IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
KUJO ELAS MCDAVE - (Plaintiff)
GREATER PLAN COMPANY LIMITED AND GODFRED ANNANG AKRONG - (Defendant)
DATE: 1ST DECEMBER, 2016
SUIT NO: RPC/176/2014
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
NANA AMA OWUSU FOR THE PLAINTIFF
MR. G. D. ZANEY FOR G. S. K. BABANAWO FOR THE DEFENDANT
By a writ of civil summons dated the 7th day of May, 2014 the plaintiff claims from the defendants:
(a) An Order compelling the 1st Defendant to pay the total sum of GH¢582,000.00 and US$17,400 being the sums owed the Plaintiff as Professional Fees as at 9th January, 2013.
(b) Interest on the said sum above at the prevailing bank rate from the 10th January, 2013 until date of final payment.
(c) An order compelling both the 1st and 2nd Defendants either jointly or severally to pay the sum of GH¢2,180,000.00 being the monetary value of the landed property assigned to the Plaintiff as legal fees and guaranteed by the 2nd Defendant.
(d) Interest on the said sum (c) above at the prevailing bank rate from the 10th January, 2013 until date of final payment.
The defendants entered an appearance to the writ and then filed their statement of defence. After failure of the pre-trial settlement, the case was set down for trial at which the plaintiff gave evidence and then called one witness to close his case. The defendants’ representative, Manfred Akrong, gave evidence on behalf of the defendants and then called one witness before announcing the closure of the case for the defendants.
The case of the plaintiff is that he was engaged by the 1st defendant to act as the lawyer for the 1st defendant upon terms set out in the letter of appointment which the plaintiff tendered in evidence as exhibit ‘A’. The plaintiff says that after working for a while for the 1st defendant, the defendants relieved him of his duties when he has not been fully paid for the services rendered by the plaintiff. The plaintiff has therefore sued the defendants to recover the unpaid balance of the fees which the defendants owe. The defendants have denied owing the plaintiff. According to the defendants the plaintiff had been paid for the services which he rendered to the defendants.
From the pleadings filed by the parties, it is not in dispute that by exhibit ‘A’ the 1st defendant engaged the services of the plaintiff as the lawyer for the 1st defendant company. Indeed, the pleadings reveal that the plaintiff was to act as the solicitor of the 1st defendant company in “all legal matters including litigation, legal representation in meetings and negotiations and also in matters relating to the acquisition of land and other matters …”
Again from the pleadings the court finds that sometime around the 12th day of December, 2012, the 2nd defendant informed the plaintiff that they no longer needed the legal services of the plaintiff. It is further not in dispute, as per the pleadings that after the appointment of the plaintiff had been terminated by the 1st defendant, the plaintiff made several demands upon the defendants for the payment of the plaintiff’s legal fees.
As stated in the endorsement on the plaintiff’s writ of summons, the plaintiff claims against the 1st defendant, the sum of GH₵582,000.00 and also an amount of $17,400 which the plaintiff describes as
“the sum owed the plaintiff as professional fees as at 9th January, 2013.” The plaintiff also seeks to recover interest on the above sum at the prevailing bank rate from the 10th January, 2013 till the date of final payment. Further to the above, the plaintiff also claims against the 1st and the 2nd defendants “either jointly or severally the sum of GH₵2,180,000.00 “being the monetary value of the landed property assigned to the plaintiff as legal fees and guaranteed by the 2nd defendant.” Again the plaintiff seeks to recover interest at the current bank rate on this sum also.
The plaintiff stated among others, in his evidence in chief that “after my appointment I began my work and I represented the 1st and 2nd Defendants in court and I also drafted the number of deed of assignment. I also upon instructions represented them in a number of meetings and negotiations. And also I was instructed to prepare purchase documents and assignments regarding barter trade agreement between the Defendants and Vehicle Owners. And also I was asked to work to have compensation paid to the Defendants which part of that land was acquired by the Ghana Government. Indeed, I was requested by the Defendants to represent them in a case they had with China 99 Limited, in which case they had sold land to them and they did not give them possession so they were asking for a refund of their money”.
As evidence of the work done, the plaintiff tendered exhibit ‘B’ which appears, also, to be a summary of the debt allegedly owed the plaintiff by the defendants for the work, allegedly, done by the plaintiff. Clearly, recording on exhibit ‘B’ is divided into four main parts. Part one deals with the records of the deeds of assignment and other documents in respect of the sale of land, prepared by the plaintiff for the 1st defendant. Part two is a record of legal representation for barter trade transactions. Part three is a record of the meetings attended by the plaintiff on behalf of the 1st defendant and other legal representations made by the plaintiff on behalf of the 1st defendant. Part four contains a write up about an assignment of 21.8 acres of land to be allocated to the plaintiff valued at GH₵2,180,000.00. Additionally, part four contains a grand total of the debt allegedly owed the plaintiff by the defendants.
The plaintiff’s assertion is that the 1st defendant agreed to pay him 10% of proceeds from the sale of land. Hence, in respect of the various deeds of assignments, allegedly prepared by the plaintiff for the 1st defendant, the plaintiff has worked out 10% of the value of the land, allegedly, bought by various persons and the plaintiff therefore claims the total of this amount as his legal fees under part one of exhibit ‘B’.
The 1st defendant has denied the plaintiff’s claim to the preparation of some of the deeds of assignment set out in part one of exhibit ‘B’. The burden, therefore, rest on the plaintiff to show that he prepared all the deeds of assignment for which he had laid claim to 10% of their value. In this regard the plaintiff tendered in evidence exhibits ‘C’, ‘C1’ to ‘C3’. For, the law is clearly stated in the case of 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…”
It must be pointed out that part one of exhibit ‘B’ contains the names of thirty two people for whom plaintiff claims to have prepared various deeds of assignment. Hence, the production of deeds of assignment for about four out of the names stated in part one of exhibit ‘B’, is, in the opinion of the court, not sufficient proof of the preparation of deeds of assignment for the thirty two people.
Nonetheless, the court finds from the evidence on record, particularly, the testimony of the defendants’ representative given on the 27th of May, 2015 that the deed of assignment for Mr. Edward Ofori Amoah and Mrs Joyce Ofori Amoah was prepared by lawyer G. Opoku Ware Boateng and not by the plaintiff. Exhibit ‘8’ tendered by the defendants attests to this finding. Again, the court finds that the names of Mr. and Mrs. Ofori Amoah stated in roll 11 of exhibit has been repeated in roll 24 of the same exhibit by the plaintiff. At least, it is on record that the plaintiff could not lead evidence to disprove the defendants’ assertion in this regard; which assertion is contained in the evidence given on behalf of the defendants by their representative on the 27th May, 2015.
Further to this, the court finds that the deed of assignment prepared for Charlesfly Estate Development, was prepared by lawyer Odotei as shown by exhibit ‘9’ and not the plaintiff; yet, the plaintiff has included this assignment in roll 6 of exhibit ‘B’ as one of the deeds he prepared and is claiming 10% of the value of the land assigned by that deed as being owed to him by the 1st defendant.
In the opinion of the court to the extent that the plaintiff herein did not prepare the deeds of assignment for Mr. and Mrs. Ofori Amoah and Charlesfly Estate Development, it was wrongful for the plaintiff to include these deeds of assignment in the list which he prepared and exhibited as exhibit ‘B’. It is equally wrongful for the plaintiff to seek to recover fees for these two assignments.
The terms of the plaintiff’s engagement are governed by exhibit ‘A’ tendered by the plaintiff. The said exhibit is titled letter of engagement. It is worth quoting the relevant portions of exhibit ‘A’ in full in view of the pivotal role of exhibit ‘A’ in the determination of the issues involved in this matter. It reads as follows:
“By a unanimous consent of the management of the above named company acting by its Managing Director and General Manager regarding the processing and documentation of its acquired parcel of Land located at Sraha East, the company wish to engage the Legal services of McDave E. Appiah as its Lawyer in all its Legal matters. This letter is therefore to mandate him in acting to protect the company’s interest in all matters relating to the acquisition of the Land in question and in the company’s conduct of transaction. Legal fees are agreed to be 10% of proceeds from sale of parcels of Land to be paid in cash or equivalent in Land or partly cash and partly Land. Kindly acknowledge engagement in writing”.
From exhibit ‘A’ tendered by the plaintiff, it is clear that the plaintiff’s legal fees was tied to the proceeds from the sale of parcels of land. Exhibit ‘A’ says the plaintiff’s “legal fees are agreed to be 10% of proceeds from the sale of land to be paid in cash or equivalent in land or partly cash and partly land ….”
The word ‘proceeds’ has been defined in the Black’s Law Dictionary, 8th edition, by Bryan A. Garner and published by Thomson West. At page 1242, the learned editor states that proceeds mean “the value of land, goods or investments when converted into money; the amount of money received from a sale. Something received upon selling; exchanging, collecting or otherwise disposing of collateral.” It implies therefore that until a parcel of land whose deed of assignment has been prepared for by the plaintiff is actually paid for and received by the 1st defendant herein, the plaintiff, under the agreement cannot asked that he shall be paid 10% of the value of the said land. However, as soon as payment is effected by a purchaser for land whose deed of assignment was prepared by the plaintiff, the plaintiff’s right to be paid 10% of the value thereof becomes matured. Hence, the plaintiff’s right to be paid 10% is dependent upon the discharge of the plaintiff’s obligations under exhibit ‘A’ and also upon the payment for land purchased.
In this regard, it is necessary to point out that the defendants’ representative also gave evidence to the effect that no document was prepared for one Paul Dzadey whom the plaintiff has included in exhibit ‘B’ roll 26. The plaintiff failed to adduce cogent evidence, as required by law, to show that in fact he prepared document for the said Paul Dzadey. Again flowing from the above, the defendants say that for the reason that no document was prepared for Paul Dzadey, the land written by the plaintiff as having been sold to Paul Dzadey was, in fact, not sold to Paul Dzadey and, consequently, no payment has been received from Paul Dzadey to entitled the plaintiff to make any claim in respect of the said land. The evidence on record shows that the 1st defendant intended to gift the said land to Paul Dzadey but the gift could not be effected because of subsequent challenges the 1st defendant had on the land. The defendants also testified to the effect that it intended to make a gift of parcels of land to Stella Ackwerh and Caroline Quao whose names have been listed by the plaintiff on roll 28 of part one of exhibit ‘B’. Thus, these gifts could not pass because of problems encountered by the 1st defendant on the said land. The land in question was therefore not sold and no payments have been received therefor to entitle the plaintiff under exhibit ‘A’ to put in a claim.
There is evidence to the effect that a group of teachers and staff of Amalgamated Bank intended to buy land but later refused to carry on with the intended purchase due to problems the 1st defendant had in respect of title to the said land. No payment was therefore received for those parcels of land to enable the plaintiff to put in a claim under exhibit ‘A’.
Equally, there is evidence on record to the effect that no land was sold to Eric Amewuda whose name has been listed as number 13 in part one of exhibit ‘B’ by the plaintiff. Indeed, the defendants say that there is a challenge to its right to the land in question and so none of the parties listed in part one of exhibit ‘B’ has made any payment for any parcel of land to the plaintiff. The court is of the opinion that since the plaintiff’s claim hinges on the payment or proceeds from land sold by the 1st defendant, the onus shifts onto the plaintiff as stated under sections 14 and 17 of the Evidence Act, 1975, NRCD 323, to lead evidence to prove that proceeds have been received by the 1st defendant for the lands allegedly sold in part one of exhibit ‘B’ so as to entitle him to the receipt of 10% of the value of the land as agreed upon in exhibit ‘A’. In Ackah v Pergah Transport Ltd  SCGLR 728 the court re-stated the point that:
It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975, (NRCD 323).
See also Nortey (No.2) vs. African Institute of Journalism and Communication & Others (No. 2) [2013-2014] 1 SCGLR 703.
The court will therefore hold, in the light of the evidence on record and in the light of the law, that the plaintiff has failed to prove that he is entitled to recover from the defendants the amount set out in part one of exhibit ‘B’.
The second part of exhibit ‘B’ comprises claims by the plaintiff for legal services rendered to the defendants. According to the plaintiff he was instructed by the defendants to prepare barter trade agreements and assignments between the 1st defendant and three persons in which the 1st defendant company agreed to allocate a number of plots of land to the people in exchange for cars which the people were prepared to give to the 1st defendant company. According to the plaintiff, he is entitled to receive 10% of the value of the land given in the barter trade. The evidence adduced by the defendants herein is that the barter trade transactions did not go through and as a result of that the 1st defendant received no payment. In other words, since the transactions did not go through the 1st defendant did not receive the vehicles which were to be exchanged for the parcels of land. Here again, the opinion of the court on this claim is that once the defendants have testified that the barter trade transactions did not go through and the plaintiff maintains that he is entitled to be paid under the said transactions for the services that he rendered, then, the plaintiff is legally bound to produce evidence to show or prove that the transactions were successful and that the defendants received the vehicles which were intended to pass under the barter trade agreement. This is because the terms of the plaintiff’s engagement spelt out under exhibit ‘A’ does not state that the plaintiff is entitled to be paid once he renders services but that the plaintiff’s remuneration was dependent upon the 1st defendant receiving proceeds from the sale of parcels of land. The court records that the plaintiff failed to lead credible evidence to prove his claim in this regard and hence the claim fails.
Next, the plaintiff claims for meetings which he attended for and on behalf of the 1st defendant. This has been listed in part three of exhibit ‘B’. According to the plaintiff, he spent a number of hours attending meetings for and on behalf of the 1st defendant and that he charged the 1st defendant a fee of $300.00 per hour. The plaintiff says he applied the Ghana Bar Association scale of fees. Again the plaintiff claims for the time spent by him for meetings with the police and officials of the Ministry of Justice. The plaintiff also claims for the time spent in and out of court for and on behalf of the 1st defendant in respect of a case involving the 1st defendant and a company called 99China Ltd. Further, the plaintiff claims for 10% of the value of land allegedly assigned or given to one Nii Armah Ashiboye. In all the plaintiff seeks to recover the sum of GH₵166,000.00 and US$17,400.00.
In respect of the claims for meetings, it is clear that the terms of the plaintiff’s engagement spelt out under exhibit ‘A’ shows clearly that the plaintiff was appointed to act as a lawyer for the 1st defendant “in all its legal matters”. The appointment letter exhibit ‘A’ herein mandates the plaintiff to act to “protect the company’s interest in all matters relating to the acquisition of the land in question and in the company’s conduct of transaction”
Hence, the court is of the view that the terms of the plaintiff’s engagement is not limited to only the preparation of conveyances but to represent the company in all legal matters. It is after the plaintiff has done all these that he would be entitled to recover 10% of proceeds from the sale of lands. It implies therefore that the plaintiff is not entitled to levy charges against the defendant as if there exist no agreement between the parties. In the opinion of the court, the agreement, exhibit ‘A’, is binding on the plaintiff and, hence, he has no right to levy or charge the defendants for meetings attended as if there is no agreement governing their relationship. The court will therefore dismiss the plaintiff’s claim to recover fees for the meetings he attended for and on behalf of the 1st defendant since those claims have not been sanctioned under the agreement between the parties.
The plaintiff’s claim for a 10% fee of the value of land, allegedly, given to Nii Armah Ashiboye, in the opinion of the court, does not pass the test laid down by the plaintiff and the 1st defendant in their contract exhibit ‘A’ herein. This is so because there is evidence on record, even, by the said Nii Armah Ashiboye to the effect that he has not been given the land whose value the plaintiff is claiming 10% as his fees. Besides, and as noted hereinbefore, the agreement exhibit ‘A’ shows that it was only upon the receipt of proceeds from the sale of land by the 1st defendant that the plaintiff’s right to the receipt of 10% of the value accrues to him. Hence, without a receipt of proceeds from the sale of land, the plaintiff has no right to demand for the payment of 10% to him as his legal fees. The plaintiff’s claim for 10% of the value of the land in respect of which he had prepared various assignment including that of Nii Armah Ashiboye is, in the opinion of the court misconceived and particularly so since the plaintiff has failed to lead evidence to prove that there has been a receipt of proceeds by the 1st defendant in respect of those lands.
In part four of exhibit ‘B’ herein, the plaintiff seeks to recover cash, the sum of GH₵2,180,000.00 from both the 1st and the 2nd defendant jointly or severally. This claim is purportedly endorsed in paragraph (c) of the plaintiff’s writ of summons wherein the plaintiff says the claim is in respect of “the monetary value of its landed property assigned to the plaintiff as legal fees and guaranteed by the 2nd defendant.” The court thinks that there is a lack of syllogism in the endorsement. Simply put, if it is true that the said land has been assigned to the plaintiff, then, the plaintiff has no business suing the defendants for the value of the said land. Because all that the plaintiff needed to do is to go and take possession of the said land.
To buttress his claim the plaintiff tendered exhibit ‘K ‘as the evidence of the said assignment. The court has examined the said exhibit ‘K’ and in the opinion of the court, exhibit ‘K’ does not in fact and in law assign any land to the plaintiff in this matter. The recitals in exhibit ‘K’ does not assign any land to the plaintiff. A critical examination of exhibit ‘K’ shows that, the so called assignee in the said exhibit ‘K’ agreed with the plaintiff to assign a piece of land to the plaintiff as part payment of the plaintiff’s legal fees. As indicative of the fact that no assignment of land has been made in exhibit ‘K’, there is nowhere in the said exhibit that a parcel of land has been described as required by law in order to make a valid assignment.
It is acknowledged by exhibit ‘A’ that an assignment of a parcel of land measuring 21.5 acres in extent was to be assigned out of an area of land measuring 433 acres but nowhere in exhibit ‘K’ was any parcel of the larger land demarcated for and actually assigned to the plaintiff. The court holds therefore that the plaintiff cannot ask for the value of any 21.5 acres of land as if any such land had been assigned to him.
Again, the plaintiff acknowledges that, at the time of the preparation and execution of exhibit ‘K’, the purported assignor has not even perfected its title to the said land. The said document states in clear language that “the assignors are in the process of having their interest in the aforementioned land registered under the Land Title Registry.” It implies therefore that the so called assignors cannot give and could not have given to the plaintiff what it had not. The principle nemo dat quod non habet applies.
Further, there is ample evidence on record that the said piece and parcel of land, is, even at the date of execution of exhibit ‘K’ and up to the date of this judgment, the subject of numerous suits pending before the High Court in Accra and Tema. Exhibits ‘6’, ‘7’ and ‘11’ lends credence to this finding. That being so, how could the 1st defendant have made an assignment of any portion of the said land to the plaintiff herein? The court holds therefore that exhibit ‘K’ gave nothing to the plaintiff. Consequently,
the 2nd defendant cannot be said to have guaranteed the ‘the performance of the assignor’s obligations hereunder …’ In the opinion of the court exhibit ‘K’ is evidence of poor drafting and it sadly assigned nothing to the plaintiff to enable him claim thereunder. The court holds that, the plaintiff has failed to prove his claims against the defendants herein. The claims are therefore dismissed.
The plaintiff describes himself as a legal practitioner and has, in paragraph 1 of his statement of claim, pleaded his licence number as GAR/08019/14. The licence number pleaded for the plaintiff was valid for the year 2014. However, it is clear from the endorsement on the writ that the plaintiff was claiming for services rendered by him to the defendants between the period of April 2010 December 2012. Hence, it is incumbent upon the plaintiff to prove to the court that he was licensed to practice law for the legal years of 2010, 2011 as well as 2012. This requirement ought to be satisfied before the plaintiff’s claim could be entertained in view of the provision of section 8(1) of the Legal Profession Act, 1960, Act 32 which states that
8. Practising certificate
(1) A person, other than the Attorney-General, or an officer of Attorney-General’s Department, shall not practise as a solicitor unless that person has in respect of that practice a valid annual solicitor’s licence issued by the Council duly stamped and in the form set out in the Second Schedule.
See the recent decisions of the Supreme Court in Republic vs. High Court (Fast Track Division)
Accra; Ex parte Teriwajah & Korboe (Reiss & Co (Ghana) Ltd Interested Party) [2013-2014] 2
SCGLR 1247 and the unreported case in Civil Appeal No. J4/56/2014 delivered on the 21st April, 2016 titled Henry Nuertey Korboe vs. Francis Amosa.
In the opinion of the court, a lawyer’s duty to prove his valid licence as a basis for his claim to recover legal fees is irrespective of whether or not his adversary took issue with his licence. Indeed, it is a demand of the statute and has got to be obeyed by all lawyers suing to claim their legal fees.
In the main, as already held, the plaintiff has not succeeded in proving his claims against the defendants and, hence, the claims are dismissed.