A: INTRODUCTION
The Court of Appeal, Greater Accra Region, sitting at Accra
(Coram: Dennis Adjei, Avril Lovelace-Johnson (as she then was), and Kwofie,
JJ.A) has delivered a unanimous decision in a suit intitled Abraham Okan Klu v
Joseph Agyei Laryea[1] regarding the scope of a pupil’s duties whilst serving
pupillage. The Court consequently declared as a nullity, proceedings in which a
lawyer serving her pupillage and had not yet obtained a practicing license had
participated. The Supreme Court had in two earlier decisions intituled Ex parte
Teriwajah and Henry Nuertey Korboe v Francis Amosah reached similar conclusions and given judgment
against a lawyer who had participated in court proceedings while he had not yet
renewed his solicitor’s license. The entire proceedings the lawyer participated
in were declared a nullity by the apex Court. This article seeks to explore the
effect the Court of Appeal’s decision in Klu v Laryea portends for the
pupillage system and the practice of law in Ghana.
B: THE CASE: KLU V LARYEA
The plaintiff/respondent in the suit issued a writ at the
High Court against the defendants/appellants as head and elder of a certain
family. The defendants raised an objection to the plaintiff’s capacity to sue.
The High Court took evidence on the issue of the plaintiff’s capacity and the
trial judge ruled that the plaintiff had the requisite capacity to institute
the action. Subsequently, the defendants’ lawyer filed an application to
interrogate the capacity of one of the lawyers handling the case for the
plaintiff. The defendants’ lawyer argued that, one Lawyer S, who had been
representing the plaintiff in the suit was a pupil, and therefore, did not have
a solicitor’s license.
As a result, the defendants’ lawyer argued further, the said
lawyer S did not have the requisite capacity to represent the plaintiff as
lawyer. The trial judge ruled that since the said plaintiff’s lawyer was a
pupil and had not as yet procured a practicing license, the proceedings she had
participated in were a nullity. The judge directed that the case should be
tried de novo. Both parties were
aggrieved by aspects of the ruling and appealed against it. The main issues for
determination by the Court of Appeal were whether or not the plaintiff’s
lawyer, by participating in proceedings as a pupil without a solicitor’s
license, rendered the said proceedings a nullity and whether or not only the
portions of the proceedings she participated in or the whole proceedings were
so nullified.
The Court held that since the pupil participated in the
proceedings at a period prior to obtaining a solicitor’s license on 3rd May,
2017, all the proceedings she participated in, without exception, were a
nullity. The Court opined that “[s]urely, her participation in the proceedings
had tainted them.” In effect, all the legal work and industry the pupil had put
into the conduct of the case for her clients came to nothing. Whatever money,
time and other resources the pupil’s client had invested in the proceedings
also went down the drain, in a manner of speaking.
C: ANALYSIS OF THE
DECISION AND ITS IMPLICATION FOR LAW PRACTICE IN GHANA
It is contended that the decision given by the Court of
Appeal as set forth above portends a bleak future for the development of the
legal profession in Ghana. The admission of aspiring lawyers into Ghana School
of Law has been fodder for the entire citizenry of Ghana and beyond for the
past couple of years and need not be recounted here. By the decision in Klu v Laryea, the tortious journey of
becoming a lawyer in Ghana has been made even more onerous. It is submitted,
with the greatest of respect, that the decision of the Court of Appeal in Klu v Laryea is retrogressive and
backward-looking at best. The reasons for this assertion are not far-fetched,
and they are as appear hereunder.
The impracticality of the decision:
By the Court of Appeal’s decision, a person who qualifies as
a lawyer but has not as yet been issued with a solicitor’s license cannot
appear in court to even hold brief for another licensed lawyer. The question
is, can such a person prepare deeds and documents, write letters, hold conferences
with clients, prepare legal opinion and so on? It appears the answer to this
question, from the Court of Appeal’s decision in Klu v Laryea, is in the negative. If that is the case, then what
purpose is pupillage intended to serve in the legal profession?
In England, which provides the antecedents for our
requirement of pupillage after one’s qualification as a lawyer, the period of
pupillage is 12 months; first 6 months is for the pupil to ‘shadow’ the pupil
master/mistress. At this stage, pupils do not handle cases on their own but
understudy the pupil master/mistress in the rudiments of the practice of law.
This includes accompanying the pupil master to court to observe proceedings,
drafting pleadings and documents in chambers for the pupil master/mistress
under supervision, among others. At the end of the first 6 months, the pupil
supervisor will sign a certificate confirming satisfactory completion and send
it to the Bar Standards Board. The Bar Standards Board will then issue the
pupil with a Provisional Qualification Certificate.
Upon acquiring the Provisional Qualification Certificate, the
second 6 months of pupillage kicks in for the pupil to ‘practice’. At this
stage, pupils undertake to supply legal services and exercise rights of
audience before courts on their own. At the end of this second 6 months period,
the pupil's supervisor must then certify another document for satisfactory
completion and send it to the Bar Standards Board pupillage records office. The
pupil will then receive a Full Qualification Certificate.[2] It bears noting
then, that even in England, pupils handle cases in court on their own before
they receive a Full Qualification Certificate.
It, therefore, stands to reason that in Ghana where the
statutory duration for pupillage is 6 months, pupils must, and should be made
to, draft and move motions, undertake hearings and participate in full trials
within the duration of the 6 months of pupillage. That is the only way by which
pupils will gain the necessary experience to handle their personal case load
after pupillage.[3]
The lingering ghost of Ex parte Teriwajah:[4]
The decision in Klu v
Laryea has once again brought to the fore the difficulty occasioned by the
Supreme Court’s decision in Ex parte
Teriwajah. This was a case brought before the Supreme Court for orders of
certiorari and prohibition. For clarity of facts and appreciation of the rather
rich history of the case, the full course ran by the case through the hierarchy
of courts is set forth below.
The High Court case: The brief facts were that the plaintiff
made a claim for a liquidated sum and other ancillary reliefs in the suit. Upon
service of the writ and the accompanying statement of claim, the plaintiffs,
Henry Nuertey Korboe and Hekoma Ghana Limited, engaged the first applicant
herein (who was at the material time a
practising lawyer) to represent them in the suit. The first applicant applied
to vacate some alleged irregular orders made by the trial court. This was met
with a notice of preliminary objection on grounds that the first applicant did
not disclose his solicitor’s license number for the year 2013 on the motion
paper. And that not having taken any practising license for 2013, the first
applicant was incompetent to sign a motion and that same contravened Section
8(1) of Act 32.
Avril Lovelace –Johnson, J.A (as she then was), sitting as an
additional High Court judge, upon hearing the preliminary objection, held that
there was a breach of Section 8 of Act 32[5] and Rule 4(4) of L.I 613[6]. Her
Ladyship then proceeded to strike out the writ of summons on the grounds that
the plaintiff’s lawyer did not have a valid solicitor’s license at the date he
issued the said writ.
The Supreme Court
(application for certiorari): The applicants (the lawyer and the
plaintiff, his client), therefore, applied for an order of certiorari, among other reliefs, to quash the ruling of the trial
judge in an application for judicial review titled Republic v High Court (Fast Track Division), Accra; Ex parte Teriwajah
& Korboe (Reiss & Co (Ghana) Ltd Interested Party). The Supreme
Court upheld the trial judge’s decision and ruled that since the first
applicant did not have a valid license at the time he purported to represent
the second applicant, the first applicant was incompetent to represent the
second applicant and the application to vacate the injunction order had been
properly dismissed by the trial judge. It is the decision in this case that is
known and called Ex parte Teriwajah.
The Court of Appeal: After the applicants’ failure to
obtain an order to quash the trial judge’s decision at the Supreme Court in Ex parte Teriwajah as stated in the
preceding paragraphs, the applicants (the lawyer and his client) launched an
appeal against the trial judge’s decision to the Court of Appeal. The Court of
Appeal, coram: Ofoe, Gertrude Torkornoo (as she then was) and Tanko (as he then
was), JJ.A by a unanimous decision[7], overturned the trial judge’s decision
and delivered a most erudite and thorough judgment. Their Lordships held, in
essence, that processes filed by a lawyer who has failed to comply with Section
8(1) of Act 32 ought not be invalidated.
The salient points that formed the basis of the Court of
Appeal’s decision were that: first, it would be harsh to visit the consequences
of the lawyer’s failure to take out a practicing license on the client; second,
there is the need to adopt a purposive approach to the interpretation of
Section 8 of Act 32 instead of a literal interpretation; third, there is nothing
in Section 8 (1) of Act 32 that disqualifies lawyers from practicing without a
license and that, Act 32 merely provides criminal sanctions for non-compliance
and does not invalidate or nullify processes filed by a lawyer without a
license at any given moment.
The Supreme Court “2”: Feeling aggrieved by the turn of
events at the Court of Appeal, the unsuccessful party appealed to the Supreme
Court in Henry Nuertey Korboe v Francis
Amosah.[8] This, thus marked the parties’ second appearance before the
Supreme Court. The Supreme Court, by a 4-3 majority decision[9] reversed the
decision of the Court of Appeal and held, that a lawyer without a valid
solicitor’s license for any particular year, as required by Section 8(1) of Act
32, cannot practice as a lawyer in any court or prepare any process as a lawyer
within the particular period of non- compliance, and that any process
originated by such a lawyer is a nullity. Dotse, JSC concluded his delivery of
the majority decision thus:
“The Court of Appeal judgment of 15th May 2014 is hereby set
aside. I will in its place order that a lawyer who has not taken out a
Solicitor’s License in any year, unless granted a waiver by the General Legal
Council for any length of time, cannot practice as a professional lawyer in any
court of competent jurisdiction in Ghana and or sign any legal documents.”
Ansah, JSC was even more metaphorical in his opinion in
concurrence with the majority. He stated that “[p]ractising without a valid
license is not only criminalized; any process borne out therefrom is equally
tainted; it is the fruit of the forbidden tree; it ought not to be touched, put
in the mouth or swallowed, it is poison and must be spewed out of the mouth”.
The majority further berated the Court of Appeal for refusing to follow the
Supreme Court’s earlier decision in Ex
parte Teriwajah regarding the application for certiorari (as set out in the earlier paragraphs).
The leading dissenting opinion was delivered by the President
of the Court, Atuguba, JSC. He stated as follows: “I would conclude, therefore,
that the failure of a lawyer to take out a solicitor’s license should lead to
an adjournment of proceedings to enable the client instruct another lawyer, if
necessary, but not the invalidation of the processes filed for the client. This
applies also to the question of an unregistered chambers.”
Before His Lordship arrived at the said conclusion, he took
pains to review a plethora of decided cases and one cannot help but observe
that the dissenting opinion is preferable; it has depth and character. It also
accords with the general aim and purpose of Act 32, that is, the protection of
clients. It bears stating that Avril Lovelace –Johnson, J.A (as she then was),
who sat as an additional High Court Judge in the High Court proceedings in Ex parte Teriwajah was on the Court of
Appeal panel that delivered the decision in Klu
v Laryea. Indeed, Her Ladyship it was who delivered the unanimous decision
of the Court of Appeal.
It is, therefore, disconcerting that the Court of Appeal failed
to make even a perfunctory reference to the Court of Appeal and Supreme Court
decisions[10] that were given consequent upon Her Ladyship’s High Court ruling
in Henry
Nuertey Korboe v Francis Amosah. The only decision the Court of Appeal
referred to in Klu v Laryea was Ex parte Teriwajah (the certiorari proceedings at the Supreme
Court). The decision in Klu v Laryea
was, therefore, given per incuriam.
It is highly probable that if the Court of Appeal had adverted its attention to
the persuasive reasoning in the Court of Appeal and Supreme Court decisions in Henry Nuertey Karboe v Francis Amosa,
the Court of Appeal may, in all likelihood, have arrived at a different, more
convincing, purposive and forward-looking decision than it did.
The implications of the decision in Klu v Laryea on pupillage
in Ghana:
The writer contends that the Court of Appeal should have
adopted a purposive approach to the interpretation of Act 32 in deciding Klu v
Laryea instead of the stiff, literal and moribund approach the Court of Appeal
adopted. That is the only sure way an obsolete legislation as Act 32 could have
been applied to serve the needs of the citizens of this country in the 21st
Century.
It is unfortunate that the Court of Appeal in Klu v Laryea
did not consider any public policy reasons for pupillage in our legal system
before reaching its decision. There is no gainsaying that, there is the need
for lawyers who are issued with solicitors licenses to be persons who have
‘worked the law’ in practice. Merely carrying books and following so-called
seniors aimlessly about the courts and/or acting as glorified messengers to
“take dates” will not stand a pupil in good stead to forge ahead in the
practice upon receiving the solicitor’s license. In that wise, one may argue,
law clerks in chambers would be even more beneficial to practitioners than
pupils.
Secondly, by the erudite decision in the Court of Appeal and
Supreme Court’s dissenting opinion in Henry
Nuertey Korboe v Francis Amosah, it would have been more propitious for the
court to rule to ensure that the sins of the lawyer who is in default for
failing to take a solicitor’s license are not visited on the head of the poor
client. In the instant case, can one even legitimately argue that the lawyer
undergoing pupillage had been “in default for failing to take solicitors
license”?
As the process stands now, a pupil cannot obtain a license
before the pupillage period expires. Meanwhile, a pupil is under a mandatory
imperative to learn the rudiments of the practice of law during pupillage. Now,
by the decision in Klu v Laryea,
there can be no practical, hands-on courtroom advocacy or even office
solicitors’ work for a pupil. Was that the intention of the law maker in Act
32? The answer, obviously, ought to be in the negative. Otherwise, what would
be the aim and purpose of newly-enrolled lawyers undergoing pupillage, one is
wont to ask.
The role of the General
Legal Council:
In the light of the retrogressive and subversive decision in Klu v Laryea, it is little wonder that
the General Legal Council’s own guidelines on pupillage issued in February,
2020 is at variance with the said decision. By the Council’s guidelines, a
pupil is expected to imbibe core skills and competency in conduct and etiquette
(advocacy). These include witness handling during trials; preparation for oral
advocacy on motions; narrative advocacy during trials or other hearings;
preparation for appeals; and competence in exercising rights of audience.[11] A
pupil can only be certified to have successfully completed pupillage by
demonstrating these competencies. And these competencies can only be
demonstrated when the pupil exercises right of audience before courts and
undertake substantive drafting work in chambers. The practical difficulty of a
pupil master/mistress certifying to the General Legal Council the successful
completion of pupillage by a pupil who had no opportunity to display their
proficiency in the law - either in court or in chambers - cannot be lost on
even the most casual observer.
Where art thou, Ghana
Bar Association?:
The Ghana Bar Association’s Code on what constitutes
misconduct by a lawyer makes interesting reading. Regulation 10 of the
Association’s Code of Ethics provides that “[a] lawyer commits misconduct if he
practices without being a member of professional chambers or the pupil of such
a chamber.”[12] Therefore, the Bar Association recognizes that a pupil attached
to a law firm or chambers can practice as a lawyer. The difference between a
lawyer and a pupil is that, the latter is yet to complete pupillage and obtain
a license while the former has a license (whether renewed or not). The
similarity between them is that, both pupil and lawyer have the right of audience
in courts.
In that regard, the Ghana Bar Association’s silence regarding
the decision in Klu v Laryea has been
anything but deafening. As a registered association of lawyers in Ghana that
collects annual dues and solicitor’s license fees from its entire membership,
one would have expected the Bar Association to take a leading role to overturn
this rather unhappy decision. The writer has had the privilege of serving on
the Juniors and Pupils Committee of the Bar Association and notes that, the
welfare of juniors and pupils is of utmost importance to the Bar Association.
The Bar Association’s pussyfooting, or disinterest in the matter, appears to
have been influenced by their earlier stance in the Supreme Court decision of Henry Nuertey Korboe v Francis Amosa[13]
where the Bar Association chose to file an amicus
curiae brief that made arguments antithetical to the lawyer’s (Teriwajah,
Esq) case. Can the same Bar Association make a volte face and join camp with embattled pupils? Yes, it can and it
would be the richer for it.
After the Supreme Court decision in Henry Nuertey Korboe v Francis Amosa, as members of the Bar
Association, we all stood by and resorted to grumbling among ourselves about
the perverse nature of the majority decision. We failed to take any action
against it. Little did we know that Henry
Nuertey Korboe v Francis Amosa was the festering sore on the dog’s head
that was going to lead to its eventual demise. It even became fashionable for
lawyers seeking refuge from burdensome cases to raise obnoxious objections to
opposing Counsel’s failure to state their solicitor’s license numbers on all
processes filed. Some of the objections were beyond ridiculous; objections
based on Counsel’s failure to state their current chambers registration number.
It took the courts’ most timely decisions in cases such as Antie Cecelia & 10 Others v All State Construction Company Ltd,
Alex Opoku-Agyemang & 31 Others v All
State Construction Company Ltd (Consolidated) and Nii Lante Mills v Mildred Ama Woode[14] to stem the tide of such
unhealthy developments in the practice of law.
Nevertheless, it is not uncommon these days to come across
some court processes bearing even lawyers’ TIN numbers, ostensibly in
compliance with Ex parte Teriwaja and
Korboe v Amosa. Have we not stretched the decisions in those cases far
enough? We have allowed the well-researched and painstaking decisions of the
Court of Appeal and the dissenting crew at the Supreme Court in Henry
Nuertey Korboe v Francis Amosa to come to naught. Now, the onslaught has
moved from lawyers to pupils. Who is next; students at the Ghana School Law or
at the Faculties of Law? Or perhaps, legal interns? The answer is anyone’s
guess.
D: CALL TO ACTION,
COMMENDATION & CONCLUSION
As matters stand now, pupils would be of no value to chambers
and law firms if they cannot appear in court or prepare legal documents because
they do not have solicitor’s license. Most law firms may not be interested in
expending money on allowances for pupils who are of no value to the firms. It
is a known fact that several generations of lawyers in Ghana freely practiced
as lawyers right after being called to the Bar and they gained a lot of
practical experience that stood them in good stead towards their development as
practitioners of law. If the essence of pupillage is to go to court and stare
at other lawyers doing their own thing, then why bother, one may ask. Would it
not suffice for the fresh lawyer called to the Bar to just go to any court they
fancy and sit through proceedings of their choice for a period of 6 months and
then apply and obtain a solicitor’s license?
The question is, who benefits from the idleness of the fresh
lawyer out of Ghana Law School? Your guess is as good as mine. It is suggested,
as a matter of urgency, the need for the Bar Association to consult with the
General Legal Council to issue ‘directives’ to alleviate the imminent hardships
the decision in Klu v Laryea is bound
to inflict on pupils, pupil masters/mistresses, lawyers, firms and legal
departments of institutions. A poignant starting point could be a reference to
the Council’s published guidelines already referred to in the preceding
paragraphs.
If the above fails, then as a matter of last resort, the Bar
Association should rally its members to embark on a boycott of the courts till
a resolution is found, that is, newly-enrolled lawyers serving their pupillage
will be permitted to exercise their right of audience before courts as provided
by law, the Bar Associations Code of Conduct and the General Legal Council’s
Guidelines on Pupillage. At any rate, if it is the revenue that accrues from
the solicitor’s license that seems to be of paramount importance to the
collectors of those fees, then the license should be paid for and issued to
successful lawyers been called to the bar along with their certificates on the
day of their enrollment or so soon
thereafter.
This will be in consonance with Section 8(2) of Act 32 which
provides that “[a] person shall not be issued with a solicitor’s license unless
that person has been previously enrolled as a lawyer under section 3”. Lawyer
S, whose desire to practice the law she had been taught in law school
precipitated the decision in Klu v.
Laryea needs commendation for developing the confidence and ability to get
her feet wet, as it were, in the deep waters of law practice at such an early
stage of her entry into our beloved profession. By all accounts, Lawyer S
enrolled as a pupil into a duly registered law chamber under a qualified pupil
master.
She did nothing wrong for pursuing the career for which she
might have toiled for years in law school. The same commendation goes to her
pupil master who had the confidence in her ability to hold her own in court,
and at the High Court for that matter. The young members of our profession need
encouragement rather than been hounded out of practice and scarred for life on
such grounds as handling a case brief in court on behalf of a pupil master
during pupillage without a license.
FOOTNOTES
[1] Judgment of Court of Appeal dated 24th October,
2019 in Suit No. H1/130/2019 (unreported). Her Ladyship Justice Avril Lovelace-Johnson
was sworn in as a Justice of the Supreme Court of Ghana on 17th December,
2019.
[2]https://en.wikipedia.org/wiki/Pupillage
[3] The practice varies even among Commonwealth
countries. For example, Canada has a one year clerkship programme for
lawyers before they are admitted to practice; South Africa has
a one year pupillage programme; Kenya has a 6-month pupillage programme as part
of the Law School programme before enrollment. The United States, India and Nigeria
have no requirements of pupillage at all.
[4] Republic v
High Court (Fast Track Division), Accra; Ex parte Teriwajah & Korboe (Reiss
& Co (Ghana) Ltd Interested Party) [2013-2014] 2 SCGLR 1247
[5] Legal Profession Act, 1960
[6] Legal Profession (Professional Conduct and
Etiquette) Rules 1969
[7] Dated 15th May, 2014
[8] Henry
Nuertey Korboe v Francis Amosah Civil Appeal No. J4/56/2014
[9] Per Ansah, Dotse, Yeboah, Baffoe-Bonnie, JJSC
(Atuguba, Akoto-Bamfo and Akamba JJSC. dissenting) and dated 21st April
2016
[10] See notes 8 and 9 supra
[11] See the General Legal Council's Guidelines
for Pupils, (accessed
on 28/02/2020)
[12] Adopted at the Ghana Bar
Association Annual Conference held in Koforidua from 10th to 14th September,
2018
[13] See note 9 supra. It is
interesting to observe that when the case came on for hearing before the Court
of Appeal, some members of the Bar Association filed an amicus
curiae brief in support of the lawyer’s case which, no doubt, assisted
the Court in arriving at its highly commendable decision.
[14] Civil Motion No. H3/175/2014
dated 26th November, 2014 (CA, Kumasi Division) and Civil
Motion No. H3/321/2017 dated 4th April, 2017 (CA, Accra
Division) per Tanko Amadu, JA (as he then was) sitting as a single judge). His
Lordship referred to the Antie Cecelia case and added thus:
“In that case, I held that the requirement for endorsement of solicitor’s
license numbers on court processes is not a statutory requirement. I said
further that it is founded on an administrative directive by Her Ladyship the
Chief Justice in a circular dated 27th June, 2012 copied to
Judges, Magistrates, Administrative officers and Registrars of the Judicial
Service. Being administrative and not having the status of a practice
direction, it cannot have the force of procedural law as in my view the
Honourable Lady Chief Justice did not embark on supplementing the statutory
requirement under Section 8(1) of Act 32.”
