HENRY NUERTEY KORBOE vs. FRANCIS AMOSA [2014]DLCA2954

Date	2014-05-15
Suit No.	CIVIL APPEAL NO. H1/73/2014
Citation No.	[2014]DLCA2954

ABBAN J. OFOE J.A

TORKONNO J.A

JUSTIN PWAVRA TERIWAJAH FOR PLAINTIFF/APPELLANT

NANCY AMPOFO FOR DEFENDANT/RESPONDENT

[2014]DLCA2954
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													<main id="main" class="content" style="min-height: 60rem" >HENRY NUERTEY KORBOE<o:p></o:p>vs.<o:p></o:p>FRANCIS AMOSA<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;[COURT OF APPEAL, ACCRA]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. H1/73/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 15TH
MAY, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>JUSTIN PWAVRA TERIWAJAH FOR PLAINTIFF/APPELLANT,<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NANCY
AMPOFO FOR DEFENDANT/RESPONDENT<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;
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</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT<o:p></o:p>

</div>OFOE,
J.A:<o:p></o:p>The whole appeal before us
is mainly dependent on what view we hold of the following provisions.<o:p></o:p>Section 8(1) of the Legal
Profession Act 1960, Act 32<o:p></o:p>“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 in
the form set out in the 2nd Schedule of this Act”<o:p></o:p>Rule 4 of the Legal
Profession (Professional Conduct and Etiquette) Rules 1969(L.I 613) also
provides as follows:<o:p></o:p>“All
professional chambers shall be registered with the General Legal Council”<o:p></o:p>What do we make of these
provisions as regards processes signed and filed in court by an unlicensed
legal practitioner?<o:p></o:p>The background to this
appeal can be stated as follows: The plaintiff filed a writ of summons on the
29th of April 2013 seeking by an order of specific performance the
transfer of a certain property into his name. The defendant entered a
conditional appearance on the 13th May 2013 to be followed by a
statement of defence on the 28th of May 2013. On the 4th
of June 2013 the defendant moved the court to strike out the plaintiffs suit as
incompetent on the grounds that the solicitor for the plaintiff, Mr. Justin
Teriwajah, did not have a practicing license as a solicitor when he issued and
signed the writ of summons and the statement of claim and was also operating
from an unregistered chambers. <o:p></o:p>The trial judge upheld the
preliminary objection and concluded that:<o:p></o:p>“The
effect of failing to satisfy the mandatory provisions of the said Act is that
it renders the writ issued by present counsel during the period he was
unlicensed as invalid”<o:p></o:p>Relying on the Supreme Court
case of Gaisie Zwennes, Hughes &amp; Co. vrs Loders Crocklam BV reported in the
2012, volume 1 edition she concluded that the plaintiff’s suit was incompetent
and struck it out.<o:p></o:p>In submissions before the
trial court counsel for the plaintiff, Mr. Teriwajah sought a referral to the
Supreme Court for interpretation whether on the combined reading of Articles
296(a) and (b) and 196 of the 1992 Constitution there could be retrospective
operation of the license issued to him as to bring the validity of his license
that was issued to him on the 29th November 2012 to an end the same
year December 2012 instead of November 2013.<o:p></o:p>The trial judge ruled that
the plaintiff was at liberty to sue the General Legal Counsel and raise this
constitutional issue. To the trial judge what was before her was a clear issue
without any constitutional ramifications. In effect the trial judge refused the
referral to the Supreme Court sought for by the plaintiff.<o:p></o:p>It is worth mentioning that
earlier in the proceedings the defendant entered conditional appearance to the
writ served on him intending to raise a preliminary objection subsequently.
Issue raised by counsel for the plaintiff was that in so far as the conditional
appearance the defendant filed was not processed within 14 days, as determined
by the rules, the conditional appearance became unconditional by the rules.
Counsel submitted that the Defendant could therefore not base his preliminary
objection to his capacity to represent the plaintiff on such appearance which
had ripened into an unconditional appearance. The trial judge ruled that such
an issue of capacity could be raised anytime and therefore even if the
conditional appearance had lapsed the defendant could still raise the issue
anytime. The trial judge proceeded further that she was even entitled to a</main>