SOLKROCK LIMITED vs. ANGLOGOLD ASHANTI (GH) LTD. GOLD HOUSE KAWOKUDI – ACCRA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
SOLKROCK LIMITED - (Plaintiff/Appellant)
ANGLOGOLD ASHANTI (GH) LTD. GOLD HOUSE KAWOKUDI – ACCRA - (Defendant/Respondent)

DATE:  16TH FEBRUARY, 2017
CIVIL APPEAL NO:  H1/50/2016
JUDGES:  AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
LAWYERS:  KWAME ADOM-APPIAH WITH DENNIS OSEI ANTWI AND J. B. DANQUAH FOR PLAINTIFF/APPELLANT
KWASI FYNN FOR DEFENDANT/RESPONDENT
JUDGMENT

TORKORNOO (MRS), J.A.

The Plaintiff/Appellant in this suit commenced an action against the Defendant/ Respondent. The Defendant/Respondent entered conditional appearance ‘through its lawyers’. ‘Counsel’ for Defendant then filed an application to set aside the writ on the ground that it was indorsed with a postal address, instead of a business address. In the affidavit in opposition to this application, the Managing Director of the Plaintiff company gave notice that he had been advised that the ‘purported application is incompetent and cannot properly invoke the jurisdiction of the court since it has no foundation to stand on’. He gave notice that his counsel would seek leave to raise a preliminary objection for the application to be dismissed.

 

This preliminary application was raised at the hearing of the application to set aside the writ. The objection which can be found on page 13 of the Record of Appeal is that the ‘person’ who entered conditional appearance for the Respondent is not a lawyer but a firm because the names found on the appearance notice constitutes the name of a firm. As such, the application is a nullity because the purported conditional appearance is void in law.

 

In response to the arguments on this objection, found on page 14 of the Record of Appeal (ROA), counsel for Respondent pointed out that if counsel for Appellant had raised the issues he was contending in the preliminary objection in a formal manner, they (counsels for the Respondent) could have reacted to his arguments.

 

His argument was that a preliminary objection must conform to rules regarding preliminary objections and the law requires parties to an application not to digress when it comes to arguing an application. He cited the decision on Nana Akosua Agyare Ap Trustee Synagogue of All Nations JH/30/2010, correctly cited by the honorable trial court in her ruling as The Trustees Synagogue Church Of all Nations v Agyeman 2010 SCGLR 717. He also pointed out that the law requires that an application be filed to set aside appearance to a suit, and not for a preliminary objection to be raised in such circumstances.

 

Thus in the hearing of the preliminary application, two issues were placed before the court. Whether or not she could deal with the issue of what Appellant regarded as the ‘nullity’ of the motion paper on account of the ‘nullity’ of the conditional appearance through the preliminary objection; and if so, whether or not the motion was null and void.

 

In her ruling, she sided with the Plaintiff/Appellant on the sustainability of the preliminary application. Citing from the Gambian case of Kabo Airlines Ltd v The Sheriff Court of Appeal, Gambia (27th March, 2002) unreported and referred to in the Synagogue Case cited supra, the learned trial judge identified the rule of thumb regarding the sustainability of preliminary applications. The rule is that the purpose of a preliminary objection is to prevent the application objected to, to be heard on its merits. As such, any alleged irregularity, defect or default complained of in a preliminary objection must be apparent on the face of the notice of the application paper, and not derived from the affidavit of facts. She pointed out that the alleged defect which led to the preliminary objection is on the motion paper and therefore she could deal with it.

 

Regarding the substance of the objection, she set out the arguments of Respondent counsel as

a. The motion was filed by a partnership and the licence number of the partnership Bentsi-Enchill, Letsa & Ankomah is stated on the Motion document

b. The licence number of the partnership is also stated on the conditional appearance

c. Plaintiff/Respondent has since service of the conditional appearance not complained

d. Plaintiff/Respondent ought to state particulars of the preliminary objection in order for the Applicant to have enough notice to prepare appropriate response

 

The court then went on to look at a definition of a partner in Black’s Law Dictionary 9th Edition which she said defines partnership as ‘a voluntary association of two or more persons who jointly own and carry on a business for profit’, and ‘an association of lawyers who practice law together usually, sharing clients and profits in a business, organized traditionally as a partnership but often seen today as either a professional corporation or a limited liability company’. She also cited S. Kwami Tetteh’s definition of partnership or firm in his book Civil Procedure, a Practical Approach.

 

After this she said if it was only the name of the firm or its stamp without the name of the Lawyers or endorsement to that effect on the processes complained about, and the licence number of the Chamber thereon, then the Lawyer(s) would be unknown and the ruling would go against the firm. However, in the instant motion, her holding was that the motion was filed by lawyers and they are known. The objection in the circumstances was over-ruled.

 

It is against this ruling that the current appeal has been filed. The grounds of appeal are as follows:

 

That the Learned Judge erred in law when she overruled Plaintiff/Appellant’s preliminary legal objection to the Defendant/Respondent’s entry of conditional appearance by a law firm instead of a lawyer as prescribed by law

 

Particulars of error

That by the express provision of Order 4 rule 1 (2); Order 82 rule 3 of the High Court civil (Procedure) Rule, 2004 (CI 47) and Section 2 and 8 of the Legal Profession Act, 1960 (Act 32) a contrary meaning of who a lawyer is, as given by the ruling is wrong in law.

 

In his submissions, Appellant counsel urged that a partnership or a law firm cannot be the same as a lawyer within the intendment of Order 82 rule 3 of CI 47 because partnership firms are not found on the Roll of lawyers. Order 82 rule 3 provides

 

In these Rules unless the context otherwise requires a ‘lawyer’ means a person whose name has been entered in the Roll of Lawyers to practice in Ghana and does not include a lawyer for the time being suspended from practice

 

He also quoted Section 2 of the Legal Profession Act 1960 Act 32 which defines the status of a lawyer. The said Section 2 reads as follows:

 

2. Status of lawyers

A person whose name is entered on the Roll kept under section 6

 

Is entitled, subject to section 8, to practice as a lawyer, whether as a barrister or solicitor or both, and to sue for and recover the fees, charges and disbursements for services rendered as a lawyer, and

 

Is an officer of the Courts and

 

Is subject, when acting as a lawyer, to the liabilities that attach by law to a solicitor.

 

He said that the two processes – the motion objected to and the entry of conditional appearance - were filed by the firm Bentsi Enchill Letsa & Ankomah, a firm whose name cannot be found on the roll of lawyers. Citing the decision of Sir Dennis Adjei JA in the unreported case of Nana Kwasi Afreh 11 & Others vrs Association of Volta Lands Compensation & 12 others Suit No AHR4/2012 where a writ was not issued by the party themselves or a known lawyer, and the court held that the writ and anything founded on it is a nullity, he argued that by parity of reasoning, a law firm cannot enter appearance and purport to file other subsequent processes on behalf of a Defendant. He set out other arguments that I will deal with later.

 

The Respondent has raised a threefold objection to the appeal, the first of which submits that there is no appeal pending against the decision of the trial court, which overruled the objection against the Motion to set aside the writ of summons. Since this attacks the very existence of the appeal, I must consider it first.

 

Respondent counsel points out that the sole ground of appeal refers to a ‘preliminary legal objection to the Defendant/Respondent’s entry of conditional appearance by a Law Firm instead of a lawyer as prescribed by law’. He submitted that since the proceedings that led to the ruling were an objection to an application to set aside the writ, no appeal has been properly made to this court.

 

As much as I agree with counsel for Respondent that the Appellant counsel missed the subject of the ruling – which is the motion to set aside the writ – by referring to the entry of appearance in the first part of the Grounds of Appeal, I also see that the ruling complained of is properly identified on the Notice of Appeal as the ruling of the High Court, Commercial Division dated 31st July 2015. That ruling dealt with the objection to the motion to set aside the writ, thus bringing it within the purview of this appeal

 

Secondly, the particulars of error on the notice of appeal deal with the content of the 31st July, 2015 ruling to the extent that the court determined in that ruling that the persons who signed the Motion paper were properly within the purview of ‘lawyers’ as envisaged under Legal Profession Act, 1960, Act 32 and Order 75 (2) of CI 47.

 

In Okofoh Estates Ltd v Modern Signs Ltd, 1996 -97 SCGLR 224, the Supreme Court provided guidance on how to deal with confusion created by court processes that communicate the right procedure while carrying wrong descriptions on the face of the process. The court per Sophia Akuffo JSC applied the guiding principle from Gbogbolulu v Hodo 1947 WACA 164 and said regarding an objection to the ‘wrong’ heading of an application for certiorari because it failed to comply with the normal mode for heading applications for prerogative writs and carried no statement of case – ‘As has been emphasized time and again by this and other courts, ‘It is the duty of Courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities.’ She also said ‘….what is more important is whether the application has any substance, regardless of the form in which it has been intituled. In my respectful view, the wrong heading of an application to this court for an order of certiorari cannot in any material manner derogate from the nature of the application itself. The more relevant question is, therefore, whether or not, despite its title, this court has the legal power to entertain the application before it

 

In the circumstances, in order to do substantial justice to the parties, I will look at the ruling of 31st July 2015 as identified on the notice of appeal and not get fixated on the reference to the entry of appearance in the grounds of appeal. And this is especially so because the entry of appearance was attacked along with the motion to set aside the writ in the Appellant’s affidavit in opposition which formed the basis for the ruling on appeal. I must pause also to reiterate the fundamental position of the law found in Rule 8 in the Court of Appeal Rules 1997, CI 19 that every appeal shall be by way of rehearing and shall be brought by a Notice of Appeal. Thus to the extent that there is a proper notice of appeal which points to the ruling of 31st July, there is a proper appeal before this court. Respondent counsel’s contentions that there is no appeal before this court are dismissed.

 

The second submission by Respondent’s counsel is that the appeal is grossly misconceived and unfounded because the ruling did not construe the meaning of a lawyer. He quoted a critical part of the ruling which I will reproduce here. “So yes, Bentsi –Enchill, Letsa & Ankomah is a Law Firm or Partnership. It is a group of Lawyers who have come together to do business. The Motion was signed by one of the Lawyers which one though, is unknown; they have embossed on the Motion Document ‘Lawyers for the Defendant…It has not been said that Bentsi Enchill, Letsa & Ankomah are not Lawyers nor has it been said that their names have not been entered in the roll of Lawyers under Section 6 of Act 32. Neither has it been said that their status under Order 75 (2) of CI 47 is doubtful. I do not know of any law which forbids a team of lawyers and partners for that matter from representing a party or which stipulates that a sole lawyer should represent a party. …”

 

He went on to argue that ‘thus the ruling held that an incorporated partnership of lawyers may lawfully issue court processes in the name of the partnership…’ and concluded that ‘it is a gross misapprehension or misconception of the ratio decidendi for the Appellant to claim that the 31st July 2015 ruling construed a ‘lawyer’ to mean a ‘law firm’. Although learned counsel tacked on several other arguments about partnerships etc., I must say that with respect to learned counsel, his own appreciation that the ruling held that an incorporated partnership of lawyers may lawfully issue court processes in the name of the partnership is the very essence of the objection that led to the ruling, and which the notice of appeal attacks in the particulars of error, and which I find must be resolved as a function of rehearing.

 

Who are the ‘Lawyers’ of the Defendant/Applicant/Respondents who signed the motion paper objected to? Is it the business entity practicing under the identity of a partnership called Bentsi Enchill Letsa & Ankoma or is it a team of three individual lawyers called Mr. Bentsi Enchill, Mr. Letsa and Mr. Ankomah?

 

Whose license number is GAR 12086/15? Is it the license number of Mr. Bentsi Enchill who is well known to the legal fraternity as a practicing lawyer? Or the license number of Mr. Letsa who is well known to the legal fraternity as a practicing lawyer? Or the license number of Mr. Ankomah who is well known to the legal fraternity as a practicing lawyer? Or is it the license number of the chambers from which all three gentlemen practice as partners.

 

The difficulty I see with the motion paper is that the answers provided by the counsel for Respondent and set out in the ruling of the trial judge does not point to the license number as being that of an individual, and the ‘Lawyers’ of the Plaintiff being these three gentlemen whose names are found in the Roll of Lawyers. She said on page 17 of the ROA

 

“The Applicant’s lawyer countered the objection on grounds that:-

i. The motion was filed by a Partnership and the licence number of the Partnership Bentsi-Enchill, Letsa & Ankomah is stated on the Motion Document.

ii. The license number of the partnership is also stated on the conditional appearance”.

 

This for me becomes the difficult bone that choked the Motion paper and the entry of conditional appearance. With this clarification, the complaint of the Appellant which he has pushed up to this appeal became relevant.

 

It created difficulties for the evaluation that ‘So yes, Bentsi –Enchill, Letsa & Ankomah is a Law Firm or Partnership. It is a group of Lawyers who have come together to do business. The Motion was signed by one of the Lawyers which one though, is unknown; they have embossed on the Motion Document ‘Lawyers for the Defendant…It has not been said that Bentsi Enchill, Letsa & Ankomah are not Lawyers nor has it been said that their names have not been entered in the roll of Lawyers under Section 6 of Act 32. Neither has it been said that their status under Order 75 (2) of CI 47 is doubtful. I do not know of any law which forbids a team of lawyers and partners for that matter from representing a party or which stipulates that a sole lawyer should represent a party.’

 

The difficulty is that the honorable judge veered into several misapprehensions of law in the above holding. The first misapprehension came from seeking the definition of a partnership from sources other than the relevant law.

 

In Ghana, partnerships are incorporated entities under the Incorporated Private Partnerships Act, 1962 (Act 152). Section 12 defines the nature of partnerships.

 

Section 12 – Corporate Personality of the Firm

 

1 (1) From the date of registration mentioned in the certificate of registration issued in accordance with section 6 of this Act, the firm shall be a body corporate under the firm name, distinct from the partners of whom it is composed, and capable forthwith of exercising all the powers of a natural person of full capacity in so far as such powers can be exercised by a body corporate.

(2) Notwithstanding any changes in the constitution of the partnership, the firm shall continue to exist as a corporate body until dissolved in accordance with section 51, 52 or 53 of this Act.

(3) Notwithstanding that the firm is a body corporate, each partner therein shall be liable, without limitation, for the debts and obligations of the firm in the manner referred to in section 16 of this Act; but shall be entitled to an indemnity from the firm and to contribution from his co-partners in accordance with his rights under the partnership agreement.

 

This is the text that should have exercised the consideration of the learned trial judge. A partnership registered as such, is a corporate body. No matter how many lawyers are partners in this amalgam, the extent that they move under the umbrella of an incorporated partnership, each of them is a separate and distinct legal personality from the partnership. Thus to the extent that Respondent counsel informed the court that the named lawyers on the motion paper ‘Bentsi Enchill, Letsa & Ankomah’ is the name of a partnership, and the license belonged to the partnership as a legal entity, the learned trial judge’s next action should have been to resolve the relevant issue whether by the requirements of law, the partnership could act as ‘lawyers’ for the Defendant.

 

She erred in not doing so. She erred in ignoring what she had been told and choosing to look away. Instead, she held that the motion paper ‘was signed by one of the Lawyers which one though, is unknown’, a conclusion I find difficult to appreciate, because there was no averment in the affidavits to suggest this. What if the process was signed by a secretary of the firm? Or a paralegal?

 

She went on to list the names of the partners whose names make up the name of the firm and intimated that as long as they are lawyers who have been entered in the roll of Lawyers under Section 6 of Act 32 and their status under Order 75 (2) of CI 47 is not doubtful, she does not know of any law which forbids a team of lawyers and partners for that matter from representing a party or which stipulates that a sole lawyer should represent a party. From this analysis, she concluded that the motion paper is adequately signed.

 

The error in this exercise is that it constitutes conjecture as to who actually signed the process in issue. It also trips on the proposition that a team of lawyers operating as a partnership can sign a court process in the name of the partnership. Both the conjecture and the proposition are untenable in law. There was one signature on this process, and there is no clear indication that it was signed by one of the lawyers whose names make up the partnership, or all three of them contributed to that one signature because they were working as a team on the case. The very ridiculousness of this last statement shows the difficulty that the conjecture conjures.

 

As for the proposition that a member of a partnership can sign a court process in the name of the partnership because the partnership constitutes the lawyers of a party to a court suit, the proposition actually stands at variance with the requirements of both the substantive legislation on the legal profession, and the legislation on court practice – CI 47. 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 requirements for any form of legal practice.

 

Of particular interest to me are Sections 9, 43 and 44 of Act 32:

 

9. Penalty for unlawful practice

1. Where a person who is not enrolled practices as a lawyer or prepares a document for reward, directly or indirectly to be used in or concerning a cause or matter before a Court or tribunal, that person commits an offence and is liable on first conviction to fine not exceeding one hundred penalty units and for a subsequent offence, to a term of imprisonment not exceeding six months, or a fine not exceeding two hundred penalty units or to both the fine and the imprisonment.

 

43. Endorsement on documents

(1) A person who draws or prepares a legal document for reward shall endorse or cause to be endorsed on the document the name and address of that person.

(2) A person omitting so to do commits an offence and is liable on summary conviction to a fine not exceeding twenty-five penalty units.

 

44. Preparation of legal documents

(1) A person who is not a lawyer shall not directly or indirectly for or in expectation of a fee, gain or reward draw or prepare a legal document.

(2) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of one hundred penalty units

 

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.

 

Order 9 rule 1 (1) of CI 47 also provides

 

Who may file appearance?

1(1) Subject to Order 5 rule 1 of these Rules a Defendant to an action may, whether or not the Defendant is sued in a personal capacity or as a trustee or as a personal representative or in any other representative capacity, file appearance in the action and defend it in person or by a lawyer

 

And before Respondent counsel urges that I fell into the same mistake of treating this dispute as touching the conditional appearance instead of the motion to set aside the writ, I draw attention to the words I have emphasized ‘and defend it in person or by a lawyer’

 

The requirements of CI 47 as to who defends an action is the Defendant himself, or ‘a lawyer’ and the evaluation conducted above holds.

 

It is a very fundamental premise of interpretation that the only role of the courts is to ensure that the law is applied faithfully, and achieves the purpose of the statute. If the purpose of the law can be found in its literal words, the court must interpret them in their literal meaning.

 

My summation of the statutes that the Appellant counsel urges the court erred concerning is that he is right. My survey of the purpose of the whole of Act 32 regarding the practice of ‘lawyers’ shows that legal documents are to be prepared by lawyers, and the lawyers are to be human individuals who have undergone training supervised by the General Legal Council, whose names are found on the roll of lawyers, duly licensed to practice at any time, and complying with the rules of legal practice.

 

When it comes to the rules of court, writs are to be issued by parties, or by a lawyer. Appearance is to be filed by parties acting for themselves or by a lawyer. This lawyer is the one allowed to defend the action. CI 47 affirms the definition of ‘lawyer’ in Order 82 rule 3 with these words ‘lawyer means a person whose name has been entered in the Roll of Lawyers to practice in Ghana and does not include a lawyer for the time being suspended from practice.’

 

As rightly pointed out by Respondent counsel, acts that may be undertaken by the corporate body in which the lawyer may be practicing, are also spelt out by the substantive legislation on the legal profession – Act 32 – and the rules of court. Having specified these acts, it is the bounden duty of a court to hold that where a process is identified as having been issued by a firm with a legal identity distinct from its partners, then that process does not qualify to be held as having been issued by a lawyer.

 

Respondent counsel makes a point on page 11 of his submission which does not in any way inure to the benefit of the Respondent. He urged that where the lawmaker intended that a partner’s name be stated on a process, instead of the partnership’s name, the rules of court said so specifically. He quoted Order 6 rule 4 (1) which reads:

 

‘Where persons are sued as partners in the name of their firm, appearance may not be filed in the name of the firm but only by the partners in their own names but the action shall nevertheless continue in the name of the firm.’

 

What this provision does is highlight the aversion the rules of court have for the individual members of a partnership to hide behind the partnership. What it means is that even if the corporate body is sued, appearance may not be entered in the name of the firm but only in the name of individuals. At every material time, the rules of court demand clarity as to who the person issuing processes is. Having failed to indicate which individuals are the lawyers of the Respondent who filed the motion to set aside the writ, the motion paper sinned against the rules of court and law regulating the practice of the legal profession.

 

We approve the decision of Sir Dennis Adjei JA sitting as an additional High Court judge in Nana Kwasi Afreh 11 & 2 ors v Association of Volta Land Compensation & 12 ors Suit No AHR 4/2012, 17th January 2012 where he held that a writ issued on behalf of a party by a non-lawyer (in this case, a law firm), is not maintainable in law and the defect cannot be cured. It is not a mere irregularity as it goes into the rest of the action.

 

We dismiss the submissions of Respondent counsel that the signing of the motion paper would at worst, constitute an irregularity. By the failure to have it signed by the Defendant Applicant or by a lawyer, and by having it issued by a partnership, the motion paper was effectively issued by a person not qualified to file processes in court. Such a process ought to be struck out. We so strike out the motion to set aside the writ. We agree with Respondent counsel that if the Appellant wishes for the entry of appearance to be struck out, he has to apply for same, and this court cannot issue orders regarding the entry of conditional appearance when the ruling of the court did not deal with it. The appeal succeeds.

 

Cost of One thousand Five Hundred Ghana Cedis (GH¢1,500.00) in favour of the Appellant.

 

(Sgd)

Gertrude Torkornoo (Mrs.)

(Justice of Appeal)

 

(Sgd)

Ayebi                                     I Agree              E. K. Ayebi

(Justice of Appeal)

 

(Sgd)

Domakyaareh                       I Also Agree    A. M. Domakyaareh (Mrs.)

(Justice of Appeal)