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Legal Practitioner - Legal fees
- Legal Profession Act 1960,
(Act 32) - Service of the
expired writ - Order
70 of the Civil Procedure Rules
(LN 140A) - failing to enter
appearance - Grant of default
judgment - Setting aside the
default judgment.
HEADNOTES
The parties in this appeal, from
all indications, were great
friends who had money
transactions between them. The
plaintiff is a Lawyer. The
defendant is a businessman. In
February 1992, the Defendant
received £15,000 from the
plaintiff to repair his vessel
‘M V Oblayoo’ with the promise
to repay it within three months.
The amount remains unpaid
despite several demands. During
the period October 1991 to May
1994, the plaintiff has
performed diverse services for
the Defendant as a lawyer for
which the Defendant has failed
or refused to pay the Plaintiff
despite several demands, The
plaintiff’s writ of summons and
statement of claim were served
on the defendant by substituted
service on the orders of the
High Court. The defendant failed
to enter appearance to the suit
wherefore the High Court granted
default judgment for the
plaintiff, the defendant, per
his counsel, filed a motion on
notice praying the court to set
aside the default judgment. that
defendant was out of the
jurisdiction of the court at the
time of issuance of the writ so
it could not be served by
substitution and defendant was
entitled ex debito justitiae to
have the default judgment set
aside. that the default judgment
was premature as no default had
occurred at the time it was
taken. that the defendant had a
defence to the action as the
amount claimed had already been
paid to plaintiff -
HELD :-
To begin with, we have held that
the proceedings were not void so
to the extent that defendant has
not otherwise successfully set
aside the auction as illegal or
irregular, it effectively
divested him of his interest in
the house. Furthermore, the
challenge against the auction
which defendant says culminated
in the case of Anang Sowah v
Adams [2009] SCGLR 111 was not
part of this appeal and the
purchaser was not a party to the
proceedings before us so we
cannot grant any prayer in
respect of the auction.
STATUTES REFERRED TO IN JUDGMENT
Legal Profession Act 1960,
(Act 32)
High Civil Procedure
Rules (LN 140A) Order 70
High Court (Civil
Procedure) Rules ( CI 47 2004 )
Order 19 (1) and Order 81 rule
1(1)
Supreme Court Rules CI 16
rule 15 (11)
Court of Appeal Rules,
1997 (CI 19) Rule 9 and Order
19 rule 1(1),
1992 Constitution article
109 (1) and 11 of the
Constitution
CASES REFERRED TO IN JUDGMENT
Attorney-General v Faroe
Atlantic Co. Ltd [2005-2006]
SCGLR 271, S.C.
Parson v Ontario delivered
on 13th March, 2015, Canadian
case
Chief LLB Ogolo v Joseph
Ogolo dated 17th February, 2006,
Nigerian Supreme Court
Salaman v Warner [1891] 1
Q B 734 C.A at 735
Bozson v Altrincham Urban
District Council [1903] 1 KB 547
Nkawie Stool v Kwadwo
(1957) 1 WALR 241
Pomaa & Ors v Fosuhene
[1987-88] 1 GLR 244. S. C,
Republic v High Court (Fast
Track Division) Accra; Ex parte
State Housing Co Ltd (No2).
[2009] SCGLR 185, S.C
Bosompem v Tetteh Kwame
[2011] 1 SCGLR 397
Okudzeto &Ors v Irani Bros
[1975] 1 GLR 96, C.A and
Republic v High Court (Fast
Track Division) Accra; Ex parte
State Housing Co Ltd (No2).
[2009] SCGLR 185, S.C
State Gold Mining
Corporation v Sisala [1971] 1
GLR 359,
Atta Kwadwo v Badu [1977]
1 GLR 1
Pomaa& Ors v Fosuhene
[1987-88] 1 GLR 244
S.L.T Warehouse Co. Ltd v
Webb 304 So. 2d 97,99 (Fla.
1974)
Salter Rex & Co v Ghosh
[1971] 2 All E.R 865 C.A.;
Benington Development Ltd
v Cohen [1966] 2 O.R 837-842
(H.C)
Broadhead v Rutman [1966]
2 Ont 834 (C.A.)
Bitz v. Bitz, [1947] 1
W.W.R. 959 (B.C.C.A.)
Ofori v Lartey [1978] GLR
490
Ayarna vs Agyemang (1976)
1 GLR 306
Clare v Joseph [1907] 2 K
B 369 at p. 376 CA
Nartey vs Gati (2010)
SCGLR 744
Gaisie Zwennes Hughes & Co
vs Loders Crocklaan B V (2012)
SCGLR 363,
Anang Sowah v Adams [2009]
SCGLR 111
BOOKS REFERRED TO IN JUDGMENT
Civil Procedure: A Modern
Approach, page 326 S. Kwami
Tetteh
Halsbury's Laws of England
(3rd ed.), Vol. 22 at [p.5]
p.742, para. 1606,
DELIVERING THE LEADING
JUDGMENT
PWAMANG, JSC:-
COUNSEL.
AMARKAI AMARTEIFIO FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAKU OSAFO-BUABENG FOR
THE
DEFENDANT/APPELLANT/RESPONDENT.
DEFENDANT/APPELLANT/RESPONDENT
JUDGMENT
PWAMANG, JSC:-
This appeal lies from the
decision of the Court of Appeal
delivered on the 4th
of June 2009 which upturned the
decision of the High Court for
the reason that it glossed over
two serious legal questions
namely; whether or not the
action was determinable within
the purview of the Legal
Profession Act 1960, (Act 32)
and whether the writ of summons
in the case was valid at the
time it was served. The appeal
has suffered delay in this court
for various reasons including
the retirement of Akamba JSC who
had participated actively in the
hearing and consideration of the
case but the judgment could not
be delivered before his
retirement, necessitating his
replacement by Benin JSC and a
rehearing. It is relieving that
judgment is being delivered
today.
FACTS
The parties in this
appeal, from all indications,
were great friends who had money
transactions between them.
However this great friendship
has given way to rancor and ill
feelings and not least is this
spiral of litigation spanning
some two decades. When the
matter was called before us, we
took time to recommend
Alternative Dispute Resolution
(ADR) to the parties so as to
stem their continued bitterness
for a more win-win resolution of
their differences. The response
we received was one of initial
reluctance and eventual stark
refusal from both parties. We
have no option than to deal with
the matter according to the law.
The early stages of this
case were mired by procedural
challenges which have followed
the parties through their
journey to this court. By a writ
of summons with an accompanying
statement of claim filed on 20th
May 1997 in the High Court,
Accra, the
Plaintiff/Respondent/Appellant
herein, (hereinafter simply
referred to as the plaintiff),
initiated his claims against the
defendant/appellant/respondent
herein, (herein after referred
to as the defendant), for a
number of reliefs set out below.
The rather terse
accompanying statement of claim
states that:
“1. The plaintiff is a Lawyer.
2. The defendant is a
businessman.
3. In February 1992, the
Defendant received £15,000 from
the plaintiff to repair his
vessel ‘M V Oblayoo’ with the
promise to repay it within three
months.
4. The amount remains unpaid
despite several demands.
5. During the period October
1991 to May 1994, the plaintiff
has performed diverse services
for the Defendant as a lawyer
for which the Defendant has
failed or refused to pay the
Plaintiff despite several
demands.
Wherefore the Plaintiff
claims as per his Writ of
Summons.
CLAIM
1.
An order upon the
Defendant to refund to the
Plaintiff the sum of £15,000
being money had and received.
2.
An order upon the
Defendant to pay the sum of
£20,000 being fees for
professional service rendered to
the Defendant.
3.
Interest on the said
£35,000 at the current bank
interest rate from the 1st
February 1992 to date of
payment.”
The plaintiff’s writ of
summons and statement of claim
were served on the defendant by
substituted service on the
orders of the High Court. The
defendant failed to enter
appearance to the suit wherefore
the High Court granted default
judgment for the plaintiff on
his reliefs on the 2nd
March 1998. However, on 11th
August 1998, the defendant, per
his counsel, Cyril Quartey, Esq.
filed a motion on notice praying
the court to set aside the
default judgment. The main
grounds for the application as
set out in the affidavit in
support were as follows; (1)
that defendant was out of the
jurisdiction of the court at the
time of issuance of the writ so
it could not be served by
substitution and defendant was
entitled ex debito justitiae to
have the default judgment set
aside. (2) that the default
judgment was premature as no
default had occurred at the time
it was taken. (3) that the
defendant had a defence to the
action as the amount claimed had
already been paid to plaintiff.
Plaintiff filed an affidavit in
opposition denying the
depositions in defendant's
affidavit. From the record it
evident that at the hearing of
the motion on 3rd December, 1998
the plaintiff and defendant's
lawyer came to a compromise for
the judgment to be set aside so
that defendant could file his
intended defence. As a result
the judge gave the following
ruling;
“1. That the judgment of 2/3/98
be set aside as per Defendant’s
motion filed on 11/8/98,
Plaintiff having withdrawn his
opposition thereto.
2. That copies of all process to
date be served on the said
Attorney viz Adjetey Sowah of
53/29 East Legon, P.O.Box 5515,
Accra.
3. That cost of ¢500,000. 00 be
and is hereby awarded Plaintiff.
Orders accordingly.”
Defendant was served the
second time with copies of writ
and statement of claim through
his Attorney but he failed to
enter appearance and file
defence. Plaintiff was
constrained to apply for default
judgment for the second time and
same was granted on 10th March,
1999. When the Entry of judgment
was served on defendant he filed
another motion to set aside the
judgment of 10/3/1999 but
neglected to appear in court
either personally or by his
counsel to move that motion so
it was struck out. It was when
defendant got to know that his
house was about to be auctioned
upon a fi.fa that he went back
to the High Court and filed two
frantic processes to arrest any
sale and to relist his earlier
motion. Defendant, as was usual
of him, did not prosecute these
motions and they were also
struck out for want of
prosecution. The appellant
proceeded to go into execution
by attachment of respondent’s
house. Several applications were
subsequently filed on his behalf
in a bid to stop the sale of the
house but all failed and the
property was sold by public
auction on 4th August, 2004. On
1st December 2004 the
High Court granted an order for
the release of the proceeds of
the sale to the appellant and
this was done.
Undaunted, the defendant
on the 27th May 2005
filed a motion to set aside the
part of the default judgment
relating to professional fees on
the ground that it was given in
breach of the mandatory
provisions of Act 32. The
plaintiff opposed the
application contending that the
defendant was estopped from
raising the issue of Act 32 at
the stage where execution had
completed. He also stated in his
affidavit in opposition that
before proceeding in court
against the defendant he made
him aware of his indebtedness
and referred to two documents in
support. The motion was heard by
Anthony Oppong, J. on the 21st
July 2005 and dismissed as being
bereft of any merit. It was that
ruling of Anthony Oppong J that
was appelled against to the
Court of Appeal and finally to
this court.
DECISION OF THE COURT OF
APPEAL
In his written submissions
in the Court of Appeal
defendant, in addition to
relying on Act 32, raised for
the first time, a point about
the validity of the writ of
summons at the date of its
second service on him and prayed
the Court of Appeal to set aside
the whole default judgment. In
their judgment dated 4th June
2009 allowing the appeal the
Court of Appeal acceded to the
prayer of the defendant and set
aside the whole judgment of 10th
March, 1999. They held as
follows;
“...with such a
challenge against the default
judgment the trial judge ought
to have assigned reasons for its
refusal to enforce the mandatory
requirements under the Legal
Profession Act 1960. To simply
state that the property had been
sold pursuant to the judgment
and that it was too late to set
aside the judgment when that
judgment appeared to have been
obtained under apparent
violation of a statute, in my
view, falls short of the
standard required of a Court of
law. It is obvious by that
ruling that the trial Court
glossed over a serious question
of law raised before it.”
The court’s next point of
discontent with the decision of
the High Court was that:
“...the Plaintiff who was duty
bound to satisfy the court that
he gave the defendant the
statutory one month notice
before mounting the action in
compliance with section 30 of
Act 32 failed to do so. Failure
on the Plaintiff's part to give
the statutory notice would
render the claim to his
professional fee void and in my
view that omission gave the suit
its fatal blow.”
On the issue of the
validity of the writ of summons
they held that: “there is no
evidence on record that the Writ
was renewed in accordance with
the existing rule then in force.
Accordingly, service of the
expired writ on the Defendant’s
Attorney, the Court’s order
notwithstanding, cannot be
valid. An expired writ is void
and incurably bad to the extent
that the same could not be cured
under Order 70 of the Civil
Procedure Rules (LN 140A)”.
GROUNDS OF APPEAL IN THIS COURT
By his notice of appeal
filed on 5th August
2009 against the decision of the
Court of Appeal, the plaintiff
raised the following grounds for
determination in this court,
namely:
(i)
“That the Court of Appeal
misdirected itself in holding
that the Writ of Summons had
lapsed at the time it was served
on the lawful attorney of the
Respondent.
(ii)
That the Court of Appeal
erred in holding that the
Appellant had not served a bill
for professional services in
accordance with section 30 of
the Legal Profession Act.
(iii)
That the Appeal of the
Respondent was not properly
before the Court of Appeal as it
was filed out of time leave
(sic).”
INVOCATION OF RULE 15 (11) OF CI
16
Originally the appellant
argued only the first two
grounds of appeal in his
statement of case and abandoned
the third ground. The respondent
also limited his arguments in
response to those two grounds,
after which the appeal was
adjourned to the 17th
February 2016 for judgment.
However on 10th
December 2015, the appellant
filed a motion invoking rule 15
(11) of CI 16 for leave to amend
his statement of case to
incorporate arguments ground
(iii) of the appeal earlier
abandoned. The court in the
interest of justice granted the
prayer. The Rule 15 (11) of CI
16 states as follows:
“Notwithstanding anything to
the contrary contained in these
Rules, any party to a civil
appeal may at any time before
judgment apply to the Court to
amend any part of the statement
of his case and the Court may
having regard to the interest of
justice and to a proper
determination of the issue
between the parties, allow the
amendment on such terms as it
may consider fit.”
On 10th
February 2016, the leave was
granted and the parties filed
further arguments to cover
ground (iii).
As this last ground of
appeal questions the propriety
of the appeal against the
decision of the High Court to
the Court of Appeal and the
validity of the judgment of the
Court of Appeal for that matter,
we shall consider that ground
first.
GROUND THREE
“That the Appeal of the
Respondent was not properly
before the Court of Appeal as it
was filed out of time leave
(sic).”
The gist of the
plaintiff’s argument is that the
High Court order dated 21st
July, 2005 from which the appeal
was filed was an interlocutory
order and the resultant appeal
having been filed on 12th
August 2005, the same was out of
time. By a rough reckoning, the
appeal was filed twenty-two days
after the refusal to set aside
the default judgment whereas
Rule 9 of the Court of Appeal
Rules, 1997 (CI 19) stipulates
21 days in the case of an
interlocutory order. The
question for our determination
is whether the order refusing to
set aside the default judgment
was interlocutory or final.
In support of his
contention that the order was
interlocutory the plaintiff
submitted that it was the
default judgment that
conclusively determined the
claims endorsed on the writ of
summons so that was the final
judgment and since the refusal
to set aside did not determine
anything, but only confirmed the
default judgment it was
interlocutory. He referred the
court to the case of
Attorney-General v Faroe
Atlantic Co. Ltd [2005-2006]
SCGLR 271, S.C. He submitted
that upon a proper application
of either the application
approach or the order approach
in determining the question of
whether the decision was final
or interlocutory, the only
conclusion the court would come
to is that the refusal to set
aside the default judgment was
an interlocutory decision. The
defendant on his part referred
to the Canadian case of
Parson v Ontario delivered
on 13th March, 2015 and the
Nigerian Supreme Court case of
Chief LLB Ogolo v Joseph
Ogolo dated 17th February,
2006, which decided that refusal
to set aside a judgment in
default of defence was a final
order, in support of his
argument. He contended that the
refusal to set aside the default
judgment was a final order as it
left nothing more to be done in
the court as far as his defence
on the breach of Act 32 was
concerned. We must however
observe that the legal analysis
applied in the later case when
that court held that "the
decision determined the rights
of the parties; in this case,
the issue as to whether or not
to set aside the judgment in
default of defence", if adopted
can result in almost every order
by a court in interlocutory
proceedings being classified as
final since it would have
finally decided the issue
arising for determination in the
interlocutory proceedings. That
would obliterate the distinction
between final and interlocutory
orders which distinction serves
a useful purpose of properly
regulating appeals especially.
There has been a long
running controversy throughout
common law jurisdictions as to
the better criteria to be
applied by judges in determining
whether a decision of a court is
final or interlocutory. The
contest has been between what is
referred to as the “nature of
the application” approach and
the “nature of the order”
approach. However, there is new
learning in this area with some
common law judges pointing out
weaknesses in both approaches
and doubting their relevance in
circumstances which do not
easily fit into either approach
as formulated by the original
proponents.
The first to be formulated
was the nature of the
application approach, referred
to as the application approach
for short, and it has been
traced to the case of Salaman
v Warner [1891] 1 Q B 734 C.A
at 735 where Lord Esher MR held
as follows;
“I conceive that an order
is “final” only where it is made
upon an application or other
proceeding which must, whether
such application or other
proceeding fail or succeed,
determine the action. Conversely
I think that an order is
“interlocutory” where it cannot
be affirmed that in either event
the action will be determined.
Applying this test to the
present case, it is obvious that
the order here was made on an
application of which the result
would not in one event be final.
Therefore this is an
interlocutory order.”
The nature of the order
approach, referred to as the
Order approach for short, arose
out of the case of Bozson v
Altrincham Urban District
Council [1903] 1 KB 547
where Lord Alverstone CJ said as
follows;
“Does the judgment or
order, as made, finally dispose
of the rights of the parties? If
it does, then I think it ought
to be treated as a final order;
but if it does not, it is then,
in my opinion, an interlocutory
order.”
The courts of our country
very early in the case of
Nkawie Stool v Kwadwo (1957) 1
WALR 241 chose to apply the
Order approach in determining
whether a decision is final or
interlocutory. Our jurisprudence
has, in a long line of cases too
many to recount here, firmly
established the Order approach
as the one to be applied by our
courts. See Pomaa & Ors v
Fosuhene [1987-88] 1 GLR 244. S.
C, Republic v High Court (Fast
Track Division) Accra; Ex parte
State Housing Co Ltd (No2).
[2009] SCGLR 185, S.C, just
to mention two. However,
it would not be wholly correct
to say that in Ghana the
question of whether a decision
is final or interlocutory is
completely settled. What is
settled is the approach to be
adopted by our courts but its
application to specific cases is
not completely settled in Ghana
or in many of the common law
countries. Where proceedings are
ongoing and the court makes an
order that does not decide the
merits and terminate the
proceedings, the question
whether the order is final or
interlocutory is fairly easy to
answer using the Order approach.
An example is the recent case of
Bosompem v Tetteh Kwame
[2011] 1 SCGLR 397 where the
Supreme Court unanimously and
with ease held that dismissal of
an application for stay of
execution pending appeal and for
leave to go into execution was
an interlocutory decision since
the rights of the parties would
finally be determined when the
appeal is heard. A second class
of cases is where there has been
a determination on the merits
and orders are made afterwards.
There, the question whether
those orders are final or
interlocutory is also not
difficult to answer. Such was
the case in Okudzeto &Ors v
Irani Bros [1975] 1 GLR 96, C.A
and Republic v High Court
(Fast Track Division) Accra; Ex
parte State Housing Co Ltd
(No2). [2009] SCGLR 185, S.C.
The difficulty is with a third
category of cases in which there
is no trial on the merits, no
further proceedings are pending
or impending but an order or
decision is made that wholly
terminates the proceedings
between the parties. An
application of the Order
approach in this third category
has led to different and
sometimes contradictory
conclusions on what is a final
or interlocutory order in Ghana
and other common law
jurisdictions.
A few illustrations will
do here. In Nkawie Stool V
Kwadwo (supra), the West
African Court of Appeal applying
the Order approach held that an
order which dismissed
plaintiff’s action but without
prejudice to his right to bring
another action does not finally
dispose of the rights of the
parties and was therefore
interlocutory. The court was
obviously referring to the
rights of the parties in the
subject matter of their dispute.
Then in State Gold Mining
Corporation v Sisala [1971] 1
GLR 359, Apaloo J.A. (as he
then was) approved and applied
the decision in the Nkawie Stool
case and held an order that did
not determine the rights of the
parties as far as damages were
concerned interlocutory.
Nevertheless, in Atta Kwadwo
v Badu [1977] 1 GLR 1, the
same Apaloo J.A, delivering the
unanimous judgment of the Court
of Appeal, held that a notice of
discontinuance and the order for
costs against a respondent made
pursuant to it was a final
decision on the basis that it
“wholly terminated the
proceedings”. In fact, in
Atta Kwadwo v Badu Apaloo
J.A. confessed to the
uncertainty of the determination
of the question whether a
decision is final or
interlocutory when using the
order approach in the following
words at pages 4-5 of the
report;
‘Applying that test (the
order approach), one might be
tempted to agree with counsel
that the order for costs was
interlocutory inasmuch as the
rights to the land have not been
determined as between the
parties. But the question is
not so easy. As was said in
Halsbury's Laws of England (3rd
ed.), Vol. 22 at [p.5] p.742,
para. 1606, "a judgment or
order may be final for one
purpose and interlocutory for
another, or final as to part and
interlocutory as to part. The
meaning of the two words must
therefore be considered
separately in relation to the
particular purpose for which it
is required."
In the Supreme Court case
of Pomaa& Ors v Fosuhene
[1987-88] 1 GLR 244, a case
involving whether a judgment on
admissions was final or
interlocutory, Adade JSC
acknowledged the problem with
the application of the criteria
in the Order approach and
criticised Apaloo J.A.’s
reasoning in Atta Kwadwo v Badu
(supra) in the following words
at page 248;
‘An order for costs does
not dispose of any rights
between parties, and would seem
to be interlocutory. Apaloo
J.A. (as he then was) in Atta
Kwadwo v. Badu [1977] 1 G.L.R.
1, C.A started off in the belief
that such an order was
interlocutory; he ended up
holding that it was final. In
that same case, a notice of
discontinuance having been
filed, the lower court made an
order, as stated at p. 3 as
follows: "Case struck out for
lack of prosecution as per
letter of discontinuance with
full costs of ¢300 ... with
liberty for fresh action …” This
order was held by the Court of
Appeal to be final,
notwithstanding the "liberty for
fresh action …” because, as
stated by the court at p. 5, the
notice of discontinuance and the
order:
“… wholly terminated the
proceedings. Although the
respondent was given liberty to
bring a fresh action, he might
not do so. Even if he did that
action will not be a
continuation of the first but an
entirely new action …”
One would have thought
that since the "liberty [to
bring a] fresh action"
necessarily implies that the
rights between the parties have
not been determined the order
would, by definition, be
interlocutory. By tacking the
indulgence on to the order
striking out, is the court not
saying that the suit struck out
has not been heard and therefore
could not possibly have decided
anything?’.
Nonetheless, Adade JSC
ended his opinion on the
question of interlocutory or
final in that case on this note
at page 249;
“In this case, given the
circumstances, we have decided
that the decision of the
National House of Chiefs dated
27th September, 1985
is a final decision; it wholly
terminates the proceedings.”
But the Ghanaian judges
are not alone in this line of
reasoning, which is an
adaptation of the original order
approach, to the effect that
where the decision terminates
the proceedings in a particular
court then it is final. In the
case of S.L.T Warehouse Co.
Ltd v Webb 304 So. 2d 97,99
(Fla. 1974) the Supreme
Court of the State of Florida in
the United States adopted a
similar test for determining
finality of orders for appeal
purposes. They said;
“The test employed by the
appellate court to determine
finality of an order, judgment
or decree is whether the order
in question constitutes an end
to the judicial labor in the
cause, and nothing further
remains to be done by the court
to effectuate a termination of
the cause as between the parties
directly affected.”
The uncertainty in the
determination of whether a
particular decision is final or
interlocutory equally pertains
in jurisdictions which apply the
application approach such as
England. As was stated with
characteristic frankness by Lord
Denning MR in the case of
Salter Rex & Co v Ghosh [1971] 2
All E.R 865 C.A.;
“The question of final or
interlocutory is so uncertain
that the only thing for
practitioners to do is to look
up the practice books to see
what has been decided on the
point. Most orders have now been
the subject of decision. If a
new case should arise, we must
do the best we can with it.
There is no other way.”
We have not come across a
court decision in Ghana on
whether a refusal to set aside a
default judgment is a final or
interlocutory order. In looking
up the practice books or the
decisions of courts in other
jurisdictions, we must be
careful to note the test, either
application or order or whatever
criteria, that was used in
arriving at the decision and the
statutory framework within which
the question of final or
interlocutory was determined.
The English Courts in most of
the cases decided on final or
interlocutory orders employed
the application approach which
Lord Denning expressed
preference for in the case of
Salter Rex & Co v Ghosh (supra).
The courts in the State of
Ontario, Canada (the largest
common law jurisdiction state in
Canada), like their Ghanaian
counterparts, have adopted the
Order approach in determining
questions of finality of orders
so their decisions are of better
persuasive value to us than most
of the decisions of the English
courts. In the case of
Benington Development Ltd v
Cohen [1966] 2 O.R 837-842 (H.C)
Lieff J, applying the order
approach in the determination of
whether an order refusing to set
aside a default judgment is
final or interlocutory reasoned
as follows;
“It has been said that the
real test has been stated as
follows: Does the judgment on
the motion before the County
Court Judge finally dispose of
the rights of the parties? In
the present situation the
judgment of the County Court and
the judgment on the motion to
set aside disposes of the rights
of the parties. The original
judgment was a judgment for a
money demand. If nothing else
had happened the plaintiff had a
judgment upon which he could
act. The next step was one to
set aside this judgment. The
applicant did not succeed which
leaves the plaintiff in
possession of a judgment
adjudicating upon the money
claim, upon which judgment the
plaintiff can still act. In my
opinion, that finally disposed
of the matter. To put it as
simply as I can, in a case of
this kind if a default judgment
in a case like the present is
set aside then the order setting
it aside is interlocutory
because the rights of the
parties have not been determined
and await adjudication. But, if
the County Court Judge refuses
to set aside the default
judgment and the judgment
remains then the application so
refusing is a final one.”
See also Broadhead v
Rutman [1966] 2 Ont 834 (C.A.)
We find the reasoning of
Lieff J consistent with the
tenets of the order approach
which is the applicable approach
in Ghana and it commends itself
to us. With the refusal to set
aside the default judgment in
this case there was nothing
further that could be done in
the High Court to change the
rights of the parties declared
in the judgment. The proceedings
were effectively terminated in
that court and it was only
recourse to a higher court that
could change the judgment so the
refusal to set aside the default
judgment was a final decision
for the purpose of mounting an
appeal against that refusal. We
are not unaware of decisions,
including one in the British
Columbia Court of Appeal in
Bitz v. Bitz, [1947] 1 W.W.R.
959 (B.C.C.A.), which hold
that it is impossible to have
two final orders in one action
but I fail to see any
inconsistency because, as it has
been explained in Halsbury’s
Laws and endorsed by Apaloo J.A.
in Atta Kwadwo v Badu (supra),
an order may be final in one
sense and interlocutory in
another sense. In conclusion,
the appeal to the Court of
Appeal was filed within time and
Ground three of the appeal is
therefore dismissed as
misconceived.
Having concluded that the
appeal to the Court of Appeal
was competent, we shall now
examine grounds one and two of
the appeal in that order.
GROUND ONE
Did the Court of Appeal
misdirect itself in holding that
the writ of summons had lapsed
at the time it was served on the
lawful attorney of the
respondent?
By this ground of alleged
misdirection, the appellant is
in effect saying that the Court
of Appeal failed to properly
consider evidence on record
pertaining to the validity of
the writ of summons at the time
it was served on the
respondent’s lawful attorney.
This ground of appeal calls on
us as an appellate court, and
the final one at that, to peruse
the record of appeal, examine
all the processes filed and the
rulings of the court to satisfy
our self that the Court of
Appeal did not properly apply
the law to the proven evidence
and processes in the record with
respect to the validity of the
writ of summons.
ARGUMENTS OF THE PARTIES
From the plaintiff’s point
of view, the Court of Appeal
should have distinguished
between an order setting aside a
default judgment and an order
setting aside the service of a
writ but this it failed to do.
This, according to him, is
because an order of a superior
court of judicature can only be
set aside or vacated by an
express order of the superior
court. Plaintiff stated that by
setting aside the default
judgment upon the respondent’s
application, the service of the
writ on the respondent was never
set aside. Plaintiff referred
the court to the position of the
law as stated by the learned
author S. Kwami Tetteh in
his book, Civil Procedure: A
Modern Approach, at page 326
where he describes the effect of
granting an order setting aside
a default judgment as ‘a plea to
the court to extend time to
comply with the timetable for
entering appearance or filing a
statement of defence.’ From
this perspective, the plaintiff
maintained that the first
substituted service of the writ
upon the defendant was never set
aside but that the trial court
only took a precautionary step
by ordering service of the
entire process on defendant
through his self-acclaimed
attorney.
The defendant on the other
hand has argued that the order
by the High Court judge that
copies of all processes be
served on defendant's attorney
had the effect of setting aside
the first service of the writ of
summons. He submitted that since
the writ had lapsed and was not
renewed before the second
service the action proceeded
upon a void writ of summons so
the whole proceedings were
incompetent. Defendant relied on
the Court of Appeal case of
Ofori v Lartey [1978] GLR 490
which considered Order 8
R1 of High Court (Civil
Procedure) Rules, 1954 (LN 140A)
which provided as follows;
“1. No original writ of
summons shall be in force for
more than twelve months from the
day of the date thereof,
including the day of such date;
but if any defendant therein
named shall not have been served
therewith, the plaintiff may,
before the expiration of the
twelve months, apply to the
Court or a Judge, for leave to
renew the writ;
ANALYSIS
In this case it is not
disputed that the original writ
of summons was first served
within one year of its issuance.
The claim of the defendant is
that that service was set aside.
It is also conceded by defendant
that the High Court judge did
not expressly set aside the
first service but his contention
is that the ruling setting aside
the default judgment and the
direction for all processes to
be re-served by implication set
aside the first service.
However, in the motion to set
aside the default judgment there
was no prayer by the defendant
for the service of the writ to
be set aside and it would have
been out of place for the judge
to have made such an order. In
fact, in the ruling setting
aside the default judgment the
judge said the judgment was set
aside as per defendant's motion
filed on 11/8/98 which motion
prayed only for the default
judgment to be set aside.
Nevertheless, the defendant is
urging us to arrive at the
conclusion that the first
service of the writ was also set
aside by an interpretative
exercise of what the High Court
judge intended by her ruling.
But on 3rd December, 1998 when
the High Court judge set aside
the judgment and directed that
all processes be served on
defendant again, the writ of
summons was older than twelve
months. Is the defendant saying
we should hold that the judge by
implication directed the service
of a void writ of summons? That
interpretation of the direction
by the court proffered by the
defendant is perverse and leads
to an absurdity and we shall
reject it.
We agree with the
plaintiff that the judge did not
mean to set aside the first
service of the writ of summons
but intended to afford the
defendant further facilities to
competently defend the action
hence the second service. This
view is supported by the record
for when the plaintiff applied
for the second default judgment
the inclination of the judge was
to restore the first default
judgment. If she had set aside
the first service, upon what
would she have expected to
restore the first default
judgment? Since the writ in this
case was served within one year
of issuance, it had effectively
grounded the suit for the
purpose of the proceedings
provided, of course, the claims
endorsed on it were valid in
law. In the circumstances we
uphold ground one of the appeal.
GROUND TWO
That the Court of Appeal
erred in holding that the
Appellant had not served a bill
for professional services in
accordance with section 30 of
the Legal Profession Act.
Section 30 of the Legal
Profession Act, Act 32 provides
as follows:
“Recovery of Fees
Bill of fees
(1) A lawyer is not
entitled to commence a suit for
the recovery of fees for a
business done as a barrister or
solicitor until the expiration
of one month after the lawyer
has served on the party to be
charged a bill of those fees.
(2) The bill shall be
signed by the lawyer, or in the
case of a partnership by a
partner personally or in the
name of the partnership, and
shall be enclosed in or
accompanied by a letter signed
in like manner referring to the
bill.” [Boldened for Emphasis]
The above stipulation of
s. 30 of Act 32 is very clear as
to what a lawyer is required by
the law to do before commencing
a suit to recover legal fees.
The courts have been unwavering
in the strict enforcement of
that provision and have
described the provision as
laying down mandatory
pre-conditions to a lawyer
commencing legal action to
recover her fees. The purpose
for the provision was first
explained in the case of
Ayarna vs Agyemang (1976) 1 GLR
306, where the Court of
Appeal per Apaloo JA stated at
page 313 of the Report as
follows; “the fact that a court
of justice always sets itself as
an arbiter between lawyers who
are its own officers and lay
clients is to ensure that the
fees demanded of the latter by
the former are fair and
reasonable, has its basis in the
common law. For instance, in
Clare v Joseph [1907] 2 K B 369
at p. 376 CA Fletcher Moulton L
J. observed that the courts view
agreements fixing amount of fees
with great jealousy and would be
slow to enforce such agreement
where it is favourable to the
solicitor, unless satisfied that
it been made in circumstances
precluding any suspicion of an
improper attempt to gain benefit
at the client's expense." He
then referred to long line of
legal authorities including
local decisions in this area of
the law and concluded as follows
at page 315; "In as much as the
plaintiffs sought the coercive
power of the court to recover
fees for work done by them as
lawyers, they must comply with
the mandatory provisions of
section 30 of the Legal
Profession Act, 1960,
antecedently to the commencement
of litigation. It is conceded
that they did not do so and were
accordingly not entitled to the
court's assistance."
See also Nartey vs Gati
(2010) SCGLR 744, where
the necessity for
safeguarding the interest of the
client as a matter of ethics of
the legal profession was
highlighted at page 760 in the
concurring opinion of my able
brother Dotse, JSC as follows:
“The Legal Profession Act, 1960
(Act 32), is, in my opinion,
consistent with the 1992
Constitution in view of the
clear provisions of article 109
(1) of the Constitution. Since
legal practice is a profession,
it is safe to conclude that an
Act of Parliament such as the
Legal Profession Act, 1960 (Act
32), is not only consistent with
article 109 (1) of the
Constitution but also consistent
with article 11 of the
Constitution on the Laws of
Ghana. In my opinion, the
request for lawyers under Act 32
to give a written demand for
their fees one month before the
commencement of a suit is
mounted in the law courts to
demand their legal fees,
pursuant to section 30 (1) of
Act 32, is only regulatory of
the affairs of lawyers and not
discriminatory. The rationale is
not only sound but in line with
the ethics of the legal
profession. In any case, the
right of the lawyer to go to
court has never been taken
away.”
A lawyer commencing an
action without compliance with
Section 30 of Act 32 is
considered to be a fundamental
breach of the law which even if
not raised by a defendant ought
to be taken up by the court suo
moto. In Gaisie Zwennes
Hughes & Co vs Loders Crocklaan
B V (2012) SCGLR 363, a firm
of lawyers sued to recover legal
fees and the case travelled up
to the Supreme Court without the
defendant raising objection on
the ground of non-compliance
with Section 30 of Act 32.
However, upon a review of the
record the Supreme Court
detected that the lawyers did
not comply with Section 30 of
Act 32 before commencing the
suit so they raised the point
suo moto and requested the
parties to address the court on
it. The law firm conceded the
non-compliance but argued that
defendant never raised it so it
ought to be deemed to have
waived it. The court rejected
that argument. In a lucid and
authoritative judgment per my
respected brother Gbadegbe, JSC,
it was boldly stated as follows:
“In our opinion, not having
satisfied the mandatory
requirement of Legal Profession
Act, 1960 (Act 32), s. 30
regarding the service on the
client of a bill of fees before
suing out the action herein, the
action was improperly
constituted and the appeal must
fail. The non-compliance with
the mandatory statutory
requirement contained in section
30 of Act 32 rendered the action
in the form in which it was
taken before the High Court one
that was not sanctioned by law;
and as such it was competent for
the court by itself to raise the
point of law turning on it under
rule 6 (7)(b) of the Supreme
Court Rules, 1996 (CI 16).”
The import of the
authorities on a suit by a
lawyer to recover legal fees is
that in such a case the lawyer
in her statement of claim must
aver and provide particulars of
the bill for legal fees and the
demand letter served on the
defendant in compliance with the
requirements of Section 30 of
Act 32 before the court can
entertain the claim.
Furthermore, if those averments
are denied she is required to
offer proof and justify the
quantum of fees before judgment
will be entered for her, with
the court reserving the power to
make adjustments to the fees
demanded and awarding what is
justifiable having regard to the
skill, labour and responsibility
involved in the legal services
provided by the lawyer.
In the instant case, there
was no averment in the
appellant’s accompanying
statement of claim which
referred to a bill of legal fees
and a demand letter served on
the defendant later than one
month before the suit was filed.
There is only a general mention
of legal services rendered by
plaintiff to defendant without
any particulars of the kind of
legal services. When the issue
of Section 30 of Act 32 came up
for the first time in the High
Court, plaintiff exhibited a fax
he sent to defendant sometime
before the commencement of the
suit in which fax he offered to
accept £10,000 from defendant in
full satisfaction of loans and
legal fees owed him. That
document did not state what
legal work plaintiff did for
defendant and did not indicate
how much of the £10,000.00 was
for the loans and how much was
for the legal fees and the
manner the legal fees were
arrived at. It falls woefully
short of the requirement of
Section 30 of Act 32. In the
circumstances, the High Court
had no power to entertain
plaintiff's claim for recovery
of £20,000.00 as legal fees owed
him by defendant. The High Court
committed a grievous error in
using the coercive powers of the
court to collect that money for
plaintiff when he did not aver
in his statement of claim that
he had complied with section 30
of Act 32. In the result we
affirm the decision of the Court
of Appeal dismissing the
appellant’s claim in his relief
(2), being a claim for twenty
thousand pounds sterling
(£20,000) as professional fees.
This ground of appeal
consequently fails.
CONSEQUENTIAL ORDERS
In sum, the appeal
succeeds in part and fails in
part. The High Court constituted
by Mrs Ashong-Yakubu, J. on 1stDecember
2004 granted an order for the
Registrar of the court to
release to plaintiff the total
sum of one billion five hundred
and forty million old cedis
(¢1,540,000,000.00) being
proceeds from the auction sale
of H/No. 6 C153/29 East Legon,
Mpeasem, Accra, in satisfaction
of the judgment debt. In Ghana
Cedi terms, this translates into
a total of one hundred and fifty
four thousand Ghana Cedis (GH¢
154,000.00). This amount would
be considered as being the
equivalent of the £35,000.00
awarded to plaintiff plus
interests and costs. By a pro
rata calculation, GHC88, 000.00
of the amount would be the
equivalent of the £20,000.00
plus interest and costs thereon,
which we have held was
wrongfully paid to plaintiff. In
consequence, we order a return
to defendant of the sum of
GHC88, 000.00 with interest from
the date of the Court of Appeal
judgment which is 4th June, 2009
at current bank rate of interest
to date of payment. The interest
is made to start from the date
of the judgment of the Court of
Appeal because up to that date
plaintiff retained possession of
the money by virtue of the order
of the High Court which was
valid until it was set aside by
the Court of Appeal.
Before resting this
judgment, we wish to deal with a
prayer defendant included in his
statement case. He prayed the
court to set aside the auction
sale of his house on the basis
that the whole proceedings were
void and so too the auction.
Defendant also claims that the
purchaser knew all along that
the case was on appeal so he is
bound by the final decision in
the case. To begin with, we have
held that the proceedings were
not void so to the extent that
defendant has not otherwise
successfully set aside the
auction as illegal or irregular,
it effectively divested him of
his interest in the house.
Furthermore, the challenge
against the auction which
defendant says culminated in the
case of Anang Sowah v Adams
[2009] SCGLR 111 was not
part of this appeal and the
purchaser was not a party to the
proceedings before us so we
cannot grant any prayer in
respect of the auction.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
GBADEGBE JSC:-
My Lords, while expressing
my agreement with the decision
that has just been rendered by
my worthy brother, Pwamang JSC
in the matter, I wish to detain
the precious time of the court
to make some observation in
regard to a matter of procedural
importance touching the
application to set aside the
judgment of the trial High Court
with which we are concerned in
these proceedings. The said
application which may be found
at pages 222-224 of the record
of appeal in this matter was
initiated by a motion in a cause
(motion in pending proceedings)
as it was not an originating
notice of motion but one
impliedly dependent upon the
pendency of the substantive
action in which it was filed. In
the decision of the learned
trial judge which triggered the
appeal herein at page 233 of the
record of appeal, he in very few
words dismissed the application
to set aside the judgment of the
High Court. Although by the
decision that we have pronounced
this morning we have expressed
our disagreement with him on the
substance of the ruling, there
is one aspect of the matter
which is factual in nature,
which has not been contested in
the proceedings before us. It is
that at the time the invitation
was made to him to set aside the
judgment, execution in the
matter was at an end. The
obvious implication from this
assertion of fact is that the
proceedings before the trial
court were over and by Order 19
rule1 of the High Court (Civil
Procedure) Rules, CI 47 of 2004
the application which was filed
on May 27, 2005 was not in
respect of a pending
proceeding. The pendency of
proceedings is an essential
pre-requisite to the taking out
of a motion in a cause as was
done in the instant case by the
respondent. The pendency of
proceedings is common to Order
19 rule 1(1) and Order 81 rule
1(1) of the High Court (Civil
Procedure) Rules, CI 47 of 2004.
The said requirements are in my
opinion not fortuitous but
deliberate as applications in
pending cases are dependent upon
the court in which such
processes are filed being in
control of the proceedings.
Indeed, in relation to this
court, there is a similar
provision in Rule 16 (1) of CI
16 while the Court of Appeal has
provision made to this effect in
rule 21 of CI 19. It repays to
make reference to Order 19 rule
1(1), which in my opinion is
central to the taking out of
motions in the cause and is
expressed as follows:
ORDER 19 RULE 1:
“Every application in pending
proceedings shall be made by
motion”
The word “proceedings”
contemplate the pendency of a
matter before the court in which
a motion in a cause might be
filed. In the case of Salt v
Cooper (1880) 16 Ch D 544 at
551, Jessel, M. R delivered
himself as follows:
“A cause is still pending even
though there has been final
judgment given, and the Court
has very large powers in dealing
with a judgment until it is
finally satisfied. It may stay
proceedings on the judgment,
either wholly or partially, and
the cause is still pending,
therefore, for this purpose, as
it appears to me, and must be
considered as pending, although
there may have been final
judgment given in the action,
provided that the judgment has
not been satisfied.”
The pendency of
proceedings is a condition
precedent to the making of any
application in the cause whether
under the rules of court or in
its inherent jurisdiction. This
being the case, in my view every
application which seeks to
result in the annulment,
variation or modification cannot
be made to the trial court after
the processes of execution are
at end as was stated clearly by
the learned trial judge. In such
a case, I have no doubt that
there are other sufficient
remedies open to an aggrieved
party to resort to in order to
and it is not our business in
this appeal to identify what
these modes of redress are. As
the appeal before us was
contested on grounds that do not
touch the views herein expressed
are intended for future guidance
only. It is important to observe
that this matter has extended
over some time, having travelled
through the court system from
1997, we do not intend to delay
in bringing it to a closure. It
is hoped that in the future, we
would have the opportunity of
pronouncing on the points of
procedure raised in this opinion
and are not intended to detract
from the judgment of my brother
to whom reference was made in my
opening words.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. J. M DOTSE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AMARKAI AMARTEIFIO FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAKU OSAFO-BUABENG FOR
THE
DEFENDANT/APPELLANT/RESPONDENT.
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