TLP/HC/2024/10

THE REPUBLIC
v
JOHN KINGSLEY ARTHUR AND ANOTHER
NANA AMAKYE II
EX PARTE NANA KWAMENA AKUNTAN II
(CHIEF OF DWOMO)
SUIT NO. E9/13/24 29th APRIL, 2024
__________________________________________________________________

COUNSEL
PETER KOJO BAIDOO for CONSTANTINE KUDZEDZI for
Applicant/Respondent.

ABDUL AZIZ SEIDU for DARYL EBO LAING for Respondents/Applicants

RULING

The law relating to Solicitor’s License

Section 2 of the Legal Profession Act, 1960 (Act 32) states as follows:

Status of Lawyers

A person whose name is entered on the Roll kept under section 6

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(a) is entitled, subject to Section 8, to practice as a lawyer, whether as a

barrister or solicitor or both, the fees, charges and disbursement for services

rendered as a lawyer, and

(b) is an officer of the Courts, and

(c) is subject, when acting as a lawyer, to the liabilities that attach by law to

a Solicitor.

Section 8 (1) of Act 32 also provides as follows:

A person other than the Attorney-General, or an officer of the Attorney-

General’s department, shall not practice as a Solicitor unless that person has

in respect of that practice a valid annual Solicitor’s license issued by the

Council duly stamped and in the form set out in the second schedule.

The Legal Profession Act was enacted to consolidate and amend the

laws relating to the legal profession. It makes provision for the qualification

of a lawyer and the license required to practice law. By the combined effect

of sections 2 and 8 (1) of Act 32, a person other than the Attorney-General or

his representative shall not practice as a Solicitor unless that person has a

valid annual solicitors license issued by the General Legal Council.

In the case of Henry Nuertey Korboe v Francis Amosa, Suit No.

J4/56/2014, Supreme Court, Accra 21/04/2016, the Supreme Court by a

majority decision affirmed its earlier ruling in Republic v High Court, Accra;

Ex Parte Teriwajah and Henry Nuertey Korboe (Reiss & Co. Ghana Limited)

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(Interested Party) Suit No. J4/24/2013 (dated 27th April, 2016) which also

bordered on section 8(1) of the Legal Profession Act, 1960 (Act 32). By that

majority decision, a solicitor who is not qualified to practice within a time

frame is prohibited by section 8 of Act 32 to practice, and any process filed

without a license should not be given any effect in law.

The Application

In this motion on notice, counsel for the Respondents to the pending

contempt application (Applicants to the instant application) is praying the

court for an order to set aside the contempt application dated 9 th January,

2024.

The basis of the application is that the application for contempt is

incurably defective as same is laden with breaches of statute and procedural

irregularities. It is Respondents’ case that contrary to statute specifically

Section 8 (1) of Act 32 and judicial decisions of the Supreme Court, the

application for committal for contempt was filed by a lawyer who did not

have a valid Solicitor’s License at the time of filing. That by reason of the

breach of statute, the application for committal for contempt cannot be cured

under the rules of court. Respondents are therefore praying the court to set

aside the application for contempt as the same is defective.

Applicant of the contempt application (Respondent to the instant

application) is opposed to the instant application. The basis of his opposition

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is captured in an affidavit in opposition deposed to by his lawyer. The

relevant portions of the affidavit in opposition which capture the mainstay

of the opposition reads:

4. That though at the time of filing the application, I had not obtained

my Licence for 2024, the non-obtaintion (sic) of the Licence was due to

Maintenance Shutdown and Upgrade on the Ghana Bar Association

Portal which made it impossible for most lawyers including myself to

obtain the Licence for 2024 before and immediately after 31 st

December, 2023.

5. That indeed this Maintenance Shutdown and Upgrade was

communicated to all lawyers by the Ghana Bar Association. Copies of

correspondence from G. B. A. are attached as “CKMK and CKMK 1”.

6. That as such processes could be filed pending the Upgrade, once

Counsel had the previous year’s certificate.

7. That as soon as the Upgrade was completed sometime in January

2024, there was a rush by members on the G. B. A. Portal culminating

in traffic and congestion in the Portal as a result of which myself and

several colleague lawyers I know could still not obtain their licence

through the Portal due to traffic and congestion.

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8. That it was until sometime in the third week of January 2024 when

the Portal became stabilized and less congested that I was able to

obtain my licence, a copy of which is attached as Exhibit “CKMK 2”.

9. That I pray therefore that the application be dismissed as

unmeritorious and a ruse.

Analysis and Decision of the Court

By the Second Schedule of the Legal Profession Act (Act 32), the

solicitor’s license is issued for a period of one year and expires in the year

ending 31st December. The license shall be renewed annually and from the
legal authorities above, filing a court process without a valid license shall be

deemed a violation of the Legal Professions Act within the meaning of

section 8 (1) of the Act.

In the instant case, it became impracticable for lawyer for applicant to

renew his solicitor’s license timeously. This was through no fault of the

lawyer but due to system failure of the GBA Portal. The court has taken

judicial notice of the occasional occurrence of this technological glitch which

leave lawyers frustrated in their desire to renew their licenses. Failure of the

GBA licensing application and renewal architecture has occasionally

rendered considerable number of lawyers impotent in their practice during

the month of January, as they await the issuing of a solicitor’s license number

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to signify the renewal of their licenses. Lawyers have always had to grapple

with this risk associated with technology.

The profound question is: can technology failure be used as basis for

noncompliance with statutory requirement, particularly section 8 (1) of the

Legal Profession Act? In other words, in the light of the said system failures

relating to issuing of licenses by the GBA on behalf of the General Legal

Council, can a lawyer file a process with the previous year’s license number

pending the issuing of a new license number? The simple answer is “No”.

The situation the court is confronted with in this application being one

of noncompliance with the provision of a statute has the effect of

invalidating the contempt application which was filed without a valid

solicitor’s license number. We are servants but not masters of statute.

Consequently, unless the statute itself creates an exception for

noncompliance, the court shall not entertain any excuse from a defaulting

party. Noncompliance with statute is distinct from noncompliance with the

rules of court. The rules of court make provision to the effect that

noncompliance with the rules may not render a process invalid unless the

noncompliance violates the constitution, statute or rules of natural justice.

See Republic v High Court, Accra, Ex-parte Allgate Co. Ltd [2007-2008]

SCGLR 1041. Thus, failure of the Applicant’s lawyer to comply with the

provision of section 8 (1) of the Legal Profession Act renders the contempt

application filed by the lawyer null and void. In view of the breach of the

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statutory provision, I have no discretion in the matter than to set aside the

Motion on Notice for Committal for Contempt filed on 9 th January, 2024. The

result is that the contempt application is hereby set aside.

Proposal for Legislative Amendment

I must concede that the application of the law in the instant case has

occasioned a harsh result. In spite of this, there was no room for any contrary

conclusion by the court, as the law, they say, “is what it is and not what it

ought to be”. To ensure just results in the application of our solicitor’s

licensing regime, there is the need for a rethink of the existing regime. There

is the need to mitigate the legal fallout from technology failure. Beside the

GBA putting in place a robust IT System for easy accessibility and results,

the situation calls for an amendment of the law to cater for administrative

delays in issuing of licenses. After all, the law being an instrument for

change, is an effective tool in the resolution of problems in all aspects of life.

Consequently, it is proposed for legislative change that within two-

month period immediately following the expiration date of the active license

(i.e. in January and February), a lawyer should be allowed to use the

previous year’s solicitor’s license number to file processes provided he or

she has applied (or attempted to apply) for a renewal of his or her license.

Also, within the two months’ grace period, a lawyer who uses the

previous year’s solicitor’s license number to file a process in court must

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depose to an affidavit indicating the fact that he or she has applied for a

renewal of the previous year’s license and is awaiting a new license number.

An affected lawyer may also depose to the fact that it has become

impracticable to apply for a solicitor’s license due to administrative lapses

(including technology failures) on the part of the licensing authority.

These measures may go a long way to ensure that qualified lawyers

practice their profession seamlessly.

SGD

DR. RICHMOND OSEI-HWERE

JUSTICE OF THE HIGH COURT

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