Don’t expect judges to do your work for you, counsel told

30 September 2019 · Carmel Rickard

Ethical and procedural issues have been strongly taken up by Ghana’s Supreme Court in an important and wide-ranging new decision – along with a pronouncement that an offer and acceptance via electronic communication makes for a contract just as valid as if it had been put in writing and signed.

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You know the legal community had better wake up and pay proper attention when a country’s highest court makes a comment like this: “It is about time counsel and parties alike appearing before this court took decisions, directions and guidelines issued by it seriously and complied strictly with them.”

The court that was losing its patience with litigants and their counsel was Ghana’s Supreme Court, five of whose judges had to consider a side issue delaying the progress of a matter through the legal system. As the judges put it: “This appeal has travelled all the way to the highest court of the land (while) the substantive matter has been comatose for the past two years at the trial court, adding to the backlog of cases awaiting trial.”

Three parties were involved in the story: Scipion Capital (UK), a London-based hedge fund with interests in agriculture in Africa; Holman Fenwick Willan (HFW), a law firm operating across several continents, and prominent Ghanaian law firm Atuguba and Associates.

When Scipion Capital faced legal action in Ghana, HFW looked for a local firm that could act for Scipion. HFW and Atuguba corresponded on arrangements and concluded that Atuguba would offer its services to Scipion at “agreed hourly rates”. Atuguba did indeed act for Scipion, but there was a dispute between Atuguba and Scipion over invoices for legal fees. Atuguba invoiced USD104,193.52 while Scipion offered the “paltry sum” of GBP19,543.60 on the grounds that the company was dissatisfied with Atuguba’s service.

As no negotiated resolution proved possible, Atuguba brought legal action in the High Court, Accra against both Scipion and HFW for the outstanding money as well as interest, damages for breach of contracts and for costs.

What has delayed the main action is a dispute about whether it was misjoinder for Atuguba to be included as a defendant in the matter. The high court said that “in the absence of a formal contract”, the presence of HFW was needed to determine the issues in dispute. The Court of Appeal however disagreed, and ordered that HFW should be struck from the suit as a party.

Now that same issue – whether HFW should be included as a party or not – has come to the Supreme Court. In resolving that issue, the five judges took the opportunity to sort out a few other things as well.

First, the question of the common practice of legal practitioners to “shirk the responsibility” of formulating specific grounds of appeal and pointing out precisely where they believe the lower court erred in fact or in law. Instead of doing so, they have used an “omnibus” claim that the prior judgment was “against the weight of evidence”. Calling this a “hideout ground”, the judges complained that it shifted responsibility in even minor appeals, so that the appellate judges had to comb through the records, review the evidence and themselves identify the specific areas where the trial judge erred.

The court described this as a “worrying” situation, and said that counsel should instead state “what should have been considered which was not and what extraneous matters were considered which should not have been.”

Despite a long list of previous decisions making the same point, counsel and litigants continued to “throw the omnibus ground at the court”. The judges added, “These rulings of the court were not delivered for the fun of it,” and they should be followed.

The next significant issue to be dealt with was the standing of the “agreement” between the parties in this dispute. It was clear from the record that the parties were in contact with each other via email and phone and reached agreement. One of the grounds for the trial judge’s original finding that HFW should be joined was that there was “no legal contract” between the parties. But this was not so, said the Supreme Court: “In an internet age, email communication has been the order for expeditious business transactions such as (this). … (W)e hold that email communication sent by one party making an offer, which is accepted by the other party also by email constitutes a binding contract enforceable at law.”

Then there were two final ethical issues. The court was concerned that HFW and Scipion were represented by the same law firm. In cases such as this, where the defence of co-parties differs, lawyers should “either file separate defences” for each party, or advise one of them to “seek representation elsewhere”.

But it is the last issue that is most surprising. The court found an email sent by HFW to Atuguba with instructions from Scipion. The instructions were that Atuguba should “see the judge in chambers before the hearing” the following day, to explain the nature of the application, that Scipion had not been formally notified of the hearing and that Atuguba had only that day been instructed in the matter.

The Supreme Court said this request to engage in an ex-parte communication with the judge was “unfortunate especially coming from a firm of solicitors in the UK.”

“We condemn the directive in no uncertain terms and reiterate that Ghana is not one of the countries where ex-parte communication with judges is permitted.” Judges in Ghana were prohibited from doing this, and lawyers were also barred by the rules of legal ethics “from communicating with a judge in the absence of opposing counsel”.

The court dismissed the appeal, meaning that HFW will no longer be part of the legal action between Atuguba and Scipion. With any luck that in turn means the substantive dispute can now finally be aired and resolved at the high court.

Carmel Rickard

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