IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2016
ANITA ASARE - (Plaintiff)
THE LIAISON OFFICER ASANTEHENE’S LAND SECRETARIAT - (Defendant)
DATE: 5TH DECEMBER, 2016
SUIT NO: IRL 58/2014
JUDGES: FRANCIS OBIRI, JUSTICE OF THE HIGH COURT
MR. NYAMAA POKU FOR PLAINTIFF/APPLICANT
MR. KYEI MENSAH SARPONG FOR DEFENDANT/RESPONDENT
This ruling has become necessary as a result of an objection raised by Counsel for the defendant against the competency of the application for joinder filed on 25-11-2016. Counsel objection was based on the following ground:
That the writ bears the stamp Poku and Associates, Box 4757, Kumasi but there is no name as to the person who issued the writ. However, the motion for joinder has been signed by E.N Poku and the name of the firm that issued the motion is Poku Nyamaah and Associates.
Counsel therefore submits that, Poku and Associates is different from Poku Nyamaah and Associates.
Therefore, the motion for joinder should be dismissed.
In response, Counsel for the plaintiff argued that, although the name of the Lawyer is necessary in signing documents, but in certain cases, it is not mandatory. Counsel submitted that, even in cases of a Lawyer filing appearance, it is only the signature and the license number of the Lawyer that, the rules provides for and not even the name.
Counsel refers the Court to form 5A at page 280 of C.I 47 which sets out the format for entering appearance.
He therefore contended that, the procedure the plaintiff adopted in the issuance of the writ was not wrong.
He again submitted that, in all cases, the issue is that at the time the person issued the writ, he must have a licence and must be a Lawyer. He further argued that, the name of the firm has been changed from Poku and Associates to Poku Nyamaah and Associates and they have been given licence to that effect. So the objection should be dismissed.
With leave of the Court, Counsel for the defendant on point of law referred the Court to Order 82 as to the definition of a lawyer and Section 43(1) of the Legal Profession Act 1960 (Act 32) and submitted that, therefore the objection should be sustained.
Having summarized the submissions from both Counsel, I have to rule in one way or the other.
Section 8(1) of Act 32 provides as follows:
“A person other than the Attorney General or an Officer of Attorney General’s Department, shall not practice as a Solicitor unless that person has in respect of that practice a valid annual Solicitors License issued by the council duly stamped and in the form set out in the second schedule.
This provision is to the effect that, one cannot sign documents or represent a party as a lawyer unless he has obtained a valid Solicitors License for that purpose. The only exception is where the document is been issued by the Attorney General or an officer from the Attorney General’s Department.
The duration of the license as per the schedule under Act 32 is from 1st January to 31st December every year.
This provision is very clear and therefore does not need any importation of words for one to interpret same.
See: Kuenyehia vrs Archer (1993-94) 2 GLR 525.
The practicing license is issued by the General Legal Council which a body is created to supervise and regulate the affairs of the Legal Profession in Ghana.
See: Akuffo Addo Vrs. Quarshie Idan (1968) GLR 667 CA.
Republic Vrs. High Court (Fast Track Division) Accra, Ex parte Teriwajah & Kaboe C. Reiss & Co. (Ghana) Ltd. Interested Party (2013-2014) 2 SCGLR 1247.
A Lawyer is defined under Order 82(3) of C.I 47 as “a person whose name has been created in the roll of Lawyers to practice in Ghana and does not include a lawyer for the time being suspended from practice”.
Section 43(1) of Act 32 also provides as follows:
A person who draws or prepare a legal document for reward shall endorse or cause to be endorsed on the document, the name and address of that person”.
The effect of the above provisions which are Sections 8(1), and 43(1) of Act 32, Order 82 rule 3 of C.I 47 as well as the decision in Ex parte Teriwajah & Korboe are that, a legal document be it writ or motion must have the following:
(a) The name of the Solicitor who issued it
(b) The signature of the Solicitor who issued it or a signature on his behalf
(c) The practicing license of the said solicitor
In addition, the person must have a registered office or chambers from where he practice as a solicitor or barrister or both.
I have examined the endorsement on the writ as regards to the person who issued the writ. It has a license number AR 07906/14 a signature, stamp and office address, as 1st Floor Ampomah Arcade building OTB PLT 5 BLK 1- Adum-Kumasi.
The motion for joinder filed on 25-11-16 also has a license number of AR 11870/16, a signature, chamber registration number 000342/15 and the name of the chambers.
A critical look at the signatures on both documents appears to be the same. It will therefore be presumed that, it was the same person who signed both documents. It is also a fact that, Solicitors License are issued to individuals and not to the chamber. The chamber is issued with a chamber registration number. The name of the person who signed the motion for joinder is E.N Poku. And as I have stated, the signatures on both documents are the same. It will therefore be presumed that, it was the same E.N Poku who signed the writ with a valid Solicitors license number on both documents.
Section 37(1) of NRCD 323 provides that, ‘’it is presumed that official duty has been regularly performed’’.
Now the question that, needs to be answered is that, if it is presumed that it is the same E. N Poku who signed the two documents, then can one say that, because he omitted to write his name on the writ but rather his chambers name same should be nullified?
In the case of Abdilmasih Vrs. Amarh(1972) 2 GLR 414 at 422, CA. Apaloo JA as he then was, said “Nobody has vested right in procedure and modern notion of justice require that a Court should do substantial justice between parties unhampered by technical procedural rules”.
See: Awuni Vrs. West African Examination Council (2003-2004) SCGLR 47 Luke Mensah Vrs. Attorney General (2003-2004) 1 SCGLR 122
I am not unmindful of the principle that rules of procedure for this Court and for all Courts have not been provided for nothing. They are to be complied with. There are also valued, reasonable policy considerations behind the provisions of the said rules. Therefore, any attempt to circumvent them will lead to incongruous results.
However, I do not think failure of the plaintiff counsel to state his name on the writ is fundamental which goes to the root of the matter. After all, both documents have his license number and his signature. I do not think such defects goes to the root of both documents to nullify them.
See: Republic Vrs. Controller and Accountant General Ex parte Seidu Mahama (2009) 9 GMJ 37 CA
African Woods Ltd Vrs. The Administrator of Stool lands (1962) 2 GLR 24 Boakye Vrs. Tutuyehene (2007-2008) SCGLR 970
Republic Vrs. Court of Appeal Ex parte Ghana Chartered Institute of Bankers (2011) 2 SCGLR 941
Republic Vrs. High Court Accra; Ex parte Osafo (2011) 2 SCGLR 966
Republic Vrs. High Court Koforidua Ex parte Ansah Otu (2009) SCGLR 241
Again order 1 rule 2 of C.I 47 admonished us to interpret the rules to achieve speedy trial and effective justice, avoid delays and unnecessary expense and to ensure that all matters in dispute are effectively determined.
For the above reasons, I am of the view that, the objection by the defendant Counsel will not find favour with the Court. Having come t