A lawyer engaged by a Chinese-owned mining company operating in Ghana has been dragged before the General Legal Council (GLC) for reportedly going against one of the rules of the legal profession.
Joseph Awakpaksa currently is lawyering for the foreign company in a civil case filed at a High Court in Bolgatanga, capital of the Upper East region, by the Managing Director of Yenyeya Small-Scale Mining Group, Charles Taleog Ndanbon.
Ndanbon told the GLC in a 5-page petition that Awakpaksa had represented him and the same Chinese company some years ago in a number of court cases and serving as a lawyer for the same company against him today would constitute conflict of interest.
He referenced Rules 20, 21 and 22 of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020, to buttress his demand for the GLC to put the lawyer before its Disciplinary Committee and penalise him accordingly.
Rule 21 (1) says: “A lawyer who has formerly represented a client in a matter shall not represent another person in the same or a substantially related matter in which the interest of that person is a materially adverse to the interest of the client.”
Rule 21 further states in Section 2 that “A lawyer shall not represent a person in the same or a substantially related matter in which a firm with which the lawyer was associated had, to the knowledge of the lawyer, previously represented a client (a) whose interest is materially adverse to the interest of that person; (b) and about whom the lawyer had acquired information protected by these Rules that is material to the matter”.
Section 3 of Rule 21 makes it clear that “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not (a) use information relating to the representation to the disadvantage of the former client except as permitted by these Rules with respect to the client, or when the information has become generally known; or (b) reveal information relating to the representation of the client except as permitted by these Rules,”
An agreement that led to the disagreement
Ndanbon had travelled to China in 2008 and wooed Shaanxi Mining Company to Ghana to support his Yenyeya Small-Scale Mining Group in Talensi, a district in the Upper East region, as a technical-service partner.
Charles fell out with the company after Shaanxi suddenly decided to go solo into a large-scale mining operation in the same district. Ndanbon’s 25-acre mining concession was among several goldfields captured within a 16.02sqkm (the size of about 4,000 standard football fields combined) acquired by the Chinese company for the large-scale mining business. Shaanxi’s move was contrary to an agreement the two parties had signed.
The foreign company changed its name to Earl International Group (Ghana) Gold Limited and its Chief Executive Officer, Wei Xing, reportedly banned Ndanbon from entering the company’s yard as their disagreement festered.
On Friday, 12 May 2023, Ndanbon filed a case at High Court ‘1’ in Bolgatanga against the Chinese company on the agreement breach.
On Monday, 19 June 2023, the lawyers for the foreign company (led by Awakpaksa) filed an application at the court, arguing that Ndanbon had no capacity to sue the company because his firm (Yenyeya Small-Scale Mining Group) entered into an agreement with Shaanxi Mining Company Limited and not Earl International Group Ghana Gold Limited. The lawyers asked the court to, on that basis, reject the writ and the statement of claim brought by Ndanbon.
On Wednesday, 20 September 2023, the judge sitting on the case, Charles Adjei Wilson, ruled in Ndanbon’s favour. The judge explained that when the company was being transformed from its old self— Shaanxi Mining Company Limited— into the new self— Earl International Group Ghana Gold Limited— it also carried along all the old liabilities of its old self into the new self.
Justice Wilson pointed out that those old liabilities also included the same old agreement now in contention between the two parties. He described the company’s application as “an academic exercise”. Consequently, he threw the application out and slapped the company with a cost of Gh¢5,000 (current equivalent of USD398.75 or 368.56 Euros).
The judge also gave the company ten days to file its defence. Subsequently, the company’s lawyers filed an appeal against the ruling. The appellate court in Kumasi, Ashanti region, is yet to review the ruling.
On Sunday, 25 February 2024, Media Without Borders contacted Awakpaksa on the petition lodged with the GLC against him by Ndanbon. He declined to comment.
Source: Edward Adeti/Media Without Borders/mwbonline.org
