IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
HANSEN KWADWO KODUAH - (Respondent/Appellant/Applicant)
GENERAL LEGAL COUNCIL AND 1 OTHER - (PetitionersS/Respondents/Respondents)
DATE: 8TH FEBRUARY, 2017
CIVIL APPEAL SUIT NO: H3/117/2017
JUDGES: V. OFOE JA, B. ACKAH-YENSU JA, C. SOWAH JA
MR. CHARLES PUOZUING FOR APPLICANT
AKOSUA ASIAMAH FOR RESPONDENT
The Respondent/Appellant/Applicant (the “Applicant”) is praying the Court to set aside its decision dated 2nd November 2016 (the Court differently constituted). The said decision/ruling overturned an earlier ruling by a single Justice of the Court of Appeal.
On 29th July, 2016 the Court of Appeal, constituted by a single Justice exercising its jurisdiction under Article 138 of the 1992 Constitution and Section 12 (b) of the Courts Act, 1994 (Act 459) granted a stay of the orders of the Disciplinary Committee of the General Legal Council pending the substantive appeal at the Court of Appeal.
In October 2016, the Respondents herein filed an application invoking the “reconsideration jurisdiction” of the three (3) member panel Justices of the Court of Appeal under Section 12 (b) of Act 459 and Article 138 of the Constitution.
The application was slated to be heard on the 2nd of November, 2016. However, on the said date, the Applicant could not attend court because he had undergone an eye retina surgery on 27th October 2016. He nonetheless sent a representative, Kofi Owusu, to the Court with a letter from himself together with a medical report.
According to the Applicant, his Counsel was also absent in court on that day, but had discussed the Applicant’s predicament with Counsel for the Petitioners/Respondents/Respondents (“the Respondents”) and had also sent a letter to the Court to that effect. On the said day however, the Respondents’ Counsel insisted on moving the application and same was moved and granted, thus setting aside and reversing the decision of the single Justice.
The Ruling of the Court is as follows:
“By Court Respondent is absent. His lawyer is absent. We noticed that Respondent has not filed an affidavit in opposition. After listening to counsel for the Applicant, we agree with him that part of the appeal is against the facts and leave ought to have been obtained from the Disciplinary Committee of the General Legal Council or the Court of Appeal the Appeal is not proper before the court in view of Section 21 of the Legal Profession Act, (Act 32) the other reliefs which hinge on the improper appeal cannot be granted. We are of the view that our brother erred in granting the application for stay of execution on this ground alone, we are entitled to grant the relief sought. We accordingly reverse the ruling dated the 29/7/2016.”
It is the Applicant’s submission that the said decision exceeded the Courts jurisdiction under Article 138 of the 1992 Constitution and also the Courts Act, when they ruled that the appeal was not properly before them. In the view of the Applicant, the application before the Court was not the substantive appeal and the grounds thereof but rather the justification or otherwise of the stay orders of the single Justice. He therefore submits that the decision of the 3 Panel was void and a nullity for excess and lack of jurisdiction.
Furthermore, the interpretation of Section 21 of the Legal Profession Act, 1960 (Act 32) by the Respondents’ Counsel misled the Court into thinking that one always has to obtain leave of the General Legal Council or the Court of Appeal whenever a suspended or aggrieved lawyer wants to appeal against a decision of the Disciplinary Committee of the General Legal Council.
The Applicant also submits that the Court committed errors of law which were patent on the face of their ruling when they decided that the appeal was not properly before the Court which amounted to the pre-determination of the substantive appeal. The Applicant was not given an opportunity to respond to arguments regarding the appeal, thus breaching the audi alteram partem rule.
The Respondents, on the other hand, contend that the instant application is unknown to any practice and procedure of the Court of Appeal and an abuse of the court processes.
The Respondent also contends that it is the pronouncements by the single Justice, in his ruling, to the effect that he had jurisdiction to entertain the application that the full bench found to have been made in error. That, the Court was right in finding that the Notice of Appeal was not properly before the Court and that the other reliefs which hinged on the improper appeal could not be granted. Furthermore, the Applicant elected not to file an affidavit in opposition to the Respondents’ motion for the reversal of the ruling of the single Justice. Having so elected, the Applicant’s ground that the audi alteram partem rule was breached is without any merit. The Respondent contends further that, the
Applicant’s appeal dated 14th June 2016 was not determined on its merit.
We shall start with the application before us, headed “Motion on Notice”. Respondents contend that it is not known in practice or procedure. Contrary to the Respondent’s opinion, it is the practice that when applying to set aside an order or ruling which an applicant contends is void, it is by motion. It is deemed that such an applicant is coming under the inherent jurisdiction of the court. This position was espoused by my brother Ofoe JA when delivering the lead judgment in Nii Nueh Odonkor vrs The Executive Director, Economic and Organized Crime Office & 2 Ors Gh. Monthly Judgments, February 2016, pg 190. He stated as follows:
“…… where the judgment or order is void and such orders can be set aside at any time. For such orders are considered not only bad but incurably bad. They are automatically null and void. One of the methods for attacking a void order is by motion. Refer to the case of Kumnipa II vrs Ayirebi [1987-88] 1 GLR 265 at 285”.
In any case, the Courts have moved away from purely technical grounds being relied upon to avoid determining matters on their merit. In order to do substantial justice, an application should be read together with the affidavit in support and if it informs the Court of the prayer being sought, technicality should not be used to dismiss it; unless the application is irremediably incurable.
We must point out here that the deposition in the Respondents’ Affidavit in Opposition, that the Court found that the single Justice erred when he made pronouncements that he had jurisdiction to hear the application, is not borne out by the record. The issue of the jurisdiction of the single Justice to hear the original application is not in question at all. The 3-Justice Panel of the Court rather took issue with the Respondent not having sought leave of the Disciplinary Committee or the Court of Appeal before filing his appeal based on the fact that there were some grounds of appeal that were on questions of fact. Consequently, the Applicant is contending that the ruling of the Court is a nullity because it exceeded its jurisdiction when it came to a conclusion that the appeal was not properly before the Court.
So, what exactly does the law say?
Section 21 of the Legal Profession Act, 1960 (Act 32) is in respect of the right of appeal available to a lawyer who has had adverse findings made against him regarding matters of stated misconduct leveled against him by a complainant to the Disciplinary Committee of the General Legal Council. Such an appeal must be made within 21 days from the date on which the decision is communicated to him and is as of right on any question of law, but with leave of the Disciplinary Committee or Court of Appeal on any question of fact.
From the Notice of Appeal filed by the Applicant almost all the grounds are on questions of law with the exception of one which may be said to be on question of fact (ground 6). And so, strictly speaking, it is only with regard to ground 6 that the Applicant was required to seek leave. Be that as it may, the critical question is whether or not the Court ought to have entertained such a submission from the Respondents?
The application to the 3-Jusitce Panel for reconsideration of the single Justice’s decision was not made available to the Court. The transcripts of the proceedings at the hearing of the application were also not available. However, from the ruling of the Court (Exhibit “GJ5”), it is evident that Counsel for the Respondents made viva voce submissions to the effect that part of the appeal was on questions of fact and therefore the Applicant ought to have sought leave. The Court accordingly opined that the appeal was not properly before the Court. On this basis, the court concluded that the single Justice erred in granting the application for stay, and consequently granted Respondents’ relief.
It is significant to note that in determining any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court,. The court is not required to come to a decision which ought to be made in respect of the substantive action. To do otherwise is to prejudge the matter in respect of which evidence is still to be led. See Crystal City Limited vrs Paul Amoo Gottfried & Anor Ghana Monthly Judgments 3rd January, 2011, pg 94.
The application before the single Justice was for the Court to stay/suspend the orders of the Disciplinary Committee of the General Legal Council. In effect, it was for stay of execution pending appeal. The single Justice in his 8 page Ruling discussed the principles on which stay may be granted and his reasoning for exercising his discretion in favour of the Applicant, namely that the Applicant had demonstrated exceptional circumstances.
The ruling of the court duly constituted did not touch on any of the issues dealt with by the single Justice but merely opined that the application ought not to have been granted on the sole ground that the appeal was not properly before the court.
The Applicant contends that the Ruling amounts to a pre-determination of the substantive appeal. The question therefore is whether it was proper for the Respondents to raise the issue. We are of the view that Counsel for the Respondents was well within their rights to have raised a legal objection to the application on the basis that the Applicant had breached Section 21 of Act 32.
We would disagree with the submission of the Applicant which appears to suggest that there is a strict limitation on a court from forming an opinion about whether a substantive appeal is properly before it when dealing with an interlocutory application.
In Tindani Vs. Chief of Defence Staff (No. 1)  SCGLR 724, the issue of an appeal which was clearly filed outside the time frame of C. I. 19 was raised suo motu by the Supreme Court which held that it was unable to consider the appeal on its merits. The issue whether an appeal is properly before the court is a jurisdictional issue and must be addressed by any court entertaining the proceedings
(See Tindani Vs. Chief of Defence Staff (No. 2) dated 27th July, 2011.
The distinction we will draw is what the court is required to do when the issue of whether the appeal is properly before it does not relate to the date of filing of the appeal as in the Tindani cases, thus not so clear cut. AKUFO-ADDO v. CATHELINE  1 GLR 377 S.C, gives a guide as to when the court can proceed without giving a party the opportunity to present an argument. The court must be satisfied beyond doubt, first, that it had before it all the facts or materials bearing upon the contention being taken by it suo motu; and secondly, that the point was such that no satisfactory or meaningful explanation or legal contention could be advanced by the party against whom the point was being taken even if an opportunity was given him to present an explanation or legal argument.
We are of the opinion that this issue that was raised in this present case was not clear cut. The Applicant’s submission on this point is that he was denied the opportunity of being heard before the court gave a Ruling that in effect disposed of the whole appeal.
We are in agreement with the Applicant that in denying him the opportunity to respond to the arguments made by Respondents’ Counsel, the court breached the audi alteram partam rules.
One of the most classic expositions of the general principle of the audi alteram partem rule under the common law can be found in the dictum of Lord Lorebun in the case of Board of Education vrs Rice  AC 179, in which he stated that:
“…… in such cases the Board of Education will have to ascertain the law and also to ascertain the facts.
I need not add that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who decides anything.”
Ghanaian authorities such as Aboagye vrs Ghana Commercial Bank Limited [2001-2002] SCGLR 797 and Awuni vrs West African Examinations Council [2003-2004] 1 SCGLR 471 have buttressed the point that the non-observance of the audi alteram partem rule or the rules of natural justice is an infringement of the right to administrative justice as enshrined under Article 23 of the 1992 Constitution.
In the case of Lagudah vrs Ghana Commercial Bank [2005-2006] SCGLR 388, the Supreme Court clarified the principle further. In dismissing the appeal of the appellant held, quoting the decision in The Republic vrs Ghana Railway Corporation  GLR 752, Holding 2, that “the core idea implicit in the natural justice principle, of audi alteram partem was simply that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question and answer any arguments put forward against it. The principle does not require that there must be a formal trial of a specific charge akin to court proceedings. In dealing with the principle of natural justices, one has always to bear in mind that the principles are substantive rather than procedural safeguards. Therefore the fact that a particular formal procedure is not adopted does not itself imply that the principle has not been applied in an appropriate case”.
Atuguba and Date-Bah JJSC, in the case of The Republic vrs The Court of Appeal and Thomford; ex parte Ghana Chartered Institute of Bankers  2 SCGLR 941 expressed very clear views to the effect that the failure of an administrative body, court or tribunal to hear a party out on a matter is prima facie an infraction of the audi alteram partem rule which will render whatever decision is arrived at by it void and a nullity.
The 3-Justice Panel, heard the legal objection raised by Counsel for the Respondents in the absence of both the Applicant and his Counsel. The Respondents argue that the Applicant even if he was absent, ought to have filed an affidavit in opposition. However, our view is that the issue that was raised was a question of law. The rule is that arguments of law ought not to be made in an affidavit. Therefore whether or not the Applicant filed an affidavit is not so important. Moreover, if the point was raised viva voce, the Applicant was entitled to an opportunity to contest the point.
In our opinion, the point raised by Counsel for the Respondents was a substantial one that the Applicant needed to respond to. Taking into view the effect of the Courts decision on the appeal, the Court ought not to have rushed into giving the ruling it did. Inasmuch as the Respondent’s were entitled to raise a legal objection to the application even though the Applicant had not filed an affidavit in opposition to the application, natural justice required that the applicant should have been given an opportunity to be heard in response.
The Supreme Court stated in the well known case of Mosi vrs Bagyina  1 GLR 337, SC on void decisions thus:
“The law as I have always understood it, is where a court or a Judge gives judgment or makes an order which it has no jurisdiction to give or make or which is irregular because it is not warranted by any enactment or rule of procedure, such a judgment or an order is void, and the court has an inherent jurisdiction, either suo motu, or on the application of the party affected, to set aside the judgment or the order”
On the strength of the decision in Mosi vrs Bagyina (supra), and The Trust Bank Ltd vs G. K. Appiah & ors  39 GMJ 122 S.C we find that the decision of the Court dated 2nd November 2016 is null and void and is hereby set aside
(JUSTICE OF APPEAL)
(JUSTICE OF APPEAL)
I have read the ruling delivered by my sister, Her Ladyship Ackah Yensu, and I am in entire agreement with her conclusion that this is case the applicant, Hansen Koduah, should be granted his application setting aside the ruling of the full panel of this court on the grounds that their decision, with due respect, is void for breach of the natural justice rule of audi alteram partem rule. My sister has given the background to this case narrating the facts sufficiently I have no business repeating them here. My main business is to add my bit why I give her my support.
After the single panel had granted the application of the present applicant, Mr. Koduah, staying the orders of the Disciplinary Committee of the General Legal Council, the General Legal Council and its Disciplinary Committee, the respondents before us, were aggrieved and sought the assistance of the full panel, as they are entitled to do, under Article 138 of the 1992 Constitution, to reconsider the decision of the single judge. The full panel sought to do that but appeared to have proceeded in a manner not comforting to the applicant, hence his entry into this court, also a full panel. Of course being a full panel like the one whose decision he is challenging he can’t appeal to this court unless he can establish that the earlier full panel’s decision was null and void for which reason it should be set aside. It is only from this perspective that we view and allow the applicant’s presence before us. Has the full panel taken any decision which can be castigated as null and void?
As clearly stated in the lead judgment the earlier full panel had the sole duty of reconsidering whether the single panel was right in staying from implementation the orders granted by the respondents, in this case the Disciplinary Committee. That was the matter before them. What happened at the hearing of this application has been captured in the lead judgment. After listening to Counsel for the respondents, then applicants, the court ruled
“…. Respondent absent. His lawyer is also absent. We notice that respondent has not filed an affidavit in opposition. After listening to counsel for the applicant, we agree with him that part of the appeal is against the fact and leave ought to have been obtained from the Disciplinary Committee of the General Legal Council or the Court of Appeal. The appeal is not properly before us in view of section 21 of the Legal Profession Act, Act 32.
The other reliefs which hinge on the improper appeal cannot be granted. We are of the view that our brother erred in granting the application for stay of execution on this ground alone, we are entitled to grant the relief sought. We accordingly reverse the ruling dated the 29/7/2016”.
From this ruling it is clear that the court proceeded more or less on a preliminary point whether the substantive appeal was properly before the Court of Appeal. The panel gave a negative answer. The appeal was not properly before them because the applicant, Mr. Kodua, whose appeal included matters of fact, did not seek leave from the General Legal Council or the Court of Appeal in terms of section 21 of the Legal Profession Act, before filing his appeal. This reasoning was the first point of attack by the applicant. It is his submission that the court of appeal had no jurisdiction to veer off the main issue before them and proceed to determine the competence of the main appeal before the court of appeal. For that reason their decision quoted above should be set aside as null and void. The main issue being whether the stop order of the single judge should be vacated. Just as alluded to in the lead judgment I am not in agreement with this view of the applicant. Now where the very stratum of an application before a court, in this case the court of appeal, is in any way defective nothing prevents the court from taking a critical look at the defect and make the appropriate declarations thereon. This appears to be what happened in the case. The court of appeal’s attention having been drawn to a missed step by the applicant before filing his appeal, it had the jurisdiction to take up the matter and make a declaration thereon. It is my considered opinion that the court was right in acting on the lapse of the applicant in failing to seek for leave before filing his appeal. Whether the court of appeal was right in its view of section 21 of the Legal Profession Act after considering the issue is another matter, which in any case will not ground a charge of nullity if they were wrong. Such wrong should be a subject matter of an appeal.
What has engaged our attention is whether in the absence of the applicant the court of appeal could have taken the issue of the competence of the appeal relying on section 21 of the Legal Profession Act. The recording for the day at the hearing before the court of appeal bears out the fact that both the applicant and counsel were not in court. But there was a representative of the applicant in court. Of course absenting yourself from court and sending a representative when you have been given notice of the hearing is not enough to stay the hands of the court from proceeding in the matter for the day. But the court may grant an indulgence if there are really weighty reasons for the absence. Applicant in his paragraph 7 of the affidavit in support of his motion before us stated:
“That on the 2nd day of November 201 I was personally absent in court because I had undergone an eye retina surgery on the 27th day of October 2016 and was discharged on the 29th of October 2016 save and except that I was represented by one Kofi Owusu who in addition transmitted a letter from me including from the hospital and pictures of the surgery to the court”
This appears to be the reason for his absence. Accepted. But the next question is what about his counsel? Applicant offered no reason. In such a situation the court has the discretion to refuse to adjourn the case and proceed into the days matter without fear of being charged for breach of natural justice. For the applicant was given notice of the trial and failed to appear.
I must be quick to add that the situation we have here is strikingly different. Here it is the court of appeal delving into an issue, and a major issue, which was adversely determined against the applicant in his absence without notice to him. A decision which had the potential of forever submerging applicant’s right of appeal perpetually out of the court stream, if the period for filling interlocutory appeal has expired. As earlier mentioned the court’s business for the day was to determine whether the single judge exercised his discretion properly when he granted the stay of the Disciplinary Committees orders. The competence of the appeal file by the appellant, which was predicated on section 21, was not a matter to which the applicant has been given prior notice of. With all respect, when it became obvious to the court of appeal that there is this new issue that had cropped up one would have expected an adjournment to enable the applicant to be present to respond to this issue of failing to adhere to the conditions precedent for appealing specified in section 21. I have mentioned that the applicant’s right of appeal could have been destroyed perpetually arising out of the decision of the court of appeal. A real prejudice. That is the more reason the court of appeal should have been more indulgent with the absence of the applicant so as not to breach his right a hearing. When will a court of law insist on the invocation of the natural justice rules, in this case the audi alteram partem rule, depends upon varied circumstances. As was stated in the case of R Vrs Gaming Board of Great Britain Ex Parte Benaim and Khaida (1970) 2QB 417 at 439 it is not possible to lay down rigid rules as to when the principle of natural justice are to apply, nor to the scope and extent. Everything should depend upon the subject matter.
I find the circumstances of this case the ripe one for application of the rule. Having failed to give a hearing to the applicant I will also, like my sister, consider the decision of the court of appeal null and void for breaching the audi alteram partem principle. I adopt the case law authorities referred to by my sister in the lead judgment in support of this conclusion.