Over 80% of Lawyers' applications fail at the Supreme Court – Justice Amegatcher

A  Justice of the Supreme Court of Ghana and former President of the Ghana Bar Association(GBA), Justice Amegatcher has revealed that about 80% of applications made by lawyers at the apex court fail not because they were heard on merit.

According to him, most or all of these applications fail because lawyers lack knowledge of the procedures at the court.

He has therefore appealed to lawyers to take seriously the knowledge of procedure in the courts, especially at the Superior courts

“You may be knowledgeable in substantive law. You may know your land Law very well; your Constitutional Law very well; your Contract Law very well but where you are deficient in your knowledge and application of the procedure you will end up being a bad lawyer for your client or yourself.”

“I do not have the statistics but to be conservative, I can tell you that from the court that I’m coming from or that I sit, over 80 percent of the procedural applications which lawyers bring or apply before the court fail not on account of even considered or decided on its merit but because of a procedural misstep; because of lack of knowledge; because of the inability of the lawyers to know how to navigate the procedure step. And if over 80% of the applications fail because of that, then this is cause for all of us to worry.”

Justice Nene Amegartcher made the above known when he moderated a panel discussion on the topic: “Emerging procedural challenges in the superior courts and why lawyers stumble,” at the 2021/2022 Bench, Bar, and Faculties Conference.

Speakers on the topic were Justice Eric Kyei Baffour JA and Justice Tanko Amadu JSC.

EMERGING PROCEDURAL CHALLENGES AT THE HIGH COURT AND COURT OF APPEAL

Justice Kyei Baffour noted in a presentation on the above mentioned among others the failure of parties to provide address; capacity in the letters of administration and the issue of stamping. 

He noted that under the High Court Civil procedure rules, the first emerging challenge is the failure of parties to provide an address.

Referring to the case of Standard Bank Offshore Trust Company Limited v. NIB, he reiterated the court’s position that the failure of a plaintiff acting on behalf of another party outside the jurisdiction to state the address of that person outside the jurisdiction is not a mere procedural irregularity but it owes to jurisdiction.

He noted that it is rare to find lawyers for the plaintiff bringing an application before the court to insist where the correct address of the defendant which he did not know should be stated thus called on lawyers to duly do the needful in such instances.

Secondly, he mentioned the capacity in the letters of administration. He explained that under Section 61 of the administration of Estates Act, the duty of the Executor commences upon the death of the Testator thus can perform the duties of his function but cannot make the execution of his properties.

He added that the position that for intestate properties, a person needs letters of Administration for him to come to court unless is the personal representative or customary successor has shifted thus where a party can claim that he is a beneficiary of an intestate estate, the court will allow him.

Also, he mentioned the issue of stamping and noted that the position that prevailed under the Black star Line Ltd case and the Court of Appeal decision in Amonoo v state that a document with the necessary stamp duty having been paid, or of insufficiency of stamping, would be admitted in evidence subject to the necessary duty being paid later is no longer the law as per Woodhouse Ltd, Amidu v AG, etc.

EMERGING PROCEDURAL CHALLENGES OF APPLICATIONS BROUGHT TO THE SUPREME COURT

Speaking on the above, Justice Amadu Tanko noted that there are no emerging challenges with the procedure itself but the attitude of the practitioners towards the rules.

In examining the judicial comments on the attitude of practitioners, he quoted Justice Akamba in Ex Parte; Tweneboa mentioned inter alia on the adherence to timelines to facilitate the conduct of speedy trials.

Also per  FKA Company Limited V. Nii Teiko Okai, Justice Tanko referred to an obiter of Justice Akamba inter alia that the adjudication process thrives upon law thus the appeal process is a creature of law and must be guided by the relevant provision. 

WHAT IS THE QUALIFICATION TO PRACTICE IN THE SUPREME COURT?

He noted that there are no direct rules which regulate qualification to practice in the Supreme Court.

Referring to Section 2(1) of Act 32, Justice Akamba indicated that any person whose name is entered in the role of Lawyers is entitled to be subject to obtaining a Solicitors license to practice as a lawyer.

He continued per Section 6(1) and concluded that every lawyer is entitled to practice in the Supreme Court provided he/ she complies with the rules of pupillage and the procurement to f a license.

He reiterated that “Practice in the Supreme Court is a practice in the Supreme Court,” noting that a lawyer’s access to the apex court may be severely hampered by inexperience, incompetence, or lack of diligence and sufficient consultation with experienced colleagues.

Additionally, Justice Tanko stated the two types of Leave required under the rules of court to appeal to the Supreme Court. He mentioned Leave Generally and Special Leave.

“Article 131(A) provides that an appeal from the judgment of the Court of Appeal to the Supreme court is generally as of right, There are three other instances however in which leave is required to the Supreme Court. These instances are where the matter commenced in a court lower than the High Court under Article 131 (1) (B) or where the matter relates to the decision of the Judicial Committee of the National House of Chiefs under Article 131(4) or where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest."