DENNISLAW [2019]DLCA7600

ABRAHAM OKAN KLU

(PLAINTIFF/RESPONDENT)

vs.

JOSEPH AGYEI LARYEA

(DEFENDANTS/APPELLANTS)

[COURT OF APPEAL, ACCRA]

SUIT NO. H1/130/2019

DATE: 24 OCTOBER, 2019

COUNSEL:

RAY APPIAH AMPONSAH FOR THE DEFENDANT/APPELLANT

FAUSTELL COFIE FOR THE PLAINTIFF/RESPONDENT

CORAM:

DENNIS ADJEI (JA) (PRESIDING), AVRIL LOVELACE-JOHNSON (JA) AND

HENRY KWOFIE (JA)

JUDGMENT

AVRIL LOVELACE-JOHNSON (JA):

This is an appeal against the judgment of the Land Division of the High Court
dated 8 February 2018 by which the learned trial judge refused to set aside her
earlier ruling of 3 November 2017 and also declared a portion of the
proceedings in this matter a nullity and further stated that “ the case will have
to be started de novo”

The brief background to this appeal is that the plaintiff/respondent and one
other issued a writ against the defendant/appellant in their capacities as head
and elder respectively of the Klu family of Teshie and Otinbi. Before hearing
of the matter could commence, counsel for the Defendant/appellant raised
the issue of the capacity in which the 1 plaintiff/respondent had brought the
action as stated in their pleadings. Evidence was taken on the issue and by a
ruling delivered on 3 November 2017, the court found that the
plaintiff/respondent had the requisite capacity to institute the action.

It is on record that the defendant /appellant appealed against the 3 November

2017 ruling by a notice of appeal dated 17 November 2017 and this court by a
judgment dated 16 May 2019 affirmed the High Court’s position that the
plaintiff had capacity to bring the present action.

Counsel for the defendant/appellant after the ruling of 3 November 2017 filed
a motion to interrogate the capacity of one of the lawyer handling the case for
the plaintiff. It is the court’s ruling on this application delivered on 8 February
2018 which is the subject matter of this appeal.

It appears that both parties were dissatisfied with portions of the court’s 8
February ruling on the issue of the capacity of the lawyer in question so they
both filed notices of appeal on the matter in this court, the
plaintiff/respondent on 21 February 2018 and the defendant/appellant on 13
April 2018.

It is clear that the present matter before this court relates to the appeal filed by
the defendant/appellant but is likely to make the appeal filed by the
plaintiff/respondent redundant since a resolution of the issues raised herein
will practically determine those raised in that appeal.

The Defendant/Appellant’s appeal entitled “Notice for the variation of

Ruling” is also said to be against the whole ruling on the following grounds
(I) The ruling is against the weight of evidence
(II) The ruling should be vacated as it failed to interpret and enforce
the law in accordance with the spirit of section 8[1] of the Legal
Profession Act 1960 Act 32
(III) The Judge’s failure to se aside the ruling dated 3 November 2017
after making a finding that the lawyer under pupillage who had no
practicing license had assumed the capacity of a lawyer by
appearing in court, holding brief for her senior and cross-examined
during the proceedings
(IV) The learned Judge decided that the ruling cannot be set aside
despite having made a finding that part of the proceedings handled
by the Lawyer under pupillage was a nullity and at the same time
ordering that the case be started de novo thus resulting in an
injustice on the defendant/appellant herein which has to be
redressed by this court.
(V) Further grounds of Appeal shall be filed upon the receipt of the
record of appeal

No such further grounds were filed.

The appellant seeks from this court an order reversing the ruling in question
and a declaration that the prosecution of the case was a nullity so the
Defendant was victorious!
The manner in which the defendant set out his “notice for the variation of
ruling” and “grounds for variation of judgment” is not in conformity with the
rules of this court. Rule 8(3) requires the notice to be in the Form 1 set out in
Part One of the schedule. It is clearly not. With the exception of ground (I)
which is the omnibus ground, the other grounds are not concise and are in
narrative form. They sound like reasons supporting grounds of appeal which
have not been set down. This is not surprising because counsel right from the
onset did not follow the procedure laid down by the rules of this court for
mounting an appeal.

All the grounds with the exception of (I) are hereby struck out.

Notwithstanding the manner in which the appeal is couched the body of the
notice shows in the fourth line that it is an appeal against the ruling in
question. The process filed will therefore be considered as an appeal on the
sole ground that the ruling is against the weight of evidence which ground
enjoins the court to examine the said ruling in the light of both oral and
documentary evidence on record and the applicable law to determine if it is
supported by these. See

Owusu Domena v Amoah (2015-2016) 1 SCGLR 790

Tuakwa v Bosom (2001-2002) SCGLR 61

Upon careful reading, it can be discerned that the kernel of the arguments of
counsel for the defendant/appellant on this ground is that when Mrs Stella
Adu-Duodu acted in the present case, whether by merely holding the brief of
her senior or by cross examining witnesses, she fell foul of the law which
required that, to be able to lawfully engage in Legal practice, a lawyer had to
have a Solicitor’s License. Further that case law having determined that such a
License could not be retroactive, her subsequent acquisition of the necessary
License could not validate her earlier appearance as counsel.

Not having been licensed to practice as required by law, counsel contends that
all the proceedings she participated in including that which culminated in the
ruling of 3 November 2017 are a nullity and so the learned trial judge erred
when she ruled that her ruling of 3 November 2017 which declared that the
Plaintiff/Respondent had capacity to bring the present action was to subsist
in spite of her order for the case “to be started de novo”.

The position of counsel for the plaintiff/respondent on the issue can be found
in the concluding statement of his written submissions where it is stated as
follows

“Indeed the only reason why the defendant has mounted the instant appeal is in the
hope to convince this honourable court to hold that by reason of the annulment of the
proceedings aforementioned, the court should consequently dismiss the entire action
of the plaintiff for lack of capacity. It is this invitation we are humbly praying
this honourable court to reject as untenable.”

The reason for this position appears to be that not all the proceedings in the
case were conducted by the said Stella Adu-Duodu and counsel contends that
those proceedings in which she did not participate provide sufficient evidence
to support the trial judge’s position that plaintiff/respondent had capacity to
institute the present action.

The record shows that the trial court delivered a ruling on 3 November 2017
which found that the Plaintiff did have capacity to bring this action.

Shortly after this, the defendant appellant filed another motion challenging
the capacity of Ms Stella Adu Duodu to appear and act on behalf of the
plaintiff/respondent in this matter. In her ruling on the matter, the learned
trial judge found as a fact that the said Stella Adu Duodu had participated in
the trial not just by holding brief for her senior but had on 9 March 2017 led
PW2 Emmanuel Adjei Mensah into evidence before cross examination began.
The court concluded that the proceedings in which the said unlicensed Stella
Adu Duodu participated were a nullity “save for sittings where only cross
examination was done”. For some reason after this finding, the learned trial
judge not only stated that the case was to be “started de novo’ but also said
her earlier ruling which found that the plaintiff had capacity was to subsist. It
is to be remembered that the said Stella Adu Duodu had participated in the
trial as a substantive counsel when she led PW2 in evidence on the issue of
the Plaintiff’s capacity.

The question to be answered here is whether in the circumstances, the final

order by the trial judge seeking to maintain the ruling on capacity while/and
ordering a trial de novo was proper.

According to the Merriam-Webster dictionary the latin expression ‘de novo’

means ‘over again’ or ‘anew’. The same dictionary also defines TRIAL as

“the formal examination before a competent tribunal of the matter in issue in a civil or
criminal case in order to determine such an issue”

Quoting from the Canadian case of Catherwood v Thompson (1958) OR @

331, the book WORDS AND PHRASES legally defined 3 Edition under the
general Editorship of John B Saunders, states the following, per Schroeder JA
at page 332

“In a general sense, the term ‘trial’ denotes the investigation and determination of a
matter in issue between the parties before a competent tribunal, advancing through
progressive stages from its submission to the court or jury to the pronouncement of
judgment. When trial may be said actually to have commenced is often a difficult
question but, generally speaking, this stage is reached when all preliminary questions
have been determined and the jury, or a judge in a non jury trial, enter upon the
hearing and examination of the facts for the purpose of determining the questions in
controversy in the litigation”

The claim in this matter per the writ of summons filed on 13 November 2014
is for a declaration of title to a piece of land described therein. The defendant
in his statement of defence in paragraph 26 challenged the capacity of the
Plaintiff to bring this action when he stated in part as follows

“The plaintiffs are not members of the Klu family….”

At page 114 of the Record of Appeal, counsel for the defendant/appellant on

6 December 2016 submitted to the court that the issue of
plaintiff/respondent’s capacity be “determined before the trial commences”.
His counsel agreed to this and proceedings to determine capacity started
immediately with Plaintiff going into the box.

Clearly then, hearing of the matter proper has not commenced. The issue of
capacity raised by the pleadings was a preliminary matter (one of those
referred to by Schroeder JA in the above quotation) determined by the court
by taking evidence.

In the circumstances then, the order for a hearing de novo is not supported by
the evidence on record.

What about the portion of the order which seeks to except the ruling on the
plaintiff/respondent’s capacity from the order declaring proceedings
participated in by the said Stella Adu Duodu a nullity?

It is undisputed that at the time the issue of capacity was being determined by
the court the said Stella Adu Duodu had no license to practice and was only
doing her pupillage at the Chambers representing the plaintiff/respondent.
The trial judge herself stated in part in her ruling at page 316 of the Record of
Appeal as follows

“a pupil may hold brief to take a date or give information to the court. When a lawyer
holds brief he would be appearing for counsel on record. In the instant case Stella
Adu-Duodu Counsel held brief for the Counsel on record thirteen times as per the
proceedings attached. On 9th March 2017 she led PW2 Emmanuel Okang Adjei into
evidence while on 23 March 2017 she led PW3 Nii Annang Okang Mensah into
evidence before cross examination.”

The said Stella Adu Duodu was registered on 3 May 2017 with a Practicing
License after she had taken part in the proceedings relating to the capacity of
the plaintiff but before the ruling on the matter was delivered on 3 November
2017.

Surely her participation in the proceedings had tainted them (so to speak) by
the fact that she had no license to practice Law and in the light of the Supreme
Court decision in the case of Republic vrs High Court Ex parte Teriwajah
and Korboe [2013-2014] 2 SCGLR 1247 cited by the learned trial judge herself,
her order declaring only a portion of the proceedings in which the said Stella
Adu-Duodu participated in a nullity is not in consonance with the law and
cannot be allowed to stand.

All the proceedings in which Stella Adu Duodu participated, without

exception, and the ruling of 8 February 2018 given as a consequence of the
said proceedings are a nullity.

The ground of appeal that the ruling is against the weight of evidence
succeeds and is upheld.

Counsel for the defendant/appellant seeks from this court not only an order
reversing the court’s said ruling but a declaration that

“prosecution of the suit is a nullity therefore the defendant is victorious”

In the first place there has been no prosecution of the suit so the question of
who is victorious does not arise. What has been declared a nullity are the
proceedings relating to capacity. The issue of Plaintiff/Respondent’s capacity
is to be tried de novo. In the circumstances, it is proper that the case be placed
before another judge for this to be done and for the substantive matter to be
heard on its merits if the capacity of the plaintiff/respondent is proved. The
Registrar is to transmit the docket to the honourable Chief Justice for her
directives in this regard.

The appeal succeeds. The ruling of the High Court dated 8 February 2018 is
hereby set aside. Costs of GH¢2,000.00 in favour of the Appellant.

SGD
 ……………………..

JUSTICE AVRIL LOVELACE-JOHNSON

(JUSTICE OF THE COURT OF APPEAL)

SGD

I agree …………………….

JUSTICE DENNIS ADJEI

(JUSTICE OF THE COURT OF APPEAL)

SGD

I also agree …………………..

JUSTICE HENRY A. KWOFIE

(JUSTICE OF THE COURT OF APPEAL)