stage to refer to the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613). Rule 5 (3) reads:

“Where a lawyer withdraws from a case and returns the client’s brief, it is his duty to hand it back to the client from whom he received it. A lawyer who accepts a brief is in a confidential position, and he shall not communicate to any other person the information which has been confided to him as such lawyer; and he shall not use either such information or his position as a lawyer to his client’s detriment. The duties here stated continue after the relation of lawyer and client has ceased.”

(The emphasis is mine.) Rule 5 (10) enjoins a lawyer to avoid representing conflicting interests.
Judging from the earlier dealings of Mr. Brodie-Mends with a principal

member of the plaintiff’s family, in relation to the same subject-matter now pending in this court, it would be most improper for him to appear for the first defendant in the conduct of this case. For, he is likely to have received some confidential information from his client, thus establishing a fiduciary relationship. The subsequent collection of the brief from him was immaterial, for the relationship continued and carried with it the obligation to act with strict fairness, and to abstain from doing anything that would be detrimental to the client’s interest. Surely, Mr. Mends’s appearance for the first defendant in this suit, amounts to representing conflicting interests; and he cannot be said to have behaved with the utmost honesty towards his former client. It is most unfortunate that he saw fit to appear both as solicitor and counsel for the first defendant. His representation for the first defendant is certainly improper and must discontinue. Accordingly, the objection against his appearance is upheld.