FRANKLYN AYENSU vs. UNITED BANK OF AFRICA [2019]DLHC7665

Date	2019-07-07
Suit No.	SUIT NO: GJ 1832/17
Citation No.	[2019]DLHC7665

HER LADYSHIP OLIVIA OBENG OWUSU J.

NKRABEAH EFFAH DARTEH FOR PLAINTIFF

MS MARGARET OWUSU WITH GEORGE MIGUEL OWUSU ANSAH FOR DEFENDANT’S COMPANY

[2019]DLHC7665
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													<main id="main" class="content" style="min-height: 60rem" >FRANKLYN AYENSU<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>UNITED BANK OF AFRICA<o:p></o:p>[HIGH
COURT (GENERAL JURISDICTION COURT 4), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO: GJ 1832/17&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 7TH
JULY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NKRABEAH EFFAH DARTEH FOR PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MS MARGARET OWUSU WITH
GEORGE MIGUEL OWUSU ANSAH FOR DEFENDANT’S COMPANY <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:0cm 0cm 1.0pt 0cm">

HER LADYSHIP OLIVIA OBENG
OWUSU, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

RULING<o:p></o:p>

</div>This ruling arises
out of the evidence – in – chief of one Madam Dora Ocquaye Nortey a solicitor
from the Law Firm THE LAW CONSULT.&nbsp; During her evidence – in – chief she
disclosed that she represented the plaintiff and his representative in another
suit involving the property in issue.&nbsp;&nbsp;
Before she could elaborate on the nature of the said suit learned
counsel for the plaintiff raised an objection to her evidence on the ground
that communication between the plaintiff and the witness is privileged and
therefore inadmissible.<o:p></o:p>In his submission,
counsel for the plaintiff contended that the rules of the profession guarantee
privilege or confidential relationship between lawyer and client.&nbsp;&nbsp; Whatever therefore transpired between the
witness and the plaintiff is privileged and not admissible under the Evidence
Act.&nbsp; Counsel for the plaintiff also made
the point that the Case Management Conference was done on his blind side.<o:p></o:p>In her reply,
learned counsel for the defendant referred to paragraphs 7, 8, 9 and 10 of the
defendant’s witness statement and submitted that the defendant copiously quoted
correspondence between the witness and the plaintiff.&nbsp; According to her the defendant’s defence is
that it paid consideration when this Court differently constituted ordered for
the property in issue to be sold.&nbsp; The
plaintiff has indicated that he has not been given a share of the proceeds from
the sale of the property in issue.&nbsp;
Counsel submitted that the witness is the lawyer who handled the
transaction between the defendant and the plaintiff.&nbsp; &nbsp;It was
the contention of counsel therefore that the witness is the only person who can
testify as to whether or not the plaintiff received his share of the proceeds
from the sale of the property in issue.&nbsp;
Basing her argument on Section 102 (3) of the Evidence Act 1975 Counsel
urged the Court to exercise its discretion in favour of the defendant.&nbsp; <o:p></o:p>Lawyer-client
privilege is covered by Section 100 (2) of the Evidence Act 1975.&nbsp; It provides;<o:p></o:p>“A client has a privilege to refuse to
disclose and to prevent any other person from disclosing a confidential communication
reasonably related to professional legal services sought by the client and made
between he client or a representative of the client and the lawyer or
representative of the lawyer”.<o:p></o:p>I do concede that
the general principle or rule of evidence is that a party has a privilege to
prevent any other person from disclosing confidential communication reasonably
related to professional legal services sought by the client and made between the
client or a representative of the client and the lawyer or a representative of
the lawyer.&nbsp; That rule is however not
absolute.<o:p></o:p><o:p>&nbsp;</o:p>Section 102 (3) of
the Evidence Act states as follows:<o:p></o:p>“A Court, in its discretion, may disallow
a claim of privilege under subsection (1) if the information sought is not
reasonably available from another source and the value of the information
substantially outweighs the disadvantages caused by its disclosure”.<o:p></o:p><o:p>&nbsp;</o:p>In his pleadings
the plaintiff says that he has not been given his share of the proceeds from
the sale of the property.&nbsp; The defendant
in its defence maintains that it was instructed to pay and duly complied by
paying the plaintiff’s portion of the sale from the proceeds into a specific
bank account held by the plaintiff’s solicitors Law Consult.&nbsp; It is significant to note that out of the
issues which have been set down for trial two issues, which this Court must
determine, are whether or not the defendant has given valuable consideration
for the purchase of the property and whether or not the plaintiff has received
his portion of the consideration as beneficiary of the said property subsequent
to its purchase by the defendant.<o:p></o:p>