March 31, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by Justice Samuel K. A. Asiedu with Justices Angelina M. Domakyaareh and A. B. Poku-Acheampong concurring, arises from a High Court ruling made at case management in litigation between Madam Akua Asantewaa and Madam Afua Asubonteng over House Plot 21, Block ‘A’, Atonsu-Agogo. Asantewaa claims a prior Circuit Court action against her tenant, Jole Co. Ltd., was resolved by terms of settlement prepared by Asubonteng’s former counsel, Justice Dennis Adjei, recognizing equal half shares and filed for adoption as consent judgment. Asubonteng denies execution and alleges fraud. When Asantewaa indicated she would subpoena Justice Adjei, the High Court upheld an attorney–client privilege objection at CMC. The Court of Appeal held that objections must be taken only when evidence is offered under section 6 of the Evidence Act, and that no privilege attaches to a settlement filed and adopted as judgment; section 101(d) also removes privilege for formalities where the lawyer is an attesting witness. The appeal was allowed, and the High Court’s ruling was set aside, with no costs.
ASIEDU, JA.
On the 8th day of November 2013, Madam Akua Asantewaa, the Plaintiff/Appellant in this matter (who shall hereafter be referred to as the Plaintiff as the case may be), filed a suit at the High Court, Kumasi against Madam Afua Asubonteng, the Defendant/Respondent herein (who shall also be referred to as the Defendant hereafter). In the said action, the Plaintiff prayed for:
A declaration that by virtue of the terms of settlement entered as consent judgment in the case entitled: Madam Afua Asubonteng vrs. Jole Co. Ltd, which case was numbered as Suit No. A1/42/08 at the Circuit Court; Kumasi, the Defendant had acknowledged that the Plaintiff and her children were entitled to half the interest in the property known and numbered as Plot 21 Block ‘A’ Atonsu-Agogo.
A declaration that the attempt by the Defendant to claim the whole of the property numbered as Plot 21 Block ‘A’ Atonsu-Agogo, constitutes trespass.
Damages for trespass.
Perpetual Injunction restraining the Defendant from denying the title or interest of the Plaintiff and her children in the said property.
LAWYER-CLIENT PRIVILEGE:
Attached to the writ was a statement of claim. The Defendant filed an appearance and a statement of defence including a counterclaim after which a Reply and Defence to Counterclaim was also filed by the Plaintiff. Directions were taken and, thereafter, the parties filed their witness statements as ordered by the Court. It appears from the record of appeal (ROA) that the parties appeared before the court on the 14th February 2018 to argue a motion which had been filed for determination and after the proceedings of the day, the court adjourned the matter to 12 March 2018 for Case Management Conference referred to as CMC. This is clear from pages 91 and 92 of the record. There is no record as to what happened on the 26th March 2018. However, page 93 and 94 of the ROA shows that the parties and their lawyers were in court on the 26th March 2018. Certain documents are listed at page 93 of the ROA. It appears that counsel for the Plaintiff, Mr. E. Anaglate, indicated as part of the list of documents “A terms of settlement exhibit PG and PGI subpoenaed -Justice Dennis Adjei”
The record shows at page 94 that counsel for the Defendant raised an objection to the effect that:
“Dennis Adjei was the attorney. There is an attorney client privilege, to call him to testify against his client raises issue of conflict, it is a breach of attorney-client privilege. Therefo