IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2015
ADDO ATUAH & CO. - (Plaintiff)
EUROGET DE-INVEST S.A. - (Defendant)
DATE: 21ST DECEMBER, 2015
SUIT NO: RPC/141/2014
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
MR. FRANCIS S. BOATENG FOR THE PLAINTIFF
MATILDA ROBERO FOR S. ARHIN FOR THE DEFENDANT
The plaintiff’s claim against the defendant is for
a. An order for the recovery of the sum of US$2,250,000 being debt due and owing on account of legal fees for professional legal services rendered by the plaintiff to the defendant for and concerning the implementation of the construction of eight (8) hospitals for the Ministry of Health and one (1) military hospital in Kumasi for the Ministry of Defence by the defendant which the defendant has refused/failed to pay despite several demands.
b. Interest on the sum of US$2,250,000 at the going commercial bank rate of interest on the US dollar from October 2008 up to and inclusive of the date of final payment.
c. Costs including lawyer’s fees.
The defendant caused Appearance to be entered on its behalf after the service of the writ and the statement of claim and thereafter, the defendant filed its defence. After the inability of the parties to settle at pre-trial, the case was set down for hearing at which the plaintiff gave evidence per Addo Atuah and then called one witness to close its case. The defendant did not call any of its officers to testify at the trial but it called one witness to give evidence on its behalf.
From the pleadings it is clear that the main issues between the parties are whether or not the defendant herein engaged the services of the plaintiff in 2008 or thereabout and if so, whether or not the parties agreed that the defendant will pay to the plaintiff as its remuneration 0.5% of the total contract sum or value and finally whether or not the plaintiff rendered professional legal services to the defendant.
In respect of the first issue the plaintiff has pleaded in paragraph 3 of its statement of claim that in the year 2008 the defendant engaged its services as lawyers to provide professional legal services to the defendant concerning the construction of hospitals for the Ministry of Health and the Ministry of Defence. The defendant has flatly denied this allegation by the plaintiff in paragraph 4 of its statement of defence and gone ahead in paragraph11 thereof to state emphatically that it has never engaged the services of the plaintiff to perform any work for it. By the rules of evidence therefore, as stated in sections 14 and 17 of the Evidence Act 1975 NRCD 323, it becomes the duty of the plaintiff to adduce cogent and credible evidence to prove and show that in fact its services was procured by the defendant as alleged. Thus, in Ababio vs. Akwasi III [1994-1995] GBR 774 it was held that:
“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”
The court has also explained in the recent case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another  2 SCGLR 845 at 867 that
“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”
A perusal of the evidence given by Addo Atuah, a lawyer, who described himself as the Master of Chambers of the plaintiff company shows in no uncertain terms that the evidence given in proof of the issue under discussion, is nothing more than a repetition of the allegations made in the plaintiff’s statement of claim. The plaintiff has not been able to produce a single document signed by the defendant to show that the defendant engaged its services in the year 2008. Mister Addo Atuah admitted in plain language during cross examination on 20th January, 2015 that he has no document to show that the defendant had engaged the services of the plaintiff.
Neither was the witness, Joseph Marinoni, PW1 herein, called by the plaintiff able to produce any document in proof of the plaintiff’s allegation on this issue. Indeed, what the witness did was not different from the evidence given by the plaintiff per Addo Atuah which, as pointed out, is tantamount to a repetition on oath of the averment contained in the statement of claim on this issue.
The court is of the opinion that where a lawyer claims that a person had engaged his/her services and that allegation is denied, the lawyer must be able to produce documentary evidence of his/her engagement signed by the person alleged to have contracted the lawyer or some other physical and acceptable evidence of the alleged engagement or the lawyer must be able to show that he/she has rendered services to the person and that the person has acquiesced in or accepted the rendering of the services by his enjoyment or acceptance of the benefit thereof.
This is so because whether or not a lawyer has been engaged to render services for a client is purely an issue of fact and when a person denies that he has hired the services of a lawyer, the lawyer cannot prove the fact of engagement by merely repeating that allegation on oath or by procuring other persons to repeat the said allegation on oath, but, the lawyer must be able to produce some documentary proof of his/her engagement or some other physical proof of the engagement or be able to show that he/she has rendered services to that client who has accepted the services rendered or enjoyed the benefit of that service.
In this connection, the court is of the opinion that it will be beneficial to lawyers to insist on potential clients signing formal documents of engagement instructing them (the lawyers) to offer or provide specific services for them (the client) before the lawyer embarks upon any exercise of rendering services to those clients. This will assist the lawyers avoid situations where clients turn round to deny engaging the services of lawyers. Again this will assist lawyers avoid the possibility of being cited for contempt in accordance with the provision in Order 1 rule 4 of the High Court Rules of Civil Procedure.
The plaintiff and its counsel purport to make capital out of exhibit C a letter written by the then lawyers of the defendant in response to a Bill submitted by the plaintiff to the defendant. According to counsel for the plaintiff, as implicit in her address filed on the 11th May, 2015, exhibit C is indicative of the fact of engagement of the plaintiff by the defendant to render the alleged legal services. For this reason the court will quote the relevant portions of exhibit C which reads as follows:
“We are also instructed that in or about the year 2008, when Euroget De Invest S.A. was prospecting for the Hospital projects, the then local representative Mr. Joseph Marinoni introduced Mr. Addo Atuah as part of the team to attend a couple of meetings most of which were introductory in nature.
We have further instructions that the then local representative was given sufficient funds and resources to remunerate individual team members and any engagement he had for assistance including services purportedly rendered by Mr. Addo Atuah at the time.”
It is the above statement in exhibit C which the plaintiff and its counsel say means that the defendant company engaged the services of the plaintiff. The court has read the above statement over and over again and wishes to put on record that the meaning imputed to it by the plaintiff and its counsel does not resonate with the court.
By exhibit C the defendant says that when it was prospecting for the hospital project in 2008, its local representative Mr. Joseph Marinoni introduced Mr. Addo Atuah to the defendant. That Mr. Addo Atuah was part of the team to attend introductory meetings. More importantly, exhibit C seeks to show that Mr. Marinoni was given sufficient funds and resources to remunerate the individual team members whose assistance and services he engaged.
In the opinion of the court the above statement in exhibit C is not wild and without proof. The defendant tendered in evidence through Mr. Marinoni, exhibits 1 and 2. Exhibit 1 is an agreement between a company called Infrastructure Logistics Ltd and the defendant company.
Mr. Marinoni, PW1 herein who says he is the Chief Executive Officer of Infrastructure Logistics Ltd. signed exhibit 1. In paragraph 3 of exhibit 1, Infrastructure Logistics Ltd. had agreed with the defendant that Infrastructure Logistics Ltd. “shall deal with the Government of Ghana and its Ministries… and other Agencies.” Again Infrastructure Logistics Ltd. shall be responsible “for securing all governmental processing documents for the implementation of the projects in Ghana”
It is therefore instructive to point out that the alleged services rendered, allegedly, by the plaintiff was, by the terms of exhibit 1, the responsibility and obligation of Infrastructure Logistics Ltd. to perform and Infrastructure Logistics Ltd could hire, as it did, anybody who could, to perform its obligations under exhibit 1. It is in respect of the performance of its obligations, among others, under exhibit 1 that Infrastructure Logistics Ltd was paid as much as US$998,500, as evidenced by exhibit 2, which Mr. Joseph Marinoni admitted under oath on the 10th February 2015, to have received.
If the defendant had caused to be written therefore in exhibit C that it had already committed sufficient resources to its local representative to pay all the team members including Mr. Addo Atuah, how can that statement be interpreted to mean that the defendant company engaged the services of the plaintiff with the concomitant argument that if the defendant had not engaged the plaintiff then why did it say that it had already given funds to pay Mr. Addo Atuah through the local representative.
In the view of the court the interpretation placed on exhibit C is not only far-fetched but completely out of tune with exhibit C which had stated in the penultimate paragraph, which counsel and the plaintiff conveniently avoided, that
“We have our client’s firm instructions to inform you that Euroget De-Invest S.A. represented by Dr. Said Deraz did not at any point enter into any agreement, verbal or written with Addo Atuah & Co. to provide professional services for a specified fee.”
In the opinion of this court, to the extent that the issue under discussion is one that is capable of some positive proof as shown above, the failure of the plaintiff to offer any such proof is fatal to its success on this issue and consequently the court holds that the plaintiff has failed in proving that the defendant company engaged it in 2008 to render any service whatsoever for the defendant. See Majolagbe vs. Larbi  GLR 190; Zabrama vs. Segbedzi  2 GLR 221.
The plaintiff has again pleaded and stated per its Master of Chambers on oath that it secured security clearance for the defendant. The plaintiff says it held several meetings with the National Security outfit in furtherance of the defendant’s business. The plaintiff says it wrote letters on behalf of the defendant to explain in detail “the problems associated with matters” which have otherwise been perceived as adverse. The plaintiff says it again secured Executive Approval for the defendant and also did some works for the defendant with regard to securing Parliamentary Approval. The plaintiff says it played a key role in ensuring that the Ministry of Foreign Affairs issued Promissory Notes in respect of the project.
The defendant has denied all these claims made by the plaintiff and under cross examination the plaintiff was challenged to produce a single letter in proof of the alleged services it claims to have rendered to the defendant. However the plaintiff failed to present evidence in respect of all its claims regarding the services it allegedly rendered to the defendant company.
Although the plaintiff claims to have written letters on behalf of the defendant to various Ministries and or Government departments, not a single duplicate copy of any such letter was produced before the court in proof of the allegations. The court is of the view that, if in fact the plaintiff had rendered any such services in favour of the defendant; it should not be difficult for the plaintiff to find and tender in evidence at least a single document in proof thereof.
By failing to produce physical evidence of the services, allegedly, rendered by it to the defendant, the plaintiff’s averment continued to remain at the level of mere unproven allegations and as pointed out already section 17 (1) of the Evidence Act enjoins the court to make a finding against the plaintiff for its failure to produce the needed evidence on those allegations. Ababio vs. Akwasi III (supra); Okudzeto Ablakwa (No. 2) vs. Attorney General & Another (supra) applies.
With the failure of the plaintiff to prove that the defendant had engaged it to render services for the defendant and again with the failure of the plaintiff to adduce cogent evidence to show that it in fact rendered services to the defendant, the court is of the opinion that no benefit would be derived from an examination of the issue whether the parties agreed that the plaintiff be paid 0.5% of the total contract sum. In fact that issue does not arise for consideration. The end result is that the plaintiff has woefully failed to prove its claims against the defendant. Accordingly, the plaintiff’s claims are all dismissed.
Costs of GH¢5,000.00 to the Defendant against the Plaintiff.