CHOOSING A LAWYER BASED IN GHANA? FOREIGN INVESTORS BEWARE!

CHOOSING A LAWYER BASED IN GHANA? FOREIGN INVESTORS BEWARE!

By robertsmith

Sep 11, 2018
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INTRODUCTION It is common knowledge that over the years, foreign companies/investors seeking to do business or any form of investment in Ghana for that matter, have had to rely on the services of Lawyers in Ghana to advise and assist them undertake their ventures in Ghana. Hitherto, the Investor should be satisfied if he meets the Lawyer in a plush office with probably a Mercedes Benz to match a “befitting suit”. Speaking impeccable language is what has become expected of good lawyers. Arguably, these have become the hallmark of a good lawyer. Well, the Supreme Court of Ghana has taken this to the next level. A foreign Investor seeking to do business in Ghana with the help of a lawyer based in Ghana must go beyond plush offices, sleek cars and suits and big English. The Investor must actually conduct some due diligence to ascertain whether or not the Lawyer has been licensed by the General Legal Council of Ghana to provide Legal Services for the year under review. B.WHAT DOES THE LEGAL PROFESSIONS ACT SAY? Legal Profession in Ghana is regulated by the Legal Professions Act. The preamble to the Act states that it is an “Act to consolidate and amend the law relating to the legal profession”. The Act further states in Section 2 that any person whose name appears in the Roll of lawyers kept by the General Legal Council is entitled to practise as a lawyer, whether as a Barrister or Solicitor or both. One key thing to note in this section is that in Ghana, unlike other Jurisdictions such as the United Kingdom, there is no separation of personnel in relation to a Solicitor and a Barrister. The term “Lawyer” is used to refer to both a Solicitor and a Barrister so that any person whose name appears in the Roll of lawyers is qualified to do both Solicitor’s work and that of a Barrister. [1] The Writer is the Lead Consultant with Robert Smith & Adelaide Law, a boutique law firm based in Accra and has advised foreign investors seeking to do business in Ghana. [1] The General Legal Council is the Statutory Body established by the Legal Professions Act, 1960, Act 32 to regulate Legal Practise in Ghana. [1] 1960, Act 32. Section 8 (1) of the Act states that “ A person other than the Attorney-General or an officer of his department shall not practise as a Solicitor unless he has in respect of such practice a valid annual licence issued by the General Legal Council to be known as “a Solicitor’s Licence”. Simply put, the “appearance” of the name of a person in the Roll of Lawyers does not entitle the person to practise as a lawyer year after year. That person must apply for and be issued with a Solicitors License every other year to entitle the person to legally practise as a Solicitor in Ghana. C.WHAT DID THE SUPREME COURT SAY? Now, the issue that had been raging over the years in respect of Section 8 of the Legal Professions Act has been the consequences of a Lawyer not applying for and not receiving a License to Practise as a Solicitor in any given year. Subsection 6 of Section 8 of Act 32 provides some consequences for such breach by a lawyer. The subsection states that any lawyer who practises without a license, in addition to being fined shall be incapable of maintaining any action for the recovery of any fee, reward or disbursement on account of or in relation to any act or proceeding done or taken by him in the course of such practice. Prior to the decision of the Supreme Court in 2016, the general consensus among Practitioners had been that save the consequences outlined in the section stated above, there could be no other consequences for a breach of this statutory prescription of requiring a Solicitor’s license year after year. But what a wake up call it has been to both Lawyers and Clients alike! By a majority decision in the case titled Henry Korboe v Francis Amosa (Civil Appeal No: J4/56/2014), the Supreme Court of Ghana held inter alia that in addition to all the sanctions outlined in Section 8(6) of Act 32, any proceedings, pleadings or document drafted by a Solicitor who had not been issued with a Solicitor’s license for the year, is void ab initio. In that case, the Supreme Court found that the Writ of Summons and Statement of Claim filed on behalf of the Plaintiff was a nullity because the lawyer who filed same did not have any a Solicitor’s License at the time of filing the documents. Consequently, the Plaintiff must start the whole process again, of course, at his own cost and expense. In arriving at this conclusion, the Supreme Court was not oblivious of the consequences that such a decision will have on poor Clients who seek the services of lawyers without any opportunity to ascertain whether or not the lawyer is so licensed to practise for that year. Majority of the Judges, after quoting a plethora of cases however concluded that it is not unusual for Clients to suffer or be punished by the Court for the sins of their lawyers and hence our Ghanaian Jurisprudence accommodates such consequences of a breach of the Legal Professions Act by a Lawyer. D.TRENDS IN OTHER JURISDICTIONS One striking feature of the decision of the Supreme Court of Ghana referred to above is that the Court also took into consideration decision on the same subject by Courts in other jurisdictions. The decisions of the Courts of England and those of the State of Virginia were particularly considered. Whereas the authorities from the State of Virginia leaned towards the nullification of any process/procedure/document initiated by a Lawyer without a Solicitor’s license, those of England saved any such process and gave the Client an opportunity to get another qualified lawyer to continue with the process. Having considered the reasoning behind the position of the courts in the other jurisdictions, the Ghanaian Court, in a rare step, decided not to follow the position of a fellow Common law Country (i.e. England) but rather opted for the American position on the subject. E.WHAT THE FOREIGN INVESTOR MUST DO A foreign investor, I can safely assume, will have made no prior contact with the Ghanaian Legal System prior to the decision to invest in Ghana and to further seek the services of a lawyer. Indeed most Foreign Investors rely on the recommendation of a law firm in their home country or information available on the internet to approach lawyers to discuss the possibility engaging their services. This makes it hard for a foreigner to ascertain whether or not a lawyer has been licensed to practise law in Ghana in any given year. But there is a way out of this dilemma. The General Legal Council is obliged to keep a Roll of Lawyers and further issue Solicitor’s Licence to lawyers. The General Legal Council further publishes the list of lawyers who have been issued with Licences periodically in the National dailies. The best way for an investor to avoid a declaration by a Ghanaian Court that anything done on his behalf is a nullity by virtue of his lawyer not having the Solicitor’s License to practise as a lawyer at the time of providing the services to the Client, is for the Investor to confirm if the lawyer has a Solicitor’s Licence prior to engaging the services of the Lawyer. This can be done by means of either a direct inquisition from the lawyer or conducting a search at the General Legal Council.

CONCLUSION

Where a lawyer acts without a Solicitor’s license for which reason the Investor is visited with the sins of the Lawyer, the Investor will have recourse to sue for professional negligence against the lawyer. But in Ghana, this hardly happens and that is why the due diligence must be conducted by the Investor before engaging the services of a lawyer in Ghana. For the avoidance of doubt, at the time of publishing this article, I had applied for an obtained a Solicitor’s Licence Numbered GAR 13067/16 which permits me to practice as a lawyer in 2016.

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CHOOSING A LAWYER BASED IN GHANA? FOREIGN INVESTORS BEWARE!

robertsmith

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