IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION 7),
ACCRA - A.D 2019
TORBUI HUTEHU - (Respondent)
GEORGE & DBES ENGINEERING LTD - (Applicant)
DATE: 15TH JULY, 2019
SUIT NO: GJ 304/19
JUDGES: HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE HIGH COURT
It is stated under section 43 of the Legal Profession Act, Act 32 that:
“Every person who draws or prepares any legal document for reward shall endorse or cause to be endorsed thereon his name and address…”
This application mounted by the Defendants/Applicants is anchored on the above statutory provision wherein learned counsel contend that the writ initiated and served on the Applicants is incurably bad as far as the signature on the writ appears above the law firm, Savers Chambers, who issued the writ. That the substantive statutory requirement of the law does not permit a writ or a legal process to be issued by a law firm but rather by a lawyer who has been called to the Ghana bar and whose name appear on the roll of lawyers. Though counsel for the Applicants concede that the name of one Korbla Hlortsi-Akakpo appears on the writ as lawyer for the Plaintiff but it does not appear that the place where the signature is and therefore the writ ought to be dismissed in limini.
The second objection which was not forcefully canvassed by counsel is the capacity in which Plaintiff mounted the action that the action ought to be initiated by a company but not the Plaintiff in his personal capacity.
A proper appreciation of section 43 would not be made unless it is viewed in consonance with Rule 4 of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969, L. I. 613 which states that:
Rule “4(1):A lawyer shall not practise unless he is a member of professional chambers or the pupil of such a member.”
“(4) All professional chambers shall be registered with the General Legal Council”
Whilst the registration of chambers where lawyers who have been enrolled on the roll of lawyers have its place, that is a lawyer cannot practice law unless he does so from a law firm that has validly been registered with the General legal Council, section 43 of Act 32 makes it mandatory for only lawyers to sign legal documents including writ but not the law firm. See the decision of Mabel Agyemang JA in NII LANTE MILLS v MILDRED AMA WOODE (unreported) H3/563/2015 dated 20th October, 2015. And this could be said to even flow from the decision of the decision of the Supreme Court in THE REPUBLIC V. HIGH COURT (FAST TRACK DIVISION) ACCRA; EX PARTE JUSTIN PWAVRA TERIWAJAH AND ANOR (REISS & CO (GHANA) LIMITED, INTERESTED PARTY) CIVIL MOTION NO. J5/7/2013.
I have also carefully read the sublime decision of my learned brother, Bright Mensah J in the case of JAMES DANFUL v EMMANUEL BOADU YEBOAH, Suit No AP 127/2015 delivered on the 17th of July, 2015. See also EBUSUAPANYIN KOBINA ISSAKA v EGYARE KOTOMPO, CA
However, each case as it is always said, must be viewed with the peculiarities of its own. Just beneath the signature on the writ is the name of the law firm that the lawyer for the Plaintiff operates as Savors Law Consultancy. The name of the lawyer for the Plaintiff also appears but not where the signature is and Korbla Hlortsi-Akakpo appears as the lawyer for the Plaintiff. I will look beyond the position of the signature on the writ. In this respect it will be a pure arid technicality a point if the court were to dwell on the fact that because the signature does not appear to be just above the name of Korbla Hlortse-Akapko, the writ is incompetent. There is enough evidence on the face of the writ for one to know for all intent and purposes that the writ was issued by a lawyer with a valid solicitor’s license. I accordingly rule that the writ issued has not failed to comply with the requirements of Act 32 and it is a validly issued writ.
The second ground of objection is found under paragraph 5 of the affidavit in support of the application wherein George Nugent states that:
“That further, even though the Plaintiff describes himself as a businessman and the owner and manager of Starr Television he woefully fails to demonstrate his capacity in issuing the writ”.
It is true that capacity of a party to commence an action is very fundamental as noted in the case of EDUSEI v DINNERS CLUB SWISS S.A. [1982-83] GLR 809 CA @ 814-815 the court noted as follows:
“It is obvious that a court must be satisfied that the parties appearing as suitors before it did exist as legal personae whether human in form or artificially created. In the latter class of cases, the court must see whether the legal indices that constitutes the clothing really adorn a legally acceptable fictional character permitting access to our court”
And in the case of SARKODIE v BOATENG II  GLR 343 @ 346 the court held that:
“it is trite learning that where the capacity of a plaintiff or complainant or petitioner is put in issue he must if he is to succeed, first establish his capacity by the clearest evidence”
It should however not be lost on one that Defendant entered conditional appearance and sought by this motion founded under Oder 9 Rule 8 of C. I. 47 to raise this issue of capacity of the Plaintiff to initiate the action. The scope of the matters that could be raised in an application consequent upon an entry of conditional appearance is now settled in the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] SCGLR 398; REPUBLIC v HIGH COURT, DENU; EX PARTE AVADALI IV [1993-94] GLR 561, to the effect that conditional appearance was to enable a Defendant who intended to object to the issue or service of a writ or notice of a writ on him, or the jurisdiction of the court, to apply to the court to set aside the writ or notice of the writ or the service on him. And that it was not a carte blanche for a Defendant who had entered a conditional appearance to move the court to have the writ set aside because he had a legal defence, even if unimpeachable, to the action.
In other words the matter of capacity on the face of this case will require evidence to determine it and in such matters the proper course of action is for a Defendant to wait where at the application for directions stage and in accordance with Order 32 Rule 5 and Order 33 Rules 3 and 5 of C. I 47, such an issue is set down for preliminary determination. The nature of the objection to the capacity of the Plaintiff at this moment may be deemed to be premature and I think counsel for Applicant, Korsah Brown, Esq concede this point.
Having upheld the validity of the writ I decline the application and make no order as to cost.