SAMUEL ABAOGYE AND SAMUEL OWUSU BOATENG (THE DEVELOPER) vs. FRANK OTCHERE BAIDOO
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
SAMUEL ABAOGYE AND SAMUEL OWUSU BOATENG (THE DEVELOPER) - (Defendants/ Appellants)
FRANK OTCHERE BAIDOO - (Plaintiff/ Respondent)

DATE:  16TH MARCH, 2017
CIVIL APPEAL NO:  H1/53/2016
JUDGES:  AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
LAWYERS:  COUNSEL FOR DEFENDANTS/APPELLANTS: KWAME ANTWI AFRIYIE
COUNSEL FOR PLAINTIFF/RESPONDENT: DORCAS OTTI
JUDGMENT

TORKORNOO (MRS), J.A.

The Plaintiff/Respondent commenced this action by lawyer named as Obeng-Manu Jnr Esq. The Writ was not signed in manuscript but stamped with the words OBENG-MANU LAW FIRM, SARPOMAA CHAMBERS, P. O. BOX 6541, PLOT 2A, WEST NHYIAESO, AHODWO. These words were prefaced with the abbreviation ‘PP’. The Defendant/Appellant entered appearance by a lawyer, and also filed a defence and counterclaim. The Plaintiff later changed his counsel who filed an application for interlocutory injunction against the Defendant. Although the Defendant opposed the application, the court granted same. The Plaintiff filed his Reply and Defence to counterclaim and the Application for Directions, thus bringing pleadings to a close.

 

At the hearing of the Application for Directions, the Judge drew the attention of the counsels to the fact that the Writ was not signed by the lawyer named as having issued it. The counsel for Defendant then argued that an unsigned Writ was a nullity and therefore ought to be set aside by the court as invalid. The Plaintiff counsel’s argument was that the lack of a signature on the Writ ought to be considered as an irregularity which can be rectified at the direction of the court.

 

After arguments, the court ruled that the Writ was signed, and even if the Writ was not signed, that failure had not resulted in any injury, or prejudice to the Defendants. He discussed the decision of the Supreme Court in Republic v High Court Koforidua, Ex parte Eastern Regional Development Corporation 2003-2004 SCGLR 21 in which the Supreme Court had held that in the situation where a judgment had not been delivered within six weeks as required by Order 62 rule 2A of the High Court Civil Procedure Rules LN 140 A, inserted by LI 1107, that non-compliance with the rules of court did not constitute a fundamental defect that rendered the judgment invalid.

 

It was his reasoning that defence counsel had not shown how non-compliance with the rules of court had caused injustice or prejudiced him. In the circumstances, it was his ruling that the case should continue and be heard on its merits.

 

In appealing against the ruling, the Defendant set out the following grounds:

 

The honorable court erred in not holding that an unsigned Writ is a nullity and does not invoke the jurisdiction of the court.

 

The honorable court erred in holding that the stamp of the lawyer qualifies as a signature on the Writ.

 

The honorable court erred in respect of the effect of an unsigned Writ and acted contrary to settled and binding judicial authorities.

 

The honorable court erred in entertaining a Writ which disclosed neither a solicitor’s license number nor a chambers registration number.

 

The error of the honorable court has occasioned a substantial miscarriage of justice to the Defendant/Appellants.

 

Additional grounds may be filed upon receipt of a certified true copy of the ruling.

 

Rule 8 (1) of the Court of Appeal Rules 1997 CI 19 directs that ‘an appeal to the Court shall be by way of rehearing…’ On a rehearing of the suit, my humble evaluation is that there is a fundamental decision the trial court came to that settled the issue in controversy, and this is the decision that the Writ was signed, because a signature is a mark used to authenticate a document. Grounds 1 and 2 of the Appeal which submit that the Writ was not signed as required by Order 2 Rule 7 (2) failed to appreciate this decision.

 

Order 2 Rule 7 (2) of the High Court (Civil Procedure) Rules, 2004 CI 47 reads:

 

No Writ shall be sealed unless at the time it is filed for sealing, the person filing it leaves with the Registrar a copy signed by the Plaintiff, if the Plaintiff sues in person or by, or on behalf of the Plaintiff’s lawyer

 

In considering the application of this rule, the learned judge had this to say:

 

“My attention has not been drawn to a specific case where the issue involved was the official stamp of a law firm appearing on a Writ and the meaning attached to such an imprint. What then is a signature? Order 82 rule 3 of CI 47 defines signature to include a thumbprint or mark. Blacks Law Dictionary (Ninth Edition), at page 1507, defines it, as it is used in commercial law, as follows: ‘Any name, mark, or Writing used with the intention of authenticating a document’. A signature, in whatever form, is thus used to prove the authenticity of a document. In the instant situation, the stamp of Obeng Manu Law firm was on the Writ of Summons and the accompanying statement of claim. Both were served on the Defendant in that state. The Defendants entered appearance and filed a statement of defence without challenging the authenticity of the Writ of summons. Defendants directed both documents to be served on the law firm that issued the Writ on behalf of the Plaintiff. The Defendants did not doubt the authenticity of the Writ, hence they consciously responded to it. I am satisfied that the Writ was signed before it was sealed at the registry and served on the Defendant”.

 

Thus the critical issue in a rehearing for grounds 1 and 2 of the appeal should center on whether the stamp placed on the Writ satisfies the requirement of signing by the rules of court. And if it did not constitute signing, then whether that failure to sign the Writ as required by Order 2 Rule 7 (2) should render the Writ invalid, in view of the presence of the stamp. This was the second leg of the reasoning of the learned judge.

 

I agree with the learned trial judge that the marks made by the stamp of the law firm should pass the requirements of the rules of court. It should be noted that the rule gave more options for the signature required than the signature of the Plaintiff or the Plaintiff’s counsel. To reiterate, it reads as follows:

 

No Writ shall be sealed unless at the time it is filed for sealing, the person filing it leaves with the Registrar a copy signed by the Plaintiff, if the Plaintiff sues in person or by, or on behalf of the Plaintiff’s lawyer’(emphasis mine)

 

Thus to the extent that the Plaintiff’s lawyer is identified on the Writ, another person can sign on his/her behalf. How do you sign on behalf of someone? By identifying that you are signing on behalf of that person.

 

When one looks at the stamp placed on the Writ, one finds the letters ‘pp’ affixed before the words LAWYER FOR THE PLAINTIFF. Black’s Law Dictionary sets out the meaning of ‘p.p.’ as the abbreviation of the Latin words ‘per procurationem’ which it defines as ‘by proxy’, or ‘propria persona” which it defines as ‘in his own person’. A proxy is someone who carries the authority of the person entitled to conduct the activity he undertakes.

 

With this indication, the stamp clearly communicated that it was placed there on the authority of the lawyer of the Plaintiff. Having been placed there on the authority of the lawyer, and demanding to be recognized as a mark made in ‘his own person’, could it pass as a signature, just because the Writing there does not indicate the name of a lawyer but of a law firm?

 

My humble evaluation is that it does. And this is why I say so. First, the person who signs for another on a document does not take responsibility for the content of the document. The responsibility remains with the author. The letters ‘pp’ only indicate that the author of the document could not sign it himself and had designated another to authenticate the document as emanating from him. Thus the shape, name and form of the mark placed on the Writ is not as important as the fact that that the issuer of the Writ is identified, and it is authenticated as issuing from him.

 

My second reason for saying so is that supposing that the mark was an indecipherable scribble as most signatures tend to be, without any name to show us who put that scribble there, except for the fact that the person indicated that they wrote what they wrote ‘pp Lawyer for the Plaintiff’; would a court accept that scribble as a signature – in view of the provision of Rule 7(2) that the Writ may be signed on behalf of the lawyer?

 

I am quite certain the answer is yes. In view of the name of the lawyer, and the indication that the scribble is ‘pp Lawyer for the Plaintiff’, no court will trouble itself to see the name of the author of the scribble before admitting the Writ as having been signed and therefore authenticated by a signature.

 

So clearly, it is not so much the words or clarity of the content of the Writing, or mark, or thumbprint, that appears on the signature part of a Writ, but its existence, and the indication that it was placed there by the Plaintiff, his lawyer or by a third person on behalf of the lawyer. Since the definition of ‘signature’ by Order 83 of CI 47 includes a mark, there can be no quibble that the stamp, indicating that it was being placed there ‘by the authority’ of the lawyer passes the test of ‘a mark’ made on his behalf – as allowed by Order 2 rule 7 (2).

 

The Writ and statement of claim therefore adequately invoke the jurisdiction of the court.

 

Counsel for Appellant also argued that what he considered to be lack of a signature was a defect which goes to the jurisdiction of the court, and as such could not be considered as an irregularity that may be cured by an order of court. Rules and laws are not interpreted mechanically but subjectively. It is now well settled in our jurisprudence that rules and laws ought to be interpreted to arrive at the purpose of the rule. Further, a court ought to consider all the factual circumstances of a case before applying the law to it, so as to achieve the purpose of the law.

 

What could be the philosophy behind the demand that a Writ should be signed by a litigant who issues a Writ or his lawyer. I believe it is to avoid abuse of the process, by persons who do not have the authority of the Plaintiff and yet file the process in their name. The rules do not demand a human script or manuscript as argued by counsel for Appellant when he says within these largely true statements:

 

‘…the learned trial judge had it all wrong because a stamp of a law firm is not the same as the signature of a lawyer neither the law firm itself has a signature which is its stamp and also a lawyers firm does not sign a Writ but rather it is a person or his lawyer who must be a human being, in any case the Writ was not issued on behalf of a company but rather an individual and therefore it must be that individual or his lawyer who must sign the Writ. And therefore the learned trial judge erred in holding that the stamp of a lawyer qualifies as a signature on the Writ

 

I totally agree with Appellant counsel that the stamp of a law firm is not the same as the signature of the lawyer. Where I part ways with him is that where the stamp is acting as a mark placed there on behalf of the named lawyer, and on his authority, therein lies the act that validates the Writ, because Order 2 rule 7(2) allows a mark (signature) to be placed on a Writ ‘on behalf of the lawyer’. Again, as valid as the argument may be in the relevant circumstances - that a law firm itself may not have a signature which is its stamp, I do not find that statement as capturing any truism that may be transported to any and every situation. In the present case, the distinguishing factor regarding that statement is that the stamp on the Writ does not purport to be the signature of the law firm. It is a mark purporting to have been placed there on the authority of the lawyer, and that is what the prefix ‘pp’ introduces onto this Writ, and that is all that is needed to authenticate the Writ

 

Thirdly, I agree with Appellant counsel that “a lawyers firm does not sign a Writ but rather it is a person or his lawyer who must be a human being”. But as much as this is true, it is also important to be reminded that Order 2 rule 7(2) allows the signing of a Writ to be done on behalf of the lawyer.

 

The relevant question here is – what is that stamp doing on the Writ? It purports to have been placed there as the mark of the lawyer of the Plaintiff, and it purports to have been placed there on his authority. And this is where I must again point to my earlier evaluation that it is not so much the words or clarity of the content of the Writing, or mark, or thumbprint, that appears on the Writ that answers the essence of Order 2 Rule 7 (2), but the fact that there is such a mark, thumbprint or Writing, and the indication that it was placed there on behalf of the lawyer. Because if it had not been the readable name and address of a firm, but an indecipherable scribble – we would still have been satisfied that it was a signature.

 

In my most recent judgment titled: Solkrock v Anglogold Ashanti (GH) Ltd. Suit No. H1/50/2016, I held that all the provisions of the Legal Profession Act 1960 Act 32 point to a purpose that the law wants documents to be prepared by lawyers as persons trained and licensed to practice law, and that is why documents are not to be filed in court without any indication of which lawyer in an incorporated partnership prepared the process. The facts and issues in that case critically differed from this case and I must clarify this lest I am accused of changing my understanding of the law.

 

In that case, appearance was entered by an incorporated partnership as ‘the lawyer’ of the Defendant. In this case, the Writ was issued by a lawyer. In that case, the disputed motion paper was signed in manuscript with the name of the partnership, and stood over the words ‘lawyers for the Defendants’. The signature did not indicate which lawyer in the partnership was signing the court process. Indeed, the court was told that it was dealing with a motion filed by the incorporated partnership, and the signature was that of that legal entity. Thus I set out this critical position:

 

‘A partnership, being a legal corporate entity, can never constitute the lawyers of a party in court, neither can a partnership sign documents prepared for court. Both Act 32 and CI 47 set out mandatory requirement for any form of legal practice. Of particular interest to me are Section 9, 43 and 44 of Act 32….(And I set them out in extensor in that judgment)

 

The above provisions, read together with other provisions in Act 32 clarify that the law seeks to ensure that only individuals, who have undertaken an identified course of study, have been placed on the roll of lawyers, are monitored through annual licenses and are subject to ethical standards, practice law in the courts of Ghana and prepare legal documents in this country. Further, that only such persons identify themselves as authors of legal documents. Thus with much respect to Respondent counsel, what he should have invested in is to identify which lawyer in the partnership it was that signed the motion to set aside the Writ and the conditional appearance. But to inform the court that the processes were signed by the partnership, which is a separate legal entity and may engage all manner of persons to work for them, set the processes on a head-on collision with the law’

 

Where, as in this case, the process clarifies who the lawyer issuing the process is; and the process indicates that a mark has been placed on the Writ by a proxy for that named lawyer – I deem it an absolutely unnecessary attachment to an unknown purpose to insist that the said mark should be in manuscript. Or that the words ‘Obeng Manu Law Firm’ means it is a law firm – of whatever unknown legal personality - that signed the Writ.

 

The fourth statement in that quote taken from Appellant counsel’s submissions that if ‘the Writ was not issued on behalf of a company but rather an individual….it must be that individual or his lawyer who must sign the Writ’ is not supported by Order 2 rule 7 (2) of CI 47.

 

While Order 4 of CI 47 provides that: an action should be commenced by a Plaintiff or his lawyer, when it comes to signature, Order 2 Rule 7(2) of CI 47 went on to provide a third alternative to the signature of the party or the lawyer. Order 2 Rule 7 (2) allows the Writ to be signed ‘on behalf of the Plaintiff’s lawyer’.

 

And Order 82 of CI 47 says ‘signature includes a thumb-print and a mark’. Black’s Law Dictionary defines a signature as ‘A person’s name or mark Written by that person or at the person’s direction…. Any name, mark or Writing used with the intention of authenticating a document.’

 

With this background, it is my opinion that we would be doing violence to the meaning of the word ‘signature’ if we reduced signature to only human scripts when the law dictionary meaning includes ‘any Writing used with the intention of authenticating the document’. I am also satisfied that the indication of the stamp placed above the words ‘pp Lawyer for the Plaintiff’ satisfies the requirement that the signature may be in the form of a mark affixed by someone on behalf of the named lawyer. I am also satisfied that with the name of the Lawyer set out on the Writ, the relevant purpose of the rule has been served.

 

At this point, what I see is that it is only the said lawyer Obeng Manu Jnr who can challenge the authenticity of the Writ, if he alleges that the mark was not placed there on his behalf. But no advantage ought to be given to the Defendant who has recognized the mark as made on behalf of Lawyer Obeng Manu Jnr, entered appearance to the Writ issued by the said lawyer, filed a defence and contested various motions, to argue that the mark should be deemed as non-representative of the mark of the lawyer or party or someone standing in the lawyer’s shoes, and so the Writ is unsigned.

 

It is unfortunate that learned counsel for Appellant raised the statement made per curiam in Republic v High Court, Tema Export Owners MV Essco Spirit (Darya Shipping SA Interested party) 2003 – 2004 SCGLR 689 as relevant in this appeal. The matter the court dealt with in the MV Essco case, was the lack of a substantive claim for adjudication before the court. The court pointed out on page 695 that the indorsement provided a situation where after an interlocutory order of arrest is made, there would be ‘no cause of action to be tried by the court, no dispute, no controversy, nothing’. It is in coming to this conclusion that the honourable court considered the question of what invokes the jurisdiction of a court and gave the example of how a Writ not authenticated by signature of a party or solicitor is a nullity.

 

That comment did not define what constitutes a signature, as considered by the trial court in this case, and so it was not a decision that was applicable to the matter at hand. Grounds 1 and 2 of the appeal are dismissed.

 

Having thus held, I am also satisfied that the honourable court did not err in respect of the effect of an unsigned Writ, neither did he act contrary to settled judicial authorities. Ground 3 of the appeal is also dismissed.

 

Ground 4 has introduced into the appeal the issue of the Writ disclosing neither a solicitor’s license number nor a chambers registration number. What is difficult about this ground of appeal is that the learned trial judge rendered no ruling on this matter. And being an appellate court, this court cannot determine a matter that has not been ruled on.

 

However, it is expedient to note that there is no rule or law that requires that the license number of a lawyer should be placed on a Writ in order for the Writ to be valid. Having failed to set up that case in the court below, this court cannot be dragged into considering a matter that has not been decided on by a court with original jurisdiction. Ground 4 of the appeal is dismissed.

 

The learned trial judge was firm that from the facts of the case the Defendant had not suffered any prejudice or miscarriage of justice. On receipt of the Writ, he and his lawyers were satisfied regarding the authenticity of the Writ by the Plaintiff’s named lawyer. They served their processes on this person and the suit took its normal course in pleadings and applications. It was only at the time of directions that the learned judge drew attention to the ‘lack of a signature ‘on the Writ.

 

Thereafter, the same judge after considering the processes and the application made to strike out the Writ concluded that the Writ was duly signed, and even if not duly signed, did not lack authentication such as would occasion miscarriage of justice.

 

We agree with him that the Defendant suffered no miscarriage of justice by the Writ being marked on behalf of the lawyer for Plaintiff. Our reason is that this process is supported by Order 2 rule 7 (2).

 

In the circumstances, the last ground of appeal is also dismissed. The appeal is dismissed.

 

Cost of Two Thousand Ghana Cedis (GH¢2,000.00) in favour of Plaintiff/Respondent.