…a repugnant to Rule of Law and good conscience
In recent years, some judgments of our court appear to have the unintended consequence of visiting the sins of defaulting lawyers on their innocent clients. Some clients have had their cases struck out by the courts because their lawyers failed or neglected to secure a valid practising license as required of them by Section 8(1) of the Legal Profession Act 1960 (Act 32). In the Supreme Court case of Henry Nuertey Korboe v. Francis Amosa (2016 Unreported), Her Ladyship Sophia Akuffo, a former Chief Justice of Ghana held as follows: “If the Applicant (or any member of the public for that matter), whether out of diffidence or ignorance, fails to exercise his clear right to verify the credentials and legal capacity of his lawyer to perform the services he is engaged to undertake, that cannot give rise to an exceptional circumstance which has resulted in a miscarriage of justice such as would merit the exercise of our review jurisdiction”.
Though the principle to place the responsibility on clients to ascertain the status of lawyers before procuring their services, the discharge of this duty on a majority of clients in a developing country, such as ours, may be seriously undermined because of the high illiteracy level.
The ethical questions are, how does an illiterate client differentiate a fake lawyer license from the genuine one? How does a client who lacks knowledge of courtroom procedure assess the quality of his or her lawyer’s performance? And lastly, what is the likelihood that a ‘hungry’ lawyer would disclose his lack of capacity to perform legal services?
The good book in 2 Corinthians chapter 5 verse 10 instructs that: “For we must all appear before the judgment seat of Christ, so that each one may be repaid according to practices he has practiced….” However, litigants whose cases are struck out due to the sins of their lawyers are made to suffer consequences of the misconduct of their lawyers.
To Lord Denning MR, “when an officer of the court itself makes a mistake, the consequences should not be visited on the unfortunate litigant, but they should be remedied by the court itself”. Lawyers are officers of the courts, and the consequences of their mistakes should not be borne by unfortunate litigants but should be remedied by the court itself.
Notably, clients who suffer the consequences of the mistakes of their lawyers are not given the audience to express their thoughts before such a harsh decision is made and that is against the rule of natural justice encapsulated in the legal maxims audi alteram partem – hear both sides, no party should be condemned unheard. The case of Awuni v. West African Examination Council emphasises that where a judicial decision reached breaches the principle of audi alteram partem, the decision reached becomes void.
Therefore, striking the cases of innocent clients out due to mistakes of their lawyers without giving them audience is unfair and unjust. This view is shared by Akoto-Bamfo JSC – as she then was – in Henry Korboe v Francis Amosa (Civil Appeal No.J4/56/2014): “It is my considered view that nullifying processes filed on behalf of clients by such errant lawyers would be manifestly unjust to the said client”.
The Supreme Court is not bound by its own previous decisions as established in Article 129 (3) of the 1992 Constitution; for the interest of peace and justice, it is the writer’s humble prayer to see and sense the growth of our laws, where each one will suffer his or her error or wrong.
To promote the Rule of Law and good governance, Lord Denning, MR again admonished judges to heed to his advice given in R v Commissioner of Police of the Metropolis. His Lordship said: “We will never use this jurisdiction as a means to uphold our dignity. That must rest on a surer foundation. Nor will we use to suppress… [Others]”. [Emphasis mine].
Conclusion
In conclusion, the Latin statement ‘res inter alios acta alteri no cere non-debet’, meaning “one person ought not to be injured by the acts of others to which he is a stranger”, must be adopted in such situations to save innocent clients from being punished for the sins of errant lawyers. All lawyers, except the Attorney-General and officials of his department, are required to obtain a valid annual lawyer’s license to enable them to practise their trade as required by Section 8(1) of the Legal Profession Act, 1960 (Act 32).
However, it is the prayer of the writer that if these lawyers ignore their annual duty as required by Act 32, innocent clients who are ignorance of the status of their lawyers’ license should not be made to suffer the consequences (Nyameneba & Ors v. The State). The writer would like to conclude his opinion on this Latin phrase Sapientia et Doctrina Stabilitas, meaning “wisdom and knowledge should be the stability of these times”.
>>>The writer is a Legal Researcher and a student of the law, who holds BSc in Financial Mathematics, LLB (LAWS), and now a candidate in Master of Philosophy in Development Studies. He can be reached via: Tel: +233549657873; Email: [email protected]
