Licensing of Lawyers to Practice Law in Ghana- Some Thoughts

The legal profession, like any other professional establishment is governed by rules of practice and procedure. One such rule applicable to the legal profession and for that matter all practising lawyers, is the requirement that a lawyer who desires to practice for any year of practice, must apply for and take a valid license for each year of professional practice in order to be able to practice law in Ghana. By these rules therefore, a lawyer in default cannot practice law and will certainly not have the right to appear before any court in Ghana to conduct business. This has been interpreted in Ghana by the Court of Appeal to mean that pupils who are undergoing training cannot also appear in court and conduct the cases on behalf of substantive lawyers on record. Proceedings conducted by an unlicensed pupil will therefore be void and liable to be set aside.

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In the case of Ex Parte Teriwaja, the Supreme Court of Ghana held in part and interpreted the relevant provisions in the Legal Profession Act, Act 32, and the professional rules to mean that a lawyer cannot sign documents or represents a party as a lawyer in court unless he has obtained a valid solicitor’s licence for that purpose for that year of practice. This rule, and its later modifications by the Supreme Court in subsequent cases have very much been the law for some time now.

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In the recent high court case of The Republic v. John Kinglsy Arthur & Anor; Ex Parte Nana Kwamena Ekuntan II, the High Court in Sekondi was invited, by way of an application, to set aside a motion for contempt of court on the basis that the lawyer who filed it failed to endorse his most recent solicitors license on the process he filed in court. Whilst admitting that he did not in fact a valid solicitors license for the year under review, the lawyer deposed to an affidavit indicating that he had in fact attempted to procure a new license for the year in question but could not do so because of technical difficulties encountered on the designated Ghana Bar Platform for the online application. This fact, including the shutdown of the platform was actually communicated to the public by the managers of the platform, which is the Ghana Bar Association, and this evidence was put before the court for its consideration.

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Whilst sympathising with the lawyer for the difficult situation he found himself in, the High court however found itself unable to depart from the established precedents of the Supreme Court in cases such as Ex Parte Teriwaja. The Court therefore set aside the application on the basis that not only did the lawyer fail to endorse his valid and current license on it, but he did not have one at all and for that reason the entire process could not be maintained. The Court however made policy and legislative proposals on the basis of the peculiar facts of the case.

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As recounted earlier and well noted in the judgment of the High Court, the reason for which the hapless defaulting lawyer and many others similarly placed were unable to renew their license during the early days of January 2024 was because the platform was shut down due to technical challenges. It must be noted that, although the online digital platform is not the only means of renewing license, as it could be done manually at the Ghana Bar Head office in Accra, it has over the recent past been the most preferred and accessible means due to its simplicity, easy access, and convenience. This case, therefore, appeared to have raised critical issues not raised in the earlier decisions relied upon by the court including the Ex Parte Teriwaja case.

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The High Court, therefore, recommended a rethink of the current regime and the applicable law to ensure the just application of the law and avoid visiting hardship on litigants by reason of the inability, albeit inadvertent of their lawyers to apply for and take new license for practice. One of the proposals made by the court is to allow lawyers to continue to use the previous year’s license for at least 2 month into the new legal year. That effectively mean, extending the validity of the license for a period of two months to cater for any administrative and technical difficulties and resultant delays that may occur during that period. The only requirement however will be for a lawyer who uses a previous year’s license to depose to an affidavit, indicating the reasons for his inability to procure a new license and file it together with the impugned process.

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The High Court’s fidelity to the established law and precedent is very much admirable. It is however doubtful, if the Court had any choice in the matter than to hold as it did. Whilst these proposal appear on the face to be revolutionary and reasonable on the peculiar facts of the case, it is doubtful if will create the necessary safeguard that will ensure that these issues are resolved permanently. Perhaps, apart from making sure that the platform is properly set up and safeguarded to prevent and/or minimise systems shutdowns, particularly of the kind which happened in the instance case, it may be helpful for the Ghana Bar Association to extend the manual service to the various regional offices of the Bar to complement the online application so that that becomes the default process in the event of any technical challenge with the online process. This it is suggested will provide a much more robust assurance and guarantee that lawyers will at all times be able to renew their licence in time to practice.

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This is also because not all processes may be accompanied by an affidavit in support under the current legal regime, in particular the procedural rules of the various courts. For instance, it is highly inconceivable as to how a lawyer can file a writ together with an affidavit in support or a statement of defence and for that matter any other pleading without amending the rules and making provisions for that. To that extent, it seems to me that, to the extent that the policy and legislative proposals suggested by the Sekondi High Court did not include an amendment of the rules to allow for this, it is very much inadequate as a measure to deal with the situation at hand. The answer therefore lies more in the licensing authority, broadening the application processes and procedures to include the manual registration at the various regional offices of the Ghana Bar Association, if that is already not in place yet and not in allowing lawyers to use their otherwise expired licenses for any other year of practice.

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