EMMANUEL ASHALLEY ASHLEY vs. THE JUDICIAL COUNCIL, THE GENERAL LEGAL [2008]DLSC2456

Date	2008-03-12
Suit No.	COUNCIL CIVIL APPEAL NO. J4/9/2007
DL Citation No.	[2008]DLSC2456

• BROBBEY J.S.C.(PRESIDING)

• ANSAH J.S.C.

• ANINAKWAH J.S.C.

• MRS. ADINYIRA J.S.C.

• ASIAMAH J.S.C.

• MR. T. N. WARBREW FOR APPELLANT.

• MR.ANDREW AMEGATCHER FOR RESPONDENTS.

[2008]DLSC2456
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 <main id="main" class="content" style="min-height: 60rem" >EMMANUEL ASHALLEY ASHLEY<o:p></o:p>vs.<o:p></o:p>THE JUDICIAL COUNCIL, THE GENERAL LEGAL<o:p></o:p>[SUPREME
COURT]<o:p></o:p>COUNCIL
CIVIL APPEAL NO. J4/9/2007<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 12th March, 2008.<o:p></o:p>

</div>COUNSEL&nbsp; <o:p></o:p>MR.
T. N. WARBREW FOR APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MR.ANDREW
AMEGATCHER FOR RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

BROBBEY
J.S.C.(PRESIDING), ANSAH &nbsp;J.S.C.,
ANINAKWAH &nbsp;J.S.C., MRS. ADINYIRA J.S.C.,ASIAMAH
&nbsp;J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>SOPHIA
ADINYIRA (MRS.) J.S.C.: In 1959, the plaintiff/appellant (hereinafter
appellant) was enrolled as a student in the Middle Temple, England. By 1965, he
had passed all the prescribed examination papers except one paper in which he
was referred. In 1972 he passed his referred paper and was called to the
English Bar that same year. In 1977 the appellant was appointed to the Bench in
Ghana as a District Magistrate Grade II. Thereafter he was appointed as a
District Magistrate Grade 1 in 1979 and a Circuit Court Judge in 1986
respectively. After 15 years of service on the Bench, the appellant claimed he
was being considered for appointment to the High Court when an objection was
raised that he was not on the Roll of Lawyers in Ghana and he also did not
possess a university degree. On the basis of these objections the plaintiff was
retired from the Bench in 1992. After he left the Bench he was appointed a Notary
Public but this was also revoked in 1998 on the grounds that he was not a legal
practitioner. Being dissatisfied with this treatment, which he considered, was
discriminatory; the appellant mounted an action at the High Court Accra
claiming: (to be inserted)<o:p></o:p>The
defendants/respondents (hereinafter respondents) stoutly resisted the
appellant’s claim on the main ground that though the appellant was called to
the English Bar in 1972 he was not qualified to be enrolled on the Roll of
Lawyers in Ghana as he did not meet the requirements under the Legal Profession
Act (Amendment) No2 Decree, 1967, NLCD 213(hereinafter NLCD 213). The High
Court dismissed the appellant’s action. The appellant again lost on appeal to
the Court of Appeal but was granted leave to appeal to the Supreme Court. <o:p></o:p>&nbsp;We do not expect to set out here the numerous
grounds of appeal filed by the appellant, which in our opinion are winding and
more of arguments and narratives rather than proper grounds of appeal. They
will be referred to in the course of this judgment. The whole of the
appellant’s case throughout the trial and his grounds of appeal can be
succinctly captured in just two issues. They are, (i) whether the appellant who
was enrolled in the Middle Temple in 1959 and was called to the English Bar in
1972 was caught by NLCD 213 which was passed in 1967 but came into effect in
1971 and (ii) whether the respondents were estopped from retiring the appellant
from the Bench on the basis that he did not possess a university degree and was
not on the Roll of Lawyers in Ghana, after they have appointed him on the terms
of their own advertisement. <o:p></o:p>Before
resolving these issues, it would be convenient to look at the legal
requirements that a person who has qualified to practice as a lawyer abroad should
satisfy before he could practice in Ghana. The relevant legislation is the
Legal Profession Act, 1960, Act 32 (hereinafter referred to as the Act). This
is a consolidated Act, relating to the legal profession whereby the General
Legal Council as established and already in existence is responsible for the
legal profession and in particular, (a) for the organization of legal
education, (b) for upholding standards of professional conduct and (c) for
enrolment of lawyers.<o:p></o:p>Counsel
for the respondents, Mr Andrew Ofoe Amergatcher, in his statement of case set
out clearly the legislative history and reforms that was a prelude to the
enactment of NLCD 213, and which we think would be of interest to any student
of the legal history of Ghana. I will therefore quote him in extenso as it has
much bearing on this case. Counsel first dealt with pre-independence
legislation.&nbsp; He said:<o:p></o:p>“The qualification for practicing law
in Ghana has not been static. It has followed a slow evolution, in which the
aim has often been to ensure that practitioners were better educated and
conversant with our laws. The first lawyers were purely self-educated Africans
who specialised in the presentation of cases in the courts of the British
settlements from 1853 onwards. In 1864, a court order required that these
attorneys, as they were called, take licences.<o:p></o:p>Colonial Legislation<o:p></o:p>The Supreme Court Ordinance, 1876,
tried to regularise the legal profession. It gave the Chief Justice power to
enrol persons who had been admitted to practice as barristers, advocates or
solicitors to practise in the country.<o:p></o:p>Legal Practitioners Ordinance 1931 Cap
8<o:p></o:p>In 1931, the Legal Practitioners'
Ordinance was passed "to amend the law relating to legal practitioners and
especially to make provisions for the establishment of a Disciplinary
Committee.” [1] According to Section 3, " The Chief Justice may, in his
discretion, approve, and enrol to practise as a barrister and solicitor any
person who is entitled to practise as a barrister in England, Northern Ireland
or in the Republic of Ireland or as an advocate in Scotland, and who by the
production of testimonials or otherwise satisfies the Chief Justice that he is
a person of good character"<o:p></o:p>Counsel
then gave a narration of post independent legislation in which he talked about
the Legal Practitioners Act No 22 of 1958 and the Legal Profession Act, 1960,
Act 32<o:p></o:p>“Post Independence Legislation<o:p></o:p>The Legal Profession Acts of 1958 and
1960 removed the discretion of the Chief justice and placed it in the hands of
the General Legal Council. In this connection, the Legal Profession Act 1960
stated under s. 3(2) that: “A</main>