IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
FRANCIS –XAVIER SOSU - (Appellant)
GENERAL LEGAL COUNCIL- (Respondent)
DATE: 6TH DECEMBER, 2017
CIVIL APPEAL SUIT NO: H3/55/18 AND H3/56/18
JUDGES: F. G. KORBIEH JA (PRESIDING), B. ACKAH-YENSU JA, I. O. TANKO AMADU JA
SAMUEL CODJOE FOR APPELLANT/APPLICANT
KIZITO BEYUO FOR RESPONDENT/RESPONDENT
This Ruling is in respect of two (2) applications for a reversal of the decision of a Single Justice of the Court of Appeal in two separate suits, namely; Suit No. H3/55/2017 and; H3/56/2017. Both suits bear the same title. Suit No. H3/55/2017 however is in respect of the decision of the Disciplinary Committee of the General Legal Council dated 1st June, 2017 regarding the charge of touting and personal advertisement. Suit No. H3/56/2017, on the other hand, is in respect of the charge of over estimation of legal fees.
These are the antecedents of this case.
On 1st June, 2017 the Appellant/Applicant (hereinafter referred to as the “Applicant”) was handed a three (3) year suspension from legal practice by the Disciplinary Committee of the General Legal Council after he was convicted of touting and personal advertisement, and also suspended for one (1) year after being convicted of over-estimating services he rendered to a client, upon his own plea of guilty on both charges. The sentences were to run concurrently.
Subsequently, the Applicant took the view that his conviction and sentencing were not in accordance with the law and consequently filed Notices of Appeal in the Registry of the High Court (Human Rights Division), Accra against the decision of the Disciplinary Committee of the Council. Consequent upon the two appeals, the Applicant filed two motions for stay of execution and or suspension of the decision of the Disciplinary Committee of the Council pending the final determination of his appeal in both cases. In both appeals, the Applicant sought an order setting aside his conviction and sentence.
This Court presided over by a Single Justice, in its Ruling dated 26th July, 2017, dismissed both motions on the ground that the Court lacked jurisdiction to entertain the applications.
The Learned Single Justice took the position that Counsel for the Respondent had raised crucial foundation issues relating to the jurisdiction of the Court to entertain the applications and hence made a determination on the issue of jurisdiction; the same being a fundamental issue at the threshold. He relied on the ratio in the case of Tindana vrs Chief of Defence Staff (No.1)  SCGLR 724 in coming to this position.
The Learned Single Justice opined in his Ruling that no proper appeal had been brought to this Court as required by Rule 9(3) of the Court of Appeal Rules 1997 (C.I. 19) (as amended) which states that an appeal is brought when the Notice of Appeal has been filed in the Registry of the court below. The Notices of Appeal filed by the Applicant herein were therefore declared to be invalid. Furthermore, even assuming a valid Notice of Appeal had been filed, the Court was of the opinion that the Applications ought to have been made in the first instance to the court below. We will hasten to state therefore that the applications filed by the Applicant herein were not determined on their merits.
The Applicant aggrieved by the decision of the Single Justice has consequently filed the instant applications praying for a reversal of the Ruling, by the full panel of the Court. In effect, the Applicant is asking us to make a determination that this Court is seised with jurisdiction to hear the application for “Stay of Execution and or Suspension of the Decision of Respondent Pending Appeal”.
In the Affidavit in Support and the oral submissions by Counsel for the Applicant, they argued against the decision of the Single Justice that the Court did not have jurisdiction to entertain the application for stay, and also argued the merits of their case to convince the Court to grant their applications for stay. A summary of their arguments is that the Single Justice was wrong in finding that there was no valid appeal pending for the reason that an appeal is a creature of statute and therefore the Applicant could not have filed his appeal at the Registry of the General Legal Council when Rule 18 of C.I.19 provides specifically that an appeal shall be filed in the “court below”.
The Applicant contended further that regarding the applications for Stay of Execution and/or Suspension of the Decision in question the Respondent would not suffer any hardship or inconvenience if the applications were granted. Furthermore, the charges brought against the Applicant in themselves could not be sustained under the law.
The Applicant has urged us to make a pronouncement on the merits of the application for stay and or suspension of the decisions of the Council and so we will comment on that briefly before dealing with the issue of the jurisdiction of this Court which we consider to be the more fundamental issue in the instant applications.
As aforesaid the original applications were titled “Motion on Notice For Stay of Execution And Or Suspension of the Decision of Respondent Pending Appeal”.
In practical terms, the applications are for the suspension of the decisions of the Respondent simpliciter; they cannot be for stay of execution since no known regular modes of execution can be applied to the orders of the Respondent herein. Their orders are to take immediate effect and therefore cannot be stayed. Nonetheless in considering an application for suspension of the said orders the Court would be guided by criteria applicable in applications for stay of execution. In this wise, the law permits us to be guided by authority from other jurisdictions.
In the case of PJQ vrs Law Institute of Victoria Ltd  VSCA 326, the President of the Court of Appeal of Australia laid down the law in relation to application for stay pending appeals of suspension orders meted out by VCAT (then the Full Legal Profession Tribunal) and stated as follows:
“The principles governing stay applications in proceedings of this kind were clearly elucidated by the former President, Winneke, P. (with whom Chernou, JA agreed) in Woods vrs The Legal Ombudsman:
“Legal practitioners who seek a stay of orders made by their disciplinary tribunal while an appeal is pending or for any other reason have the onus of persuading the court that such a stay should be granted. There are a number of balancing factors which will bear upon the Court’s decision as to whether such an indulgence should be afforded. The first is that disciplinary proceedings against those who hold themselves out to the public as fit to practice, in this case the solicitors, are sui generis. The discipline imposed, while punitive in its applications to the practitioners involved is very largely protective of the public interest. Other matters which this Court will take into account will include the seriousness of the conduct which has led to the tribunal’s decision and the prospects which the instituted appeal has of succeeding”.
In the instant case, the Applicant is on record to have pleaded guilty to the charges brought against him. He was therefore deemed to have admitted the allegations of professional misconduct and was accordingly convicted and sentence passed suspending him from practicing as a lawyer for a specified period.
In our opinion, the submissions made by the Applicant are matters for trial, and are to be looked at in line with evidence adduced. What the Applicant is urging on this Court are extraneous to the applications before us because it is based on evidence which is not part of the processes before us.
However, as submitted by Counsel for the Respondent, since the instant applications are to set aside the Ruling of the Single Justice; that this Court lacks jurisdiction to hear the application for stay, we shall not over flog the question of the merits or demerits of the application for stay. The submissions made by Counsel for both Parties are the same arguments made before the Single Justice, and which have been exhaustively discussed in the Ruling.
In delivering himself, the Learned Single Justice stated thus:
“An appeal from a decision of the Disciplinary Committee of the General Legal Council (GLC) lies to the Court of Appeal. This Court derives its jurisdiction to hear appeals from the Disciplinary Committee of the GLC from Section 21 of the Legal Profession Act 1960 (Act 32) which provides as follows:
(21)“where the Disciplinary Committee on the conclusion of an inquiry into a disciplinary case directs the taking of disciplinary measures or postpones its decision under Section 20, the lawyer in whose conduct the inquiry was made or the complainant may, within twenty-one days from the date on which the decision of the disciplinary Committee is communicated by the Committee, appeal to the Court of Appeal
a. On a question of law, or
b. On a question of fact with the leave of the Disciplinary Committee or of the Court”.
Also Section 11(1) of the Courts Act 1993 (Act 459) provides as follows:
11 (1) “The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of the constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by the Constitution or any other law”.
The lawmaker in Section 11 (1) of the Courts Act thus recognized the appellate jurisdiction of the Court of Appeal from fora/forums other than from the High Court and Regional Tribunals. The Legal Professions Act 1960 (Act 32) did not specify where the Notice of Appeal was to be filed against the decision of the Disciplinary Committee of the General Legal Council. But by law, it is the Rules of the in Appellate Court that determines where the Notice of Appeal in each case ought to be filed.”
We are in agreement with the submissions of Counsel for the Respondent that the combined effect of Rules 82 and 67 of C.I.19 is that the Court of Appeal has jurisdiction to hear appeals from the General Legal Council; just like the National House of Chiefs. That, the General Legal Council is a quasi-court/tribunal as per Section 11 of the Courts Act, 1993 (Act 459) is not in dispute. Thus, the Applicant ought to have filed his Notices of Appeal at the Registry of the General Legal Council.
The Learned Single Justice, in his consideration of the applications before him, relied on the very instructive cases of Nyantakyiwa alias Kissi vrs. Kissi & Ors [1982-83] GLR 480; Merah vrs. Okrah [1984-86] 1 GLR 400 and Frimpong & Anor vrs. Nyarko [1998-99] SCGLR 734. He also directed himself on the provisions of Rules 8(2), 9(3), 14 and 28 of C.I.19.
Counsel for the Applicant cited the case of Republic vrs High Court (Fast Track Division) Accra; Ex Parte Teriwajah & Korboe (Reiss & Co (Ghana) Ltd Interested Party [2013-2014] 2 SCGLR 1247 in support of his submission that the Disciplinary Committee of the Council is not a court. Given the facts and the ratio of the said case, we are unable to appreciate its relevance to the instant applications.
Further, the ratio in the case of Republic vrs. High Court; Ex Parte Allgate Co. Ltd) Amalgamated Bank Ltd Interested Party) [2007-2008] SCGLR 1041 is that all breaches of the Rules of Court are curable and may be waived by the Court in the exercise of its discretion except where the irregularities are fundamental and give rise to the determination of foundation issues of jurisdiction and can therefore not be waived, as the Single Justice rightly found.
The instances where such breaches or violations of a step in proceedings become fundamental are not exhaustive, but they include situations where there is:
A breach or a violation that borders on want of jurisdiction of the court.
A breach of a statutory provision or an enactment other than a breach of the rules of court; and
A breach of any of the constitutional provisions.
Thus in the above-cited case, the Supreme Court acknowledged the fact that in some situations the entire proceedings in a case could be set aside for non-compliance with a rule of practice. The Court proceeded to cite some instances of violation of the rules which result in invalidation thereof. And these included want of jurisdiction as decided in Frimpong vrs. Nyarko (supra) where the Supreme Court held in Holding 4 as follows:
“A study of the rules regulating civil appeals in general shows that they can be broken down into two sets: the first, leading to the filing of the appeal, and the second, regulating the bringing of the appeal thus filed to a hearing. The first set includes rules on time within which to file an appeal, the obtaining of leave, if any, and the forum where the notice of appeal ought to be filed. When, in compliance with the first set of rules, a notice of appeal is filed (such as required by rule 8 (30) of C. I. 16), the appeal is deemed to have been lodged at the appellate court to which the appeal is directed ….. The procedural rules, after the filing of the notice of appeal, come under the second set. And they include the settlement of the records, the fulfillment of the conditions of appeal imposed by the registrar, the filing of the parties’ statement of case, etc ….. Defaults in connection with the rules in the first set are fundamental and go to the root of the appeal and therefore leave the court with no discretion but to dismiss the appeal in limine. They affect the notice of appeal itself, invalidate it and render the appeal void. However, defaults in connection with the second set of rules are not fundamental, since a valid appeal had already been lodged. They affect the prosecution of the appeal and, in this wise, are conveniently described as procedural. Such defaults therefore render the appeal only voidable”.
A similar view was expressed by the Supreme Court in the recent unreported case of Standard Bank
Offshore Trust Company Limited vrs National Investment Bank Limited & 2 Others (Civil Appeal No J4/63/2016, dated 21ST June 2017)
We thus find that the Single Justice had regard to sound legal principles when he held that this Court had no jurisdiction to entertain the applications. We are not persuaded by the arguments proffered by the Applicant.
Having so found, there is a legal issue, though not consequential to the outcome of these applications, which arose from the reference by the Single Justice to the unreported decision in the case of Hansen
Kwadwo Koduah vrs. The Disciplinary Committee of the General Legal Council (H3/318/2017) dated 03/04/2017. It appears that the Learned Single Justice did not advert his mind to the interpretation of Article 136 (5) of the 1992 Constitution as held by the Supreme Court in the case of Farmers Services Ltd vrs. Julisan Co. Ltd & Salifu [2007-08] SCGLR 495 (Holding 2) where the Court stated as follows:
“The Court of Appeal was bound by its previous decisions in terms of article 136(5) of the 1992 Constitution only when the decisions had been given on the merits in determining the issues before the court. A differently constituted Court of Appeal could not be expected to be bound by ruling in an interlocutory application by another panel where the facts forming the basis of the ground of appeal had not formed part of the record of proceedings before the panel in the substantive appeal”.
To that extent, the position of the Learned Single Justice that he is bound by the decision in the Hansen Koduah case was made per incurium the decision of the Supreme Court.
Save and except this observation we are satisfied that the Learned Single Justice did not err, as urged on us by the Applicant, when he dismissed the Applicant’s applications for the reason that the Court had no jurisdiction because there was no valid subsisting Notice of Appeal. There being no legal or equitable ground to disturb the Ruling of the Single Justice, the two Applications for an order of reversal fail and we accordingly dismiss them.