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Opinions of Monday, 22 July 2013

Columnist: Asare, Kwame Ohene

The court should not be an instrument of oppression

- for theft and racial harassment!

By Kwame Ohene Asare

In my article, ‘Supreme Petition- In whose bad faith ?’, published well before the drawing of the famous line by Justice Atuguba, I bemoaned the Supreme Court’s apparent failure to crack the whip on the participating lawyers in the on-going election dispute and the seeming lack of an effective regime for disciplining aberrant Lawyers in Ghana, especially in the face of Lawyer Tsikata’s infamous ‘shut up’ comment and other facetious and groundless accusations of dishonesty and criminality against his learned friends on the opposite side.

In consequence, Justice Dostse’s referral of some of the Lawyers involved in the Amidu V Waterville case to the General Legal Council was for me, an answer to a fervent prayer of mine. I was however disappointed that the Court did not seem to have found it necessary to impose any immediate sanctions, such as punitive cost orders against the same Lawyers.

Ghanaian Lawyers seem to be the most prosperous professionals in politics. The general perception is that the Legal profession is gradually becoming the profession you require to succeed in politics in Ghana. Not surprisingly, 2 of the last 4 Presidents of our 4th Republic have been Lawyers. The Judiciary is necessarily dominated by Lawyers, Parliament may grind to a halt without Lawyers and I wonder how the Executive may function effectively without a competent A.G’s department able to advise them. I am reliably informed that many upwardly mobile politicians are currently in Law School. However, in my view, Lawyers in Ghana appear to be seriously unregulated. The incontrovertible corollary of that is a pool of corruptible leadership resource preparing for Government, telling lies in Court and doing what they like with incredible impunity.

The protection of one’s citizenry under the Law and/or their access to justice is of paramount importance under any Human Rights legislation in a modern day democracy. Undoubtedly, the Judicial system has to strike a delicate balance between the need to ensure that the Citizen is not unjustifiably deprived of access to justice as against the need for the Court not to allow itself, whether unwittingly or otherwise, to be used as a vehicle for the wanton perpetration of Harassment against bona fide citizens of the Land.

However, Ghana’s recent Legal History is littered with one too many examples of prominent members of society using the Court process to commit fraud and unduly harass and cause undue interference in the enjoyment of the peace and quiet of its citizenry.

Whilst Mr Kennedy Agyapong, MP for Assin Fosu, should have been extremely measured in his response to the alleged provocation from his opponents, the State engaged in rather oppressive conduct by charging him with the offence of Treason. In my view the conduct of the State’s Attorneys should have attracted vehement judicial disapproval. Even the amelioration of the charge to that of the offence of attempted treason was no better and it is not surprising that Mr Agyapong was ultimately acquitted of the offence. It would even have been appropriate for the Court or the General Legal Council to have considered the imposition of sanctions against the Lawyers prosecuting. That sort of conduct – preferring exaggerated charges against the culprit with the view to merely causing him some alarm and distress or chancing the possibility that a prosecution-friendly and/or unethical Judge may be found to accept that the charge is made out, knowing full well that the prosecution is seriously unlikely to succeed if the matter were to be justly adjudicated, is clearly unprofessional. Such conduct is an embarrassment to the Legal Profession and begs the question as to what clout the General Legal Council has in the Jurisdiction against misbehaving Lawyers. An employed Lawyer does not only answer to his employers but has to answer to his professional code of conduct as well.

Against this background, it is not surprising that a Judge involved in the potential trial of the persons recently arrested for suspected Arson has threatened to release the suspects. In my view the suspects were only arrested to gratify a Presidential wish and a prosecution would only ensue with the aid of corrupt Lawyers.

The Kpegah Litigation against the NPP flag bearer also poses an ethical challenge to the Legal profession. The best evidence yet that the Justice Kpegah Litigation against the NPP Flag bearer, is a case of sheer racial harassment, emerged a few days back. Justice Kpegah, supported and represented by Mr Annan asked that Mr Ofori Atta, the Judge appointed to adjudicate the case, be recused from the case because he is an Akyem. How Ludicrous! How can qualified Lawyers of the Jurisdiction so brazenly raise such an ethnocentric basis for challenging a Judge? Do these protestors prefer a Ga OR Ewe Judge? If Ghana wishes to remain respected within the league of Nations then such a precedent should not be set in any way whatsoever. Mr Annan’s conduct is unbecoming of a Lawyer and much worse for a retired Supreme Court Judge. They effectively suggest that in Ghana, you are likely to receive a favourable Judgment from a clansman.

Justice Kpegah’s near schizophrenic fixation on Nana Addo’s qualification as a Lawyer also represents a serious threat to the reputation of the Court process. If the Legal process can be susceptible to such unscrupulous abuse involving a victim of such prominence in Society then God save the ordinary citizens of the Land. Justice Kpegah’s conduct in the ongoing persecution of Nana Addo is the worst form of abuse of Court process that I have come across.

Nobody, should be entitled in any jurisdiction under the heavens to issue bogus writs against anyone in a Court of Law in a 21st Century democracy nor can the Lawyers advising such claimants ignore the basic ethical requirement that their client must as a minimum have a well-founded case in Law before encouraging the client to issue a claim against another. It is just the basic thinking that goes into the mind of every responsible and ethical Lawyer when instructed. Money or politics may obfuscate the Lawyer’s judgment in undertaking this required exercise, but straying away from this basic enquiry is not a legitimate option for the Lawyer. The standards of Legal Practice in the motherland must be considered very low if Lawyers could without any hesitation proffer ethnocentrism as grounds for challenging the neutrality of a Judge or lack thereof. A lawyer may be entitled to represent his client in defending a case, even if the only defence available is a procedural flaw in the Claim. However, you are not allowed to lead your client to assert falsehoods in Court nor are you entitled to fabricate sets of circumstances which will enable you contend that the other person’s case be thrown out or dismissed. That will amount to serious professional misconduct. The only difference between the Woyome case and that of Kpegah is that the latter is racially motivated, which in the U.K. aggravates a crime for purposes of sentencing!!

As we found in the Waterville case, it is not enough to simply contend you are working to your client’s instructions. A trained Lawyer has the option of backing out of a case that poses professional difficulties for him or her.

‘Woyome, Waterville and Isofoton’ could not have happened without corrupt and undisciplined Lawyers acting in abject disregard of generally accepted standards of conduct for professional Lawyers. Unless Waterville and Isofoton knew what they were doing and did not rely on the advice of their Lawyers in prosecuting their case/s, then they could by now have been suing their Legal Advisers for professional negligence for any recoverable loss that they may have sustained from their respective cases. Because clearly, if they were given advice which a reasonably competent Lawyer in very similar circumstances would not have been expected to give, then the misadvised, should have recourse to the Courts. Here again does the culture exist in Ghana? Do Lawyers ever get sued for bad advice? This offers another tool for the regulation of the conduct of Lawyers.

The Legal profession is amongst the most heavily regulated professions in other Jurisdictions. In the U.K. a Lawyer does not so much as have to put the client’s money in the wrong Bank Account for only more than 48 hours to attract the eagle eyes of the Solicitor’s Regulation Authority. In almost every week Solicitors are struck off the roll for different wrongs. The extent of regulation is such that advice on professional conduct in the U.K. is a highly specialized and lucrative area of Legal practice in itself. The object is to protect the unsuspecting and vulnerable consumer. A dissatisfied client can complain to the Legal Ombudsman about a Solicitor in the UK. The client may also complain to the Solicitors Regulation Authority for other forms of misconduct by Solicitors. Besides a client is always entitled to go to court for negligence against his lawyer for bad advice for which reason a practicing Lawyer has to maintain professional Indemnity Insurance.

A Lawyer, who takes on a case which has no obvious merits, knowing full-well that the prospects of success are non-existent, commits a serious professional wrong. Readers will no doubt be aware that Justice Kpegah - the retired Supreme Court Judge had brought a claim against Nana Addo Danquah Akuffo-Addo that he was impersonating someone who was a Lawyer and that Nana Akuffo-Addo himself is not a qualified Lawyer in the Jurisdiction, essentially because the name of the person who has the Legal Qualification is a Mr William Akuffo-Addo. Clearly without more what the Claimant/Petitioner is seeking to do is to prove that the said Mr William Akuffo-Addo is not the same person as Nana Addo Danquah Akuffo-Addo. You do not need the razor sharp mind of Ace Ankomah to ask the questions, ‘So who is the real Mr William Akuffo-Addo? Did he ever exist? Who are his relatives? Who ever met him? Who are his mates and what have you? Has Mr Annan gone through this process with his client? And have they got a relative lined up in readiness to testify?’ This suit is criminal!!!

Needless to say, the Kpegah case was brought by apparently prominent members of the profession.

To my utter surprise, Justice Kpegah reportedly renewed his challenge, just a day or two after the Supreme Court decision in the Waterville case. Justice Dotse explained that his decision to refer was necessary as the Lawyers involved should have known that the Waterville case had no merits whatsoever. I found Justice Dotse’s approach rather very progressive and indeed very appropriate for the Legal profession in Ghana. I must emphasize that my principal motivation for the above article – Supreme Petition - was the seemingly unethical antics of the representatives of the 1st and 3rd Respondents in the on-going election Petition, obviously including Tony Lithur, one of the Lawyers and/or his firm referred to the General Legal Council for investigations. Tony Lithur is presumed to have either known or ought to have known that his client did not exist anymore as a viable company yet made representations to that effect in Court. That was downright dishonest and unbecoming of the Legal Profession. It is not permitted under any jurisdiction and may amount to a criminal offence in some Jurisdictions such as England and Wales.

Taking a case to court, which has absolutely no realistic prospects of success, clearly amounts to misconduct on the part of the assisting solicitors, especially if the facts on which the case is founded are indeed known to the assisting Solicitor to be false or that the facts which are relied on could with reasonable diligence have been verified. It can probably be excused once. However, bringing the Kpegah case a second time, especially in the face of the Court’s earlier criticism of the case as frivolous and vexatious should to all intents and purposes amount to gross misconduct.

By every stretch of the imagination, a case of that sort could only have been brought for the sole purpose of harassing the intended Defendant.

Justice Kpegah’s case was struck out for being vexatious and frivolous yet to the best of my knowledge, not even the Claimant suffered cost sanctions. In my opinion, this is a case where even the Solicitors for the Claimant should have attracted punitive costs in any strict Jurisdiction. This was a very serious assault on a well-earned reputation without any provocation.

However, this Kpegah case is not just about the NPP’s presidential candidate. It is a complete mockery of our system of Justice, undertaken by pivotal members of the Legal profession. To attribute to a reputable Judge, a propensity to discriminate on the basis of tribe, without any evidence of such bias, apart from his supposed place of origin is really unfortunate. Mr Annan of Counsel and his client are involved in a serious abuse of process.

Those defending Nana Addo should not see this case as simply a political attack perpetrated by an eccentric retired Supreme Court Judge designed to distract Nana Addo but one that seeks to attack the standards at the Bar, the Justice System and the very fabric that holds this society together. Kpegah and Annan should not be treated with Kid’s gloves. Lawyer and client should be attacked in a very fierce manner. They should immediately be reported to the Bar Council/The General Legal Council or some other with ‘teeth’ for immediate investigation. Furthermore, it is indeed high time that those advising Nana Addo apply for security for their costs against their opponent by asking them for payment into Court, if any such regime exists in the motherland as it is understood that the retired Supreme Court Judge cannot even pay his rents. It will provide them with a pot from which to meet their wasted time and expenses they may be compelled to incur. This could also demotivate the impecunious retired Justice. I was very surprised that in spite of the Court accepting the original case as frivolous

This farcical but deeply ethnocentric side show to the Supreme Petition, lately sponsored by Mr Annan, is an embarrassment to our Judicial System, of gargantuan proportions and ought to be stopped even if the intended victim is a political object of formidable stature.

The Author is the Principal of Braidwood Law Practice Solicitors of Croydon, Surrey, UK.