To the litigation lawyer; having a day in court is another boost for the practice and to some another an opportunity to increase their fees while the client celebrate the victory to spite the opponent. Sometimes the client’s celebration can become an affront to the law when it is not controlled. The nuances of the law always require strict guidance particularly by the lawyer to the client.
In this article, I will analytically discuss a case study of family litigation and propose ways for continuous legal education and a professional ethical enforcement for the safety of life and property. I will conclude that while it is not wrong for lawyers to make money from practice, money should not be the target detriment to the ethics of the profession.
- The history
This is a prominent and well known royal family in Ghana with vast assets and properties stretching from commercially industrialised areas of Accra into several other regions of Ghana. The forefather around whom the family rallied died intestate. His death was a subject of litigation over his estate. Other family members wanted their share of the deceased self-acquired wealth and rightly so in accordance with the customary laws of Ghana. Several legal actions ensued from the courts of Ghana to the Privy Council of the British Empire.
What seemed to be a long unending litigation, sapping the family’s resources and enriching lawyers was brought to an understanding when a prominent member of the family rose to national prominence and used his power to broker peace. The settlement was among three sections of the wider family; the deceased immediate section, and descendants of his two siblings. So there are three heirs to the estate and throne. It is important to note that the family inherits both matrilineal and patrilineal. Their matrilineal inheritance originated from their Akan antecedent though it is mainly a Ga family.
- The mediation
The mediation by the prominent family member brought into force a family constitution and rotational turn of the three sections to the headship of the family. The process was followed unfailingly until the instant case which is the subject matter of this article.
- The family headship
Like an infested sour, when it is not treated rightly, though the surface may seem dried up underneath it the sore festers. The family along the line broke ties into their old ways of rivalry. This happened when the last family head died and the position became vacant awaiting the proper customary process to install a rightful head of family.
After a ranging tension for years, peace was restored and all three sections merged in a beautiful ceremony that instituted a Council of Elders to manage the affairs of the family in preparation for the installation of the family head. Before this time, a recalcitrant section of the family has broken away to install one of the most vagabonds as a so called chief. By this act, the family is run at parallel; a practice which does not bring peace to any family and therefore must not be countenanced by the institution of chieftaincy in Ghana.
- The law suit
In an ensuring family litigation, one party filed a suit through a law chamber at the Accra High Court praying the court to grant them certain reliefs. While the substantive case was pending, the plaintiff again filed an injunction this time praying the court to restrain the defendants from access to certain family properties. As far as the family properly so as constituted is concerned, the plaintiff has no capacity to sue.
The law as it is is so patient that it accommodates all aggrieved persons that go before it to seek redress. The plaintiff (in a partly breakaway section of the family) through his lawyer sued some members of the family for preventing him the right to enjoy his kingship with all the properties that comes with it. Decided cases in the family litigation and the mediation are on the side of the defendants and it abhors the posture of the plaintiff.
The family’s resources are again spent in legal battles. Limited resources that could be used in helping the aged in the family is been spent in legal financing. Some asked if there were no adults in the family to broker peace. The plaintiff felt and still do feel he has the right while the defendants were determined to prove to the plaintiff and his supporters that the family is bigger than their parochial interest.
While the substantive case was pending, the defendants (then plaintiff) filed for an injunction against the plaintiff (then defendant) praying the court to restrict the defendant from building a house on the family land which he forcefully took in a land guard style. The court ruled that since the defendant was already living in the property, an injunction will prevent him of his abode. He got his day in court to the dismay of the bigger family. By the ruling of court, the defendant within few months quickly constructed a huge building.
The substantive case was still pending. The plaintiff also filled an injunction to a separate court praying the court to restrain the defendants from meddling in the family property. The plaintiff’s application was upheld by the court.
My reflection on the outcome was that if all the cases were heard by same judge, probably the outcome would have been different. How does the court deny one party an injunction and grant the other party an injunction on the same circumstances? I will continue to probe with academic and practical research into this matter until I find a reasonably reasonable answer other than a pedestrian perception of a compromised process.
- After judgement was pronounced
After the plaintiff’s injunction application was upheld, in jubilant mood from the court in the company of his teaming crowd went to the big family house and started harassing occupants to vacate the premises because they have won their case in court and have come to take possession of the family property. People were assaulted and in the process some got hurt. Police report has been made awaiting the next step. Prosecution is expected by the police.
- The legal ethics and common sense
Continuous legal education is an exercise by the legal profession to refresh and update the legal knowledge of its members. The veracity of any respected legal system is the one that ensures strict adherence to the ethics of the profession. In other jurisdiction that I have experienced, an advocate’s licence to practise will not be renewed in the preceding legal year that the stipulated number of continuous legal education courses was not taken in the previous year.
In this instant case study, lawyers of both parties had the onus probandi to explain in lay man’s term the meaning of the ruling by the court. The failure of lawyers on both sides to explain the ruling by the court to their clients may have led to the needless confusion that happened at the family house after court. The plaintiff needed to understand that the injunction was upholding pending the decision of the substantive case. Even then it is not the responsibility of the plaintiff to enforce the injunction.
Ideally, common sense should easily come to all lawyers but since the behaviour of many lawyers lack common sense, it is necessary for the legal institution to incorporate legal ethics that will forestall and punish for the lack of common sense. The legal practice is a living organism that must be nurtured to grow with the dynamism of the society. The actions and inactions of lawyers have the propensity to cause irreparable damage if they are not controlled with continuous education and punishment.
In conclusion, I firmly propose that after judgements are pronounced in court, lawyers of both parties must mandatorily explain the meaning of the judgement to their clients and make them to sign an acknowledgement of understanding of the ruling so that if the clients behave contrarily to the orders of the ruling, the client will be punished for unlawful behaviour. Same way if the lawyers refused to undertake the exercise, they be punished by the ethics of the profession.
In the instant case under discussion, the substantive case is still pending at the court yet the plaintiff has arrogated power unto himself based on the upheld injunction to assuming unfettered powers to misbehaving. Could it be a strategy not to call the client to order so that whiles the client is in jubilant mood it opens the way for the lawyer to charge more in subsequent appearance in the substantive case?
Laughably, a friend told me how a lawyer on the corridors of the court told his clients a completely different interpretation to reasons why the judge adjourned their case and asked the clients to bring more money so he could file a heftier response of their case. To many lawyers money is the target, but to a few it is a ‘call’ to serve God and country.
