IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2017
J. OPOKU BOATENG & CO - (Plaintiff/Respondent/Respondent)
RAOUL ABOU-CHEDID, GOLD COAST SECURITIES LTD AND K. O. AMPONSAH- DADZIE - (Defendant/Appellant/Applicant)
DATE: 20TH FEBRUARY, 2017
CIVIL MOTION NO: H3/100/2017
JUDGES: M. DORDZIE JA(MRS) SITTING AS A SINGLE JUDGE
DWAMENA ASARE FOR THE 1ST DEFENDANT/APPELLANT/APPLICANT
MARGARET OWUSU FOR THE PLAINTIFF/RESPONDENT/RESPONDENT
The respondent in the application before me instituted an action in the High Court against Raoul Abou-Chedid as first Defendant, Gold Coast Securities Ltd as 2nd Defendant and K. O. Amponsah-Dadzie as 3rd Defendant.
The following are the reliefs the plaintiff is seeking in the said suit:
Against the 1st defendant an order for recovery of USD78, 750.00 representing 15% of the judgment debt due the 1st defendant from the 2nd defendant as agreed legal fees payable by the 1st defendant to the plaintiff.
An order for perpetual injunction restraining the 2nd defendant from paying to the 1st Defendant the sum of USD 80, 000.00 held by the 2nd defendant out of the judgment debt due 1st defendant.
A further order restraining the 1st& 3rd defendants from collecting any further monies from the 2nd defendant by way of interest on the judgment debt due from 2nd defendant without reference to the plaintiff.
A declaration that the conduct of the 3rd defendant is contrary to the legal profession’s Code of Conduct, Ethics and etiquette.
The plaintiff/respondent herein obtained an interim injunctions order against the defendants mentioned in the writ in the trial court
The 1st defendant/Applicant applied to the trial court for the writ to be struck out or dismissed. That application was dismissed by the trial court.
The 1stdefendant / applicant herein had appealed against the decision dismissing his application. The
3rddefendant in the suit Mr. Amponsah-Dadzie filed the notice of appeal and is representing his co-defendant as counsel in the interlocutory appeal.
Mr. Amponsah-Dadzie then brought the present application before this court praying for an order to stay proceedings in the substantive suit pending before the High Court.
The Plaintiff/Respondent, J. Opoku Boateng & Co filed a notice of preliminary objection on the ground that the legal representation of the 1stdefendant by the 3rd defendant is contrary to the practice and ethics of the legal profession. This court ordered both counsel to file written submissions.
This has been done. Counsel for the plaintiff / respondent in her argument gave the background to her ground of objection and said J. Opoku Boateng & Co acted as counsel for the 1st Defendant/Appellant/Applicant, in a suit he instituted against the 2nd defendant Gold Cost Securities. At the hearing of that suit Mr. Amponsah-Dadzie was called as a witness. The 1stdefendant/ applicant won the case. The judgment in that case is attached to the written submission of the respondent as exhibit “PM1.” Gold Coast Securities appealed against the said judgment. While J Opoku Boateng & Co were still representing the 1st defendant/applicant in the appeal, they received a notice of change of solicitor from the 3rd defendant. The 3rd defendant Mr. Amponsah-Dadzie took over and represented the 1st defendant in the appeal and is still representing the 1st defendant in a further appeal in the case in the Supreme Court.
This, the respondent argued is unethical on the part of Mr. Amponsah-Dadzie. He flouted Rule 7(2) of the Legal (Professional Conduct and Etiquette) Rules, 1969 LI (613)this rule reads:
“A lawyer shall not appear as witness for his own client except as to merely formal matters such as the attestation or custody of an instrument, or the like, or when it is essential to the ends of justice.
If he is a necessary witness with respect to other matters, the conducting of the case should be entrusted to another lawyer.”
Counsel referring to the statement of claim in the substantive suit which is attached as “RR3” further submitted that in view of matters raised in the pleadings, it is likely the 3rd defendant will be a witness in the substantive case. In such a circumstance he cannot represent the 1st defendant as counsel in the suit; that will be in breach of paragraph 52 of The Ghana Bar Association, Constitution, Code of Ethics and Regulation. The said paragraph reads:
“1. A lawyer commits misconduct if he acts on behalf of a client in proceedings in which he knows he will be called as a witness: Provided that he may act as such witness for the purpose of giving a purely formal proof in evidence.
2. If a lawyer is a necessary witness to other matters the conduct of the case should be entrusted to another.”
Counsel further argued that it is unethical for the 3rd defendant to act as counsel for a co-defendant in the same suit. The Legal Practitioners Code of ethics may not have a specific provision on that position, but there is obvious conflict of interest which the court should not overlook. Counsel urged the court to be guided by decisions from other common law jurisdictions and hold that it is unethical for counsel who is a party to the substantive suit to represent his co-defendant in this court.
Counsel in conclusion submitted that the concept of legal representation makes it impossible for the 3rd defendant in practice, to act as a lawyer to a party and at the same time be a litigant in the same suit. Counsel urged the court to be guided by the case of Gani Fawehinmi v Nigerian Bar Association (1989)2 NWLR (Part 105) 495 where the Nigeria Supreme Court discussed the issue of a defendant representing a co-defendant as counsel in the same suit.
In reply to these submissions counsel for the applicant took issue with the form of the notice of objection filed by the respondent. Counsel contended that the form does not conform to what is specified by Civil Form 8 under Rule 16(1) of CI 19. As such he objects to its being entertained by the court.
I have taken a close look at the notice filed by the respondent, it meets the requirements of Rule 16(1). In essence it had served the purpose of the requirement; the applicant had been put on notice of the ground of objection more than three clear days before the hearing. If there is any technical defect in the form of the notice at all, it does not affect the substance in anyway. The objection by the applicant to the notice is hereby over ruled.
Counsel further submitted that the respondent had endorsed his representation of the 1st defendant in the lower court and therefore is estopped from doing so in this court. So long as he is not a witness in the matter before this court he is qualified to represent the 1st defendant applicant.
The applicant in his application before me is seeking an order of stay of proceedings in the case pending before the High Court in which the 3rd defendant Mr. Amponsah-Dadzie is a co-defendant; the outcome of the appeal and the present application affect the interest of the 3rd defendant, the conflict of interest of the 3rd defendant is very obvious in the circumstance. The Nigerian Supreme Court illustrate the position clearer when it held in the Gani Fawehinmi v Nigerian Bar Association case cited supra: “A legal practitioner who is a defendant to an action can only appear on his own behalf as a defendant and conduct his own case from the bar of the court…..He cannot represent and conduct the case of co-defendant. As a litigant he cannot appear in two capacities-i.e. first in his person, and secondly as a legal practitioner in the same case”
The 3rd defendant as a party in the case has every right to conduct the case for himself in person. Presently he is appearing before the court in dual capacity, as a litigant and as counsel for his co-defendant. He may argue he is not an appellant in this court but the outcome of the appeal and this application affect his interest, there lies the conflict of interest. It is therefore inappropriate that he continues to represent the 1st defendant in matters he has brought before this court.
Additionally, that Mr. Amponsa-Dadzie is a likely witness in the substantive case in the High Court is demonstrated in the reliefs the plaintiff respondent is seeking in the court and the issues raised in the averments in the statement of claim exhibit RR3. He is aware of this; his continuous acting as counsel in the case both in the trial court and in the application he has brought to this court is in breach of paragraph 52 of the Ghana Bar Association, constitution, code of Ethics.
The preliminary legal objection is in place, it hereby upheld.
The application for stay of proceedings of the case pending against counsel and his co-defendants is hereby dismissed.