The Legal Effect of ‘Solicitor’s Representative' signing Writ of Summons to commence an action under the District Court Rules

Source: John Kwesi Hagan Jnr. Esq

Introduction

The District Courts are the largest number of courts in Ghana because Section 45 of the Courts Act, 1993(Act 459) as amended mandates the establishment of District Court in every District as the Chief Justice may determine. The Chief Justice has the power to create special District Courts within the country to address emerging needs of the Ghanaian society[ Section 45(3) of the Courts Act, 1993(Act 459) as amended and A Practical Guide to Civil Procedure in Ghana by Justice Samuel Marful-Sau (of blessed memory) at page 12].

Pursuant to paragraph (b) of Clause (1) of Article 126 of the Constitution, 1992, Parliament enacted the Courts Act, (Act 459) in 1993. Section 39 of Act 459 established lower courts of Ghana including the District Courts[ In the Consolidated Suits of Francis Xavier Sosu v The General Legal Council and Francis Xavier Sosu v The General Legal Council Civil Motion No. J8/42/2018 & J8/43/2018 ruling delivered on 14th February, 2018.]. District Courts being a lower court is presumed not to have any jurisdiction unless it is expressly provided[ Chief Timitimi v Amabebe (1953) 14 WACA 374]. Alternatively, a lower court only possesses such jurisdiction as is conferred on it by statute[ Dolphyne (No. 3) V. Speedline Stevedoring Co. Ltd [1996-97] SCGLR 514].

District Court Rules, 2009(CI 59) as amended is formulated by the Rules of Court Committee to regulate, guide or control the conduct of civil proceedings in the District Courts. Civil procedures is the system by which we set the law in motion[ Francisca Serwaa Boateng (2023); The handbook on Civil Procedure & Practice in Ghana Rules, Cases, Commentary & Precedents at page 3]. The rules of procedure made by the Rules of Court Committee help define the procedure used in the different courts, but they do not confer jurisdiction on the courts[ The Republic v High Court (Commercial Division), Accra Ex parte: Yvonne Amponsah Brobbey (Gladys Nkrumah Interested party) Civil Motion J5/82/2022 judgment delivered on 1st February, 2023; Nii Kojo Danso II V Lands Commission & Others Civil Appeal No. J4/35/2017 Judgment Delivered on 28th November, 2018].

The Author intends to examine the legal effect of Order 2 rule (3)(2)(a) & (b) of the District Court Rules to the extent that it permits a Solicitor’s representative to sign a writ of summons to commence an action at the District Court. In practice, the writ of summons is issued together with the statement of claim which contains the relief, claim or remedy sought in the action by the plaintiff against the defendant.

An action at the District Court ordinarily be heard and determined in a summary manner without written statements unless it appears to the Magistrate that the nature and circumstances of a case makes it expedient in the interest of justice to have written statement[ Order 18 rule 1 of District Court Rules, 2009(C.I. 59)]. However, written statement is mandatory at the District Court for matters concerning probate and administration, matrimonial causes, defamation and negligence[ Order 18 rule 3 of the District Court Rules, 2009(CI.I. 59)].

Importance of Rules of Court

Justice Kulende, JSC in the Supreme Court case of Anomah-Nimfah v Quayson & Others[ Writ No. J1/11/2022 delivered on 13th April, 2022.] drummed home the importance of rules of court as follows:

“The rules of court serve as a lubricant .They lubricate the wheels on which the substantive jurisdiction of the Courts ride. They are to grease the machinery of the law for effective justice. They cannot, therefore, be applied in a manner that causes friction to the administrative of justice, lest they lose their relevance and place in the architecture of our jurisprudence.”

Order 2 rule 3(2) (a) & (b) of CI 59

Now, Order 2 rule (3) (2) (a) & (b) of CI 59 (“herein after referred “the order”) is set out as follows for ease of reference

“A writ of summons shall not be sealed unless at the time the writ is filed for sealing the person filing the writ leaves with the Registrar a copy or as many copies as there are defendants and the writ is signed

(a) or marked by the plaintiff if the plaintiff sues in person, or

(b) by or on behalf of the plaintiff’s lawyer”(Emphasis mine)

A careful reading of the order clearly suggests or depicts that the plaintiff[ Includes a Petitioner], Plaintiff’s lawyer or a representative of the plaintiff lawyer’s shall sign a writ of summons to commence an action at the District Court. The Author will contend that the order in its present form permitting a solicitor’s representative who is not a lawyer with practicing licence to sign a writ of summons to commence an action at the District Court violates the provisions of the Legal Profession Act, 1960(Act 32).

Unfortunately, CI 59 did not define “writ”. However, High Court (Civil Procedures) Rules, 2004(C.I. 47) provides that writ includes a writ of summons and statement of claim or a petition in a cause or matter. The High Court Rules permit the writ to be signed by either the Plaintiff/Petitioner or a lawyer.

Order 4 rule 1(1) of CI 47 as amended provides that subject to these Rules, any person may begin and carry on proceedings in person or by a lawyer. However, a body corporate and a next friend or guardian ad litem of a person with disability shall act by a lawyer[ Order 4 rule 1(3) of CI 47].

Order 65 rule 6(3) of CI 47 provides that”

“the petition shall be signed by the petitioner if the petitioner acts in person or by a lawyer.”

The Constitution of the Republic of Ghana, 1992 also permit a person to defend himself before the court in person or by a lawyer of his choice.

CI 47 mandates that any person may begin and carry on proceedings in person or by a lawyer save a body corporate and a next friend or guardian ad litem of a person with disability shall act by a lawyer.

The supreme law of Ghana and CI 47 did not contemplate a representative of a lawyer issuing a writ on behalf of a lawyer.

Court Process signed by a person other than the Solicitor on Record

The High Court encountered an issue where an application was signed by a person other than the Solicitor on record in Kwado Seinti v Alex Adjei Bram & Others[ Suit No. CM/0635/2019 ruling delivered on 16th day of September 2020 [Coram: Justice Mariam Sammo]] . This was an application brought pursuant to Order 25 Rule of the High Court (Civil Procedure) Rules, 2004 (CI 47) for interim preservation of 4th Respondent’s/Respondent’s assets or property, both movable and immovable, pending the determination of the instant matter and/or the purchase of Applicant’s shares in 4th Respondent/Respondent by either or both 1st and 2nd Respondents/Respondents and for such further orders to effect same among others.

Respondents opposed the application and submitted in their Affidavit in Opposition that the application is incompetent because it is improper and inconsistent with law and the well-known practice before the Court. According to Respondent’s Counsel, the motion and the Statement of Case were signed by someone other than the lawyer on record.

Her Ladyship Justice Mariam Sammo reasoned thus:

“indeed by practice, the lawyer on record is supposed to sign all processes filed and of course signing for is not a known practice. The Applicant elected not to act by himself but he has engaged Counsel. The law is now settled that law firms cannot purport to sign off processes. Law firms are endorsed on processes for the convenience of locating the offices of the legal practitioner, who by the provisions of Section 8 of the Legal Profession Act, 1960(Act 32), is the person if duly eligible can sign off court processes”

The objection taken by the Respondents was to the effect that whereas the Applicant’s lawyer and the law firm has been endorsed, it was patent on the record that the process or the processes were (choose one) was not signed by the Applicant’s lawyer, whose practicing licence number and TIN had been endorsed on the originating process together with the Statement of Case.

The Court held that there being nothing on the face of the two processes to show that the person who purported to sign for Applicant’s lawyer is a legal practitioner eligible to practice before the Court within the meaning of Section 8 of Act 32, the preliminary issue raised by the Respondents was upheld. The impugned processes were set aside as incompetent.

Court Processes issued by a person not qualified to file a process in Court

The High Court in Nana Kwesi Afreh II & 2 Ors v Association of Volta Land Compensation & 12 Ors[ Suit No. AHR 4/2012, 17th January, 2012] held that a writ which is issued on behalf of the plaintiff’s by a non-lawyer is not maintainable in law and the defect cannot be cured. It is not a mere irregularity as it goes into the rest of the action. It cannot be saved by amendment as the body which issued the writ is not competent to do.

Additionally, The Court of Appeal in Solkrock Limited V Anglogold Ashanti (Gh) Ltd Gold House Kawokudi-Accra[ Civil Appeal No. H1/50/2016 Delivered on 16th February, 2017] held that by the failure to have the motion paper signed by the Applicant or by a lawyer, and by having it issued by a partnership, the motion paper was effectively issued by a person not qualified to file processes in court. Such a process ought to be struck out.

Substantive law prevail over the rule of procedural law

Section 8(1) Legal Profession Act, 1960(Act 32) provides that:

“A person, other than the Attorney-General or an officer of his department, shall not practise, either as a barrister or solicitor, except in accordance with a practicing certificate issued by the General Legal Council in the appropriate form in the Second Schedule to this Act duly stamped, entitling him to practise in the capacity or capacities named' the certificate.”

The Order in its present form permitting a solicitor’s representative to sign a writ of summons to commence an action in the District Court is contrary to Section 8(1) of the Legal Profession Act, 1960(Act 32) and the defect cannot be cured.

It is trite that where the provisions of the Rules of Court are at variance with the provisions of substantive law, such as an Act of Parliament, on any matter, it is the provisions of the substantive law which must prevail. This position of law was succinctly put in the case of Adjoba v Osofo Hagar[ [2008-2009] 2 GLR 112] where it was held that

“By the canons of interpretation, the rule of substantive law must prevail over or override the rule of procedural law.”

Conclusion

The Author acknowledges that it is the Courts that give flesh to statute law and without the interpretation and application of the law by the court, no legally cognizable meaning and effect may attach to any statute however plain the language of a statute may seem to be[ Edmund Addo v The Republic Criminal Appeal No. J3/04/2022 Judgment delivered on 31st May 2023.].

Order 2 rule 3(2)(b) of the District Court Rules, 2009(C.I. 59) permitting a writ of summons to be signed on behalf of the plaintiff’s lawyer who is not eligible to practice before the court is contrary to Section 8(1) of Act 32.

The Author, therefore, recommends that the Rules of Court Committee should have a second look at Order 2 rule 3(2)(b) of the District Court Rules, 2009(C.I. 59) and amend the said Order to exclude “on behalf of”.