DENNISLAW [2013]DLSC2703

THE REPUBLIC

vs.

HIGH COURT (FAST TRACK DIV.) ACCRA

EXPARTE: JUSTIN PWAVRA TERIWAJAH AND HENRY NUERTEY

KORBOE

[SUPREME COURT, ACCRA]

CIVIL APPEAL NO. J5/7/2013 DATE: 11 DECEMBER, 2013

COUNSEL:

JUSTIN PWAVRA TERIWAJAH APPEARS FOR HIMSELF AND THE 2

APPLICANT.

NANCY AMPOFO FOR THE INTERESTED PARTY.

CORAM:

G. T. WOOD (MRS) C J (PRESIDING), R. C. OWUSU (MS) JSC, ANIN

YEBOAH JSC, P. BAFFOE-BONNIE JSC,J. B. AKAMBA JSC

JUDGEMENT

ANIN-YEBOAH, JSC:

This application which seeks to invoke the supervisory jurisdiction of this

court under Article 132 of the 1992 Constitution raises issues the
determination of which will affect all legal practitioners in Ghana. To
appreciate the basis of this ruling, the facts which appear not to be
controverted are as follows:
Reiss and Company (Ghana) Limited, a corporate body commenced an action
at the High Court (Fast Track Division) Accra, intituled as: SUIT № AC
54/2009; REISS & COMPANY (GHANA) LIMITED v HENRY NORTEY
KORBOE, (2) HEKOMA GHANA LIMITED, (3) SHELASH GHANA
LIMITED and SHIRLEY KORBOE (NEE LAMPTEY). The claim was for a
liquidated sum of GH¢920,000.00 and other ancillary reliefs not very
necessary to recite in this delivery. Upon service of the writ and the
accompanying statement of claim, HENRY NUERTEY KORBOE and
HEKOMA GHANA LIMITED, engaged the first applicant herein (who was at
the time material a practising lawyer) to represent them in the suit. In the
affidavit in support of this application, HENRY NUERTEY KORBOE the
deponent, swore that after the first applicant had taken over the conduct of
the case, he detected that orders made in the case prior to his engagement as a
lawyer, were palpably irregular. As a lawyer, the first applicant filed a motion
to vary or vacate the alleged irregular orders already made at the trial court.
This, as usual was seriously opposed by the interested party by filing a notice
of preliminary objection and an affidavit. The basis of the objection which was
apparent in the affidavit was that, the first applicant herein, on filing the
motion did not disclose his Solicitor’s Licence Number for the year 2013 on
the motion paper. It was also raised as an objection that the first applicant not
having taken any practising Licence for 2013 was incompetent to sign a
motion and that same contravenes section 8(1) of the Legal Profession Act,
1960 (Act 32). The first applicant admitted that a similar objection was raised
in an earlier suit that he had no practicing license for 2013 and further, his
chambers had not been registered with the General Legal Council as enjoined
by LI 613 and Act 32.

The learned judge proceeded to enforce the law and therefore held that there
was clear breach of section 8 of the Legal Profession Act, 1960 (Act 32 and
Rule 4(4) of the Legal Profession (Professional Conduct and Etiquette) Rules
1969 (LI 613) and dismissed the application to vacate or vary the interlocutory
injunction granted against the second applicant and held further that the first
applicant herein was incompetent to represent the second applicant as his
client in view of the breach of the two statutes referred to above. The
applicants complain that the first applicant had raised the following
constitutional issues which the learned trial judge refused to refer same to the
Supreme Court for interpretation:

(a) Whether or not the Second Schedule to section 8 of the Legal

 Profession Act, 1960 (Act 32) is unconstitutional and hence void on the
grounds that it contravenes Article 107(b) of the Constitution 1992 to
the extent that it mandated the General Legal Council to issue
solicitor’s licences to lawyers to take adverse retrospective effect on the
right of a lawyer to practice law;

(b) Whether or not upon a true and proper interpretation of Article 107(b)
and Article 296 (a) and (b) vis-á-vis section 8 of the Legal Profession
Act, 1960 (Act 32), the solicitor’s licence issued to the first applicant by
the General Legal Council on 29 November, 2012 was valid until
November, 2013.

It is as a result of refusal of the learned trial judge to refer the above issues for
our determination as required under Article 130 that has culminated in this
application invoking our supervisory jurisdiction under Article 132 of the
1992 Constitution to quash that orders of the learned trial judge and other
consequential orders.

The applicants have stated several grounds as the basis for this application
which may be summed up as follows:

(a) Lack of jurisdiction on the part of the High Court when it refused to
refer the constitutional issues to the Supreme Court and therefore
constitutes a breach of Article 130 of the 1992 Constitution.

(b) Errors on the part of the High Court in refusing to stay proceedings
but rather proceeding to rule on the merits of the notice of preliminary
objection without a reference of the constitutional questions involved
to the Supreme Court for determination.

Given the fact that the outcome of this simple case may have far-ranging
consequences on legal practice I prefer to quote at length the submission of
the applicants in his written statement of case:

“The first applicant contended that upon a true and proper

interpretation of article 107(b) as well as article 296(a) and (b) of the
1992 Constitution vis-á-vis section 8 of the Legal Profession Act, 1960
(Act 32), the said solicitor’s licence issued to him by the General Legal
Council was valid until 29 November, 2013 notwithstanding what was
stated on the face of the said licence. The first applicant argued before
the High Court that the General Legal Council sinned against the letter
and spirit of article 107(b) as well as article 296(a) and (b) of the 1992
 Constitution when they relied on the form provided in the Second
Schedule to the Legal Profession Act, 1960 (Act 32) and thereby issued
a solicitor’s licence to him to last for just 32 days when it is stated in
section 8 of the Legal Profession Act, 1960 (Act 32) that a lawyer must
procure such a license annually in order to stay in practice as a
solicitor. Secondly, the first applicant contended, inter alia, that the
Second Schedule to the Legal Profession Act, 1960 (Act 32) is
unconstitutional and hence void for being in conflict with article 107(b)
of the Constitution in as much as it mandates the General Legal
Council to issue solicitor’s licences to lawyers to take adverse
retrospective effect on a lawyer’s right to practice his profession”

Section 8 of the Legal Profession Act, (Act 32) of 1960, which is in issue,
first appeared in our courts for consideration in the case of AKUFFO-
ADDO & ORS v QUASHIE-IDUN & ORS [1968] GLR 667 CA [Full Bench].

In that case, the plaintiffs, as lawyers had sued the Chief Justice, the
Judicial Secretary and the General Legal Council to challenge a circular
that had been issued by the General Legal Council through the Judicial
Secretary as its secretary, to all courts in Ghana not to grant audience to
barristers who had not taken out their solicitors’ licences. For a fuller
record the circular was as follows:

“I am issuing to all courts in this country a list of those lawyers who

have actually taken out licences. All lawyers are informed that on the
authority of the council and with the approval of his Lordship the
Chief Justice, the judges and magistrates of this service are being
advised that no lawyer should be granted audience in any court until
his name is on the said list or he provides his solicitor’s licence in court.
Practicing lawyers are also reminded that this prohibition extends to all
forms of lawyer’s normal work and not only to appearances in court”

It must be pointed out that in 1968 when the case was decided the
constitutionality of section 8 of Act 32 could not be raised at the Court of
Appeal (Full Bench) as there was no constitution in operation at that time but
it was held that the Legal Profession Act, 1962 (Act 32) section 8 made it a pre-
condition that every lawyer other than an officer of the Attorney-General’s
Department must have an annual practicing certificate entitling him to
practice in the capacity of barrister or solicitor or both. Without this, he could
not practice as a lawyer regardless of the nature of his practice.
In this case, the applicants are of the opinion that section 8 of Act 32 is
unconstitutional. His argument is that a solicitor’s licence issued to him as a
lawyer on 29 November 2013 was not to last for just thirty-two days by the
end of 2012. Reference was made to articles 107(b) and 296(a) and (b) of the
1992 Constitution as constitutional provisions which were breached by section
8 of Act 32.

Article 107 of the 1992 Constitution which sets constitutional limits on

Parliament to make laws states as follows:

107. Parliament shall have no power to pass any law –

(a) to alter the decision or judgment of any court as between the

parties subject to that decision or judgment; or

(b) which operates retrospectively to impose any limitation on

or to adversely affect the personal rights and liberties of any
person or to impose a burden, obligation or liability on any
person except in the case of a law enacted under articles 178
to182 of this constitution.

It should be noted that the Legal Profession Act, (Act 32) of 1960 was passed
in 1960 but by virtue of article 11(1)(d) of the 1992 Constitution, it is part of the
existing laws even though not passed by Parliament under the current
Constitution. It is the duty of counsel for the applicants to demonstrate
whether section 8 of the Legal Profession Act, (Act 32) of 1960 is inconsistent
with or is in contravention of the 1992 Constitution. The solicitor’s licence is to
be procured annually by lawyers who would want to practice law for a
particular year. The General Legal Council which is applying section 8 of Act
32 of 1960, is the only statutory body which regulates the affairs of the legal
profession in Ghana.

In AKUFFO-ADDO & ORS v QUARSHIE-IDUN (supra) Amissah JA said at

page 677 as follows:

“The General Legal Council is not an autonomous body completely

independent of government. It is a governmental agency specifically
created to supervise and regulate the affairs of the legal profession in
this country”.
The excerpts from the ruling sought to be quashed considered section 8(1) of
Act 32 and the Second Schedule of the Act as follows:

“I will begin resolving the case by first looking at the relevant

legislation. Section 8(1) of Act 32 states 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 solicitor’s licence
issued by the council duly stamped and in the form set out in the
Second Schedule”.

The interpretation of this section is not ambiguous. It simply means

that one cannot sign documents or represents a party as a lawyer in
court unless he has obtained a valid solicitor’s licence for that purpose.
The section also sets the duration of the licence, which must be annual.

The Second Schedule of the legislation sets out the period when the
word ‘annual’ stated therein commences and ends. In fact the Act
indicates that the Solicitor’s certificate should expire on the 31 day of
December” every year. This means that the annual solicitor’s certificate
to entitling, persons to practice as solicitors must commence at the
beginning of each year and expire on the last day of the year. In my
view, this is very clear and is not subject to any other form of
interpretation as suggested by counsel for the defendant. This means
that it is at one’s own peril or disadvantage to apply for and obtain the
solicitor’s certificate mid year or in the last quarter of the year as was
done by the defence counsel”.

Counsel for the applicant’s however, is of the view that section 8 of the Legal
Profession Act (Act 32) 1960 operates retrospectively and therefore
contravenes Article 107 of the 1992 Constitution and therefore the learned trial
judge ought to have referred the issue of interpretation of the section to this
court. This argument or submission of counsel is indeed incomprehensible
and perhaps a feeble attempt to make a case against the section 8 of Act 32 of
1960. The Black’s Law Dictionary (8 Edition) at page 1343 defines retroactive
legislation as legislative act that looks backwards or contemplates the past,
affecting acts or facts that existed before the act came into effect.
Retrospective legislations which under the 1992 Constitution our parliament
is prohibited from enacting are legislations which take effect or cover actions
or omissions prior to the time the legislation was passed. Section 8 of Act 32
obviously has no traces of any retroactivity in any manner or form
whatsoever. It is also devoid of any ambiguity and the learned judge was not
indeed called upon to embark on any interpretation of the section or the
constitutional provisions in Article 107 to usurp the jurisdiction of this court.
The Legal Profession Act has clearly set down the period for payment of the
solicitor’s licence as explained by the judge. Any payment in the middle or
quarter of the year obviously would not attract any concessions as there are
none in the statute. If the provision of a statute is very clear, and
unambiguous courts do not import words into it under the guise of
interpretation. See KUENYEHIA v ARCHER [1993-94] 2 GLR 525 the opinion
of Francois JSC.

If the learned High Court judge had resorted to interpreting Article 107 this
court on the authorities of REPUBLIC v HIGH COURT [COMMERCIAL
DIVISION), ACCRA; EX PARTE ATTORNEY-GENERAL (BALKAN
ENERGY GHANA LTD & OTHER INTERESTED PARTIES) [2011] 2 SCGLR
1183 and AGYEIWAA v P & T CORPORATION [2007-08] 2 SCGLR 985
would have intervened. It has not been demonstrated to this court, in the
least, that section 8 of Act 32 of 1960 contravenes or is inconsistent with any
provisions of the 1992 Constitution, to warrant our intervention on the
grounds that the High Court had usurped a jurisdiction exclusively vested in
this court.

The first ground for invoking our jurisdiction therefore fails as being
misconceived and without merits whatsoever.

The last ground argued in this application is based on the alleged error on the
part of the learned High Court judge in refusing to stay proceedings to refer
the constitutional questions involved to the Supreme Court for determination.
The applicants in my respectful opinion did not invite the High Court to
consider any constitutional provision as alleged by them. In the ruling under
attack, Article 130 of the 1992 Constitution clearly prohibits any other court
apart from this court to deal with matters that relate to the enforcement and
interpretation of the Constitution as matters bothering on whether an
enactment was made in excess of powers the constitution has conferred on
Parliament or any authority or by law. The learned judge was of the view that
as section 8 of Act 32 was clear and unambiguous and did not conflict or
contravenes Articles 296(a) and (b), resort to the referral of the issue to the
Supreme Court did not arise. He was of the view that it was his duty to
interpret and enforce Acts of Parliament and he said so thus:

“It is the duty of the courts to interpret and enforce Acts of Parliament
and not to help people violate them or put their own interpretation on
it to suit them. Act 32 is an Act of Parliament and in so far as it has not
been annulled, its provisions must be adhered to by all persons
affected by it and the court cannot look on whilst it is being flouted”.

The alleged error complained of is not in the least apparent for this court to
issue certiorari to quash the said decision. In our respectful opinion there was
no usurpation of our jurisdiction as alleged and failure on the part of the
learned judge to stay the proceedings could not amount to error of law to
warrant our supervisory intervention.

A sole statutory body, that is the General Legal Council, with powers to
regulate legal profession in Ghana may do so by through laid down rules and
regulations provided they do not conflict with the constitution. The learned
judges refusal to grant the first applicant audience in court was clearly in
conformity with section 8 of the Legal Profession Act, Act 32 of 1960. As
pointed out by Date-Bah JSC in the case of REPUBLIC v HIGH COURT [FAST
TRACK DIVISION] ACCRA, EX PARTE OPERATION ASSOCIATION &
ORS INTERESTED PARTIES [2009] SCGLR 390, “No judge has authority to
grant immunity to a party from the consequence of breaching an Act of Parliament”.

In the case at the High Court the learned judge obviously would have erred
under section 8(b) of Act 32 if he had granted the first applicant audience
when he had not complied with the said section.

Before I rest my delivery, I would refer to Justice Benjamin N Cardozo’s

observation on perhaps the most honourable profession in the case of IN RE
ROUSS 221 NY 81, 84 [1917] as follows:

“Membership in the bar is a privilege burdened with conditions.”

It therefore behoves honourable members of this noble profession to uphold
and support the very laws enacted to regulate this honourable profession.

The application is without merits and same is accordingly dismissed.

(SGD) ANIN
YEBOAH

JUSTICE OF THE SUPREME COURT

(SGD) G. T. WOOD
(MRS)

CHIEF JUSTICE

(SGD) R. C. OWUSU (MS)

JUSTICE OF THE SUPREME COURT

(SGD) P. BAFFOE BONNIE

JUSTICE OF THE SUPREME COURT

(SGD) J. B. AKAMBA

JUSTICE OF THE SUPREME COURT