State v. Amoabeng [1966] GLR 318.

STATE v. AMOABENG [1966] GLR 318.

JUDGMENT OF KORANTENG-ADDOW J.

STATUTORY REF.
Page 319

Koranteng-Addow J. The respondent was charged with the offence of unlawful assumption of the title of solicitor contrary to section 9 (2) of the Legal Profession Act, 1960 (Act 32). The facts that provided the grounds on which the charge was laid are that on or about 10 February 1965 the respondent not being enrolled under the Legal Profession Act, 1960, did take or use the title of solicitor. The respondent is the sole proprietor of a business designated General Insurance Claims Agency which has been registered under the Registration of Business Names Act, 1962 (Act 151). He wrote a letter the heading of which bore words which appeared to indicate that the letter came from a firm of legal practitioners addressing the same to the claims manager, Royal Exchange Assurance, Accra. The offending title reads as follows:

“General Insurance Claims and Brokers Agency Solicitors,
Commissioners for Oaths
(Privy Council Agents).”

The said letter was tendered by the prosecution as exhibit F. The letter was signed by the respondent “for General Insurance Claims and Brokers Agency” in his capacity as “Claims Manager.” The prosecution called five witnesses. At the close of the case for the prosecution, Mr. Amuah-Sekyi, learned defence counsel, made a submission of no case.

The learned trial circuit judge, his honour Judge Okai upheld the submission and discharged and acquitted the respondent. The appeal herein was filed against the ruling of the learned trial circuit judge. Mr. Kaleo-Bioh, learned state attorney, assailed the said ruling on the ground that it is bad in law. In his said ruling the learned circuit judge after making the finding, said among other things that “I am satisfied it is the agency that has taken or used the title ‘solicitors’,” and concluded that the assumption of title was not made by the respondent who is the owner of the business. Upon that basis he discharged the respondent and acquitted him.

In support of his ground of appeal, namely, that the ruling is wrong in law, learned counsel for the appellant submitted that since the respondent is the sole proprietor of the business, then whatever the agency did was in law and in fact done by the proprietor. The agency, according to learned state attorney, had no separate personality independent of the personality of the proprietor. It was this misconception on the part of the learned circuit judge on the question of legal personality, submitted learned state attorney which led to the wrong conclusion in law.

Page 320

The learned counsel for the respondent conceded to the submission of learned state attorney on the question of misconception of the legal position as to personality but argued that the prosecution failed to establish that the respondent “wilfully” assumed the name of solicitor. He submitted that the ruling can be supported on that ground. In support of his argument learned counsel for the respondent referred to the contents of exhibit F which in his submission negatived any intention on the part of the respondent to make it appear that he is a solicitor. He pointed out that the respondent signed himself as “Claims Manager” and not as solicitor. The whole tenor of the letter, according to him, showed that the respondent did not intend anybody to think that he is a solicitor.

The section of Act 32 under which the respondent was charged reads:

“If a person who is not enrolled wilfully pretends to be, or takes or uses any name or title, or description implying that he is qualified or recognised as qualified to act as a lawyer or barrister or solicitor he shall be liable to a fine not exceeding £G50 or to imprisonment for a term not exceeding six months or to both.”

In my opinion the words “wilfully pretends to be” and “takes or uses any name or title” are not conjunctive but disjunctive. “Wilfully” does not qualify “takes and uses.” A person may either “pretend” or “take and use.” If a person “takes and uses” a name as he did in this case his taking need not be wilful. The very assumption of the name in my opinion makes him liable under the charge. Again if the “taking or using” must be “wilful” to be offensive, in my opinion “wilful” should mean “knowing that he is taking or using” but should not have the meaning attributed to it by learned counsel for the respondent, namely, that even if he assumed the title of solicitor the respondent had no intention of making people feel that he is a solicitor. The test should be an objective not a subjective one.

On reading the particulars of the offence however I have noticed that the prosecution has qualified “take or use” with “wilful.” They say inter alia that the respondent “did wilfully take and use the title of a solicitor.” It is from these particulars that learned defence counsel seems to have taken his cue.

What emerges from the evidence and the ruling is that the respondent did take and use the title “solicitor.” The only implication is that the agency is also a firm of solicitors. Even if the offence was the willful assumption of the title it is my opinion that once it was established by the prosecution that the respondent assumed the title voluntarily and not as the result of an accident or mistake he

Page 321

should have been called upon to make his defence. If by the contents of exhibit F it was obvious that he did not intend anybody to feel that he is a solicitor then that should have been his defence. A prima facie case had therefore been made at the close of the prosecution’s case and the respondent should have been called upon. I uphold the submission of the appellant that the ruling is wrong in law and allow the appeal. I would therefore order the case to be sent back to the learned circuit court judge to continue from where he left off.

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