IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
VERY REV. (RTD) A.K. MENSAH - (Plaintiff)
SUSSANA EDITH FERGUSON MENSAH & ANOR - (Defendants)
DATE: 21 ST JUNE, 2018
SUIT NO: TOCC/2/16 AND TOCC/3/16
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
E.N. POKU FOR PLAINTIFFS
NANA KWASI BOATEY FOR DEFENDANTS
The business for the day is for Mrs Sussana Edith Ferguson Mensah to be cross-examined. However, Nana Kwasi Boatey Esq. who was to conduct the cross-examination has filed a “NOTICE OF WITHDRAWAL OF REPRESENTATION”, it is dated 20/06/2018. E.N. Poku, Esq., counsel on the other side, has taken a serious objection to the said notice.
His argument is that on the basis of order 75 rules 1, 2, 3 and 6 of C.I. 47, only parties to the suit can change their lawyer at any time. However, if counsel decides nor to act for a party, then under rule 6, he has to apply to the court. In his view, merely filing a notice of withdrawal of representation” does not meet the requirements of the law. In response to the submissions made by E. N. Poku, Esq, Nana Kwasi Boatey, Esq referred the court to the case of Oppong v. Attorney general (2000) SCGLR 275 wherein the Supreme Court stated that courts of this country are guided by three yard sticks in dispensing justice: Statutes Case Law and well established practices of the court.
He argued, inter alia, that the practice whereby counsel files notice to the court and other parties to confirm his withdrawal of representation is long crystallized in the court hence, the filing of this application. He ended his submission by saying that if per a recent Court of Appeal Dorechver, leave is a requirement, then he submits that an oral application for leave under the circumstances of this case, be granted.
It is provided under Order 1 rule 1(2) of C. I. 47 that:
“These rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expenses and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.
It is also provided under order 81 rule 1 (1) of C. I. 47 that:
“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it:.
Under order 81 rule 2 (b), the court may exercise its powers under these Rules to allow such amendments to be made and to make such order dealing with the proceedings generally as it considered just.
It is further provided under order 75 rule 6 (1) of C. I. 47 that:
“Where a lawyer who acts for a party in a cause or matter ceases to so act and the party does not give notice of change of lawyer, or notice of intention to act in person, in accordance with rule 3, the lawyer may apply to the court to make an order accordingly. Sub Rules (2) to (5) of rule 6 provide for how the notice of the application is to be made and handled by the court and the Registrar of the court.
It is time, that per order 19 rule 1 (1) of C. I. 47, every application in pending proceedings shall be made by motion.
The situation in which Nana Kwasi Boatey Esq. finds himself in can be brought under order 75 rule 6 (1) of C. I. 47.
However, the court, having adverted its minds to order 1 rule 1 (2) and order 81 rule (1) of C. I. 47, will treat the failure to file a formal application to withdraw from the case as an irregularity which can be waived so as to avoid further delays in the proceedings which commenced as far back as the year 2003.
From the record, several lawyers have come into the case and have subsequently withdrawn their representation without filing any formal applications, the notice filed by Nana Kwasi Boatey Esq is no exception to that practice as seen from the record.
In the circumstance, the court after considering the oral submission made by the lawyers in this case, will allow the “Notice of withdrawal of representation” filed on 20/06/2018 by Nana Kwasi Boatey Esq. to stand. His clients are given a period of 30 days to engage the services of another lawyer if they so desire, for the case to proceed.
No order as to cost.
The case is adjourned to 24/07/2018 at any 0am for Mrs. Sussana Edith Ferguson Mensah to be cross-examined.