IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
ERIC OSEI AMANKWAH - (Plaintiff)
CHARLOTTE ASEIDU NAA ABENA -(Defendant)
DATE: 19 TH JULY, 2018
SUIT NO: H1/118/2018
JUDGES: C.J. HONYENUGA (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), SUURBAAREH (J.A)
MR. RAY APPIAH AMPONSAH FOR DEFENDANT/APPELANT
JUSTICE YAKUBU ABDULAI FOR PLAINTIFF/RESPONDENT
AVRIL LOVELACE-JOHNSON (J.A.):
This appeal is against the ruling of the High court delivered on 14th March 2016 by which the said court refused to set aside its earlier order relisting a writ of summons and statement of claim granted upon a motion ex parte.
At the trial court the Defendant based her application on the position that by the motion being brought ex parte she had been deprived of an opportunity to be heard. This deprivation being a breach of the audi auteram partem rule, the said ruling and all proceedings taken thereafter were a nullity.
In this court, the Defendant, now Appellant bases her appeal on the following six grounds
The Learned Judge failed to appreciate that the purported Motion Ex parte, which at the same time doubled as a MOTION ON NOTICE, in substance filed on 20/11/2015 for re-listment of the suit filed on 20/11/2015 prepared and signed by a CLERK by name ELLYN ASIAMAH of Crown Legal Bureau Accra, who is not a Lawyer is void and also constituted and amounted to Statutory infractions of Section 8(10 of the Legal Professional Act 1960 (Act 32).
The Learned Judge failed to consider and comment on the fact that the “Motion” for Re-listment of the suit mentioned supra was incompetent and ought not have been heard as an Ex parte Motion to re-list the suit.
The Learned Judge has not set the suit down for either pre-trial or case management conference thus the ongoing proceedings is premature and sins against “Case Management” provisions of High Court (Civil Proceedings) (Amendment) Rules, 2014 (C. I. 87) 7a(1) (b), 7a(2).
The Learned Judge on 2nd December, 2015, lacked jurisdiction to hear the Motion for Re-listment of the suit, which was on notice, in context, but was not served on the Defendant/Appellant.
The Learned Judge appears to have misdirected herself as to the issues before her when she held among others.
“the grant of the Ex parte-Application did not affect Defendant adversely in any way. The grant of the application was not against Defendant but in her favour as well. It re-listed her Counter-claim that had been struck out. No injustice was occasioned thereby. In the light of the above, the instant motion is refused.”
Further Grounds of Appeal shall be filed upon receipt of the record of proceedings.
No further grounds were filed so the sixth ground is deemed to have been abandoned.
In the course of his written submissions, in relation to ground 1, counsel states that it was a clerk who signed the affidavit in support of the motion to relist and this act made the process a nullity. In ground 4 it is stated that the court lacked jurisdiction to hear the matter because the Appellant was not served with the motion paper.
For reasons which will become clear, I will take and discuss the first ground of appeal on its own. A narration of the facts of the matter before the trial court is not necessary for the resolution of this ground.
On this ground Counsel for the Appellant submits that the motion paper for relistment was signed by one Ellyn Asimah of Crown Legal Bureau who was not a lawyer. According to counsel, being a clerk of chambers, she was not competent to sign the motion paper in question for the lawyer handling the case whose name was not disclosed. Her signing of the said process counsel contends, is an infraction of the Legal Profession Act which also makes it void.
In response, counsel for the Respondent admits that the said Ellyn Asiamah is a law clerk but says she never signed her name as a lawyer. Counsel submits that she signed “FOR” him and this did not mean she was holding herself out to be a lawyer. Counsel further states that signing the name of a lawyer on a process cannot be considered as PRACTISE as envisaged by the Legal Profession Act 1960, ACT 32.
The following are not in dispute. The Law Clerk in question signed the motion paper in question FOR “LAWYER FOR DEFENDANT”. She also deposed to and signed the affidavit in support of the motion paper.
The question to be determined here is whether her signing the said process amounts to PRACTISE and if it does, its effect on the motion for relistment signed by her since she is not on the roll of lawyers and thus does not have a licence to practice.
The general tenor of Order 2 of the High Court (Civil Procedures) Rules 2004 entitled Commencement of proceedings shows that a writ is to be issued by a Plaintiff in person or per his lawyer. See for example rules 5 (1) and 7(2) entitled:
Indorsement as to Plaintiff.
“ 5(1) Before a Writ is filed by a Plaintiff it shall be indorsed
a) 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
b) Where the Plaintiff sues by a Lawyer, the Plaintiff shall, in addition to the residential and occupational address of the parties, provide at 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 his principal.
7(2) No writ shall be sealed unless at the time it is filed for sealing, the person filling 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.”
A writ is therefore signed by the Plaintiff if he sues personally or his lawyer if he sues per such.
Counsel for the Respondent says that the clerk in question signed as his AGENT since he was out of Accra and so her act of signing cannot amount to Legal Practice. It is common practice, as he states for clerks to type out court processes but signing such processes cannot by any stretch of imagination be one of the duties of a court clerk. Where a party sues by a lawyer it is the lawyer who is to sign such processes. I know of no law which allows a non -lawyer acting as an agent of counsel on record to sign a process to be used in the course of hearing a matter in court. Where it is an affidavit attached to a process then once the requirements of Order 20 rule 8(1) and (2) are met ie the deponent (even if a court clerk o) discloses the source of his information, then he can swear to it and sign. See 18th July Ltd V Yehans International Ltd  1 SCGLR 167 @ 171
Clearly then it is either a party suing by himself and a lawyer representing a party who can sign legal processes in the course of litigation and not a court clerk purportedly acting as agent. Section 56 of the Legal Profession Act defines practice as
Practice as a barrister, solicitor or advocate or in like capacity…..
By the rules of interpretation,(ejusdem generis rule) the expression “like capacity” cannot be read to include a court clerk or an agent of a barrister or solicitor so the last mentioned cannot exercise the powers of the earlier mentioned in the course of prosecuting a case.
It does not need belabouring that preparing and signing processes such as motions are some of the activities engaged in by a lawyer in practice. In representing the Plaintiff/ Respondent in this matter and preparing processes for the prosecution of the case, counsel Justice Yakubu Abdulai was engaging in practice as a lawyer his name having been entered on the roll of lawyers. He was the proper person to sign the motion for relistment and not his court clerk
I am of the considered opinion that signing a process such as a motion for relistment, where a person sues by a lawyer is the preserve of the lawyer. This exclusivity is buttressed by the provisions of section 9(1) of the Legal Profession Act which criminalises the act of practising as a lawyer when one has not been enrolled as one. The said section states as follows
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….. (emphasis mine)
I am also of the considered opinion the said Ellyn Asimah’s act of signing the motion for relistment when she is not a lawyer offends section 8(1) of the Legal Profession Act, she not having been enrolled under section 3 of the said Act and so not having a valid Solicitor’s license. If a process filed by a qualified solicitor who at the time of filing did not have a solicitor’s license is a nullity then surely a legal process signed by a court clerk who is not a solicitor in circumstances such as the present can only be a nullity too. Holding otherwise would defeat the purpose of the Legal Profession Act, 1960, Act 32 whose purpose was stated in Henry Nuertey Korboe v Francis Amosa Civil Appeal No J4/56/2014 as
“enacted primarily to regulate the legal profession and instill some discipline in the profession” per Anin Yeboah JSC
That being so, I hold that the said process is a nullity and can therefore not be the basis of any orders of court regarding the rights of the parties. It is hereby set aside. The order of relistment and the proceedings of the trial court upon the purported relistment are also a nullity and are also hereby set aside.
The first ground of appeal succeeds. In the light of the above position that the motion for relistment is a nullity there is no need to consider the other grounds of appeal which relate to the alleged failure to serve the said motion on the appellant and the failure to set the suit down for pre-trial or case management before hearing commenced.
The appeal succeeds.
GA (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), SUURBAAREH (J.A)