IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
J. OPOKU BOATENG & C - (Plaintiff)
RAOUL ABOU CHEDID, GOLD COAST SECURITIES LTD AND K. AMPONSAH DADZIE - (Defendants)
DATE: 21ST NOVEMBER, 2016
SUIT NO: CM/OCC/0734/2016
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
The court has been called upon in this application to make a determination as to whether a lawyer who initiate an action for the recovery of his legal fees from his former client can do so by the issuance of a writ of summons or must come strictly be an application in the form of a motion.
And two whether when a lawyer who sues more than one defendant in his claim for recovery of his fees, such an action makes it multiple causes of action or different causes of action and renders the action incurable bad without the leave of the court having been first obtained.
1st Defendant/Applicant has moved the court to strike out or dismiss the writ filed by the plaintiff/respondent. In an affidavit that accompanied the application and deposed to by the 3rd Defendant, he claims that the writ of the plaintiff is incompetent, unfounded in law and constituted an abuse of the judicial process.
Moving the application, 3rd defendant who is also a legal practitioner relied on section 41 of the Legal Profession Act, Act 32 and the case of JONAH v KULENDI & KULENDI [2013-2014] 1 SCGLR 272. The essence of his submission is that Act 32 has spelt out a mode for a lawyer who intends to recover his fees from a client to come by way of an application and nothing else and as long as this suit is not by way of an application, plaintiff has miscalculated and ought to be thrown out of the court.
Section 41 of Act 32 states as follows:
“All applications made under this Part to refer any bill to be taxed and settled or for the delivery up of deeds, documents, or things shall be by motion in the matter of the lawyer concerned”.
I find nothing in this provision that says that when a lawyer institutes an action for the recovery of his fees for the performance of legal services, the lawyer must approach the court by way of an application. The sections that precede section 41 deals with the service on a client of a bill by lawyer at least one month before the lawyer commences proceedings. And when this bill is served, the client may apply to the court and the court may refer the bill to be taxed. And where no such application is made the lawyer, suo moto, may refer the bill to be taxed. Section 41 deals with matters regarding taxation of the bill raised by a lawyer which the provision says any such matters regarding taxation, delivery of any documents, deeds or writing demanded by a client from a lawyer should be done by way of an application. The law however, does not say that when a lawyer commences an action to recover his fees it should be by way of application in the form of a motion.
3rd defendant relied on the case of JONAH v KULENDI & KULENDI supra as the authority in support of his claim that a lawyer suing for his fees must do so by way of an application. In fact, JONAH v KULENDI never ever decided that and the import of that decision has gravely been misconstrued by 3rd defendant.
In that case the plaintiff had issued a writ against three different parties when he claimed against the 1st defendant recovery of US$1.000.000.00 which he alleged he gave to 1st defendant when the latter instituted an action against Investcom, Scancom and Grand View Management Ltd. And that the monies advanced to 1st defendant was to be repaid from the monies to be realised from the monies to be received from the Investcom suit. As against 2nd and 3rd defendants, plaintiff claimed that they were aware of that suit as lawyers and had received fees of up to US$100.000 from plaintiff and that without recourse to him the defendants had settled the claim for an amount of USD54,000.000.00 of the claim against Investcom.
As against 2nd and 3rd defendants it was the claim of the plaintiff that the fees they charged 1st defendant be disclosed to him and was not bound by the success fee agreed upon. It was the opinion of the Supreme Court that regarding the fees that was charged by 2nd and 3rd defendants, if plaintiff wanted a disclosure, then the procedure was by way of an application. And two that it was wrong for the plaintiff to have put together separate causes of action against the 1st defendant, with the rest of the defendants, when the claim of plaintiff emanates from separate causes of actions.
The plaintiff in Sam Jonah case was not a lawyer who was suing for his fees. Two in the Sam Jonah case, the plaintiff had a cause of action against 1st defendant for recovery of a loan whiles against 2nd and 3rd defendants in respect of an agreement they had as lawyers regarding their fees with 1st defendant, a contract which plaintiff was not a party or privy to.
It is therefore not the law that a lawyer must commence an action for recovery of his fees by way of an application. And it is again not the law that when a lawyer issue a writ and ask for consequential orders against more than one defendant the action is bad in law and such a lawyer must first obtain leave of the court.
What is cause of action is described by the Black Law’s Dictionary “a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person” (8th Edition). In other words it is the ground on which an action may be sustained. The right to bring a suit.
The claim of plaintiff here as can be gleaned from the endorsement on the writ is the recovery of fees against 1st defendant in a suit he claimed to have conducted on behalf of 1st defendant against 2nd defendant. And what he seeks against 2nd defendant is an injunction restraining the further payment of the judgment debt to 1st defendant and also against 3rd defendant from collecting any further monies from 1st defendant from the suit he handled. So the claim against all the defendants arise from the same cause of action but not different causes of action as it was in the SAM JONAH case and the fact that there are more than one defendant does not transform the suit into separate causes of actions.
The application is wholly without basis and frivolous. Same is dismissed with a cost of Ghc3.000.00.