The purpose of this article is to analyze how human (clients) rights appear to be abused through the unintended consequences of certain judicial decisions. Of particular importance are the recent cases which have nullified the proceedings conducted by unlicensed Lawyers. This research is normative juridical research which is fortified with empirical data, using a statute and conceptual approach. The collected legal materials are then analyzed qualitatively and presented descriptively. The results show that 100% of the litigants who are also lawyers’ clients are always not happy when a blunder of a solicitor is transferred to them albeit indirectly.
From a juridical perspective, it is not only produced unjust results but also tend to infringe on the fundamental human rights of innocent clients. In this regard, this medium is being used to provoke the intellectual debate on the subject, solicit and procure a fair resolution to the seemingly unjust situation. The paper also calls on human rights institutions to join the race and if possible, seek favorable interpretation at the Supreme Court. Now is “The Time for Change. The Need for Change. The Case for Change.”
This article examines key areas of human rights, the legal profession, and the concept of liability, and discusses how these issues must be examined concerning the problem statement. It further highlights vital issues that the Courts should take into consideration when determining issues concerning uninformed Clients. The article is divided into four sections. The first section introduces the article while the second section emphasizes the methodology used in coming out of this research piece. The third section delves into the legal profession, the concept of human rights, and the role of the Judiciary in the interpretation and enforcement of human rights in Ghana as well as perspectives on the concept of Solicitor and Client liability. The final section concludes the article and articulates some practical recommendations.
SECTION 1: INTRODUCTION
As we face a new reality precipitated by the COVID-19 pandemic, the dreaded “microbiological weapon” as some conspiracists called it, shouldn’t intimidate us or quarantine the passion for our advocacy for the protection of the fundamental human rights of the citizenry. So far as the Constitution has not been suspended, learners and the learned alike still bear the duty to sustain this noble fight. This view, however, counters the view of some legal brains. Justice Alexander Osei Tutu in his article “Pandemic scare! – No time to waste on the coronaviruses said: “concentrating on legal issues at this crucial period is virtually an impossible task when survival remains our utmost priority”.
Every situation presents opportunities and threats. In this global pandemic, the cherished merit lies in the availability of ample time to read the backlog of cases and relevant literature necessary to challenge the status quo. This is a key character and attitude of Students of Law and budding Lawyers. The view of Ghana’s first President, Dr. Kwame Nkrumah remains instructive on the subject as follows:
“You must remember at all times that law does not operate in a vacuum. Its value and significance must be related to its impact and the overall importance of the people and the state.”
In recent years, some judgments of our Court appear to have the unintended consequence of visiting the sins of defaulting Solicitor on their innocent clients. This is feared to perpetuate an unhealthy situation if the status quo ante is allowed to be entrenched. Some clients have had their cases struck out by the Courts because their Solicitors failed or neglected to secure a valid practicing license. A case in point is that of Henry Nuertey Korboe v. Francis Amosa (2016 Unreported) is a locus classicus on the subject. In this case, the Supreme Court speaking through Her Ladyship Sophia Akuffo, a former Chief Justice of Ghana held as follows:
“if the Applicant (or any member of the public for that matter), whether out of diffidence or ignorance, fails to exercise his clear right to verify the credentials and legal capacity of his lawyer to perform the services he is engaged to undertake, that cannot give rise to an exceptional circumstance which has resulted in a miscarriage of justice such as would merit the exercise of our review jurisdiction”.
Though the principle to place the responsibility on Clients to ascertain the status of Lawyers before procuring their services, the discharge of this duty on a majority of Clients in a Developing Country such as ours may be seriously undermined, because of the high illiteracy level. To this, several questions may be posed. (1) How does an illiterate Client differentiate a fake solicitor license from the genuine one? (2) How does a Client who lacks knowledge of courtroom procedure assess the quality of his or her Lawyer’s performance? (3) What is the likelihood that a “hungry” Lawyer would disclose his lack of capacity to perform legal services?
In our society, Lawyers are regarded in very high esteem. Lawyers are hard to find and as of today, Ghana’s population per lawyer ratio stands at 7,900: 1. With the extremely low number of Lawyers in the country, finding a qualified Lawyer becomes an expensive venture. It appears that not much efforts are being made by the country to address the problem of scarcity of Lawyers. The former Chief Justice, Her ladyship Sophia Akuffo who also delivered the majority decision in the case of Henry Nuertey Korboe v. Francis Amosa (2016 Unreported) had the following to say when she addressed a Conference at Labadi Beach Hotel on the theme “The Changing Landscape in the Law-the Judge, the Lawyer and the Academic”: “Those of you Lawyers and those of you Lecturers who are busy advocating free scale, mass admissions into the professional law course, and mass production of lawyers, be careful what you wish for. “She further hinted that, “So long as I have anything to do with it, it won’t happen
SECTION 2: RESEARCH METHODS
This research is normative juridical research which is fortified with empirical data, as well as the 1992 constitution, Legal Profession Act, 1960 (Act 32), decided Ghanaian and foreign cases, biblical quotations, and conceptual approaches. The strength of this research is its basis in a series of in‐depth interviews conducted with Lawyers and Clients. In all, I conducted interviews with 20 Clients who had cases pending before divisions of the High Court. The other interview involved Lawyers and Clients before Circuit Courts. The secondary data used legal instruments, journals, books, legal research reports, articles, lecture notes, online media news among others. The collected legal materials are then scrutinized qualitatively, then presented descriptively to answer the problem in this piece.
The unholy “prophecies from our court” vis-à-vis the shackle for discussion is bound to have ripple effects on many Clients and the problem statement infra has become like a “coronavirus” in the laboratory of human rights Courts.
The problem is whether or not visiting the sins of an unlicensed Lawyer on an innocent Client infringes on the latter’s fundamental human rights.
SECTION 3: ANALYSIS
Whoever sows injustice (iniquity) shall reap vanity and the rod of his anger shall fail (Proverbs 22:8). The Judiciary as one of the three organs of government is responsible for interpretation and enforcement of laws. In so doing, the Courts are obligated to protect the human rights of citizens and they must refrain from interfering with or curtailing the enjoyment of human rights.
Their obligation to protect human rights requires them to protect individuals and groups against human rights abuses, including Clients whose only safe refuge lies in the Courts. This obligation further implies that the Courts must take positive action to facilitate the enjoyment of basic human rights especially in adjudicating matters concerning human rights. However, the seeming practice of dismissing cases on the ground of Lawyers’ lack of valid license and thereby punishing Clients for the misconduct of their Lawyers is capable of eroding public confidence in the Courts. The good book in 2 Corinthians chapter 5 verse 10 instructs that “for we must all appear before the judgment seat of Christ, so that each one may be repaid according to practices he has practised….” This is further reiterated in Revelation 22:12 which posits that “each one must be paid according to his act or work” (emphasis mine). From the above biblical quote, it would amount to perversion of justice to judge one based on what one has not practiced.
It is the case in our Courts that Clients whose cases are struck out due to the sins of their Lawyers are not always given the audience to express their thoughts before such harsh decision is made and that is against the rule of natural justice encapsulated in the legal maxims audi alteram partem (hear both sides, no party should be condemned unheard). Article 296 (a) and (b) of 1992 Constitution states: Discretionary power vested in the Judiciary must be exercised fairly and candidly and also shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be following due process of law (emphasis mine). A case in point is Glynn v. Keele University where a breach of natural justice was held to have occurred when a student was fined by the University without first being told the reason or being granted a hearing. The decision of the Vice-Chancellor was dismissed on the ground that the power to suspend a student from the residence was quasi-judicial and not purely disciplinary one so that it had to be an exercise per the rules of natural justice. Also, in the case of Awuni v. West African Examination Council , the defendant, an examination body canceled the entire results of the plaintiff and his twelve colleagues on the ground that they had engaged in examination malpractices. An appeal by the plaintiff to the defendants for the reversal of the decision was refused. Plaintiff applied to the High Court by originating motion to seek redress under Article 33 (1) of the constitution, 1992. The defendant sought to justify its action on the ground that its rules made it unnecessary to invite the plaintiff to the proceedings. The High Court rejected the defendant’s defense and held that the council breached its duty to act fairly and reasonably under Article 23 of the constitution, 1992. Being dissatisfied, the defendant appealed to the court of Appeal. The appellate court reversed the High Court decision in favor of the defendant. The plaintiff thereafter appealed to the Supreme Court, which unanimously allowed the appeal on the ground that the defendant failed to observe the rules of natural justice as mandated by Article 23 of the Constitution, 1992.
Concerning the problem statement, the Judges should have considered listening to the affected client’s side of the story before making a decision.
Duty of Lawyers to obtain Valid Annual Licence
All Lawyers, except the Attorney-General and officials of his Department, are required to obtain a valid annual Solicitor’s license to enable them to practice their trade. Section 8(1) of the Legal Profession Act, 1960 (Act 32) stipulates that:
“A person, other than the Attorney General, or an officer of the Attorney-General’s department, shall not ‘practice as a Solicitor’ unless that person has in respect of that practice, a valid annual Solicitor’s license issued by the Council duly stamped out in the second schedule.”
The Legal Profession Act, 1960 (Act 32) which is the principal statute, was enacted chiefly to regulate the legal profession and implant some discipline in the profession. It means from the section 8(1) supra that, apart from the Attorney-General or an officer in the Attorney-General’s office, for a person to practice as a Solicitor, that person must have a valid Solicitors license issued by the General Legal Council. Section 8 (6) of the Act provides that: “(6) A person who practices in contravention of this section commits an offense and is liable on conviction to a fine not exceeding two hundred penalty units and shall not maintain an action for the recovery of fees, reward or disbursement on account of, or concerning, an act or proceeding did or taken in the course of that practice.”
Practicing law without a practicing certificate is criminalized and a recent Techiman case is a lesson for those who impersonate themselves as lawyers and hold themselves as such. https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Overconfident-fake-lawyer-jailed-two-years-912823?channel=D
In the case of The Republic v. High Court; Ex parte Teriwaja & Korboe (2013-2014) (complete the citation) Anin Yeboah, JSC (as he was then called) said: “….the learned judge obviously would have erred under section 8(b) of Act 32 if he had granted the first applicant audience when he had not complied with the said section.” The legal profession keeps on the fight to uphold such esteem. The legal profession has been regarded as an honorable or noble profession by the world for several centuries. No other profession touches human life at so many points than law. It has always been held in high esteem and its members appear to have played an enviable role in public life than any other profession. It is different from other professions in that what the lawyers do affects not only an individual but also the administration of justice, which is the foundation of any civilized society. The Judiciary is estimable to keep on such good work.
Justice Yaw Apau’s contribution to upholding the legal profession has said: “The spirit of the Legal Profession Act is to instill discipline and order in the profession that is why penalties (both civil and criminal), have been prescribed in the law for members who breach the Act”. The act of practicing law without practicing a certificate is a criminal offense by the illegitimate Solicitor alone, and the same should not be transferred to his or her innocent Client. It, therefore, follows that nullifying the processes that belong to the Client is a harsh decision. This view is shared by Akoto-Bamfo JSC (as she then was) in Henry Korboe v Francis Amosa (Civil Appeal No.J4/56/2014) said: “it is my considered view that nullifying processes filed on behalf of clients by such errant lawyers, would be manifestly unjust to the said client.” In similarity to what Professor Date-Bah, JSC. said in his article “Enforcement of Third-Party Contractual Rights in Ghana (1971)”: “it is believed that legal doctrine should be used as a tool for achieving socially or commercially desirable results”. Correlating the above views from the two learned formal Supreme Court Judges, legal doctrines and decisions should not be an albatross on the neck of the people (Clients).
There is no modicum of doubt that, lawyers are also officers of the Courts. Lord Denning, MR in one of his pronouncements said “when an officer of the court itself makes a mistake, the consequences should not be visited on the unfortunate litigant, but they should be remedied by the court itself”.
To promote good governance and human rights, Lord Denning, MR again admonished Judges to heed to his advice given in R v Commissioner of Police of the Metropolis. His Lordship said “we will never use this jurisdiction as a means to uphold our dignity. That must rest on a surer foundation. Nor will we use to suppress… (Others)”. (Emphasis mine). This advice is relevant and when Judges are adjudicating for the reputation of the legal profession, our noble Judges must make sure their decision never suppresses others (litigants) as cited supra.
The Concept of Human Rights
“Justice must be upheld in society since God loves righteousness and justice” (Psalms 33:5). The idea of human rights is as simple as it is powerful – that people have the right to be treated with dignity. Human rights are inherent in all human beings; whatever their nationality, place of residence, gender, ethnic origin, color, religion, language, or any other status. Every individual is entitled to enjoy human rights without discrimination. These rights are all interrelated, interdependent, and indivisible. Rights are inherent in every human being and rights can be applied in every scope of life. Human rights are entitlements, which every human being possesses under his or her humanity. Human rights law guarantees the enjoyment of human rights and they are expressed in constitutions, treaties, bodies of principles, and customary international law.
Note that, rights that are not enshrined in law may be recognized by a natural law affiliate but not a positivist.
The 1992 constitution of the Republic of Ghana forms the bedrock for human rights in Ghana and is supported by other laws, as well as by human rights instruments to which Ghana is a signatory. The preamble to the Constitution upholds a guiding principle, “the protection and preservation of Fundamental Human Rights and Freedoms.” The central passage on human rights is Chapter Five —“Fundamental Human Rights and Freedoms” sets out a range of rights to which “every person in Ghana” is entitled to.
The Constitution further names the Supreme Court (see Article 2(1), (b)) as having “exclusive and original jurisdiction” in interpreting and enforcing the constitution but also states in Article 140(2) that, “the High Court shall have jurisdiction to enforce the Fundamental Human Rights and freedoms guaranteed by (the) Constitution.” It appears then that the constitution gives the High Court and the Supreme Court the primary responsibility to protect rights and address rights violations; however, in practice and by legal precedence, the High Court has its primary jurisdiction over matters of rights enforcement and redress, while the Supreme Court limited itself to questions of interpretation (Quashigah, 2007).
The supposed failure by the Supreme Court to lay down in Re Akoto the criteria for the protection of human rights and its interpretation under the Constitution as well as the arguments of J.B. Danquah did not fall on deaf ears. It was for this motive that Dr. S.K.B. Asante, said;
“Although Danquah’s submission did not prevail in the Re Akoto case, they subsequently became the cornerstone of the juristic edifice which was erected after his death for the protection of human rights. All Constitutions promulgated after 1966 have faithfully incorporated Danquah’s arguments in the (Re Akoto Case).” The truism of this statement is that in Ghana since the 1960 Constitutions, all succeeding constitutions until this era made appropriate establishment for the protection of the fundamental human rights.
Equality before the law has no exemption.
Concerning equality and freedom from discrimination the constitution stated in Article 17 (1), (2) and (3);
All persons shall be equal before the law
A person shall not be discriminated against on grounds of gender, race, color, ethnic origin, religion, creed or social or economic status.
For this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, color, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not granted to persons of another description.
Sources of our laws include the common law (Article 11 (1) (e)) which comprises of decisions or orders determined by our Superior Court of Judicature (Article 11 (2)) and any law found to be inconsistent with any provision of this constitution (article 17 (1)) shall to the extent of this inconsistency, be void (Article 1(2)). Keeping the analysis in mind, a client must be equal before the law likewise his or her solicitor. but an instance where his or her processes (documents) that he or she initiates are struck out in court could be deemed as discriminatory.
Role of the Judiciary in Interpretation and Enforcement of Human Rights in Ghana
The acceptable approach of interpretation is the Modern Purposive Approach (MOPA). In regards to the interpretation of the statute, it involves the process of ascertaining or finding the meaning of words or provisions in a statute or subsidiary legislation. Benjamin T. Antiedu (Reading the Law) said “… any method of interpreting the legislation should be to ascertain the intention of Parliament or what Parliament intended the words or provision to achieve”. Justice Marshall in one of his dicta said “it is emphatically the province and duty of the judicial department to say what the law is”. The Supreme Court solely has “exclusive and original jurisdiction” in interpreting and enforcing the constitution. Ghana’s Judiciary needs to be distinguished after over 20 years of constitutional instability under military regimes. The story of human rights development in Ghana cannot be effectively discussed without acknowledging the contribution of our superior courts in different areas of activism. But the fallibility of mankind sometimes leads our “prophets” in the “Sanhedrin” to think myopically forgetting the injuries the “stranger and innocent” client will incur. On 18 November 1980, Professor Adu Boahen (of blessed memory) in a contribution to a symposium on the concept and practice of Human Rights in Ghana organized by the Ghana Academy Arts and Sciences said: “one of the reasons why democracy has not done too well in this country and why human rights have often been trampled upon has been the rather timid and conservative role played by the Judiciary”. I can imagine that the case of In Re Akoto and 7 Others (1961) was what he was referring to.
A decision by the court to protect the fundamental rights and freedoms of the individual (clients) should not be narrowly construed in a manner that produces anomalies, inconsistencies, and infringements.
Dworkin (2003) argues that a conception of judicial interpretation must follow from a more general interpretation of what it means to interpret anything, be it a text or a work of art. In these latter cases, interpretation proceeds “from the inside out.” To grasp the meaning of a play, for instance, one must understand what it means not only to the author but to the actors, director, audience, and critics, whose play it is. So, too, to understand a social practice such as the law, involves the attempt to understand it as a way of life created and sustained by its members, people who see themselves as part of a larger community (“a community of principle,” “an interpretive community”) held together by a commitment to the rule of law. And this means, Dworkin believes, that interpretation must involve more than discovering the intent of the author of a play or the drafters of a statute.
Justice Aikins (as he then was) said in Amuzu v Oklikah (1998-1999) concerning the interpretation of statutes that “after all we must construe the words of the section according to the ordinary canon of construction, that is to say by giving them the ordinary meaning in the English Language as applied to such a subject matter unless some gross and manifest absurdity or injustice or hardship would thereby be produced”. Interpretation must be constructive. Interpreters must see the play or the law in its best light, as the coherent embodiment of some theme or point. This is what might be called the realist’s rule-skepticism: “The law consists of decisions, not of rules.” The law is not a rigid body of fixed and unchanging rules but a shifting and flexible social institution, with sufficient play, sufficient give-and-take, to accommodate the balancing of competing interests within society.
In considering the majority decision in Henry Nortey Korboe v Francis Amosah’s case, I observed that the learned Judge, Atuguba, JSC in his concurring decision emphasized much on the legal profession but failed to consider the repercussions of visiting the sins of the unlicensed Solicitor on the innocent client.
In our contemporary business entity, customers are given priorities in any matter. That is why we have a customer care unit in many businesses in the world. The aspiration and interest of the customers are paramount and decisions are not to hurt them. Any entity that fails to honor its customers, the competitors capitalize on that to penetrate on their side. Researchgate (2020).
Concerning our judicialization, the litigants who are clients to the Solicitors are the court customers hence their aspirations and interests must be paramount in anything the court decides for them. If the judiciary thinks that being extremely strict (or raising the legal professional standard) would bring sanity for the litigant or solicitors’ clients to suffer, a time will come when people might lose interest in the judiciary. People might take the law into their own hands and there would be a possibility of chaos in our country.
The Concept of Liability
In law, liability (in general) may be strict, absolute, vicarious, or based on fault. Where liability is based on fault, a person’s actions or omissions by themselves would not render him culpable unless he is morally blameworthy for that act or omission.
Liability is said to be strict as long as it can be shown that a person’s act or omission has resulted in a particular undesired result. In this case, it is immaterial whether he was at fault or whether he is morally blameworthy. However, he is afforded defenses if any defense is available to him (Kissi Agyabeng)
Liability is absolute where the defendant’s moral blameworthiness is immaterial and he is afforded no defense whatsoever. According to Catherine Elliote and Frances Quinn (2009), one person will be held legally liable for torts committed by someone else; this is known as vicarious liability. In the law of tort, it is trite law that, vicarious liability deals with a situation in which an individual has committed a tortious act whilst acting on behalf of another, in the gravamen of this paper, it is neither objectively nor subjectively applied in a situation where a client should be held vicariously liable to the penalties of his solicitor blameworthiness because there is no tortuous act the solicitor has committed for the client to be held liable. Even if that was so, the ratio decidendi of the decision from the majority side in Henry Nuertey Korboe v. Francis Amosa in the review motion and Republic v High Court; Ex parte Teriwaja & Korboe would have captured that.
In criminal law, the general rule is that there cannot be liability without fault or blameworthiness. Concerning the Lawyer and the Client, it will be awkward to blame the Client for the Lawyer’s crime. In respect of the offense of “compounding crime,” it will be frail for the Client to suffer the harm since clients’ are always ignorant of their solicitor’s licensure undertakings. Each one must “carry his own load” as the Bible says. Innocent clients do not fall squarely in any of the liabilities discussed supra.
Justice Yaw Apau in his dissenting opinion in Henry Korboe v Francis Amosa, Review Motion made an intelligent dictum and I wish to quote him. He said “The question is; for what purpose was the Legal Profession Act, (Act 32) passed? In other words, who are the targets of the law? As the majority rightly stated, it was enacted for the regulation and discipline of the profession. It is meant to regulate the practice of law by members of the legal profession to avoid any abuse. This means that it is only members of the profession that have to suffer the consequences of any breach of its provisions, not outsiders. The learned supreme Court judge’s decision is tantamount to the Biblical quote in Jeremiah 17: 10 KJV, which states “I the LORD search the heart, I try the reins, even to give every man according to his ways, and according to the fruit of his doings.”(Emphasis mine).
It is trite fact that mankind is fallible. We embark on commercial bus and taxi without asking for a license, we allow medical practitioners like a surgeon to operate us without asking for their license, teachers teach us without asking of their certificate or license, all because of our confidence we have in them. Ordinary humans have inherent confidence in their systems which makes us ignore the rigor of scrutinizing certain details. So, it will be unfair for someone to be punished for another’s error.
The old law in respect of intestate succession before 1985 was similar to visiting the sins of a recalcitrant solicitor on the innocent client. In the olden days, the rights of innocent children of a deceased person were not the same. Innocent children who knew nothing about their parents’ marriage were denied their succession right. This was gross injustice tot the rights to succeed the parents depending on the type of marriage contracted by their parents. If the parents were married under the Marriage Ordinance, Cap 127, the children were entitled to 7/9 of the estate. If a person was married under the Marriage Ordinance and had a child outside wedlock, such a child was regarded as “illegitimate” and was not entitled to any share of 7/9 of the estate, so it was decided by the Court of Appeal in Coleman v Shang (1959) GLR 390 CAwhich decision followed a Nigerian case that was decided by the Privy Council in London titled, Bambose v. Daniel (1952) 14 W.A.C.A 116 where a child was regarded “illegitimate” irrespective of the fact that the father might have during his life-time acknowledged paternity of the child and treated him equally with his other children born in wedlock.
It is an undeniable fact that children have no hand in themselves being brought into the world and it is not just biased but lacks logic that their rights of succession should depend on the mistakes made by their parents. To punish children by depriving them because of the injudiciousness of their parents is a classic example of the saying that – “The fathers have eaten sour grapes and the children’s teeth are set on edge” (Ezekiel 18:2). We have seen the growth and development of our Intestate Succession Laws since 1985 (PNDC LAW 111) which statutorily regulates rights to intestate succession in Ghana where the “illegitimate” child doesn’t suffer from his or her parents’ sins.
The laws of our land cannot be equated to our humdrum economy and must reflect the changing times of the global order. Sowah, JSC (as he then was) professed this stance in the landmark case of Tuffuor v Attorney-General (1980) GLR 637 at 647 about the Constitution when he accentuated that, “Indeed it is a living organism capable of growth and development”, as the Judges made laws of Ghana (Article 11 (2) of the Constitution) are capable of growth and development.
Scrubbing the sins of “recalcitrant” solicitors on innocent’s clients will be like when the Israelites crossed the red sea. It was such an amazing moment for the Israelites when they saw that their enemies had been capsized. That released their fardel of hopelessness. We are hopeful to see this prophecy fulfilling in our Sanhedrin “in those days they will no longer say, ‘the fathers ate sour grapes, but the teeth of the sons were set on edge. But then each one will die for his error. Any man-eating sour grapes will have his teeth set on edge” (Jeremiah 31:29, 30). As the Supreme Court is not bound by its own previous decisions (see Article 129 (3) of the Constitution) for the interest of peace and justice, it is the writer’s humble prayer to see and sense the growth of our laws where each one will suffer his error or wrong.
In the year 2017, the Hon. MP for Ashaiman Constituency, Mr. Ernest Norgbey, and the Hon. MP for Juaboso Constituency, Mr. Kwabena Mintah Akandoh filed a writ at the Apex Court challenging Madam Otiko Djaba’s legality as a Minister because she had not done her National Service. The suit was dismissed because the lawyer for the two MPs Godwin Tamakloe had not renewed his solicitor’s license. The dismissal of the “Otiko Afisa Djaba case” represents a situation of what may be viewed as compromised justice, falling short of the absolute justice that may be expected by our LORDS of the land.
Is it a practice or even a legal obligation for clients to demand the license of a solicitor before they engage them to work on the client’s behalf? If I may ask. Imagine an illiterate peasant farmer from a very remote area like Assin Bepokoko who raises One Thousand Ghana Cedis (GH₵1,000.00) only during the cocoa season. Imagine such a farmer requests the services of a renowned lawyer, who sometimes the media engages to share opinions on legal subjects, and it is revealed that the popular lawyer had not renewed his Solicitor’s License for which the case is dismissed. Granted that this dismissal occurred after the farmer incurred some substantial costs, this could lower the farmer’s confidence in resorting to the Courts again. This decision can lead the poor farmer to depression and possibly trauma.
It is a life-threatening loftiness of injustice to make this poor farmer suffer the consequences of his defaulting lawyer when he could not, by any bit of fancy, have speculated that his lawyer had not complied with Section 8 (1) of Act 32. This means visiting the sins of a Lawyer on his Client is not only synonymous with a miscarriage of justice but an ignominy to our Judiciary.
This article has tried to articulate several perspectives with regards to this Latin maxim res inter alios acta alteri no cere non-debet meaning “one person ought not to be injured by the acts of others to which he is a stranger”. It has also noted the contribution of the Courts towards enforcement of fundamental human rights enshrined in the Constitution and other laws.
This article essentially argues that the issue of visiting the sins of a Lawyer on innocent and unsuspecting Clients infringes on the client’s fundamental human rights. The article also looked at the implications of clients when embarrassed by thrown-out suits when they are not heard. It is there imperative that when it comes to fundamental issues, the Courts should be circumspect in their adjudication.
Exculpating clients from offenses of their Solicitor will be observed as a fight against impunity aimed at ending litigants’ (human) rights abuses in our Courts. In this light, the author humbly calls on Human Rights Activists, Human Rights Institutions like Amnesty International (AI), Commission on Human Right and Administrative Justice (CHRAJ), Human Rights Watch (HRW) among others to add their voice to this infringement of clients’ rights in our “Sanhedrin”.
The writer would like to conclude this article on this Latin phrase Sapientia et Doctrina Stabilitas meaning “wisdom and knowledge should be the stability of these times”. In the interest of justice and moral verticals, it will be idoneous for Clients to enjoy immunity from their solicitor’s guilt. Hence, our Judges should learn from the Great Judge (God) as the Psalmist defined him well at Psalms 62:12 “… for you (God) repay each one according to his deed”.
I am grateful to the following for their constant support and motivation, particularly in my legal academic journey.
Mr. Sadick Abubakar Yahya., Deputy Chief Registrar and the Substantive Court Registrar at the District Court, Assin Fosu. (You have been more than a father)
Lawyer Benjamin T. Antiedu, Author of the Book “Reading the Law”. (My inspirational and Mentor).
Prof. Raphael Nyarkotey Obu, Honorary professor of Holistic Medicine and the president of Nyarkotey College of Holistic Medicine, Tema Community 7, Ghana. (My Research Mentor)
Mrs. Regina Asiedu, the wife of Dr. Richard Asiedu of St. Andrews Group of Company, Assin Fosu. (God bless you, Mummy).
My parents Samuel Larbi Appiah and Esther Nkum (a.k.a Yaa Mantebea) (I am most grateful to your parental roles; I say Jehovah bless you all)
I owe debts of gratitude also to Benjamin T. Antiedu, Prof Raphael Nyakotey Obu, Frederick Kofi Tse, and Rahman Gyimah for spending time of their busy schedules to proof-read this piece.
ABOUT THE AUTHOR
The writer is an Activist, Independent Researcher and LLB Law Student, Faculty of Law, Governance and International Relations, Kings University College, Accra-Ghana.
The writer can reach via:
Email: (email protected)
Tel: 0549-657873 / 0591-040426
Journals/Articles /Online News
Justice Alexander Osei Tutu on Pandemic Scare! – No Time to Waste on the Corona Virus
Message from Osagyefo Dr. Kwame Nkrumah, the President (1964) vol 1 no. 1 UGLJ 2—3. On the occasion of the enrolment of the first group of lawyers at the Ghana school of law—on Saturday, June 22, 1963.
The Corporate Responsibility to Respect Human Rights, An Interpretive Guide by United Nations Human Rights, Office of the High Commissioner.
Christopher Y Nyinevi, Spare the Sinner; Punish the Righteous”: A Review of the Supreme Court of Ghana Jurisprudence on International Business Transactions.
Civil Society Perspectives on the Criminal Chamber of the African Court of Justice and Human Rights by Benson Chinedu Olugbuo.
Disciplining the Lawyers: Law and Professional Ethics by G. Geethisha.
Article on Legal Positivism vs. Natural Law Theory
Dr. S.K.B. Asante, “Reflection on the constitution, Law, and Development” (J.B.Danquah Memorial Lecture Series. March 2002)
ResearchGate, (2020). Customer Service Orientation. Retrieved on 28th July 2020, from
https://www.researchgate.net/publication/268363066_Customer_services_A_part_of _market orientation
Books or Legal Monographs referred
Catherine Elliott & Frances Quinn, Tort Law seventh edition (2009).
Kissi Agyebeng Criminal Lecture Notes, Faculty of Law, University of Ghana, page 54, 55.
Seth Y. Bimpong-Buta, Dissertation on The Role of Supreme Court in the Development of Constitutional Law in Ghana, Chapter vii.
Fred Obikyere Legal Resource Book, page 420.
New World Translation of the Holy Scriptures (Study Edition).
Quashigah, Kofi (2007). Trends in the promotion and protection of human rights under the 1992 constitution, in K. Boafo-Arthur (ed.), Ghana: One decade of the liberal state. London: Zed Books, Senegal: CODESRIA.
Benjamin T. Antiedu, Esq. “Reading The Law” (2019).
1992 Constitution of Republic of Ghana (Amendment) Act, 1996 (Act 527)
Legal Profession Act, 1960 (Act 32)
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Awuni v. West African Examination Council (2003-2004) SCGLR 471
Amuzu v Oklikah (1998-99) SCGLR 141 at 159,160.
Henry Korboe v Francis Amosa, Review Motion, Suit No. J7/8/2016.
Henry Korboe v Francis Amosa Civil Appeal No. J4/56/2014.
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Re: Akoto and 7 Others, (1961) GLR 523-535
Tuffuor v Attorney General (1980) GLR 637 at 647
Coleman v Shang (1959) GLR 390 CA
Bambose v. Daniel (1952) 14 W.A.C.A 116
The Republic v High Court; Ex parte Teriwajah & Korboe (2013-2014) 2 SCGLR 1247