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Opinions of Thursday, 28 March 2013

Columnist: Koramoah, Kwame Adofo

Why justice Kpegah will not succeed

in his action against Nana Addo

The recent publication in the media that a former Supreme Court Judge has taken an action against Nana Addo, claiming inter alia that Nana Addo is impersonating another person who was admitted by the General Legal Counsel as a lawyer (in other words, he is a fraud); and further, a declaration that the LAW FIRM established as AKUFO-ADDO, PREMPEH AND CO.at 67 KOJO THOMPSON ROAD, Adabraka, Accra is an ILLEGAL LAW FIRM and therefore not competent to represent any party in litigation before any court in Ghana' has, understandably created a sensation in the media with wild headlines such as “Okudjeto slams Justice Kpegah over Nana Addo”, “Justice Kpegah is suffering from "old aged" disease”, “Justice Kpegah should rather be encouraged”, “ ignore Justice Kpegah comments” etc, etc.

But the question is: has Justice Kpegah got any case at all? Will he be able to succeed in the present action against nana Addo? A brief background of the law is important to answer the question whether or not the Justice can succeed in an action against Nana Addo.

For a person (plaintiff) to be able to succeed in an action against another person (defendant) without joining the Attorney-General, that plaintiff must establish that he has what we refer to in law as “locus standi”. That is, a plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to l sue l only if he has a special interest in the subject matter of the action (citation omitted).

In other words for Justice Kpegah to succeed, he must show that: 1. Firstly, he has special interest in the matter beyond that of any other member of the public; or,

2. Secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

It is important to note that the question of special interest has been looked at in a number of cases within the Common Law jurisdictions. It is safe to say that it is now settled law that a person has no interest within the meaning of the rule, unless he is likely to gain some advantage, other than mere satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.

The rationale behind the principle or rule is not only to prevent the process of the law being abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feels strongly enough about an issue will be prepared to put some other citizens, with whom they may have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern to the very great costs and inconvenience in the defending the legality of his actions.

Plainly from the rule as set out above, there is no evidence that Justice Kpegah has any special interest in the matter beyond that of any other member of the public. There is also no evidence that Justice Kpegah has suffered any special damage peculiar to himself from any interference by Nana Addo with any public right. There is therefore no basis upon which Justice Kpegah can succeed in his present action against Nana Addo since he will not get any advantage, other than mere satisfaction of righting a wrong, upholding a principle or winning a contest. To put it simply, he has no standing to bring the action against Nana Addo. Justice Kpegah may well feel very strongly about the case he claim he has against Nana Addo, but that is not enough to grant him standing. The only body that may have “standing” to bring any action against Nana Addo, is the General Legal Council.

It is noted that a lot of commentary has been made inrelation to Justice Kpegah’s motive but that is not an issue for present purposes since plainly, the question whether a plaintiff has standing to bring an action is one that logically arises before the question whether he is entitled to succeed in the action.

Justice Kpegah has written in the media and urged Nana Addo to enter an appearance in the matter and “defend himself”. But that is not the correct step. The correct step is for Nana Addo to apply for an application to strike out the statement of claim and have the action dismissed on the basis of want of locus standi since the facts as alleged or proved in evidence are incapable of sustaining a cause of action.

Kwame Adofo Koramoah is a solicitor and Barrister of the Supreme Court of New South Wales, Australia, and the High Court of Australia. He is also admitted as a Barrister and Solicitor of the Supreme Court of Ghana. Email:billyoo@hotmail.com; tel: 0278230844