CLEMENT OTCHERE vs. DIANA OWUSU
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2016
CLEMENT OTCHERE - (Plaintiff/Respondent)
DIANA OWUSU - (Defendant/Appellant)

DATE:  29TH FEBRUARY, 2016
SUIT NO:  H1/27/2015
JUDGES:  AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A
LAWYERS:  MUJEEB RAHMAN AHMED WITH SAEED KOFI SAM, OSMAN HAKEEM AND LAWAL TAHIRU FOR DEFENDANT/APPELLANT
NANA YAW FRIMPONG FOR PLAINTIFF/RESPONDENT
JUDGEMENT

 

TORKORNOO (MRS), J.A.

The Plaintiff respondent sued the defendant Appellant for:

 

An order for Specific Performance of the contract for the sale of House No. Plot 18 Block ‘P’ Aburaso, Kumasi and Plot No. 10 Block ‘A’ Kenyase Krotia, Kumasi entered into between the Plaintiff and the Defendant on 13th September, 2012 or in the alternative Payment of the sum of One Hundred and Twenty Thousand Ghana cedis (GH¢120,000.00) being part payment of purchase price of Two Hundred and Twenty Thousand Ghana cedis (GH¢220,000.00) of the two properties described above which Plaintiff advanced to the Defendant towards the purchase of these properties.

 

General damages for breach of contract.

 

Interest at the prevailing bank rate from 24th October, 2012 till date of final payment.

 

After being served with the Writ in this suit, the defendant Appellant entered conditional appearance through her lawyer. She then filed an application to strike out the Writ of summons and statement of claim. Her complaint was that the Writ of summons was issued by a law firm or chambers Messrs Afrifa & Co and as such, could not invoke the jurisdiction of the high court. It was her case that the issue of the Writ by a law firm rendered the Writ incompetent and void. The high court dismissed this application and its supporting arguments leading to this appeal.

 

Although there were four grounds of appeal filed, they coalesced around one legal position and were thus argued together. The grounds of appeal are that

 

The Honourable Trial Court erred in law when it held that a Law firm or Chambers was competent to issue out a Writ of summons on behalf of a party.

 

That the Honourable Trial Court was wrong in law as the ruling is contrary to clear statutory provision and binding judicial dicta.

 

That the Honourable Trial Court’s ruling was given per incuriam.

 

That the ruling of the Honourable Court is against the weight of the evidence on Record.

 

It was indicated that additional grounds of appeal but would be filed upon receipt to the Record of appeal, this was not done.

 

In arguing that the Writ issued by a law firm was not competent to invoke the jurisdiction of the high court, Appellant counsel pointed at a number of legislative provisions. The first was Order 4 rule 1 of the High Court Civil Procedure Rules 2004 CI 47 which provides

 

Subject to these rules, any person may begin and carry on proceedings in person or by a lawyer.’

 

The second was Order 82 rule 3 of CI 47 which defines a lawyer as ‘..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 argued that a law firm can never be equated to a lawyer.

 

The third piece of legislation he addressed is Section 2 of the Legal Profession Act, 1960 (Act 32) which states

 

“1. 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 disbursement s for service rendered as a lawyer.”

 

It was his submission that the definitions of lawyer in order 82 rule 3 and section 2 of Act 32 do not al a reference to lawyer to be interchanged with law firm and vice versa. He cited a plethora of cases to establish that failing to issue the Writ per a named lawyer instead of by a law firm ought to attract the consequence of the Writ being declared a nullity.

 

The first point made referred to the case of Akuffo Addo & Others v Quarshie-Idun & Others 1968 GLR 667 CA which dealt with the competence of a lawyer to practice being tied to their payment of the annual solicitor’s license fee. It was his submission that when a party decides not to commence or carry on a suit by himself, he can only do so by a named lawyer whose name is in the Roll of lawyers and who has paid their annual solicitor’s license.

 

Other judgments on the imperative of a Writ being issued by a party or a lawyer included the unreported case of Nana Kwasi Afreh 11 & 2 Others v Association of Volta Land Compensation & 12 Others Suit No AHR 4/2012 dated 17th January 2012 which he said dealt with the issue of a Writ in the name of a law firm. He cited the judge as saying ‘A Writ which is issued on behalf of a Plaintiff by a non lawyer 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, it cannot be saved by amendment as the body which issued the Writ is not competent to do so….’ Other judgments in this ilk include Kofi Obiri Yeboah vrs Cynthia Vigbedor & ors (suit no

FAL /84/2012) dated 9th September 2013; Nana Francis Kofi Annan vrs Nana Asamponhene & anor (suit no FAL/11/2014) dated 13th January 2014 and the Nigerian case of Oketade vrs Adewumi & ors [2010] 2-3-SC (PTI) 140.

 

His second argument was that the statutory breach complained about in this appeal is not a mere irregularity but an issue that goes to jurisdiction. It was his argument that because the breach was fundamental, it removed the jurisdiction of the court to handle the case, and since jurisdiction is also fundamental, the court could not entertain the Writ. To buttress these points, he cited the case of Nii Tetteh Ahinakwa II & Anor vrs Nii Okaija III & 2 ors [2010] 31 MLRG 92 where he said the Supreme Court held:

 

“where the rules of court prescribes a particular mode of seeking relief, then a failure to initiate the proceedings for relief in accordance with the prescribed mode is not only an irregularity but raises an issue that goes to jurisdiction”.

 

Cases along this line included Yeboah vrs J.H Mensah [1998/99] SCGLR 492; Boyefio vrs NTHC [1996] SCGLR 531 at 533 holding

 

5, Mosi vrs Bagyina [1963] 1 GLR 337, SC and Republic vrs High Court, Kumasi Ex-parte

Atumfuwa [2000] SCGLR 72 where he quoted Acquah JSC, as he then was, as stating :

 

a number of decided cases had established that where the non-compliance goes to the root of the action as opposed to a mere irregularity, such non-compliance renders the proceedings void and cannot be validated: See for example, Taylor JSC in Amoakoh vrs Hansen [1987/88] 2 GLR 26 at page 37…”

 

He also cited Oppong vrs Attorney-General [2000] SCGLR 275 at 280 per Atuguba JSC, where it was held:

 

“where a step by a party to proceedings before this court is fundamentally wrong, such error is not within the purview of the rule and cannot be waived. One cannot waive a nullity.”

 

On the effect of lack of jurisdiction, he cited AG (No. 2) vrs Tsatsu Tsikata (No. 2) [2001/02] SCGLR 620 per Acquah JSC (as he then was):

 

“jurisdiction is so fundamental that its absence in a court renders that court’s proceedings nothing but a nullity. It is therefore trite knowledge that the first duty of every judge in any proceedings is to satisfy himself that he has jurisdiction in the matter before him for the issue of jurisdiction can be raised at anytime even after judgment”.

 

Other cases are Bimpong Buta vrs General Legal Council [2003/04] SCGLR 1200 and Koglex (Gh)

Ltd. (No. 2) & anor vrs Attieh (No. 2) [2003/04] SCGLR 75 at 76 holding 2 per Adzoe JSC thus:

 

“Even though we have often said that we must avoid technicalities in our bid to do justice, the question of jurisdiction is not a technicality …”

 

Counsel urged that since the jurisdiction of the court was not even invoked, the finding of the learned trial judge that an incorporated law firm is capable of issuing a Writ of summons was per incuriam.

 

He concluded that the Writ was issued in violation of statutory provisions such as sections 2, 8 and 56 of Act 32, Order 4 rule 1 of CI 47 and Order 82 rule 3 of CI 47.

 

In resisting these arguments, counsel for respondent conceded that the Writ was endorsed with the name of the law office without the name of the lawyer who signed the Writ Written on it. His submission for consideration was ‘whether or not a Writ of summons issued by a lawyer but endorsed with the name of the law firm instead of the name of the lawyer who signed it is valid or competent to invoke the jurisdiction of the court’. His response to the content of the submission by Appellant counsel was that the decisions cited were those of the high court and therefore not binding on this court. He pointed out that apart from personally signing the Writ, the license number of the lawyer who issued and signed the Writ is also endorsed on the Writ.

 

I have carefully read the arguments of counsel and the well reasoned ruling of the learned trial judge and must agree with the ruling on virtually every score. I think that counsel for Appellant has gotten his garments in a huge twist over this argument of whether this Writ was competently issued because he insists on staring hard at a spot in the rules which does not answer the conundrum he has drummed up – namely Order 4 of CI 47. Although the ruling of the learned trial judge pointed to the rule that deals with commencement of actions which is Order 2, counsel seemed to have preferred closing his eyes to Order 2.

 

It is a simple rule of the law of interpretation that statutes must be read as a whole in order to appreciate the import of their various provisions. Order 4, which Appellant is sparring with, deals with ‘Parties and causes of action’. It is Order 2 which deals with ‘Commencement of Proceedings’ and provides for how proceedings may be commenced in the high court. Since the Appellant’s argument is not about who constitutes the party in this suit, but that there has been a violation of a fundamental requirement of statute on how an action in the high court should be commenced, it is order 2 he should have been looking at.

 

The Writ under contention rightly indicates that the Plaintiff in this case is Clement Otchere. Order 4 rule 1 is headed ‘Right to take proceedings’ Thus the requirement of Order 4 subrule 1(1) that ‘any person may begin and carry on proceedings in person or by a lawyer’ is answered by the statement of the Plaintiff’s name in the suit as the one beginning the action. The person with the right to begin and carry on proceedings in this case is Clement Otchere. As long as the name of the party in this suit is identified on the front of the Writ as the Plaintiff herein, the requirements of order 4 rule 1 have been answered.

 

Then we must swing to Order 2. No where in Order 2 is a demand made for the Plaintiff lawyers’s name. The relevant portions of Order 2 for the resolution of the current problem are found under Order 2 rule 5 and specifically 5(1) (b). Under ‘Indorsement as to Plaintiff in Order 2 rule 5, CI 47 directs as follows

 

5(1) Before a Writ is filed by a Plaintiff it shall be indorsed.

 

Where the Plaintiff sues in person, with the occupational and residential address of the Plaintiff or if the Plaintiff resides outside the country, the address of a place in the country to which documents for the Plaintiff may be served; or

 

Where the Plaintiff sues by a lawyer, the Plaintiff shall, in addition to the residential and occupational address of the parties, provide at the back of the Writ the lawyer’s firm name and business address in Ghana and also, if the lawyer is the agent of another, the firm name and business address of the principal.

 

The address for service of a Plaintiff shall be

 

Where the Plaintiff sues by a lawyer, the business address of the Plaintiff or the Plaintiff’s lawyer or the Plaintiff’s lawyers agent as indorsed on the Writ or

 

Where the Plaintiff sues in person, the Plaintiff’s address in the country as indorsed on the Writ.

 

These provisions show that the indorsements required to make the Writ competent where a Writ is issued by a lawyer for a Plaintiff who is suing in his own name is the lawyer’s firm name and business address in Ghana, even much more than the lawyer’s name. For a Writ to be competent, the focus is on the Plaintiff and his address at all times.

 

The picture that emerges from reading Order 4 rule 1 and Order 2 rule 5 together is this. Every action is to be commenced by a Plaintiff for himself or by a lawyer acting for the Plaintiff. In the case of corporate bodies, the action must always be commenced by a lawyer. This satisfies the requirements of Order 4 under ‘Parties and Cause of Action’.

 

In the case before us, the person who commenced the action is Clement Otchere in person. This designation can be found on the front part of the Writ with the words.

 

‘An action having been commenced against you by the issue of this Writ by the above named Plaintiff CLEMENT OTCHERE’ (emphasis mine).

 

Then as to the indorsements which are to be made on the Writ by which the action is commenced, Order 2 rule 5 provides that if the Plaintiff acted by a lawyer in the issue of the Writ the Plaintiff has to add to his own addresses, the lawyer’s firm name and business address. This requirement is covered by the name of Messrs Afrifa & Co. and their address including their address for service.

 

The last area of contention in this appeal that Order 2 deals with is who is required to sign this Writ. That is provided for under Order 2 rule 7. It provides

 

7 (1) The issue of a Writ shall take place upon being sealed by the Registrar

(2) 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

 

The critical words are found in the last part of 7 (2). The person filing it shall leave a copy signed by the Plaintiff if the Plaintiff sues in person, or it should be signed by the Plaintiff’s lawyer, or on behalf (emphasis mine) of the Plaintiff’s lawyer. This means that three categories of people may sign the Writ. The Plaintiff, the Plaintiff’s lawyer, or someone else on behalf of the Plaintiff’s lawyer.

 

My humble evaluation is that the provisions of Order 2 are designed to express the work of law firms much more than even individuals when parties issue a Writ by lawyers. When parties issue a Writ using their lawyers, the rules require that the lawyer’s firm name and business address shall be indorsed on the Writ. Before filing, the Writ shall be signed and where the party is represented by a lawyer, it is expected that the lawyer will sign or someone on behalf of the lawyer will sign.

 

What is the situation with the Writ that is being contested? The lawyer’s firm name and business address were firmly placed on the Writ as mandatorily required by Order 2 (5). There is a signature of the lawyer and the firm address and his license number are firmly stated on the Writ.

 

The Appellant’s great quarrel is that the rules of court require that the name of a lawyer must be provided or the Writ is incompetent and cannot invoke the jurisdiction of the court. He takes his authority for this position from Order 4 rule 1. However, as I have explained earlier, Order 4 deals with parties and cause of action and rule 1 of Order 4 indicates who has the right to begin proceedings. It gives the option of the Plaintiff himself or the Plaintiff acting by a lawyer. With the Plaintiff’s name embossed on this action as the one who commenced this action, I am satisfied that the requirement of Order 4 is satisfied. The party as indicated is clement Otchere.

 

When it comes to the lawyer who issued the Writ and the details of the lawyer which Order 2 requires, it is clear that the rules do not demand the name of the lawyer. A careful perusal of Order 2 shows this rule on how actions may be commenced as being totally silent on the name of the lawyer. It leaves the provision of the name of the lawyer as a matter to be inferred (emphasis mine).

 

I think the learned trial judge very ably spoke to this position. As I have done, he pointed to Order 2 Rule 5 extensively. He also pointed to Order 9 Rule 3 (1) on the Contents of Notice of Appearance which reads in sub rule b

 

3 (1) (b)‘where the defendant appears by a lawyer, the business address of that lawyer in this country’ He explained how these subrules demanded for a lawyer’s address rather than the name.

 

He added on page 9 of his ruling regarding the silence of Order 9 rule 3 on the provision of a lawyer’s name when that lawyer enters appearance though it compels the provision of his address that ‘It is then only a rule of good practice that a Defendant’s lawyer Writes his name on a notice of appearance. The rules do not mandatorily require that, that be done.

 

He further pointed out these were procedural rules and even if they were breached by not setting out of the lawyer’s name, the Supreme Court has clearly decided that apart from lack of jurisdiction in its true sense any other wrong step taken in any legal suit should not have the effect of nullifying the judgment or proceedings. He cited Boakye v Tutuyehene 2007-2008 SC GLR 970, Gihoc v Hanna Asi 2005 – 2006 SCGLR 458, Republic v High Court Accra, Ex Parte Allgate Co Ltd, Amalgamated Bank Ltd, Interest Party 2007-2008 SC GLR

 

Now my appreciation of the rules of court leaving the name of a lawyer to be inferred as part of the records filed on commencement of an action is that the provision of the name is only implied. It is therefore not necessary to give validity to the Writ and does not fall in the same category of positive directions of statute that the cases cited by counsel for Appellant covered, such as Boyefio vrs NTHC [1996] SCGLR 531 at 533.

 

The case most apposite for settling this situation is City & Country Waste Ltd v Accra Metropolitan Assemby, 2007-2008 SCGLR 409, where the Supreme Court, in considering the implied prohibition of local government assemblies from awarding contracts without the process of tendering, held that ‘where a statute merely prohibited one party from entering into a contract without authority and/or imposed a penalty on him if he did so (ie a unilateral prohibition) it would not follow that the contract itself would be impliedly prohibited so as to render it illegal and void. Whether or not the statute had that effect, would depend on considerations of public policy in the light of the mischief which the statute was designed to prevent, its language, scope and purpose, the consequences for the innocent party, and any other relevant considerations.’

 

Subsequent to the AMA case and in Mensah & Others v. Ahenfie Cloth Sellers Association 2010 SCGLR 680, the Supreme Court went on to direct that ‘Where a contract was in violation of a statute, that statute would invariably set out the status of such a contract’ and a court was to work with the intention of the statute regarding what it sets out. In sum, there must be a positive provision which is violated for voidability.

 

 

Declaring a process void is not fanciful situation. The act complained of must be fly in the face of statute. Now in this situation where order 2 rule 5 and Order 9 are totally silent on the provision of a lawyer’s name but leave that provision to be inferred as a matter of course, but clearly show that the mischief the statute intends to prevent is the commencement of an action by a party without an address, and an indication that this party is represented by a lawyer without providing the lawyer’s business address, would it be a proper application of the rules of interpretation and principles of public policy to non-suit such a party because the lawyer who prepared and filed the Writ signed the Writ, provided his license number and provided his address, but failed to provide his name? Clearly, the lawyer who signed this Writ is identifiable through his signature, address and license number.

 

Just as it was evaluated by the learned trial judge, I do not believe that it is in the interest of justice for a party to be thrown out of court where his own name is on a Writ, his address is on the Writ, his lawyer’s address is on the Writ, his lawyer’s signature is on the Writ, and the lawyer’s license number is on the Writ. Every aspect of the Writ does not sin against any express provision of statute. The appeal is dismissed. No order as to costs.

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