Ward-Brew v. G.B.A. (No. 2) [1993-94] 2 GLR 518.

WARD-BREW v GHANA BAR ASSOCIATION (NO. 2) [1993-94] 2 GLR 518.

JUDGMENT OF OMARI-SASU J

STATUTORY REF.
Page 520

Omari-Sasu J. This is an interlocutory application on notice by the plaintiff-applicant (hereinafter referred to as the applicant) for summary judgment against the defendant-respondents (hereinafter referred to as the respondents) on the ground that the respondents have no defence to the applicant’s claim.

It must be observed that on 11 December 1989 the applicant issued out a writ of summons and a statement of claim against the respondents who entered a conditional appearance to the writ on 29 December 1989, and 24 January 1990, respectively. Subsequently, the respondents filed an interlocutory application in this court to seek the striking out of the applicant’s writ and statement of claim on the allegation that the action was vexatious and an abuse of the legal process of the court. In time, this application was heard and, by a ruling read on 20 August 1990: see Ghana Bar Association v Ward-Brew [1993-94] 2 GLR 509, this court refused to strike out the applicant’s writ and statement of claim and ordered the respondents to defend the action. Up to the time of writing this ruling the case docket shows that the respondents have filed no statement of defence.

Learned counsel for the respondents, at the time he was replying to the present application, informed the court that the respondents had filed no defence because they were dissatisfied with the court’s ruling in Ghana Bar Association v Ward-Brew (supra) and had appealed against same to the Court of Appeal.
Further, he indicated that they had filed another process praying this court to stay any further hearing of any interlocutory applications in the matter until the appeal in the Court of Appeal had been heard. This court did not accede to this request and

Page 521

ruled that the decision in Ghana Bar Association v Ward-Brew (supra) was valid until it had been set aside and in the interim the parties herein were to respect it. It was further ruled that all pending interlocutory applications were to be heard in the order in which they had been filed.

Learned counsel for the respondents in dealing with the merits of the present application said it was defective and incompetent since Order 14 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977 (LI 1129) deals with only liquidated damages which is not what the present applicant wants.

For the avoidance of doubt, I propose to cite some of the relevant provisions of Order 14 of LI 1129 to ascertain what the order is meant for. Order 14, r 1 of LI 1129 reads, inter alia, as follows:

“1. Where in an action begun by writ a defendant has been served with a statement of claim and has entered an appearance, the plaintiff may apply to the Court for judgment against him on the ground that he has no defence to a claim included in the writ, or to a particular part of such a claim . . .”

And Order 14, r 13 of LI 1129 also states:

“13. Summary judgment shall not be given under this Order in respect of—

(a) a probate or maritime action;

(b) a claim or counterclaim for defamation, malicious prosecution, seduction or breach of promise of marriage;

(c) a claim or counterclaim based on an allegation of fraud.”

A close examination of the applicant’s writ and statement of claim shows that he seeks declarations from this court against some of the electoral regulations of the respondents and also a declaration that a resolution of the respondents barring their members from attendance at public tribunals is void. These remedies the applicant seeks are not caught by the exclusionary rule 13 of Order 14 of LI 1129. I accordingly rule that the mode or procedure adopted by the applicant herein in bringing the present interlocutory application is valid and competent.

In moving the present application, the applicant relied not only on the affidavit filed in support of the application but he sought leave and leave was granted him to rely also on his writ, the pleadings in his statement of claim; the legal arguments he advanced and the authorities he cited in Ghana Bar Association v Ward-Brew (supra).

Page 522

To understand the present application and to deal effectively and competently with the reliefs sought, I propose to pose and try to answer four questions. The first question is: Who or which legal institution within the Republic of Ghana is clothed with authority and jurisdiction or power to control or regulate the education, training, enrolment, discipline and conduct of practising lawyers?

For an answer, I cite the legal Profession Act, 1960 (Act 32) and sections 1(1), 3(1), 16(1) and 23 thereof which state respectively as follows:

“1. (1) There shall continue to be a body, to be called the General Legal Council, which shall be concerned with the legal profession . . .

3. (1) A person shall be qualified for enrolment if he satisfies the General Legal Council—

(a) that he is of good character, and

(b) that he holds a qualifying certificate granted under Part II of this Act by the General Legal Council. . .

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—

(a) to have his name struck off the Roll of Lawyers, or

(b) to be prohibited from practicing as a lawyer for a period specified in the order suspending him . . .

23. The General Legal Council may 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.”

It will easily be seen from the foregoing provisions that the answer to the first question is undoubtedly the General Legal Council. This is the only body created by law to regulate the education, training, enrolment discipline and professional conduct of practicing lawyers.

The next question is: What is the legal position of the ordinary or regular courts vis-à-vis the public tribunals? Section 9(1) and 10 (1) of the Provisional National Defence Council (Establishment)
Proclamation, 1981 states:

Page 523

“9. (1) Notwithstanding the suspension of the 1979 Constitution and until provision is otherwise made by law—

(a) all courts in existence immediately before the 31st day of December, 1981, shall continue in existence with the same powers, duties and functions under the existing law subject to this Proclamation and Laws issued there under . . .

10. (1) Notwithstanding the provisions of section 9 of this Proclamation, there shall be established independently of the said courts, Public Tribunals for the trial and punishment of offences specified by Law.”

(The emphasis is mine.) The two provisions I have quoted above show that the regular or ordinary courts and the public tribunals are two different and separate legal institutions; one not being subordinate to the other, though both have been created by the same legislature for the purposes regulated by the legislature.

The third question is: Is there any legal control of the venue or forum where a lawyer should practice his profession? A close look at rule 5(1) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613) provide some guidance. This rule states as follows:

5. (1) A lawyer in practice is bound to accept any briefs in the Court in which he professes to practice at a proper professional fee depending on the length and difficulty of the case. Special circumstances may justify his refusal at his discretion to accept a particular brief.

(The emphasis is mine.) I shall come back to look at the above-cited provision a little more closely. Meanwhile it should be borne in mind that the applicant’s case is that at the close of its annual conference held in Kumasi from 22-24 September 1982 the first respondent-association passed a resolution that: Members of the association in private practice will not appear in their professional capacity before the public tribunals established under the Public Tribunal Law, 1982 (PNDCL 24) and that on 13 January 1984, the first respondent –association reaffirmed the 1982 resolution at the end of its 1984 annual conference held in Accra. According to the applicant, the above resolution is contrary to the laws of Ghana and should be so declared by this court.

I now come to the fourth and last question which is: Has the first respondent (the Ghana Bar Association)any legal authority to take away

Page 524

from any of its members their individual professional rights and individual legal discretion granted them by law?” Before answering this question I would like to examine closely rule 5(1) of LI 613 as I promised to do. Under this provision I hold and declare that a lawyer in practice is granted by law:

(i) the discretion and right to accept any briefs in the court in which he professes to practice; and

(ii) a further discretion and right to refuse to accept a particular brief.

Rule 5(1) of LI 613 refers to the expression “court in which he professes to practice” and the next question is what does this term mean? Under section 32 (1) of the Interpretation Act, 1960 (CA 4) the expression “court” means a court of competent jurisdiction. It is a very broad and wide term that embraces under its canopy not only the regular or traditional courts but it also includes the courts set up under PNDCL 24 which the said resolutions of the respondents are against.

It should be observed that LI 613 was enacted by the General Legal Council in 1969, in exercise of the powers conferred on the council by sections 21 and 53 of Act 32; and since 1969 LI 613 has been the legal yardstick by which the professional conduct of a lawyer in practice is measured. I have not been able to discover any piece of legislation, and none was cited to me by the respondents, which clothes the respondents with legal authority to take away the legal discretion and right which the law gives to every lawyer in practice as to the choice of venue where he should practice his profession. The said resolution under consideration appears at best to be a usurpation by the Ghana Bar Association of the functions conferred on the General Legal Council by law and at worst an unfortunate attempt by the Ghana Bar Association to deal an unfortunate blow to rule 5(1) of LI 613. The said resolution is illegal and void and I so declare it and all actions taken by the respondents in pursuance of the said resolution since its passage in 1982 are equally illegal, void and of no effect.

In my ruling in Ghana Bar Association v Ward-Brew (supra), I had occasion to declare that the electoral regulations concerning appeals of respondents were null and void as being contrary to public policy since their provisions sought to oust the jurisdiction of the courts in matters where the courts have jurisdiction. I adopt my reasoning in that ruling. This means the applicant succeeds in his interlocutory application for summary judgment against the respondents. Final judgment is

Page 525

accordingly entered for the applicant against the respondents.

Consequential orders and costs shall be dealt with tomorrow, 30 April 1991.

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button
Close
Close