In anticipation of the decision of the Court of Appeal on whether Lawyer Francis Xavier Sosu should continue his private practice whiles his appeal pends, I will like to share with you my understanding of the General legal Council's stance on the issue.
The GLC is strongly opposed to this attempt by Francis Xavier Sosu which is in the form of a stay of execution that lawyers for the embattled human rights practitioner.
Before I move on to the GLC's arguments, let me briefly highlight the basis for the application filed by his lawyer Sosu's counsel, Samuel Cudjoe.
The first basis for the application by Samuel Cudjoe is that their appeal is likely to succeed because the GLC made the same error that got a similar ban overturned by the Court of Appeal in a landmark case. This is because of the description lawyer Sosu's actions as grave professional misconduct. Samuel Cudjoe opines that the charge of grave professional misconduct does not exist in the Legal Profession Act 1960, Act 32. He said the act only mentions Professional misconduct. Lawyer Sosu was charged with Touting and over estimation of fees.
Samuel Cudjoe also believes that the two bans were heavy handed. Lawyer Sosu was banned for a year for overestimation of fees and 3 years for touting and advertising. In the case of the charge of overestimation of fees, Samuel Cudjoe said a ban was not the prescribed punishment. If the law was to be followed, Lawyer Sosu should have been fined and made to refund the excess not banned. He said the three year ban for touting is excessive. After serving the ban, the human rights lawyer will have to undergo a further one year mentoring at the hands of Senior lawyer.
The key argument however is the hardship that will be imposed on lawyer Sosu if the ban stays in place whiles he is appealing it. This is bearing in mind the fact, that the lawyer Sosu will still serve the ban if the court dismisses his appeal. If the court rules in favour of his appeal, lawyer Sosu would have suffered damage that cannot be reversed. He would have served a ban that court would have found illegal. On the balance of it, lawyer Cudjoe believes the ban should be suspended or temporarily lifted whiles his client is appealing it.
With that in mind let's move to why the GLC is opposed to the application. There are two bases for the GLC's opposition; the improper filing of the notice of appeal and its impact on the appeal process and the insistence that the Court of Appeal cannot hear an application for stay at the first instance.
Lawyer for the GLC Kizito Beyuo in response to lawyer Sosu's application held the opinion that the appeal in question does not exist because the notice of appeal was not properly filed. By the rules of court the notice of appeal is supposed to be filed in the court that took the decision or the court below. In this case, Francis Xavier Sosu's lawyers filed the appeal at the High Court and swore an affidavit that it was intended for the GLC. Mr. Sosu's lawyers held the opinion that the GLC or its disciplinary committee is not a court and hence cannot be considered as a "court below" or "tribunal." But lawyer Beyuo holds a different opinion. He describes the disciplinary committee of the as a "quasi" court that should have been served with the notice of appeal rather than the High Court. Lawyer Beyuo also believes renders the appeal non-existent and so cannot form the basis for the filing of an application for stay.
The other reason the GLC is against the suspension of its ban
is because they argue that the Court of Appeal is not the appropriate platform for such application. GLC's lawyer Kizito Beyuo believes the court can only hear the application on review. He says the application must first go through the High court before it comes to the court of appeal.
The GLC wants the single Court of Appeal judge sitting alone Henry Anthony Kwofie to dismiss lawyer Sosu's application because of the above stated reasons.
On 26th July when both parties return to court, the first question I believe the Judge's decision will answer is: what is the effect of the decision of lawyer Sosu's lawyers to serve the notice of appeal on the High Court instead of the GLC? Is the disciplinary committee of the GLC a "quasi" court and hence should have received the notice of appeal. This goes to the very matter of jurisdiction; whether or not the jurisdiction of the Court of Appeal has been invoked. Does the appeal exist? Having sat through several of these applications, I know that this kind of questions can collapse a whole case.
If the above question is answered the next question that confronts the Judge is whether lawyer Sosu will suffer any hardship if he continues to serve the ban whiles an appeal is being heard
Any decision taken on the 26th of July, 2017 will not be determination of the appeal filed by lawyer Sosu: it is only a question of whether or not he should continue to practice whiles the application is being heard
The GLC is strongly opposed to this attempt by Francis Xavier Sosu which is in the form of a stay of execution that lawyers for the embattled human rights practitioner.
Before I move on to the GLC's arguments, let me briefly highlight the basis for the application filed by his lawyer Sosu's counsel, Samuel Cudjoe.
The first basis for the application by Samuel Cudjoe is that their appeal is likely to succeed because the GLC made the same error that got a similar ban overturned by the Court of Appeal in a landmark case. This is because of the description lawyer Sosu's actions as grave professional misconduct. Samuel Cudjoe opines that the charge of grave professional misconduct does not exist in the Legal Profession Act 1960, Act 32. He said the act only mentions Professional misconduct. Lawyer Sosu was charged with Touting and over estimation of fees.
Samuel Cudjoe also believes that the two bans were heavy handed. Lawyer Sosu was banned for a year for overestimation of fees and 3 years for touting and advertising. In the case of the charge of overestimation of fees, Samuel Cudjoe said a ban was not the prescribed punishment. If the law was to be followed, Lawyer Sosu should have been fined and made to refund the excess not banned. He said the three year ban for touting is excessive. After serving the ban, the human rights lawyer will have to undergo a further one year mentoring at the hands of Senior lawyer.
The key argument however is the hardship that will be imposed on lawyer Sosu if the ban stays in place whiles he is appealing it. This is bearing in mind the fact, that the lawyer Sosu will still serve the ban if the court dismisses his appeal. If the court rules in favour of his appeal, lawyer Sosu would have suffered damage that cannot be reversed. He would have served a ban that court would have found illegal. On the balance of it, lawyer Cudjoe believes the ban should be suspended or temporarily lifted whiles his client is appealing it.
With that in mind let's move to why the GLC is opposed to the application. There are two bases for the GLC's opposition; the improper filing of the notice of appeal and its impact on the appeal process and the insistence that the Court of Appeal cannot hear an application for stay at the first instance.
Lawyer for the GLC Kizito Beyuo in response to lawyer Sosu's application held the opinion that the appeal in question does not exist because the notice of appeal was not properly filed. By the rules of court the notice of appeal is supposed to be filed in the court that took the decision or the court below. In this case, Francis Xavier Sosu's lawyers filed the appeal at the High Court and swore an affidavit that it was intended for the GLC. Mr. Sosu's lawyers held the opinion that the GLC or its disciplinary committee is not a court and hence cannot be considered as a "court below" or "tribunal." But lawyer Beyuo holds a different opinion. He describes the disciplinary committee of the as a "quasi" court that should have been served with the notice of appeal rather than the High Court. Lawyer Beyuo also believes renders the appeal non-existent and so cannot form the basis for the filing of an application for stay.
The other reason the GLC is against the suspension of its ban
The GLC wants the single Court of Appeal judge sitting alone Henry Anthony Kwofie to dismiss lawyer Sosu's application because of the above stated reasons.
On 26th July when both parties return to court, the first question I believe the Judge's decision will answer is: what is the effect of the decision of lawyer Sosu's lawyers to serve the notice of appeal on the High Court instead of the GLC? Is the disciplinary committee of the GLC a "quasi" court and hence should have received the notice of appeal. This goes to the very matter of jurisdiction; whether or not the jurisdiction of the Court of Appeal has been invoked. Does the appeal exist? Having sat through several of these applications, I know that this kind of questions can collapse a whole case.
If the above question is answered the next question that confronts the Judge is whether lawyer Sosu will suffer any hardship if he continues to serve the ban whiles an appeal is being heard
Any decision taken on the 26th of July, 2017 will not be determination of the appeal filed by lawyer Sosu: it is only a question of whether or not he should continue to practice whiles the application is being heard
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