ACCRA - A.D 2019

DATE:  8TH MARCH, 2019
SUIT NO:  GJ/541/2018


I. Introduction:

[1] The issue in this application before me revolves arund the very thorny problem of conflict of interest that occasionally raises its ugly head in every solicitor’s practice/life. Undoubtedly, the legal profession is or should be vigilant to the problems of conflict of interest because it can indeed be an albatross around the neck of any solicitor or barrister. It is a problem that ought to be addressed when raised because it concerns the preservation of the integrity of the legal profession and ultimately the administration of justice.


[2] The 2nd and 6th Defendants/Applicants herein are praying this Court for an order to dismiss the Plaintiff’s Writ of Summons and the Statement of Claim on the grounds that the Solicitors Amarteifio & Co, Ayawaso Chambers are in a conflict of interest situation because they have acted and continue to act for the 1st Plaintiff against the 2nd Plaintiff in some pending cases.



[3] It recalls that on the 6th day of April, 2018 the Plaintiffs commenced this instant action by issuing a writ of summons against the Defendants herein for certain reliefs endorsed on the writ of summons. The reliefs are as follows:

a. A declaration that the Defendants have never been appointed Trustees of the 2nd Plaintiff Trust.

b. A Declaration that notwithstanding the defect in appointment, the Defendants are liable to the responsibilities and obligations of a Trustee of the East Dadekotopon Development Trust.

c. An order for the appointment of a reputable Audit Firm to conduct a forensic audit of the operations of the East Dadekotopon Development Trust, the 2nd Plaintiff from September 2010 to date.

d. An order against the Defendants for an account in respect of their involvement, dealing or management of the Property and Funds of the 2nd Plaintiff Trust,

e. A declaration that the Defendants jointly and severally, by the acts and omissions have breached fiduciary duty to the Plaintiffs, the Settlors and Citizens of La.

f. An order against the Defendants jointly and severally to repay any amounts unaccounted for or unlawfully dissipate and to return to the Trust all of its property and Funds.

g. An order for interlocutory injunction to restrain the Defendants herein, its agents, assigns, privies or any persons claiming through or under them from holding themselves out as Trustees. Dealing in any way with the property of the 2nd Plaintiff Trust including but not limited to movable and immovable properties as well as bank and other accounts.

h. An Order against the Defendants to indemnify and compensate the 2nd Plaintiff for any losses the 2nd Plaintiff may have incurred as a result of the action or inaction of the Defendants.


[4] Accompanying the writ was a 20-paragraph Statement of Claim. Most of the Defendants entered Appearance through L.S.N. Akuetteh who has filed the instant application for and on behalf of the 2nd and 6th Defendants for an order to dismiss Plaintiffs action on the grounds that the Writ of Summons is incompetent because the lawyer who issued the writ of summons is in conflict of interest.


[5] The synopsis of the Plaintiffs’ claim is that upon the constitution of the 2nd Plaintiff Trust in April 2002, and by the Trust Deed, the mandate of the original Charter Trustees expired after their maximum 4-year term, in 2006. Subsequently, the Defendants begun to hold themselves out as Trustees and begun to deal with the assets of the 2nd Plaintiff Trust. It is the case of the Plaintiffs that in or about December 2016, the Board of Trust was reconstituted but the Defendants have continued to hold themselves out as Trustees and continue to deal with the land, funds and other assets of the Trust. According to the Plaintiffs the instant suit was commenced in order to stop what they contend are the illegal acts of the Defendants.


ii. The Instant Application:

[6] In this application, the 2nd and 6th Defendants are praying the Court to dismiss the action on the following grounds:

a. That, the lawyer of record, Mr. Kwesi Austin who commenced the instant action is a member of the Amarteifio & Co., Ayawaso Chambers to which firm another Lawyer, Amarkai Amarteifio, Esq., belongs and which Lawyer Amarteifio in previous cases has acted for the 1st Plaintiff against the 2nd Plaintiff. The Applicants say Mr. Austin has held brief for Amarkai Amarteifio in a number of these cases thus presenting a conflict of interest in the instant suit where the lawyer on record acts for both Plaintiffs.

That, on account of the foregoing, the Writ of Summons and Statement of Claim is incompetent to invoke the jurisdiction of the Honorable Court; and As a result, the lawyers of Amarteifio & Co, cannot represent the La Mantse/La Stool as well as the East Dadekotopon Development Trust in respect of the management and ownership of the Trust’s lands and assert that the said lands are not for the Trust but for the Stool.


[7] The Plaintiffs’ contest the application on the grounds that:

i) Mr. Kwesi Austin, Esq, who is the lawyer on record in the instant suit has not been the lawyer on record in any suit involving the 1st Plaintiff and the Defendants to have purportedly acted for the 2nd Plaintiff.

ii) that, the allegation of Conflict of interest, which is denied, does not render the Writ of Summons incompetent and incapable of invoking the jurisdiction of the Honourable Court.

iii) The Defendants, who have never been properly appointed as Trustees had no capacity to bring any action(s) on behalf of the ‘East Dadekotopon Development Trust’ for which reason the 2nd Plaintiff was not before the Court in the cases cited.

iv) Assuming, while denying and without admitting same, that the East Dadekotopon Development Trust was a party to those suits, it does not amount to a conflict of interest to act first, against a party and subsequently act for the same party although the reverse, which is not the case in this suit, may constitute conflict of interest.


iii. Written Submission of Counsel:

[8] Further to the filing of the application and the Respondents’ affidavit in opposition and the Applicants’ Supplementary Affidavit, the Court directed that Counsel file written legal submissions instead of viva voce arguments. Both Counsel have complied.


[9] Speaking to the application, learned Counsel for the Applicants relied on all the averments set out in the accompanying affidavit. He next referred to the Plaintiffs’ Statement of Claim and argued that the lawyers who filed the Writ of Summons and the Statement of Claim and who are on record as Counsel for the Plaintiffs “are in conflict of interest situation such that the writ of summons issued by them on behalf of the Plaintiffs is contrary to Rule 5 (10) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613).


[10] Expanding on his arguments Learned Counsel stated that under Rule 5 (10) of L.I. 613, a lawyer is under a duty to avoid representing an interest that will constitute a conflicting interest.

Counsel also cited the case of JONES v. BUCKLE AND OTHERS [1977] 2 GLR 145-151 Holding 2 wherein the Court stated:

“…Judging from the earlier dealings of Mr. Brodie-Mends with a principal member of the plaintiff's family, in relation to the same subject-matter now pending in this court, it would be most improper for him to appear for the first Defendant in the conduct of this case… Surely, Mr. Mends's appearance for the first Defendant in this suit, amounts to representing conflicting interests; and he cannot be said to have behaved with the utmost honesty towards his former client. It is most unfortunate that he saw fit to appear both as solicitor and counsel for the first Defendant. His representation for the first Defendant is certainly improper and must discontinue. Accordingly, the objection against his appearance is upheld…”


[11] Learned Counsel next referred to the pleadings filed and submitted that “it is clear that the instant action is about the ownership and management of a vast tract of land situate behind the Ghana International Trade Fair which is covered by a land title certificate belonging to the East Dadekotopon Development Trust”. Counsel further submitted and argued that the Plaintiff’s contention that Mr. Kwesi Austin and the Law Firm he operates from represented the 1st Plaintiff when he claimed ownership of a vase tract of land behind the trade fair as stool lands and not belonging to the 2nd Plaintiff is not true.


[12] To substantiate the above position, Learned Counsel referred to the case of Nii Kpobi Tettey-Tsuru III v. Chief of Defence & Attorney General – Suit Number LD/0640/2016 and submitted whilst the Plaintiff in that case who is also the 1st Plaintiff herein claimed that he is the allodial owner of a “large tract of land situate at Kpeletso, La stretching from the Trade Fair eastwards to the School of Infantry and northwards to Motorway and to the East of Burma Camp”, the present 2nd Plaintiff - the East Dadekotopon Trust in its application for joinder argued that the said land “forms part of a vast tract of land owned by the Applicant Trust per Consent Judgment dated 12 July, 2001 in Suit No. L 353/97”. According to Counsel the Plaintiff therein, who is the 1st Plaintiff in this suit resisted and contested the application but the Court granted same. Counsel relied on the concluding statement of my learned sister Elizabeth Ankumah J dated November 2, 2016 to say that Counsel Kwesi Austin should not be allowed to represent the 2nd Plaintiff in this suit. The said statement is as follows:

“In conclusion, this Court is satisfied that the Plaintiff/Respondent cannot initiate an action over lands contained in the land title certificate granted to the Applicant/Trust wholly by himself and without any recourse to the East Dadekotopon Trust who holds the legal title to the land….”


[13] Learned Counsel next submitted that in the case above, the Plaintiff therein (who is the 1st Plaintiff in this suit was represented by lawyers from the Law Firm Amarteifio & Co) and they claimed the land as a stool land which was different from the Trust (2nd Plaintiff) claim and so it is incongruous for Mr. Austin to be allowed to represent the two persons in this suit especially so when that case is still pending.


[14] Contrasting the pleadings in the earlier suit to the present one, Counsel submitted that in this case the Plaintiffs have averred at paragraph 3 of their statement of claim that “a large tract of land containing approximately 3048.65 acres situate at La behind the Ghana International Trade Fair was settled on the 2nd Plaintiff”. Counsel further referred to the statement of claim and submitted that the Plaintiffs contend that Defendants have never been properly nominated and installed as trustees of the 2nd Plaintiffs hence the reliefs endorsed on the writ of summons. According to Counsel the averments of the Plaintiffs and the endorsement on the writ of summons clearly “show that the present action is about the right to manage the Trust lands which the 1st Plaintiff is claiming as a stool land and disputing the Trust’s ownership in the other cases referred to in this application”.


[15] Counsel cited the case of ABOAGYE da COSTA v. DISCIPLINARY COMMITTEE OF THE GENERAL LEGAL COUNCIL [1991] 2 GLR 313-317 CA to submit that a lawyer licensed to practice law in Ghana is under a duty to avoid representing conflicting interests. In this case it is the contention of Counsel that the Mr. Kwesi Austin of Amarteifio & Co is in a conflict interest situation pursuant to L.I. 613.


[16] He next submitted in response to the Plaintiffs’ Counsel contention that because in Suit Number SOL 27/2013 (Exhibit KA4) the Court held that the persons who were in Court as representing the Trust did not have capacity to institute that suit, the Trust was never a party to that suit that the contention is misconceived. According Counsel the issue there was not whether or not the Trust was a party to that suit, but rather what interest was being asserted by the Plaintiff in that action represented by Lawyers from the Law Firm Amarteifio and Co vis – a - vis the interest asserted by the Trust. Counsel argued further that from Exhibit KA4 and the reliefs stated therein it is clear that the Trust argued that the land, the subject matter of the suit was the property of the Trust as against the Plaintiff’s claim that the land was a stool land.


[17] Concluding, learned Counsel referred to the Exhibits attached to the application by the Applicants and those of the Respondents and submitted that the lawyers on record for both Plaintiffs herein have always represented the 1st Plaintiff’s interest which is adverse to that of the 2nd Plaintiff. For instance Counsel referred to Exhibits E, E1 and E2 attached to the Applicants’ supplementary affidavit to submit that they were leases prepared by the law firm Amarteifio and Co on behalf of the La Stool by which the very land which is the subject matter of the litigation is alienated as stool lands. In this case according to Counsel the same lawyers are claiming the land belongs to the 2nd Plaintiff as Trust lands. Counsel submitted that clearly the lawyers who filed the present suit on behalf of the two Plaintiffs jointly and severally are acting in a conflict of interest situation and the said action is ill motivated, he added.


[18] Accordingly, Counsel urged on the court to dismiss the action on the grounds that it is founded on immoral and/or illegal act of the lawyers who filed the suit. It is also the case of the Applicant that based on public policy grounds the suit should be dismissed.


iv. Reply by Learned Counsel for the Plaintiffs/Respondent in Opposition:

[19] In reply, Learned Counsel for the Plaintiffs referred to the facts as contained in the statement of claim and the supporting affidavit as well as the arguments of counsel and submitted that the application lacks merit.


[20] Counsel further contended that “the core issue raised in this application is in respect of the 2nd Plaintiff and its representation. To that extent, Counsel argued that should the representation of the 2nd Plaintiff be faulty, which is denied, the presence of the 1st Plaintiff who is competent to bring and prosecute this action means that the writ ought not be set aside”. Counsel further argued that this suit is not about the lawyers and therefore even if the Court finds that there exist conflict of interest on account of previous representation against the 2nd Plaintiff, same should not affect the validity of the writ of summons. According to Counsel the effect of any such decision by the Court would be a change of Counsel and not the striking out of the writ of summons.


[21] Further, according to the Plaintiffs/Respondents, the evidence exhibited in the instant application show that whenever the Defendants have used the name of the 2nd Plaintiff to sue, the opposition of the 1st Plaintiff has been that the Defendants lack the capacity to bring any action on behalf of the 2nd Plaintiff. In the words of Learned Counsel “this has been the mainstay of the 1st Plaintiff especially at the time that the Board of Trustees had been reconstituted and also subsequent to reconstitution”.


[22] Counsel for the Plaintiff further submitted that “the subject matter in most of the suits have not been dealt with. Most of the suits also involve the 1st Plaintiff commencing an action and the Defendants, using the name of the 2nd Plaintiff, applying to join the action. Only in two instances has the Court gone into and determined the issue of the capacity of the 2nd Defendant to sue on behalf of the 2nd Plaintiff”.


[23] Learned Counsel further submitted by relying on two suits LD 0487/2017 and SOL 27/2013 to say that in both cases the Courts held that the Defendants who sued in the name of the East Dadekotopon Development Trust did not have the requisite capacity to do so. That notwithstanding, according to Counsel the Defendants continue to institute “frivolous actions in several Courts leaving the Plaintiffs with no alternative than to bring the instant action so as to enable the Honourable Court determine finally any issues between the parties and to seek, among other reliefs, a perpetual injunction against the Defendants”.


[24] Counsel denied that the East Dadekotopon Development Trust has suit(s) pending against the 1st Plaintiff and vice versa. According to Counsel because the Courts in the cases referred to supra held that the persons who sued in the name of the Trust did not have capacity the effect is that the 2nd Plaintiff herein “was not before the Court”. Consequently, Counsel submitted that it cannot be said that “Amarkai Amarteifio or Kwesi Austin for that matter acted against the East Dadekotopon Trust which was not before the Court at all”.


[25] Counsel’s other submissions relate to the fact that should this Court go ahead to determine the suit in favour of the Plaintiffs, then it will be that the Defendants have never had the requisite capacity to bring any action in the name of East Dadekotopon Trust, with the effect that the 2nd Plaintiff has never been to Court in the cases commenced by the Defendants. The further effect according to Counsel is that there will be no conflict of interest. According to Learned Counsel the instant application “is simply brought to delay the determination of the matter before the Court”. Counsel therefore urged the Court to make orders “for the quick and expeditious determination of the matter to bring finality to the issue of the capacity or otherwise of the Defendants to act for the 2nd Plaintiff”. According to Counsel this would “undoubtedly, resolve the representation impasse in all of the other cases pending before the Courts”.


[26] Finally, Counsel submitted that representing one party in a suit does not preclude and render a lawyer incapable of representing the later party subsequently. According to Mr. Austin nothing stops a litigant who observed the manner a lawyer acted against him from retaining that lawyer later on in a subsequent case. On the matter before the Court learned Counsel submitted that there is no conflict of interest. This is because according to Learned Counsel, the 1st Plaintiff acting by the Trustees mentioned in the publication made (Exhibit KA3) are aware of all the circumstances and have agreed on Counsel to act for them. The other submissions of Counsel are contained in the submissions filed. Based on all of the above, Counsel has urged the court to dismiss the instant application because according to him the Applicants have created in their minds a conflict which does not exist.

The Court’s Analysis & Opinion:

[27] On the authorities, an objection to a suit filed consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if sustained may dispose of the suit. In this application it is the capacity of Counsel who initiated the action which is being attacked on the grounds that he is in a conflict of interest situation.


[28] According to Lo Bernard & Marilyn J. Field in: CONFLICT OF INTEREST IN MEDICAL

RESEARCH, EDUCATION & PRACTICE (2009). Washington DC: National Academies Press. ISBN 978-0-309-13188-9, a conflict of interest is a set of circumstances that creates a risk that professional judgment or actions regarding a primary interest will be unduly influenced by a secondary interest. More generally, it has been said that conflict of interest is any situation in which an individual or corporation (either private or government) is in a position to exploit a professional or official capacity in some way for their personal or corporate benefit.


[29] I cannot agree more with Counsel for the Plaintiffs that this is a completely unique matter because the Law Firm Amartefio and Co and/or specifically Mr. Kwesi Austin is acting for a client he or the firm he works for previously acted against. To that extent the there is really only one question to be answered: Does Mr. Austin have a conflict of interest that requires that he be removed from the record as Counsel for the 2nd Plaintiff and the writ of summons dismissed? If the answers to the two part question are “no”, then the matter may proceed.


[30] I wish to state for the record that I have appraised myself of Rule 5 (10) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613) which governs the Professional Conduct lawyers licensed to practice in this jurisdiction. I further wish to state that generally, while the court is not obligated to enforce the rules of professional conduct of the lawyers because it is the General Legal Council which has the mandate to regulate the profession, it cannot also be denied that the rules of professional conduct deal with the profession as a whole in its relationship to the public that it serves. Here, in this action the primary obligation of Counsel is to the court of which both Counsel are officers.


[31] Rule 5 (10) of L.I. 613 which is the relevant guiding principles related to conflict of interest provides that:

“A lawyer shall at the time of retainer disclose to the client all the circumstances of his relationship to the parties and his interest in or connection with the controversy, if any, which might influence the client in selection of counsel. He shall avoid representing conflicting interests”.

In my respectful opinion the guiding and underpinning reasoning of the rule is that any act and/decision which would likely affect adversely a lawyer’s judgment on behalf of, or loyalty to a client or prospective client, or which the lawyer might be prompted to prefer to the interest of a client or prospective client and/or any perception of conflict of interest must be avoided.


[32] Now, having reviewed the facts in this application and also reviewed the submissions of Counsel, I wish to state that this application is not about the capacity of the Defendants as strenuously argued by Mr. Austin but whether the law firm which he, Mr. Austin works for can represent the 2nd Plaintiff in this suit based on the objection and submission of the Applicants. The Applicants contend that some of the cases where Mr. Austin and/or the firm Amarteifio & Co are solicitors for the 1st Plaintiff against the East Dadekotopon Development Trust as Defendant are still pending in the Courts for determination.


[33] Whilst at it, I also wish to state that it is also too simplistic for Counsel for the Plaintiffs to submit that because the persons who sued in the name of the East Dadekotopon Development Trust in some of the earlier cases were held to lack capacity the effect is that the Trust was not in Court. Clearly, it is an attractive submission, but in my view and with respect to Counsel it is misconceived. As Counsel himself acknowledged the Trust itself is a legal person with capacity to sue therefore the fact that persons who invoked the Court’s jurisdiction on its behalf were said to lack capacity and cost awarded against them personally does not in any way, shape or form meant that the Trust “was not in Court” as submitted.


[34] I note that despite Mr. Austin’s copious submissions, there is one issue which was not addressed. That issue which is key to this decision is that there are pending matters involving the Plaintiffs herein as adversaries involving some of the Defendants herein representing the 2nd Plaintiff against the 1st Plaintiff. To my mind, whilst it is true that ordinarily nothing should stop Mr. Austin from acting for a party he litigated against previously, in this case there is no answer as to how either Mr. Austin and or the firm Amarteifio & Co will deal with representing the 2nd Plaintiff in this suit and also oppose it in the other pending matters all of which deal with the same subject matter, which is the tract of land situate behind the International Trade Fair in Accra.


[35] Based on the facts and the law I believe that Mr. Austin’s attempt to represent the 2nd Plaintiff in this case is untenable and so also is the firm Amarteifio and Co. To my mind as Solicitors for the 1st Plaintiff in many suits some of which have the Trust as Defendant or people claiming to represent the Trust as Defendants should be sufficient to convince them that they cannot represent the interest of the Trust in the instant suit. I am of the strongest view that the maintenance of high standards of the legal profession and the integrity of the legal profession and the justice system should not be sacrificed with the concern that a litigant ought not to be deprived of his or her counsel of choice.


[36] As an aside, I note that on one occasion when the matter was called in Court two different groups got up to say they represent the 2nd Plaintiff even though it was clear they belong to different “camps’. Based on all of the facts and the evidence before me, I am of the view that Amarteifio and Co generally and Mr. Kwesi Austin are in conflict of interest situation and they cannot continue as Counsel for the 2nd Plaintiff.


[37] In the Canadian Supreme Court case of MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, Justice Cory stated the absolute rule when he stated that

“The judicial system and the confidence of the public in its operation are too important to be put at risk by any appearance of unfairness. Unfortunately, no matter how scrupulously ethical an individual lawyer or firm may be, the appearance of unfairness will always be present when, as in this case, one or more lawyer who had a substantial relationship with a client become members of a firm acting for an opposing party. The opportunities for disclosure, even of an inadvertent nature, are too frequent and the possibility of discovering such disclosures too minimal to permit anything less than the irrebuttable presumption that the knowledge of one member of a law firm constitutes the knowledge of all of the lawyer in that firm. Only such a test will ensure the public’s confidence in the administration of justice”.


[38] It ought to be reiterated that I find no bad faith on the part of the Applicants neither do I see the instant application as a delay tactic as submitted by Mr. Austin. I see the issue raised as one of legal nature and a legitimate one for the Court’s consideration. Clearly, in my respectful, there is a conflict of interest in this case that should have been detected at the outset by counsel for the Plaintiffs but for reasons well-articulated in his submission, he believed there was no conflict. Nevertheless, it exists and there is no way of putting the matter right, save to remove the solicitor, Amarteifio and Co and/or Mr. Kwesi Austin from the record as Counsel for the 2nd Plaintiff.


[39] My analysis and conclusion above notwithstanding, I am of the respectful view that the Applicants’ call for the dismissal of the suit as a result of the conflict of interest has no legal basis. This is because the firm Amarteifio and Co and Mr. Austion in my view are competent to represent the 1st Plaintiff in this proceedings and the other defendants by the rules of Court are required to answer to the claim.


[40] Finally, It cannot be stated strongly enough that while it is true that a Superior Court has the jurisdiction is to strike out a claim or dismiss a suit where it cannot be put to doubt that the action is either frivolous, vexatious or unsustainable because it does not disclose any reasonable cause of action, in my respectful opinion, the Order was not intended to be a blunt instrument of judicial intervention against a Plaintiff and/or a Party to a suit based on the basis for the instant application. As was stated by Fletcher Moulton L.J. in Dyson v. Attorney-General [1911] 1 K.B. 410 at p. 419, C.A. “The court will not permit a Plaintiff to be 'driven from the judgment seat,' without considering his right to be heard, 'excepting in cases where the cause of action is obviously and almost incontestably bad.” In my opinion, this is not one of those cause of actions.


[41] Cost follows the event and so the Applicants are entitled to cost. In my respectful view Cost of Gh¢3,000 in favour of the 2nd and 6th Defendants/Applicants against the 2nd Plaintiff based on the circumstances of this case.