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Legal
practitioner - Professional
services - Professional
fees - Retainer Agreement -
Schemes of payment - Breaches of
statute - Non-compliance with
section 30 of Act 32, the Legal
Profession Act – Whether or not
failure to comply with the
provisions section 30(1) of the
Legal Profession Act renders the
entire action null and void -
Rule 6(7) (b) of CI 16, -
Supreme Court Rules
HEADNOTES
The defendant
instructed the plaintiff, a firm
of legal
practitioners, regarding a
contract that they had
previously entered into with a
company known as International
Business Group, Ghana Ltd and
its managing director. the
contract was one of purchase of
shea-nuts for which the
defendant had made payment but
did not receive supplies due to
it. The instructions from the
defendant to the plaintiff
provided for differential
schemes
of payment of professional fees
in the event of a settlement
or a full-scale trial of the
dispute. Based upon the
agreement
reached between the parties
herein, the plaintiff issued a
writ to demand payment of the
outstanding amounts owed to the
client and in the course of the
pendency of the action reached
an agreement with the debtors
and executed terms of
settlement. The said terms of
settlement were consequently
duly entered as a judgment of
the court in the
matter.Following the conclusion
of the case, the plaintiff
basing himself on the retainer
agreement took out a writ of
civil summons to claim from its
client (the defendant herein)
professional fees owing to it
following the recovery of
judgment in the action that it
had concluded against
International Business Group and
the managing director The action
proceeded to a trial that was
determined against the plaintiff
by the High Court. An appeal to
the Court of Appeal was also
determined against the plaintiff
HELD
“No judge has authority to grant
immunity to a party from
consequences of breaching an Act
of Parliament. But this was the
effect of the order granted by
the learned judge. The judicial
oath enjoins judges to uphold
the law rather than condoning
breaches of Acts of Parliament
by their orders.” The result is
that the appeal herein is
dismissed and the action that
was commenced before the High
Court in the matter herein on 15
November 2006 is also dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Legal
Profession Act, 1960 (Act 32)
Supreme Court
Rules 1996 CI 16
CASES
REFERRED TO IN JUDGMENT
Ayarna & Anor
V Agyemang & Ors [1976] 1 GLR
306
Narter v Gati
[2010] SCGLR 745
Republic v
High Court, Accra, Ex-parte
Allgate CoLtd
[2007-2008] SCGLR, 1041.
Heward Millsv
Heward Mills [1992-93] GBR 239
Republic v
High Court ( Fast Track
Division) Accra; Ex-parte
National Lottery Authority
[2009] SCGLR 390
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
PETER
ZWENNES FOR THE PLAINTIFFS/
APPELLANTS/APPELLANTS.
MRS. ABENA
NTRAKWAH-MENSAH FOR THE
DEFENDANTS/ RESPONDENTS
/RESPONDENTS
____________________________________________________________________
J U D G M E N T
___________________________________________________________________
DR. DATE-BAH
JSC:
I have had
the privilege of reading
before-hand the lucid and
authoritative judgment about to
be read by my brother Gbadegbe
JSC and I agree with him. The
interpretation put on section
30(1) of the
Legal
Profession Act, 1960 (Act 32)
by the Court of Appeal in
Ayarna &
Anor V Agyemang & Ors [1976] 1
GLR 306 and by the Supreme
Court more recently in
Narter v
Gati [2010] SCGLR 745 makes
it inevitable for us to dismiss
this action.
(SGD) DR. S. K. DATE-BAH
JUSTICE
OF THE SUPREME COURT
GBADEGBE JSC:
On or about 14 March
2006, the
defendant instructed the
plaintiff, a firm of legal
practitioners, regarding a
contract that they had
previously entered into with a
company known as International
Business Group, Ghana Ltd and
its managing director. It
appears from the pleadings in
this case that the contract was
one of purchase of shea-nuts for
which the defendant had made
payment but did not receive
supplies due to it.
The instructions from the
defendant to the plaintiff
provided for differential
schemes of payment of
professional fees in the event
of a settlement or a full scale
trial of the dispute. Based upon
the agreement reached between
the parties herein, the
plaintiff issued a writ to
demand payment of the
outstanding amounts owed to the
client and in the course of the
pendency of the action reached
an agreement with the debtors
and executed terms of settlement
dated 20 December 2006. The said
terms of settlement were
consequently duly entered as a
judgment of the court in the
matter.
Following the conclusion of the
case, the plaintiff basing
himself on the retainer
agreement took out a writ of
civil summons to claim from its
client (the defendant herein)
professional fees owing to it
following the recovery of
judgment in the action that it
had concluded against
International Business Group and
the managing director. In
paragraph 11 of the statement of
claim filed on its behalf, it
was averred as follows:
“As a consequence of the above
and in line with their
Retainer
Agreement, Plaintiff
requisitioned for payment of
US$44,50, being 1.25% of the
settlement sum recovered and
received by Defendants of
US$3,564,000.00 as a result of
professional services
rendered by the Plaintiffs.”
The action proceeded to a trial
that was determined against the
plaintiff by the High Court. An
appeal to the Court of Appeal
was also determined against the
plaintiff
and as a result the proceedings
herein were initiated before us
by way of a further appeal
seeking a reversal of the
decision of the Court of Appeal.
Before us, the parties submitted
their respective statements of
case and in the course of
considering the matter before
judgment; we raised for their
consideration a point of law
that was carefully drafted by
the court as follows:
“Was
Section 30 of the Legal
Profession Act 1960(Act 32)
regarding the submission of a
bill of fees by a legal
practitioner to his client at
least a month before the
commencement of suit against the
client complied with in this
case?
The above question was responded
to by the parties and we now
proceed to consider the
arguments presented to us in the
matter. In my thinking, the
question that we first have to
decide in the appeal herein is
that which turns on section 30
of the Legal Profession Act,
which was raised by us. In its
answer to the said question,
while admitting
non-compliance with section 30
of Act 32, the Legal Profession
Act, the plaintiff in what I
consider to be a confession and
avoidance submitted that
notwithstanding the
non-compliance by it with
section 30 of the Act, the
defendant by its conduct in not
raising the point regarding same
is deemed to have waived the
non-compliance with the
statutory provision. In the
supplementary statement of case
filed on its behalf on 21
November 2011, it was stated at
page 1 thus:
“However
could it be said that the
failure
by the Plaintiff to comply with
the provisions section 30(1) of
the Legal Profession Act renders
the entire action null and void?
We respectfully do not think so.
It must be noted that the
Defendant who was represented by
Counsel in the trial court
entered appearance
unconditionally to the action
and filed a Defence as well as a
Counterclaim did not raise any
such legal objection. Not having
done so we submit that Defendant
is deemed to have waived any
such non-compliance to the
irregularity.”
This view of the matter that is
urged on us by the plaintiff
does not find support in the
pronouncement of this court in
the case of
Nartey
v Gati [2010] SCGLR 745.In
the course of his judgment in
the above case my respected
brother, Date- Bah JSC reading
the lead judgment of the court
expounded the applicable law at
page 758 as follows:
“ In Ayarna v Agyemang [1976] 1
GLR 306, the Court of Appeal
held that the true object of
section 30(1) of the Legal
Profession Act, 1960 ( Act 32),
was to enable the court to
oversee and supervise the
charging of professional fees if
a dispute arose between a lawyer
and his client as to the quantum
or proprietary of the fees
charged and that compliance with
section 30 (1) of Act 32 was a
mandatory pre-condition for the
commencement of an action by a
lawyer to recover his fees.”
In my opinion, not having
satisfied the mandatory
requirement of Act 32 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 herein must fail. The
non-compliance with the
mandatory statutory requirement
contained in section 30 of the
Legal Profession Act, (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 CI 16, the
Supreme Court Rules. The
non-compliance in this case
being a failure to comply with a
mandatory statutory requirement
invalidated the writ of summons
on which proceedings in the
matter herein were based as was
decided by this court in the
case of
Republic v High Court, Accra,
Ex-parte Allgate CoLtd
[2007-2008] SCGLR, 1041. The
decision of the Supreme Court in
this case appears to have
overruled the collection of
cases including
Heward
Millsv Heward Mills
[1992-93] GBR 239 which hold
that non-compliance with rules
of court renders an action
incompetent; to have a
nullifying effect, the
non-compliance must also be a
breach of the Constitution or of
a statute or the rules of
natural justice such as to
affect jurisdiction. The
situation that we are confronted
with in the appeal herein being
one of non-compliance with the
provisions of a statute has the
effect of invalidating the
action. I add that in view of
the breach of the statutory
provision, we are left with no
discretion in the matter such as
to make any substantive order or
orders in the action.
Regarding rule 6 (7) of the
Supreme Court Rules, CI 16, I
think that the framers of the
rule conferred a power on us to
be utilised in instances such as
for example, that which has
unfolded before us in the matter
herein in order that proceedings
commenced in clear violation of
mandatory statutory requirements
might not escape the scrutiny of
the law. It seems to me that
this is a useful tool in the
hands of the court by which we
are enabled to strike down
proceedings even though the
default in complying with
mandatory statutory requirements
might have escaped notice in the
courts below. It is a weapon
that enables us to uphold the
rule of law as to do otherwise
would have the effect of
condoning
breaches of statute. The
above rule is of considerable
standing and one on which there
is no conflict of judicial
opinion. The judgment of my
worthy brother, Date-Bah JSC in
the case of
Republic v High Court ( Fast
Track Division) Accra; Ex-parte
National Lottery Authority
[2009] SCGLR 390 is an
illustration of this rule. At
page 402, the learned judge
observed as follows:
“No judge has authority to
grant immunity to a party from
consequences of breaching an Act
of Parliament. But this was the
effect of the order granted by
the learned judge. The judicial
oath enjoins judges to uphold
the law rather than condoning
breaches of Acts of Parliament
by their orders.”
The result is that the appeal
herein is dismissed and the
action that was commenced before
the High Court in the matter
herein on 15 November 2006 is
also dismissed.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
R. C. OWUSU (MS.)
JUSTICE OF THE SUPREME COURT
(SGD) J. V. M. DOTSE
JUSTICE
OF THE SUPREME COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE
SUPREME COURT
COUNSEL
PETER
ZWENNES FOR THE PLAINTIFFS/
APPELLANTS/APPELLANTS.
MRS. ABENA
NTRAKWAH-MENSAH FOR THE
DEFENDANTS/ RESPONDENTS
/RESPONDENTS.
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