THE REPUBLIC vs. THE DISCIPLINARY COMMITTEE, GENERAL LEGAL COUNCIL EX- PARTE KWAME FOSU GYEABOUR

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D.2026

CORAM: AMADU JSC (PRESIDING)

KULENDI JSC

GAEWU JSC

KWOFIE JSC

BARTELS-KODWO (MRS.) JSC

CIVIL APPEAL

NO. J4/31/2026

4TH NOVEMBER, 2026

THE REPUBLIC

VRS

THE DISCIPLINARY COMMITTEE ……………. RESPONDENT/RESPONDENT/

GENERAL LEGAL COUNCIL APPELLANT

EX-PARTE:

KWAME FOSU GYEABOUR ……………. APPLICANT/APPELLANT/

RESPONDENT

JUDGMENT

TANKO AMADU JSC:

INTRODUCTION

This appeal by the Disciplinary Committee of the General Legal Council is from the judgment of the Court of Appeal dated 22nd May 2025, by which that court quashed a decision of the Appellant Committee which prohibited the Respondent, a Legal Practitioner, from practice for a period twelve calendar months. In its delivery, the Court of Appeal held that, because no rules exist which definine what constitutes grave misconduct in a professional respect, the Committee lacked jurisdiction to proceed against the Respondent in the manner it did.

The Appellant’s core complain is that, the reasoning, of the Court of Appeal if sustained would leave the body charged by statute with upholding standards of professional conduct powerless to enforce any standard at all, and thus urges this court to restore the ruling of the High Court, which had declined to interfere with the Appellant’s sanctions against the Respondent. The Respondent alleges that, he was visited with a measure the Legal Profession Act, 1960 (Act 32) reserves for grave misconduct in a professional respect upon counts which alleged nothing of the kind, and that he was refused a hearing on the one matter in those counts that was genuinely and crucially in issue.

How this matter arose may be stated shortly. The Committee laid six counts against the Respondent, a practitioner of some twenty-two years’ standing at the bar. Three of them alleged that he had failed to uphold the dignity and high standing of the legal profession by filing an entry of judgment for reliefs the High Court had not granted. The other three alleged that he had deliberately deceived that court, and that his deception had occasioned the demolition of over one hundred properties at Tetegu. He admitted the first three. He denied the last three. The Committee withdrew the counts he denied, found him guilty on the counts he admitted, and directed that he be suspended from practice for a period twelve calendar months.

From the very onset, let there be no misunderstanding about the first of the two propositions this judgment is concerned with. The discipline of lawyers is not an optional refinement of professional life. It is the price of the monopoly. The State has closed the practice of law to all but those whose names appear on the Roll. It has clothed them with privilege, admitted them to the confidence of strangers, given them custody of other people’s money, land and liberty, and made them officers of its courts.

A society which confers so much on a small body of persons is entitled to demand, in return, that the body will police itself with rigour yet without bias. When it fails to do so , and when incompetence is excused, dishonesty overlooked, and the complaints of ordinary citizens allowed to gather dust, the loss is not to the complainant alone. It is to every litigant who must thereafter wonder whether the lawyer in goodstanding at the bar is bound by anything at all. The General Legal Council holds that trust for the Republic on behalf of the people.

The second proposition sits beside the first and not in competition with it. A Disciplinary body which disciplines otherwise than according to law does not strengthen the profession. It weakens it, and twice over. It weakens it first because the sanction it imposes is liable to be set aside, so that the misconduct goes unanswered and the complainant goes unvindicated. It weakens it a second time, and more lastingly, because a Bar cannot be taught to revere procedure by a regulator that does not. The Committee sits in judgment on lawyers for departing from the standards of their calling. It cannot do that credibly while itself departing from the standards of adjudication. A body constituted to enforce fidelity to law must be the most scrupulous of all in its own obedience to it.

It is tempting, when the conduct complained of looks bad, to treat procedure as an obstacle placed between the tribunal and the result that everybody can see is deserved. That temptation should be resisted, and resisted most firmly at the moment it is strongest. The rules of fair procedure earn their keep in exactly those cases where the accused seems plainly guilty, because the appearance of plain guilt is not the same thing as guilt, and because in every case in which a tribunal is right to be confident, there is another in which it is wrong and does not know it. That is the whole point of hearing before condemning. The seeming unethical character of the conduct under inquiry is a reason for more care in procedure, not less.

THE BACKGROUND

A. The underlying litigation

Between 2006 and 2013 the Respondent, a Legal Practitioner of some twenty-two years’ standing, acted for the 1st Defendant in Suit No.AL/45/05 in the High Court, Accra, entitled NII KOJO DANSO (SUBSTITUTED BY SAMUEL DANSO) VS. NII AYITA TSURU (SUBSTITUTED BY NII KOFI KUMAH) & 2 OTHERS. On 3rd August 2012, he filed on his client’s behalf an amended statement of defence and counterclaim seeking, among other reliefs, a declaration of title to some 2,295.68 acres of land at Tettegu in the Greater Accra Region, recovery of possession, and a perpetual injunction.

On 31st May 2013, the trial High Court gave judgment for the 1st defendant on the counterclaim. It declared title in his favour. It did not, however, pronounce upon the claims for recovery of possession and perpetual injunction. It awarded costs of GH¢1,000.00.

On 7th June 2013, the Respondent filed an entry of judgment. That document recited, as having been granted by the court, an order for recovery of possession and an order of perpetual injunction, and it stated the costs award in words as ten thousand Ghana cedis. The Respondent’s explanation, then and since, has been that because the judgment had upheld the counterclaim and was silent on the consequential reliefs claimed in it, he understood those reliefs to have been granted by necessary implication; and that the figure for costs was a typing error, the costs having in any event never been enforced or received.

Armed with the entry of judgment, the Respondent applied for and obtained leave to issue a writ of possession, and the judgment was executed by the Deputy Sheriffs of the court on behalf of the 1st Defendant, the Respondent’s client.

B. The Complaint and the Inquiry

Members of the client’s own family, aggrieved by what followed, complained to the General Legal Council. The complaint was referred to the Disciplinary Committee under Section 18 of Act 32, which held a preliminary enquiry. On 7th September 2022, the Committeee issued an inquiry notice stating that a prima facie case of misconduct had been established and setting out six counts.

Counts 1, 2 and 3 were each headed “Professional Misconduct, Contrary to Rule 2(2) of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613)”. The particulars in each case alleged that the Respondent, as a professional lawyer, “failed to uphold the dignity and high standing of the legal profession” when he prepared and filed an entry of judgment for an order (respectively, for recovery of possession, for costs of ten thousand Ghana cedis, and for perpetual injunction) “when you knew or ought to have known that the order for which you sought enforcement was not supported by the judgment of the court”.

Counts 4, 5 and 6 were each headed “Professional misconduct, contrary to Rule 9(4)” of the same Rules. The particulars in each case alleged that the respondent “deceived the court” by filing the entry of judgment contrary to the judgment of 31st May 2013, “and which deception occasioned the demolition of over 100 properties at Tetegu, Accra”.

The difference between the two sets of counts is not a matter of drafting emphasis. It is the difference between two distinct allegations. The first three allege a want of care or of judgment measured against a general standard: he knew or ought to have known. The last three allege deliberate deception and a catastrophic consequence. We shall return to this shortly.

The Respondent appeared before the Committee on 22nd February 2023. On his account, which is set out in his affidavit in support of the application for certiorari and which the Committee did not contradict in its affidavit in opposition. He had not been served with the inquiry notice before that day; the counts were read to him and his plea taken there and then. He offered a plea of guilty with explanation; and he was told that the only pleas open to him were guilty or not guilty, and that he could not plead guilty with explanation. He thereupon pleaded guilty simpliciter to counts 1 to 3 and not guilty to the remainder.

At a subsequent sitting the Committee withdrew the counts to which he had pleaded not guilty and adjourned for him to be, in its language, convicted and sentenced on counts 1 to 3.

C. The decision and what followed it

By its decision of 20th April 2023, the Committee found the Respondent guilty on counts 1 to 3 and, having heard him in mitigation and noting that he was a first offender, concluded in these words:

“In conclusion, we have considered the Respondent’s submissions in mitigation of sentence which were not objected to by Counsel for the Committee and especially, the fact that the Respondent is a first time offender and recommend to the Plenary Committee that the Respondent be banned for a period of twelve (12) calendar months from practicing as a lawyer both from any law chambers and in Court.”

The Respondent was to be suspended with effect from 1st May 2023. On that day, before, he had been served with or obtained a copy of the decision, a public notice of the suspension was issued, and by 3rd May 2023 it had been circulated on social media.

On 28th April 2023, the Respondent lodged an appeal to the Court of Appeal against the Committee’s decision, as Section 21 of Act 32 entitles him to do, and on 23rd May 2023, that court stayed execution of the suspension pending the appeal. The Appellant’s application to this Court to quash that stay was dismissed on 7th November 2024.

The appeal under Section 21 was never prosecuted. On the Respondent’s account, the Appellant declined to accept payment for the compilation of the record, directing him to the Registry of the Court of Appeal. The Registry directed him back while a letter from the Registry dated 23rd May 2023 asking the Appellant to receive payment was of no avail. The Respondent’s repeated written requests for the record of proceedings were unanswered and, latterly, refused at the door, so that he resorted to sending them by courier; and when in a letter of 14th August 2023, the Appellant did furnish proceedings, it furnished two days’ worth only. One of them for a day on which he had not been present. As if it was a deliberate intention by the Appellant the regulator, to frustrate due process, those depositions are not answered in the record before us.

On 17th October 2023, the Respondent invoked the supervisory jurisdiction of the High Court under Article 141 of the 1992 Constitution, seeking certiorari to quash the Committee’s decision on four grounds: want of jurisdiction to punish him for grave misconduct when he had neither been charged with nor tried for it and when grave misconduct is nowhere defined; that he had been charged, tried, convicted and sentenced under an unwritten law contrary to Article 19(5) of the 1992 Constitution. Further that, he was not given adequate time to prepare his defence contrary to Article 19(2)(e); and breach of the rule nemo judex in causa sua.

The High Court dismissed the application on 23rd April 2024. On appeal from that decision, the Court of Appeal, on 22nd May 2025, allowed the Respondent’s appeal and set aside the ruling of the High Court. The Court of Appeal reasoned that, the trial court had failed to consider the binding decision in AMARFIO VS. GENERAL LEGAL COUNCIL [1991] 2 GLR 479 and the observation of Osei-Hwere JSC that no rules had been made defining what constitutes grave misconduct in a professional respect. The Court of Appeal concluded that, the appeal accordingly succeeded on the first and second grounds, of lack of jurisdiction. The Court of Appeal expressly declined to deal with the remaining grounds.

Aggrieved by the judgment of the Court of Appeal, the Appellant appealed to this Court per a notice of appeal dated 25th June 2025 in which the following grounds of appeal were set out.

(a) The judgment is against the weight of the affidavit evidence on record

(b) The Court of Appeal erred when it applied the fair criminal trial provisions of Article 19 of the Constitution to a disciplinary hearing and held that the Appellant had no jurisdiction.

(c) The Court of Appeal erred when it held that the Appellant had no jurisdiction to impose on the Respondent herein punishment for an admitted conduct prohibited by Regulation 2(2) of L.I. 613.

(d) The Court of Appeal erred when it held that, the trial court erred in its evaluation of the affidavit evidence and its appreciation of the law on the subject of judicial review.

(e) Further grounds would be filed upon receipt of the record of appeal.

No additional grounds were however filed.

THE STATUTORY SCHEME

Because much of the argument in this case has proceeded at a level of generality which the statute does not permit, we begin with the text. The General Legal Council is established by Section 1 of Act 32 and is charged, among other things, “with upholding standards of professional conduct”. By Section 2(b), every lawyer whose name is on the Roll is an officer of the courts. Part III of the Act, comprising Sections 16 to 25, is headed “Discipline”.

Section 16(1) provides:

“A lawyer who has been guilty of grave misconduct in a professional respect (including any conduct which, in pursuance of rules made by the General Legal Council under this Part, is to be treated as grave misconduct in a professional respect), shall be liable –

(a) to have his name struck off the Roll of Lawyers, or

(b) to be prohibited from practising as a lawyer for a period specified in the order suspending him.“

By Section 16(2), Section 9 of the Act, which makes unqualified practice a Criminal Offence, the provision applies to a lawyer suspended under Section 16 as it applies to a person who is not enrolled. A suspension is therefore not merely a professional inconvenience. It converts subsequent practice into a crime.

Section 17 requires the Council to appoint a Disciplinary Committee of not fewer than three and not more than seven persons drawn from its own members, from those who hold or have held high judicial office, or from former members now in practice.

Section 18 provides that any complaint relating to the conduct of a lawyer shall be referred to the Disciplinary Committee, and that “if it appears to the Disciplinary Committee that an inquiry ought to be held into the complaint, they shall proceed to hold the inquiry.”

Section 19(1) empowers the Committee, by legislative instrument, to make rules as to its meetings and “the procedure to be followed and rules of evidence to be observed in an inquiry”, and in particular for securing that a party shall if he requires be entitled to be heard, for representation by a lawyer, for witnesses’ expenses, and “for prescribing the number of members to hold an inquiry in a disciplinary case, and the cases in which their decision must be unanimous”. Section 19(2) gives the Committee the powers of the High Court to summon witnesses, call for documents and examine on oath while Section 19(4) preserves the privilege against self-incrimination; and Section 19(6) deems the Committee to be a court for the purposes of the law of perjury.

Section 20(1) provides as follows:-

“After holding an inquiry into a disciplinary case, the Disciplinary Committee shall decide whether the allegations enquired into are proved and if they decide that those allegations are proved they may direct the taking of any such disciplinary measures as are specified in Section 16 of this Act and make such order as to costs as they may think fit.”

Section 21 confers on the lawyer and on the complainant a right of appeal to the Court of Appeal, on law as of right and on fact by leave, “within twenty-one days from the date on which the decision of the Disciplinary Committee is communicated to him by the Committee.”

Section 23 provides:

“The General Legal Council may prescribe standards of professional etiquette and professional conduct for lawyers, and may by rules made for this purpose direct that any specified breach of the rules shall for the purposes of this Part constitute grave misconduct in a professional respect.”

Finally, paragraph 4 of the First Schedule permits the Council to appoint committees in addition to the Disciplinary Committee and to delegate to them any of the Council’s functions “other than their functions under Part III of this Act”. The disciplinary function is, by deliberate legislative choice, non-delegable.

The Architecture the Statute creates

When read together, these provisions disclose a scheme of some care, and four features of it matter to this appeal. First, the Act distinguishes between two grades of culpability. It speaks of “misconduct in a professional respect” and of “grave misconduct in a professional respect”. The adjective is not ornamental. Section 16(1) attaches liability to striking off and to suspension only to the lawyer “who has been guilty of grave misconduct in a professional respect”. Section 23 confirms the gradation by giving the Council power to elevate a specified breach of its rules into the grave category by express direction. Clearly, if every breach of every rule were already grave, that power would have nothing to operate on.

Secondly, Section 16(1) defines the grave category inclusively, not exhaustively. The parenthesis brings in conduct which the Council’s rules direct is to be treated as grave. It however, does not confine the category to such conduct. We shall return to this, because the Court of Appeal appears to have thought otherwise.

Thirdly, the power in Section 20(1) to “direct the taking of any such disciplinary measures as are specified in Section 16” is a power to direct measures whose availability Section 16 itself conditions. Section 16 is not a menu of penalties detached from its own opening words. It is a single sentence in which the identification of who is liable and the identification of what he is liable to are inseparable. It follows that, a finding that allegations are proved unlocks the section 16 measures only where what has been proved is grave misconduct in a professional respect. Any other reading would allow the most serious sanctions known to the Act; the destruction of a livelihood and the criminalisation of its continuance to follow from a finding of any professional lapse however slight, and would empty the word “grave” of all content.

Fourthly, the Act requires the Committee to decide and to direct. Section 20 speaks of the Committee deciding whether the allegations are proved and directing the taking of measures. Section 21 makes the appeal time run from the day on which “the decision of the Disciplinary Committee is communicated to him by the Committee”. Section 25 empowers “the Disciplinary Committee” to review its own direction of prohibition. All throughout, the adjudicator and the sanctioning authority are one and the same body, and paragraph 4 of the First Schedule forbids the Council to hand that function anywhere else.

Rule 2(2) and Rule 9 of L.I. 613

L.I. 613 was made under Sections 23 and 53 of Act 32. Rule 2 is headed “Advertising Touting and Publicity”. Rule 2(1) prohibits touting and advertising. Rule 2(3) and Rule 2(4) address touting and personal advertisement. Rule 2(5) deals with runners and the instigation of litigation. Sitting in the middle of these provisions is Rule 2(2) which provides that:

“It is the duty of every lawyer at all times to uphold the dignity and high standing of his profession and his own dignity and high standing as a member of it.”

Rule 9 is headed “Others Professional Misconduct”. Unlike Rule 2, it repeatedly and expressly attaches the label. Rule 9(3) provides that failure to comply with an order of the court “is a professional misconduct”. Rule 9(4) provides that “any deliberate deception of the court on the part of a lawyer is a professional misconduct”, and that a lawyer is equally guilty if he knowingly permits a client to attempt to deceive the court. Rule 9(5), 9(7) and 9(8) similarly designate specified conduct as professional misconduct or a professional offence.

What L.I. 613 nowhere does is exercise the power conferred by Section 23 to direct that any specified breach “shall for the purposes of this Part constitute grave misconduct in a professional respect”. Not one rule is so designated. That omission has now stood for well over half a century, through the life of L.I. 613 and into that of its successor legislation.

THE FIRST ISSUE: DOES ARTICLE 19 GOVERN A DISCIPLINARY INQUIRY?

The Appellant’s second ground of appeal is that the Court of Appeal was wrong to apply the fair criminal trial provisions of Article 19 to a disciplinary hearing.

Article 19(5) and 19(11) are about Criminal Offences

Article 19 is headed “Fair trial”. Clause (1) opens with a person “charged with a Criminal Offence”. Clause (2) confers rights on “a person charged with a criminal offence” and its sub-clauses speak of the presumption of innocence, of adequate time and facilities “for the preparation of his defence”, and of examination of witnesses. Clause (5) provides that a person shall not be charged with or held guilty of “a criminal offence” founded on an act or omission that did not at the time constitute an offence. Clause (11) provides that no person shall be convicted of “a criminal offence” unless the offence is defined and the penalty prescribed in a written law, and Clause (12) carves out contempt of a superior court from Clause (11).

A proceeding before the Disciplinary Committee is not a criminal trial. The Committee cannot fine or imprison. It is not the Attorney-General nor an officer acting under his warrant within the provision of Article 88(4) of the 1992 Constitution; it does not prosecute on behalf of the Republic. The consequences it may direct being erasure and suspension are the withdrawal or suspension of a privilege conferred by statute, not punishment for a crime. The Appellant is right that Clauses (5) and (11) of Article 19 do not, of their own force, govern its proceedings, and the Court of Appeal fell into error in applying them as though they did.

We add, because the point was pressed, that it does not become a criminal trial because the Committee chose to conduct it as though it were one. That the Appellant produced a document laid out in counts, with a “Statement of Misconduct” and “Particulars of Misconduct”, read them over, took a plea, spoke of “conviction” and “sentence” and of a “first time offender”, does not transmute an administrative inquiry into a prosecution. We shall shortly have something to say about the wisdom of that borrowed vocabulary; but it does not alter the legal character of the proceeding.

What does govern it?

To suggest that Article 19(5) and (11) of the Constitution do not apply is not to suggest that, the Committee operates in a constitutional vacuum. The Appellant came close, in argument, to suggesting that because these were “civil allegations”, the requirements of legality and of fair procedure were somehow relaxed. That is a serious misconception and we reject it.

Article 19(13) is in the same article the Appellant relies on to exclude the Respondent, and it provides:

“An adjudicating authority for the determination of the existence or extent of a civil right or obligation shall, subject to the provisions of this Constitution, be established by law and shall be independent and impartial; and where proceedings for such determination are instituted by a person before such an adjudicating authority, the case shall be given a fair hearing within a reasonable time.”

The Committee is an adjudicating authority. The right to practise law, conferred by Section 2(a) of Act 32 on every person whose name is on the Roll, is a civil right. A proceeding which may end in its suspension or extinction is a proceeding for the determination of the existence or extent of a civil right. Article 19(13) therefore speaks directly to the Committee, and it requires independence, impartiality and a fair hearing. The Appellant’s submission that only Article 23 applies overlooks Clause (13) of the very article it invokes.

Article 23 provides that administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and that, persons aggrieved shall have the right to seek redress. In AWUNI VS. WEST AFRICAN EXAMINATIONS COUNCIL [2003-2004] SCGLR 471 this Court held Article 23 to confer a justiciable fundamental human right, and further held that the requirement to act “fairly and reasonably” carries within it the rules of natural justice, and in particular audi alteram partem. In ABOAGYE VS. GHANA COMMERCIAL BANK LTD. [2001-2002] SCGLR 797 this Court had already held natural justice to apply not only to the ordinary courts but to adjudicating tribunals and to administrative bodies with power to adjudicate in disciplinary cases.

Article 296 of the 1992 Constitution provides that where discretionary power is vested in any person or authority, it shall be deemed to imply a duty to be fair and candid, and that its exercise shall not be arbitrary, capricious or biased and shall be in accordance with due process of law. The power to direct a suspension under Section 20 of the Act 32 is a discretionary power in that sense.

Beyond the Constitution, there is the common law, which for well over a century has required of domestic and statutory tribunals exercising powers over a man’s calling that, they tell him the case he has to meet and give him a fair opportunity of meeting it. It is sufficient to recall GENERAL MEDICAL COUNCIL VS. SPACKMAN [1943] AC 627, RIDGE VS. BALDWIN [1964] AC 40, and KANDA VS. GOVERNMENT OF MALAYA [1962] AC 322, where Lord Denning put the matter in words which have never been improved upon that, the person accused must know what evidence has been given and what statements have been made affecting him, and must be given a fair opportunity to correct or contradict them.

The Principle of Legality in Professional Discipline

There remains the substance of the Respondent’s complaint, which does not depend on Article 19(5) of the Constitution at all. It is that a man should not be condemned by reference to a standard which did not exist, or which he could not have known of, at the time he acted. That principle is not the exclusive property of the criminal law. It is an incident of fairness wherever a body sits in judgment on past conduct with power to punish.

Its application to professional discipline is, however, different in an important way. Professional standards are not, and cannot sensibly be reduced to an exhaustive code. A profession governs itself by reference to standards which its members are expected to know because they are members. That is why the classical formulations speak of conduct which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency: see the observations of Scrutton LJ in R VS. GENERAL COUNCIL OF MEDICAL EDUCATION AND REGISTRATION OF THE UNITED KINGDOM [1930] 1 KB 562 at 569-570, adopted in this jurisdiction in AMARFIO, AND HILBORNE VS. LAW SOCIETY OF SINGAPORE [1978] 2 ALL ER 757.

The requirement of legality in this field therefore takes a particular shape. It does not demand that the impugned conduct should have been spelt out in a rule. It does demand at least this much: that the standard by which the lawyer is judged be one that existed and was ascertainable at the time he acted, and not one first articulated afterwards and applied backwards; that the charge identify with precision the standard alleged to have been departed from and the acts said to constitute the departure, so that the lawyer knows what he must answer; that where a particular consequence, here, suspension or erasure depends upon the conduct attaining a particular degree of seriousness, the lawyer be told that the degree is in issue and be heard upon it; and that the tribunal’s reasons disclose the standard applied, the facts found, and the path from the one to the other.

Those four requirements are not an invention of this Court. They are a particular application, to the discipline of a profession, of a much older set of ideas about what it takes for a body of rules to be capable of guiding conduct at all. The most useful modern statement of them remains that of Lon Fuller in THE MORALITY OF LAW (1964), where, through the parable of the unhappy King Rex, he identified eight ways in which the attempt to make law may fail, and so eight qualities which law must possess, if it is to deserve the name. Laws must be general rather than a series of ad hoc commands. They must be promulgated, so that those bound by them can find out what they are. They must be prospective rather than retroactive. They must be clear. They must not contradict one another. They must not demand the impossible. They must be reasonably constant over time. And, the eighth and for the purposes of the instant case, the most important, there must be congruence between the rules as declared and the rules as actually administered by those who wield them.

Fuller supplies a vocabulary for saying, with some precision, what it is that has gone wrong in a regulatory scheme, and a checklist against which a regulator may audit itself. Measured against that checklist, the disciplinary regime under Act 32 and L.I. 613 is in difficulty at several points, and the proceedings in this case at several more.

As to promulgation, Section 19(1) of Act 32 has authorised the Disciplinary Committee since 1961 to make rules of procedure and of evidence by legislative instrument, and none has been made; so that a lawyer summoned before the Committee cannot discover from any published source how the inquiry into his livelihood will be conducted.

As to clarity, Rule 2(2) of L.I. 613 states a duty in the widest terms and places it inside a rule about advertising and touting, and neither the Act nor the Rules say what separates professional misconduct from grave misconduct in a professional respect, though everything turns on the distinction.

As to prospectivity, the Committee measured conduct of 2013 against a decision of 2022. And as to congruence, which is the gravest failure of the eight because it is the one that makes all the others pointless, the Committee charged the Respondent under one provision and punished him under another. It announced a standard of professional misconduct and administered the consequences of grave misconduct; and it withdrew allegations and then sentenced as though they had been established. A regulated person confronted with such a body cannot orient his conduct by its declared rules, because its declared rules are not the ones it applies.

We draw attention to this not to score a theoretical point but because the remedy is entirely within the Appellant’s own hands. Six of Fuller’s eight qualities are supplied by making and publishing rules, which Sections 19(1) and 23 of Act 32 expressly empower the Council and the Committee to do. The seventh and eighth are supplied by the Committee holding itself to the rules it has made. Neither requires legislation.

Two further matters of principle should be addressed. Neither was addressed below, and both are of general importance. The first is the standard of proof. The second is the purpose for which a disciplinary sanction exists.

The standard of proof. Disciplinary proceedings under Act 32 are not criminal proceedings, and the ordinary standard of persuasion is therefore proof on the preponderance of the probabilities under Section 12 of the Evidence Act, 1975 (NRCD 323). That is the starting point. It is not the whole of the matter. There are two distinct routes by which a heavier burden comes to be imposed, and the Committee appears to have considered neither.

The first route lies in the character of an allegation of grave misconduct, and it is laid down by the very authority on which the Court of Appeal relied. It is easy to overlook, because it is the fourth holding in AMARFIO and the argument in this case has fastened upon the first two. The Court of Appeal there, held that, as the matter before the Disciplinary Committee was a quasi-criminal one, the charges had to be proved beyond all reasonable doubt; and it added that, having regard to the nature of the charges preferred, being not a mere misconduct but a grave one in a professional respect, the heavy burden involved had not been discharged. We find that holding right and we afirm it.

Therefore, where what is alleged against a lawyer is grave misconduct in a professional respect, so that his name may be struck off or his practice suspended and his continuing to practise thereby made a crime, the proceeding has taken on a quasi-criminal character, and the allegation must be established beyond reasonable doubt.

The second route is statutory and independent of the first. Section 13(1) of the Evidence Act provides:“In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” The provision is not a curiosity. It has been applied by this Court to allegations of a criminal character raised in civil proceedings on many occasions. In FENUKU AND ANOTHER VS. JOHN-TEYE AND ANOTHER [2001-2002] SCGLR 985, where forgery was alleged in a civil suit, Ampiah JSC said at page 1003 of the report that, with regard to proof of forgery, or for that matter any allegation of a criminal act in a civil trial, one cannot go outside the statutory provision; that in this country, the position is governed by Section 13(1); and that no amount of foreign authority, however persuasive, can dislodge that requirement of our law. The same principle was applied in SASU BAMFO VS. SINTIM [2012] 1 SCGLR 136. The practical test to which the cases apply is a demanding one. The evidence led in proof of the criminal allegation must be such that, the tribunal could convict upon it were it trying the crime itself.

It may be said that Section 13(1) speaks of a Civil or Criminal “action”, and that an inquiry before the Disciplinary Committee is neither. We would not decide the point on so narrow a footing, for three reasons we think the requirement applies. First, Act 32 itself treats the Committee as an adjudicating body of a judicial character: Section 19(2) of Act 32 gives it the powers of the High Court to summon witnesses, to call for documents and to examine on oath while Section 19(4) preserves before it the privilege against self-incrimination, which is a protection that presupposes the possibility of criminal jeopardy. Then Section 19(6) of the Act deems it to be a court for the purposes of the law of perjury.

Thus a body which takes evidence on oath under the powers of the High Court should apply the High Court’s standards of proof. Secondly, the reason for the Rule in Section 13(1) of the Act has nothing to do with the label on the proceeding. It is that the imputation of criminality is so damaging that, a tribunal should not make it on a bare balance of probabilities. That reason applies with at least as much force where the person accused is a lawyer and the consequence is the loss of his practice and potential livelihood and those of his dependants.

Thirdly, Act 32 elsewhere shows that Parliament kept the criminal and the disciplinary jurisdictions distinctly: by Section 16A, a lawyer’s name may be struck off on conviction of an offence involving dishonesty or moral turpitude, and even then not until any appeal against the conviction has been disposed of. The Act contemplates that, criminality is established in the criminal courts, to the criminal standard, and not found incidentally by the Committee.

It is necessary at this point to say something about the fourth holding in AMARFIO, which the argument in this case has passed over and which appears at first sight to go further. The court there said that, as the matter before the Disciplinary Committee was a quasi-criminal one, the charge had to be proved beyond a reasonable doubt, adding that regard had to be had to the nature of the charges preferred, being not a mere misconduct but a grave one in a professional respect. When read as laying down a third standard of proof, keyed not to the content of the allegation but to the severity of the sanction in prospect, that holding could not stand. Sections 12 and 13 of the Evidence Act between them leave no room for it. The Act fixes one default standard and creates one exception, and the exception is defined by what is alleged, not by what may follow from it. A court applying those sections could not superimpose a third standard for allegations it regarded as especially grave, and a tribunal which is not a court cannot do so either.

The practical consequence for a disciplinary tribunal may be put as two propositions. First, where the allegation is of incompetence, carelessness or a failure to attain a professional standard, and no measure specified in Section 16 of Act 32 is in contemplation, the civil standard governs, applied with the cogency appropriate to the gravity of what is alleged: see BHANDARI VS. ADVOCATES COMMITTEE [1956] 1 WLR 1442, where the Privy Council said that in disciplinary proceedings against an advocate a high standard of proof is called for. See also RE A SOLICITOR [1993] QB 69.

Secondly, where the particulars allege, as an element of the misconduct, conduct which if proved would constitute a criminal offence, whether dishonesty, fraud, forgery or the deliberate deception of a court or of a public officer, Section 13(1) of Act 32 requires that element to be established beyond reasonable doubt. The tribunal must in every case read its own particulars and ask which of the two it is dealing with, and it should say in its decision which standard it has applied to which allegation.

It should not be thought that the first proposition is an indulgent one. The civil standard is a single standard, but it is not applied in a vacuum. The graver the allegation, the less likely it is that the thing alleged occurred, and the stronger must be the evidence before a tribunal can properly be satisfied that it did. See the reasoning of Lord Nicholls of Birkenhead in IN RE H (MINORS) [1996] AC 563, and IN RE B (CHILDREN) [2008] UKHL 35. That principle, and not a third standard of proof, is what gives effect to the seriousness of an allegation of professional misconduct.

We note that RE A SOLICITOR [1993] QB 69 took the different course of applying the criminal standard to solicitors’ disciplinary proceedings generally; the trend elsewhere in the common law world has since been away from that position and towards a single civil standard applied with regard to the gravity of what is alleged. In this jurisdiction, the question does not turn on the trend, because it is settled by Sections 12 and 13 of the Evidence Act.

If applied to this case, the distinction is not academic. It divides the inquiry sheet into two. Counts 1 to 3 alleged that the Respondent filed an entry of judgment for orders not supported by the judgment “when you knew or ought to have known” it. In its lower limb that alleges no crime at all; it alleges that he fell below the standard of a competent practitioner, and the civil standard would govern it. Counts 4 to 6 were of an altogether different order. They alleged that he “deceived the court”, which is deliberate deception, and that the deception occasioned the demolition of over a hundred properties. Such conduct answering that description would, according to its precise ingredients, be criminal under the Criminal Offences Act, 1960 (Act 29). Had those counts been pursued, the Committee could not lawfully have found them proved unless satisfied beyond reasonable doubt.

That supplies a further and independent answer to the Appellant’s argument in this Court. Having withdrawn the counts which alleged deliberate deception, and which could only have been established to the criminal standard, the Appellant cannot arrive at the same result by treating a plea of guilty to counts alleging that the Respondent “knew or ought to have known” as though it were a confession of the deception. The two allegations differ not only in their content but in the quality of proof the law demands before either may be found.

A plea of guilty to a count requiring no more than proof on the balance of probabilities cannot be treated as establishing an allegation which, had it been pursued, would have had to be proved beyond reasonable doubt. An allegation that a lawyer deliberately deceived a court is one as grave as any that can be made against him. It is not established by inference from carelessness, and it is certainly not established by a plea of guilty to a differently pleaded count.

Next, the purpose of sanction. The object of a disciplinary sanction is not retribution. As Sir Thomas Bingham MR explained in BOLTON VS. LAW SOCIETY [1994] 1 WLR 512, it is to protect the public and to maintain the collective reputation of the profession, and for that purpose the reputation of the profession is more important than the fortunes of any individual member. That is why suspension and erasure are grave measures rather than vindictive ones, and why they must be reserved for conduct of a corresponding order.

From the analysis of the first issue, we hold that the Court of Appeal erred in treating Article 19(5) and (11) of the Constitution as applicable in terms to the proceedings of the Disciplinary Committee, and the Appellant’s second ground of appeal succeeds to that extent. However, it does not follow that the Committee was free of constraint. Articles 19(13) 23 and 296 of the Constitution as well as the common law imposed on it obligations of notice, of fair hearing and of impartiality.

THE SECOND ISSUE: IS “GRAVE MISCONDUCT” UNPUNISHABLE BECAUSE IT IS UNDEFINED?

The Court of Appeal allowed the Respondent’s appeal on the ground that no rules had been made defining what constitutes grave misconduct in a professional respect, and that the Committee accordingly lacked jurisdiction. The proposition, stated at that level of generality, is too wide, and we should not leave it standing. In AMARFIO VS. GENERAL LEGAL COUNCIL [1991] 2 GLR 479 the lawyer there had been charged in count 1 with a contravention of Section 16 of Act 32 and in count 2 under Sections 23 and 53 of the Act and Rule 9(12) of L.I. 613, arising out of a published statement said to show disrespect for judicial office.

Osei-Hwere JSC held that Section 16 of the Act creates no offence but prescribes punishment for grave misconduct in a professional respect which the Act does not define.

His Lordship held further that, although Section 23 charges the Council to legislate on what conduct constitutes grave misconduct, when it came to make L.I. 613 it specified in Rule 9 certain rules of conduct whose breach constitutes “only professional misconduct and not grave misconduct in a professional respect, the latter concept being one of weighted degree”; and further that, count 1 was accordingly not properly laid. As to count 2, he observed that although the marginal note to Rule 9 refers to other professional misconduct, it is obvious on reading the sub-rules that not all of them attract the stigma of professional misconduct on infraction, and that, those which have been specifically identified in the body of the sub-rules. Rule 9(12), he held, had not been so identified.

Two things naturally follow. The first is what Amarfio did decide, and decided correctly. A breach of a rule in L.I. 613 which the instrument does not identify as constituting professional misconduct does not, by the mere fact of breach, brand the lawyer a professional offender. And because the Council has never exercised its Section 23 power to direct that any specified breach shall constitute grave misconduct in a professional respect, no breach of L.I. 613 is deemed grave. A charge which takes an undesignated sub-rule and treats its breach as automatically grave is not properly laid.

The second is what Amarfio did not decide. It did not hold that grave misconduct in a professional respect is incapable of being found at all in the absence of rules defining it. The court’s own second holding is to the contrary. It reasoned that although grave misconduct had not been defined by Act 32, the expression meant that, the conduct complained of was so bad that it would be repugnant to anyone’s sense of justice to ignore it; and it then examined the particular conduct alleged and found that it fell short of the degree of culpability required.

We are aware that, Adjabeng JA, concurring in AMARFIO, put the matter more strongly. He observed that what constitutes grave misconduct in a professional respect has not been defined in our law, and that there is in consequence a gap which must be filled if that wrong is to remain part of it. We share his lordship’s disquiet, and our recommendation below is our response to it. But a gap in the definition of a concept is not the same thing as the absence of the concept, and practice in this country has never proceeded on the footing that, the category is empty.

In ABOAGYE DA COSTA VS. DISCIPLINARY COMMITTEE OF THE GENERAL LEGAL COUNCIL [1991] 2 GLR 313, decided in the same year as AMARFIO, a lawyer was found guilty of grave misconduct in a professional respect, and prohibited from practising, for acting against a former client in a matter on which he had earlier advised him. No rule made under Section 23 designated that conduct as grave. It was treated as grave because, on its facts, it was found to be.

That reading is confirmed by the language of Section 16(1) itself. The parenthesis – “including any conduct which, in pursuance of rules made by the General Legal Council under this Part, is to be treated as grave misconduct in a professional respect” are words of extension, not of limitation. Parliament contemplated two routes into the grave category: conduct which is inherently grave misconduct in a professional respect, and conduct which the Council’s rules deem to be so. The second route has never been opened, because no such rules have been made. The first has always been open.

If the Court of Appeal’s proposition were right, the consequence would be that, for sixty-five (65) years no lawyer in Ghana could lawfully have been struck off or suspended for anything whatever, however disgraceful. That a lawyer who stole his client’s money, or forged a document, or sold a judgment, could not be removed from the Roll; and that the General Legal Council’s statutory charge to uphold standards of professional conduct would be a charge without a sanction. The Appellant put this point with some force and ambition in its statement of case and it is judicially acknowledge as good one. We do not accept that Parliament intended any such thing, and we hold that it did not. The Appellant’s third ground of appeal, so far as it challenges the holding that grave misconduct is incapable of being found, therefore succeeds.

However, the Appellant must not misaprehend the character of the success of the ground aforesaid. What follows from Section 16(1) of the Act being inclusive is that the Committee may find grave misconduct in a professional respect on the facts of a given case, without waiting for a rule that specifically provides such. What does not follow is that, it may impose the Section 16 measures without finding it. Once it is accepted that gravity is an open category to be determined case by case, it becomes all the more essential that the lawyer be charged with it. That it be put to him, and that the tribunal address it and decide it. This is inherent in every situation where as in the instant case, fairness derived from adequate information about the wrong alleged, is cardinal and never optional.

THE THIRD ISSUE: WHAT ACTUALLY WENT WRONG

We now come to the reasons why, notwithstanding that the Appellant has made good two of its criticisms of the judgment below, this appeal cannot succeed. And the analysis which follows is the key to our determination of this appeal one way or the other.

A. The Gulf between the Charge and the Sanction

The Respondent was charged on counts 1 to 3 with “Professional Misconduct, contrary to Rule 2(2)”. He was not charged with grave misconduct in a professional respect. The words do not appear on the inquiry notice. No rule made under Section 23 deems a breach of Rule 2(2) to be grave. Rule 2(2) is not among the sub-rules of L.I. 613 which are expressly designated as constituting professional misconduct at all. It is a statement of general duty placed within a rule about advertising and touting.

There is a prior difficulty, which follows from the first holding in AMARFIO and which was not argued before us. The court there held that, Act 32 gives the Disciplinary Committee no carte blanche on which it may inscribe for itself what is to be regarded as professional misconduct; that the nature of every professional misconduct must be specified within the four corners of the Rules made under Section 23 of the Act.

Further that, no lawyer may be charged with any type of professional misconduct unless it is provided for by the Act or by the legislative instrument made under it. That was the ground on which the second count in that case, laid under Rule 9(12), failed: the sub-rule was not one of those which L.I. 613 identifies as constituting professional misconduct. Precisely the same is true, and more obviously true, of Rule 2(2). It is not identified anywhere in L.I. 613 as a provision whose breach constitutes professional misconduct. It states a duty, and it states it in the most general terms the Rules contain.

Let us sound a caveat here. We should not be understood to say that a general duty clause can never be relied upon. But a regulator which chooses to charge under one assumes a heavier burden of particularity in framing the charge and of explanation in its reasons, and it cannot use the width of the clause to escape the discipline that the principle in AMARFIO imposes. What it certainly may not do is what was done in the instant case, which was to charge under a clause designating nothing and then to punish as though the most specific and most serious designation in the instrument had been made out.

The Respondent was nevertheless directed to be prohibited from practising for twelve calendar months. That is the measure in Section 16(1)(b), and Section 16(1) of the Act which make it available only against “a lawyer who has been guilty of grave misconduct in a professional respect”. Its consequence, by Section 16(2) read with Section 9, is that practice during the period of prohibition is a criminal offence.

The Appellant Committee therefore did what no adjudicator may do. It imposed a consequence which the statute conditions upon a finding it had not made, upon an allegation it had not laid, arising out of a question it had never invited the Respondent to address. He was never told that the gravity of his conduct was in issue. He was never heard on it. He was in no position to call evidence, make submissions, nor to advance in mitigation the matters that bear on gravity, because he did not know that gravity was the gateway through which his suspension would come.

It was argued that, the Committee could hardly be criticised for a failure of notice when the Respondent had admitted the underlying facts. However, the answer is in the conduct of the Appellant’s Committee itself whose membership made up of distinguished Judges and Legal Practitioners ought to have known that, an admission of facts is not an admission of their characterisation, and still less of their degree. A lawyer may accept that he drew an entry of judgment which went beyond the order, and dispute vigorously that, this was grave misconduct in a professional respect. Those are different questions. The first is about what he did. The second is an evaluative judgment about the standing of what he did in the scale of professional wrongdoing and it is the second that carries the consequence.

The requirement that a man be told the case he must meet is the oldest and least negotiable rule in this branch of the law, and the case a man must meet includes the case that will determine what happens to him. A charge which conceals the true jeopardy is no charge at all. It is flawed at birth any day in any civilized system of jurisprudence where due process prevails. For that reason alone, we find that, the decision of 20th April 2023 against the Respondent cannot stand.

B. Punishing the withdrawn counts

There is a second and related defect, and in our view, it is the more troubling of the two. The Committee laid three counts under Rule 9(4). Rule 9(4) is one of the sub-rules which L.I. 613 expressly designates as professional misconduct, and it fits the allegation exactly: “any deliberate deception of the court on the part of a lawyer is a professional misconduct”. Those counts alleged deliberate deception and alleged, as its consequence, the demolition of over one hundred properties at Tetegu. Had they been proved, there would have been ample material for a finding of gravity and for a substantial suspension. That is precisely the case that ought to have been fought.

The Respondent pleaded not guilty to them. The Committee withdrew them. Nothing was adjudicated. No finding of deliberate deception was ever made, and no finding was ever made that any property was demolished, still less that the Respondent’s conduct caused it. The above circumstances notwithstanding, in the appeal before us, the Appellant invites us to uphold the suspension on the footing that the Committee was dealing with “professional infractions which admittedly caused the wrongful demolition of over one hundred houses belonging to innocent laymen, and the self-same lawyer admitted his wrong doing”.

With all due respect, that is not so, and it is important to be exact. The demolition was pleaded only in counts 4 to 6. Counts 1 to 3, which the Respondent admitted, say nothing about demolition. They allege that, he filed an entry of judgment for orders “not supported by the judgment of the court” when he “knew or ought to have known”. That was what the Respondent admitted and no more.

The proposition that “knew or ought to have known” which imports an admission of deliberate deception will not do either. A charge framed in the alternative is answered in the alternative. A plea of guilty to a count pleaded disjunctively admits, at most, the lesser limb. A lawyer who accepts that he ought to have known better has accepted negligence. He has not confessed fraud nor for that matter any other offence.

Therefore, the pattern which clearly emerged is therefore this. The Committee abandoned the allegations which, if established, would have justified the sanction it imposed, and imposed that sanction on the allegations which remained. A tribunal may not withdraw a charge and then sentence as though it had been proved. To do so is to convict a man of an allegation he was never given the chance to answer, while telling him he has been convicted of something else.

We do not know why the Rule 9(4) counts were withdrawn, and we make no assumption about it. A prosecuting authority may withdraw a charge for many good reasons, including that on reflection it cannot prove it. But having withdrawn it, it must live with the consequence, which is that the withdrawn allegation is completely out of the case for every purpose, including sentence.

C. The Plea, and the Inquiry that was never held

The Respondent’s evidence, unanswered, is that he sought to plead guilty with explanation and was told he could not; that his only options were guilty or not guilty; and that he thereupon pleaded guilty simpliciter. If that is what happened, and we must proceed on the footing that it is, it was wrong, and it was wrong for reasons that go to the heart of what the Committee exists to do.

The reason for our position is not farfetched. Section 18 provides that where it appears to the Committee that an inquiry ought to be held, “they shall proceed to hold the inquiry”. Section 20 requires the Committee, “after holding an inquiry”, to “decide whether the allegations enquired into are proved”. The relevant statutory currency is inquiry and proof, not plea and conviction. Nothing in Act 32 or in L.I. 613 makes provision for the taking of a plea at all, still less for a plea of guilty to operate, as it does in a criminal court under Section 172 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), as a substitute for proof.

The Appellant’s position before us was that the inquiry sheet is not a charge sheet; that the counts are not criminal charges and further that, the machinery of criminal procedure has no application. We accept that. But the Appellant cannot have it both ways. Having disclaimed the criminal analogy when it was invoked against it, it cannot rely on the most convenient feature of criminal procedure, conviction on a plea, without evidence in order to dispense with the inquiry that Section 20 of the Act requires.

There is even a further and more practical difficulty. The particulars of counts 1 to 3 contained a mental element: “when you knew or ought to have known”. The Respondent’s explanation, if it had been received, went directly to that element. It was that the court had upheld a counterclaim in which recovery of possession and perpetual injunction had been sought. That the judgment was silent on those reliefs; and that he understood them to have been granted with the declaration of title. Whether or not that understanding was right is not the question. Whether it was honestly held, and whether a competent practitioner might have held it, went to the core of what he was charged with and to every question of gravity and mitigation that followed. The Committee foreclosed it at the threshold, and then sentenced him on the basis that he had admitted everything.

That is a breach of audi alteram partem, and on the authority of ABOAGYE and AWUNI a decision so reached cannot stand. The peculiar undisputed fact from the evidence on record discloses a disturbing incident. It is indisputably poor practice in any legal regime quite apart from law. A tribunal of fellow professionals which tells one of their kind that, he may not explain himself deprives itself of the very material it needs to decide justly. The explanation may be worthless. It may yet be decisive but it is that which the tribunal cannot know until it has heard it.

The Appellant met this with the argument that the rules of natural justice may be waived, citing REPUBLIC VS. COURT OF APPEAL; EX PARTE EASTERN ALLOY [2007-2008] 1 SCGLR 371 AND BILSON VS. APALOO [1981] GLR 24. The proposition is sound; its application here is not. Waiver must be the informed and voluntary relinquishment of a known right. A practitioner handed an inquiry notice for the first time on the morning of the hearing, who offers a qualified plea and is told the qualification is not permitted, has not waived his right to be heard. He asserted it and was refused. There is nothing here to waive. That step taken by the Committee of distinguished personalities is fatal to the proceedings and verdict emanating from it.

D. The use of ‘Ken Kwame Asamoah’

It appears from the Committee’s decision that it relied upon the judgment of this Court of 18TH JANUARY 2022 IN KEN KWAME ASAMOAH VS. STATE INSURANCE COMPANY, CIVIL APPEAL NO.J4/55/2021, as establishing that the filing of a defective entry of judgment amounts to professional misconduct, and applied that to conduct of June 2013. We do not have the Committee’s full reasoning before us and we are careful not to overstate the point. But a caution is needed, and it is of general application.

Judicial decisions declare the law and ordinarily operate retrospectively. To that extent, the Respondent’s complaint of retroactivity, framed as it was under Article 19(5), was misconceived. The difficulty lies elsewhere. Where a court, in the course of deciding a dispute between litigants, criticises the conduct of a lawyer, that criticism does not thereby become a free-standing disciplinary offence with its own ingredients and its own penalty.

It is at most evidence of the standard which the profession is expected to observe. A disciplinary tribunal which reads such a passage as if it were a new rule, and applies it to conduct nine years old, has confused the declaration of a standard with the creation of one.

The correct question is always the same, and it is the question the tribunal must ask itself openly. It is judged by the standards that a competent and honest practitioner in Ghana would have recognised at the time he acted. Did this lawyer fall below them, and if so, by how far? A decision handed down in 2022 may illuminate that question. It cannot answer it by fiat for conduct in 2013.

E. Two matters we raise of our own motion

Neither of the following was argued before us and neither forms part of our ratio. We raise them because they appear on the face of the record, because they will recur, and because it would not be right to pass them over in silence.

In the impugned decision against the Respondent, the Committee placed on record inter alia thus: “We … recommend to the Plenary Committee”. The operative paragraph of the decision of 20th April 2023 is not a direction. It is a recommendation to a body called the Plenary Committee. Act 32 knows no such body. Section 20 requires the Disciplinary Committee to decide and to direct. Paragraph 4 of the First Schedule forbids the Council to delegate its Part III functions to any other committee. Section 19(1) permits the Disciplinary Committee to make rules by legislative instrument prescribing, inter alia the number of members to hold an inquiry, and this court has not been referred to any such instrument.

If what occurred is that a panel heard the Respondent and a differently constituted body decided his fate, then the body that decided did not hear, and the body that heard did not decide which is a fundamental breach of a principle older than the Act. If, on the other hand, “Plenary Committee” is simply an internal usage for the Disciplinary Committee itself sitting as a whole, then the decision is not a recommendation at all and should not have been expressed as one.

The reason is simply because the appeal period under Section 21 runs from the communication of a decision, and a lawyer served with a recommendation cannot know whether or when his right of appeal has begun to run. Either way the practice requires attention, and if panels are to be used, Section 19(1) of the Act provides the lawful route which must be followed.

Publication before Communication

Section 21 of Act 32 gives the lawyer twenty-one (21) days from the date on which the decision “is communicated to him by the Committee” within which to appeal. Section 22 forbids the Judicial Secretary to erase a name from the Roll until that period has run and no appeal is outstanding. The statutory scheme thus contemplates an interval between decision and consequence, and it exists so that the right of appeal shall be real.

On the Respondent’s unanswered account which from the record is not challenged, a public notice of his suspension was issued on 1st May 2023, before he had been served with or obtained a copy of the decision, and was circulating on social media by 3rd May 2023. That development is disturbing. Transparency in professional regulation is a public good, and a public entitled to know that its lawyers are regulated is entitled to know how. But publication is a grave step, because the reputational consequence of a published suspension can never be undone by a successful appeal. It should follow communication to the lawyer, not precede it, and a regulator would be well advised to allow the appeal period to run, or at the least to record in the notice that the decision is subject to appeal.

We note in passing the complaint that, the notice went further than the decision, in barring the Respondent from entering his law office when what had been directed was a prohibition on practice. A notice should not say more than the decision it announces. The unfortunate circumstances of this case, we dare say demonstrates animosity from the regulator and a classical case of scapegoating.

THE REMAINING ARGUMENTS

Certiorari and the merits

The Appellant relied on REPUBLIC VS. COURT OF APPEAL; EX-PARTE GHANA CABLE CO. LTD. (BARCLAYS BANK GHANA LTD, INTERESTED PARTY) [2005-2006] SCGLR 107, where Dr Twum JSC (of blessed memory) said that, certiorari is not concerned with the merits of the decision but is a complaint about jurisdiction or some procedural irregularity such as a breach of natural justice, and that it will issue to correct an error of law on the face of the record so grave as to amount to a wrong assumption of jurisdiction.

We accept the statement of principle without qualification, and observe that it is fatal to the Appellant rather than helpful to it. The Respondent’s complaint is not that the Committee reached the wrong conclusion on the facts. It is that, it imposed a sanction whose statutory precondition it had neither alleged nor found and that, it refused to hear him. Both are classic grounds of certiorari. The first is want of jurisdiction in the strict sense identified by Kpegah JSC in REPUBLIC VS. ADU BOAHEN [1992-93] GBR 684 AT 693 – the non-existence of a condition precedent to the assumption of jurisdiction. The second is breach of natural justice, which EX-PARTE GHANA CABLE itself names.

The availability of an Appeal under Section 21

A more substantial objection, which the Appellant touched on but did not develop, is that, the Respondent had a statutory right of appeal under Section 21 and had in fact exercised it, so that certiorari ought to have been refused as a matter of discretion. The principle is well settled: judicial review is a remedy of last resort, and a court will not ordinarily entertain it where an adequate alternative remedy exists, still less where the Applicant is simultaneously pursuing one.

However, the objection cannot avail the Appellant in this case, for two reasons. The first is that the defects we have identified go to jurisdiction, and where a decision is a nullity the supervisory jurisdiction is not ousted by the existence of a right of appeal. The second is decisive and, we regret to say, does the Appellant no credit.

The reason the Respondent’s Section 21 appeal was never heard is that the record was never compiled, and the reason the record was never compiled is, on the unanswered evidence, that the Appellant would not accept payment for it, would not supply the proceedings, and at one stage would not receive his letters, so that he was reduced to sending them by courier. When it did supply proceedings, it supplied two days’ worth, one of them a day on which the Appellant was not present.

A tribunal cannot obstruct an appeal against its own decision and then invite a court to send the Appellant back to that appeal. The principle needs no authority. It is founded on commonsense. It is the ordinary rule that no one may take advantage of his own wrong, and it has a particular sharpness where the wrongdoer is a public regulator and the right obstructed is a statutory right of appeal against a penal sanction.

Thus if a lawyer applies for the record of his own disciplinary hearing in order to appeal, the Committee is bound to furnish it, completely and promptly. That duty is not discretionary, and its breach is itself a matter of the gravest concern in no less a profession as the Legal profession.

Nemo judex in causa sua

The Respondent complained below that the General Legal Council investigated, charged, prosecuted and judged him. Where Parliament commits to a single body the functions of investigation and adjudication, the mere combination of those functions cannot be a ground of objection, for otherwise the statute would be unworkable. Act 32 does exactly that: Section 18 requires the Committee to receive the complaint and, if it thinks an inquiry ought to be held, to hold it. A statutory duty prevails over the general rule to the extent of any inconsistency, and the argument fails.

Having said that, the combination imposes a discipline of its own. The Committee’s decision records that the Respondent’s plea in mitigation “were not objected to by Counsel for the Committee”. If the Committee retains counsel to present the case against the lawyer, the separation between the presenting function and the adjudicating function must be real and must be seen to be real. Counsel who presents the case should not advise the Committee in its deliberations, and members who conducted the preliminary enquiry which found a prima facie case should consider carefully whether they ought to sit on the inquiry that follows. None of this is required by the letter of Act 32. All of it is required by Article 19(13) of the 1992 Constitution and by the appearance of justice.

The omnibus ground

The first ground of appeal, that the judgment is against the weight of the affidavit evidence, adds nothing. This was an application on affidavit evidence in which the primary facts, the terms of the inquiry notice, the pleas, the withdrawal of counts 4 to 6, and the terms of the decision were not in dispute. The dispute was as to their legal consequence. There is no such weight of evidence for the Appellant to complain of, except it be a mere red herring.

The Ethics of the Regulator

There is a body of ethical obligation in this case, and it is the one this Court is most concerned to emphasize. The Disciplinary Committee is composed of members of the Council of persons who hold or have held high judicial office, and of former members of the Council in practice. It is, in other words, composed of the most senior figures in the profession. When it sits, it functions as a profession judging itself, and every young lawyer at the Bar learns from what it does far more than from anything he is taught about it.

A tribunal so composed teaches by example whether it intends to or not. When it tells a practitioner that he may not explain his plea, it teaches that explanations are an inconvenience. When it withdraws the counts it cannot prove and punishes on the counts it can, as though the withdrawn counts had been established, it teaches that the record is malleable. When it publishes a sanction before the person sanctioned has seen it, it teaches that the appearance of decisive action matters more than the substance of due process. And when it declines to furnish a lawyer with the record of his own hearing so that he may appeal against it, it teaches that the rules bind those who are judged and not those who judge.

The profession will not be reformed by a regulator that behaves in this way, however severe its sanctions. Standards are not transmitted by punishment. They are transmitted by example, and the example that carries furthest is the one set by the body that punishes. We would urge upon the Committee the reflection that, its procedural scrupulousness is not a constraint upon its disciplinary mission. It is the disciplinary mission, conducted by the only means that can succeed.

We note, finally, and with regret, the length of time this matter has taken. The conduct complained of occurred in June 2013. The inquiry notice issued in September 2022. The decision came in April 2023 and it is now November 2026. Some of that delay is attributable to the Respondent’s own multiplication of proceedings. A great deal of it is attributable to the Appellant, which frustrated the appeal that would have resolved the matter in 2023 and then brought an unsuccessful application to this Court along the way. Whatever the complainants at Tetegu are entitled to, they are not entitled to less than a regulator that gets on with it.

GUIDANCE

Because we were told that the questions raised here recur, and because this Court has had few occasions to address them, we set out the following guide-lines in dealing with cases of alleged professional misconduct in future.

(i) The charge must state the case in full. An inquiry notice must identify the rule or standard said to have been breached, the acts said to constitute the breach, and where erasure or suspension is in contemplation, that the conduct is alleged to amount to grave misconduct in a professional respect. A lawyer is entitled to know not merely what he is said to have done, but what is said to follow from it.

(ii) Gravity must be separately addressed and separately decided. A finding that allegations are proved is not a finding of grave misconduct. Before directing a measure under Section 16 of the Act, the Committee must make an express finding, supported by reasons, that the conduct proved amounts to grave misconduct in a professional respect, and it must give the lawyer an opportunity to be heard on that question before making it.

(iii) There must be an inquiry. Sections 18 and 20 of the Act require the Committee to inquire and to decide whether the allegations are proved. An admission may shorten an inquiry; it cannot replace it. Where a lawyer admits facts but qualifies the admission, the qualification must be received and considered. The practice of requiring a bare plea of guilty or not guilty, on the criminal model, has no foundation in Act 32 and should be discontinued.

(iv) The standard of proof must be identified and applied. The Committee should state in its decision what standard it has applied to each allegation. Allegations of professional shortcoming falling short of grave misconduct are governed by the civil standard under Section 12 of the Evidence Act, 1975 (NRCD 323), applied with the cogency that the gravity of the allegation demands. Where the particulars allege conduct which would amount to a criminal offence, that element must be established beyond reasonable doubt under Section 13(1) of the Evidence Act 1975 (NRCD 323). Where grave misconduct in a professional respect is alleged, the proceeding is quasi-criminal in character and the allegation must be proved beyond reasonable doubt. Holding (4) in AMARFIO applied.

(v) A withdrawn allegation is out of the case. Where counts are withdrawn, they may not be relied upon as proved facts, as aggravating circumstances, or as background colouring the assessment of the counts that remain.

(vi) Reasons must be given, and the decision must be a decision. The Committee’s decision should set out the findings of fact, the standard applied, the reasoning by which the findings are held to amount to misconduct, the reasoning on gravity, and the measure directed. It must be expressed as a direction under Section 20, not as a recommendation, and it must be communicated to the lawyer, in accordance with Section 21, before it is published to anyone else.

(vii) The record must be furnished. Where a lawyer requests the record of proceedings in order to exercise his right of appeal under Section 21, the Committee shall furnish the complete record within a reasonable time, and shall not obstruct the compilation of the record of appeal by any means, including by declining to receive the fees payable for it.

We add these recommendations, which are not directions. The first of them is, in our view, overdue:

The Disciplinary Committee should exercise the power conferred by Section 19(1) of Act 32 to make rules of procedure by legislative instrument. More than six decades after the Act came into force, the Committee’s procedure — the constitution of panels, the mode of commencing an inquiry, the receipt of evidence, the taking of admissions, the conduct of any plenary stage, and the giving and publication of decisions rests on practice rather than on published rules. Article 296(c) of the Constitution reflects the same concern where discretionary power is reposed in a body that is not a court. Published rules would protect the Committee as much as those who appear before it.

The General Legal Council should consider whether to exercise the power conferred by Section 23 of the Act to direct that specified breaches constitute grave misconduct in a professional respect. It has never done so, which is why every case must be argued from first principles and why Amarfio has had to bear a weight it was never decided to carry.

The attention of the Council, and through it of Parliament, is drawn to the narrowness of the sanctions available under Act 32. Apart from costs, the only measures the Act specifies are erasure and suspension, both of them reserved to grave misconduct. There is no power to reprimand, to censure, to fine, to impose conditions on a practising certificate, to require further training, or to order restitution to a complainant. A regulator armed only with the heaviest weapons faces a standing temptation to characterise ordinary professional misconduct as grave in order to be able to respond to it at all. The present case has the appearance of that temptation at work. A graduated range of sanctions, enacted with the safeguards that should attend each, would serve the profession and the public better than the present all-or-nothing scheme.

Trial Judges should ensure that every relief claimed is expressly disposed of in the judgment, whether granted, refused, or left over. Much of this litigation traces back to a judgment which upheld a counterclaim while saying nothing about two of the reliefs sought in it. A silence of that kind is an invitation to the very speculation which brought the Respondent before the Committee. And courts asked for leave to issue a writ of possession should satisfy themselves, as Order 43 Rule 3(3) of C.I. 47 requires, that the persons in actual possession have had notice comparing the entry of judgment against the judgment itself before granting leave.

DISPOSITION

We hereby summarise our conclusion as follows:

The Court of Appeal erred when it applied Article 19(5) and (11) of the Constitution, which govern criminal trials, to proceedings before the Disciplinary Committee. To that extent the Appellant’s second ground succeeds.

The Court of Appeal was also in error to hold, or to be taken as holding, that because no rules have been made defining grave misconduct in a professional respect, the Committee can never find it. Section 16(1) of Act 32 defines the category inclusively, and Amarfio decides no more than that a breach of an undesignated sub-rule of L.I. 613 is not of itself grave misconduct. To that extent the Appellant’s third ground succeeds.

Notwithstanding our conclusion aforesaid, the decision of the Appellant’s Disciplinary Committee of 20th April 2023 cannot stand. It directed a measure available under Section 16(1)(b) only against a lawyer guilty of grave misconduct in a professional respect, without having charged the Respondent with the offence of grave misconduct, nor put same in issue, and without having found it. It sanctioned the Respondent on a footing which included allegations of deliberate deception and consequential demolition that it had withdrawn without adjudication.

Further, the Committee refused to receive the Respondent’s explanation for his plea of a qualified guilt, thereby denying him a hearing on the only contested element of the counts he faced. Those defects go to jurisdiction and to natural justice. Certiorari will lie to quash the decision, and the Court of Appeal was right, in the result, to hold that it should be quashed.

For all the reasons herein before set out, the appeal fails and same is accordingly dismissed. The judgment of the Court of Appeal dated 22nd May 2025, in particular, the order quashing the decision of the Disciplinary Committee of the General Legal Council (Appellant herein) dated 20th April 2023, and all consequential steps taken upon it are affirmed on the reasoning set out in this judgment, and not on the reasoning contained in the judgment of the court below.

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) J. BARTELS-KODWO (MRS.)

(JUSTICE OF THE SUPREME COURT)

COUNSEL

JUSTIN AMENUVOR ESQ. FOR THE RESPONDENT/RESPONDENT/APPELLANT

EDWARD SAM CRABBE ESQ. FOR THE APPLICANT/APPELLANT/RESPONDENT WITH DENNIS BUABENG ESQ.