VERY REV. (RTD) A.K. MENSAH v. SUSSANA EDITH FERGUSON MENSAH & ANOR
2018
HIGH COURT
GHANA
CORAM
- ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
Justice Angelina Mensah-Homiah (Mrs.) of the Ghana High Court resolved a procedural contest arising in a civil matter that has been pending since 2003. On the date fixed for the cross-examination of Mrs. Sussana Edith Ferguson Mensah, counsel Nana Kwasi Boatey, who was scheduled to conduct the cross-examination, filed a Notice of Withdrawal of Representation dated 20/06/2018. E.N. Poku, counsel for the other side, objected on the basis of Order 75 of C.I. 47, arguing that a lawyer must seek leave by motion to cease acting. Applying Order 1 rule 1(2)’s overriding objective and Order 81’s irregularity framework, and acknowledging established practice of notice-based withdrawals in the case, the court treated the absence of a formal motion as an irregularity that could be waived. It allowed the notice to stand, granted 30 days for the clients to secure new counsel, made no order as to costs, and adjourned for continued cross-examination.
RULING
The business for the day is for Mrs Sussana Edith Ferguson Mensah to be cross-examined. However, Nana Kwasi Boatey Esq. who was to conduct the cross-examination has filed a “NOTICE OF WITHDRAWAL OF REPRESENTATION”, it is dated 20/06/2018. E.N. Poku, Esq., counsel on the other side, has taken a serious objection to the said notice.
His argument is that on the basis of order 75 rules 1, 2, 3 and 6 of C.I. 47, only parties to the suit can change their lawyer at any time. However, if counsel decides nor to act for a party, then under rule 6, he has to apply to the court. In his view, merely filing a notice of withdrawal of representation” does not meet the requirements of the law. In response to the submissions made by E. N. Poku, Esq, Nana Kwasi Boatey, Esq referred the court to the case of Oppong v. Attorney general (2000) SCGLR 275 wherein the Supreme Court stated that courts of this country are guided by three yard sticks in dispensing justice: Statutes Case Law and well established practices of the court.
He argued, inter alia, that the practice whereby counsel files notice to the court and other parties to confirm his withdrawal of representation is long crystallized in the court hence, the filing of this application. He ended his submission by saying that if per a recent Court of Appeal Dorechver, leave is a requirement, then he submits that an oral application for leave under the circumstances of this case, be granted.
It is provided under Order 1 rule 1(2) of C. I. 47 that:
“These rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expenses and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.
It is also provided under order 81 rule 1 (1) of C. I. 47 that:
“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it:.
Under order 81 rule 2 (b), the court may exercise its powers under these Rules to allow