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JUDGMENT:
The Plaintiff herein is a firm
of legal practioners. The 1st
Defendant is a businessman, a
shareholder and Chief Executive
Officer of both 2nd
and 3rd Defendant
Companies. The 2nd
Defendant had intended to carry
on business as a hotel at the
Pier Hotel Limited. The 3rd
Defendant is the registered
owner of the plot of land on
which the said hotel was lying
and situate until its
demolition. The hotel was
demolished by the Accra
Metropolitan Assembly (AMA).
The Defendants herein instructed
the Plaintiff to conduct their
case against AMA. The Plaintiff
contends that the Defendants
have failed and/or refused to
pay the fees for the legal and
professional services rendered.
The Plaintiff has thus sued the
Defendants for the following
reliefs:
(i)
A
declaration that the Plaintiff
are entitled to the payment for
legal services rendered.
(ii)
Payment of 15% VAT/NHIL on the
negotiated legal fees payable to
government.
(iii)
Interest on the legal fees
payable at the prevailing bank
lending rate from the date of
issue of the Writ to the date of
final payment.
I will state right from the
onset that I have taken note of
the fact that the Plaintiff’s
claim is not declared on the
writ but it is clearly stated in
its pleadings; specifically, in
paragraph 2 of the Plaintiff’s
Reply To Statement of Defence.
The said paragraph 2 states as
follows:
“The Plaintiff denies the
averments in paragraphs 4, 5, 6,
7 and 8 of the Statement of
Defence. In further answer, the
Plaintiff says that the 1st
Defendant, on his own behalf and
on behalf of the other
Defendants knew at all times
that he had agreed in separate
communication with Management
personnel of Lexcom Associates
that the latter would be
entitled to legal fees amounting
to five (5) per cent of the
judgment debt (contract sum) of
US$5,500,085.00. It was further
agreed that the Plaintiff herein
should finance the cost of
prosecution of the suit.”
The Court is minded to believe
that this is in line with the
practice whereby a plaintiff
does not specify the claim on
the writ and thus avoids paying
the appropriate filing fees; I
have my doubts if the
appropriate filing fees have
been paid by the Plaintiff in
the instant suit.
The Plaintiff’s case is that on
the 4th March, 2003
the Defendants engaged the firm
to act as Solicitors for them in
place of Acquah-Sampson &
Associates in the case entitled:
1.
 Alhaji
Yusif Ibrahim
2.
Pier
Hotel
Limited
Plaintiffs
3.
J.L
Morrison Son & Jones Ltd
VRS
Accra Metropolitan
Authority
Defendants
Samuel Adokwei Addo
The Plaintiffs therein were
claiming against the Defendants
jointly and severally for the
following:
(i)
A
declaration that the demolition
of Pier Hotel carried out by the
Defendants therein at Plot No.
R2 Airport Accra on April 12,
1999 was illegal and constituted
as trespass and an unlawful
interference with Plaintiff’s
civil and constitutional rights.
(ii)
Special Damages whose
particulars indicated a total
Sum of US$5,500,085.00 and
(iii)
Costs.
The Plaintiff herein contends
that it was agreed with the
Defendants that the Plaintiff
would finance and provide
funding for the litigation and
prosecution of the case and
thereafter legal fees of 5% of
the judgment debt would be paid
by the Defendants after
completion of the case. The
Plaintiff contends further that
their attention was drawn to a
newspaper publication on 19th
December 2009 which suggested
that the Government had made
full payment for the demolished
hotel to the 1st
Defendant in the sum of
GH¢6,632,047.97 in respect of
the above mentioned case.
However the Plaintiff failed and
/or refused to pay the agreed
legal fees to the Plaintiff and
has further denied Government
revenue that is entitled to by
way of VAT.
The Defendants deny all of the
Plaintiff’s assertions. They
state that they have been
willing to pay reasonable fees
to the Plaintiff in accordance
with the scale of fees
established by the legal
profession, but Plaintiff, by
letter dated 30th
November 2009, made an
unreasonable claim for 10% of
the settlement amount plus 15%
VAT/NHIS. Defendants contend
that no specified level of fees
had been agreed between the
parties to be paid.
Furthermore, at the time
Plaintiff filed the instant writ
it had not even had the terms of
settlement finalized in court
and therefore Plaintiff’s claim
was premature.
The fact that the parties agreed
that some legal fees would be
paid after the case had been
concluded is not in dispute. In
my opinion, the main issue for
determination by the Court is:
Whether or not the parties
agreed on a definite percentage
of the judgment debt to be paid
as legal fees.
The evidence of Emmanuel Ohene,
a Lawyer/Director at the
Plaintiff Firm (P.W.1) was that
1st Defendant engaged
the services of the Plaintiff
and instructed it to take over,
continue and conduct their case
from the legal firm that had
began the case. The Plaintiff
accordingly filed an
“Appointment of Additional
Solicitors” (Exhibit ‘A’).
P.W.1’s further evidence was
that the 1st
Defendant met with the other
Director of Plaintiff-Firm,
Professor G.K. A. Ofosu-Amaah
(P.W.3) and had discussions on
the engagement of their services
by the Defendants. P.W.1 said
he joined in the meeting later.
He said he was told by P.W.3
that he had agreed with the 1st
Defendant that he would pay a
deposit of ¢10,000,000
(GH¢1,000) as registration fees
and the Plaintiff was to
pre-finance the cost of the
litigation. The cost was to be
added to 5% of the amount to be
recovered as the legal fees.
This is what P.W.1 said:
Q: When they brought this
suit to your firm did you enter
into any agreement on the cost
of litigation of the prosecution
of the litigation?
A: Yes, when Alhaji came
at first he didn’t meet me
directly he met my other
director at the time Prof. Ofosu
Amaah in his office. They were
having a long chat before i came
in so i was called in, then the
decision has been taken that we
will take over the brief so
there was a lot of sympathy. We
had a long discussion for Alhaji
and being my friend too so he
said he didn’t have any money
and he said they have virtually
crippled him financially because
of what had happened so we said
ok, what we would do is that he
will pay the normal deposit for
the chambers which at that time
was ¢10,000,000.00 but then we
will finance the cost of the
litigation and at the end of it
we will add that to our charge
of 5% which we agreed to. I
walked him to the door so we
talked about that and Alhaji was
saying that we shouldn’t charge
high and I was saying that if he
had gone to the other place.
P.W1’s further evidence was that
the Government had paid the
Defendants claim. The case was
concluded with an out of court
settlement which culminated in
Terms of Settlement (Exhibit
“C”) being executed. Exhibit “C”
was subsequently amended after
lengthy and difficult
negotiations. Exhibit “2” is
the final Terms of Settlement
filed by the parties in the
earlier suit. The amount paid to
the Defendants by the Government
of Ghana was US$5,107,075.29.
PW1’s evidence was corroborated
by the Plaintiff’s other two (2)
witnesses, Kwabena Kunadu Yiadom
(P.W.2) and Prof. Ofosu-Amaah
(P.W.3) to a large extent.
However, I find that there were
also some contradictions in the
evidence of the said witnesses.
For a start the Plaintiff
averred in its pleadings that it
was agreed between the parties
that Plaintiff would be entitled
to legal fees of 5% of the
judgment debt. Contrary to the
pleadings however, the evidence
of P.W.1 was that the parties
agreed to 10% of the total
payment as its fees. This what
P.W.1 said under
cross-examination:
“Q: You sent him a bill for
what amount? What was the
percentage you charged?
A: Eventually, we
added the cost of the
litigation.
Q: What was the
percentage you charged?
A: We agreed on 10% of the
total inclusive of 5% of the
other charges. I think that
copy of the bill should be
there.”
The copy of the Bill of costs
was tendered in evidence as
Exhibit “E”, and this is how it
reads:
“30th November 2009
1. Alhaji Yusif Ibrahim
2. Pier Hotel Limited
3. J.L. Morrison Son &
Jones Ltd.
H/No. 8 Alema Avenue
Airport Residential
Area
Accra
“WITHOUT PREJUDICE”
Dear Alhaji Yusif,
RE: BILL OF COSTS – FINAL
DEMAND NOTICE
(a) To legal and
professional
services
US$
Rendered in the
conduct/prosecution
Of the case Alhaji
Yusif Ibrahim & Ors
Vrs Accra Metropolitan
Assembly & anor
In suit No. FT(IV)
7/2001 covering
(i) Total Processes filed
- 22
(ii) Court appearance
- 78
Being 10% of the total
cost of the Pier Hotel
investment in the sum of
$5,107,075.29 paid to
you in full and final
settlement of your claim
against the Defendants for the
unlawful
demolition of Pier Hotel
amounting to
510,000
(b) Plus
15%VAT/NHIS in the sum of
76,606.2
Grand
total
US$587,314.2
The amount should be paid within
seven (7) days of the date of
this final Demand.
Yours Sincerely,
SGD
Nana Yaa A. Faibille”
So this piece of documentary
evidence also does not mention
that the agreed level of legal
fees was 5% of the judgment debt
as stated in Plaintiff’s
pleadings. The Court of Appeal,
in Appiah v Takyi [1982-83] 1
GLR, 1 held that where there
was a departure from pleadings
at a trial by one party whereas
the other’s evidence accorded
with his pleadings, the latter’s
was as a rule preferable.
Apart from the fact that Mr
Ohene’s evidence contradicted
Plaintiff’s pleadings, his
evidence that the parties agreed
to a legal fee of 10% of the
judgement debt, was contradicted
by P.W.3, Prof. Ofosu – Amaah.
Prof. Ofosu-Amaah testified that
when he was consulted by the1st
Defendant for Plaintiff to take
up the Defendants’ case, he
accepted the brief and suggested
that 1st Defendant
make a down-payment of ¢10, 000,
000.00 and “depending on what
happens, we will be paid 5% of
what we were able to recover”.
He testified further that Mr.
Ohene (P.W.1) came in at the
tail-end of the meeting and he
told P.W.1 that “we were
taking consultation and they
will not ask for any refresher
during the course of the case
and will get 5% of what we were
able to recover from him”.
The dictum of Edward Wiredu J.A.
(as he was then) in Atadi v
Ladzekpo (1981) GLR 218 at
224 was that:
“whenever the testimony of a
party on a crucial issue is in
conflict with the testimony of
his own witness on that same
issue it is not open to a trial
court to gloss over such a
conflict and make a specific
finding on that issue in favour
of the party whose case contains
the conflicting evidence on the
issue”
Also, in Obeng v Bempoma
(1992 – 93) Ghana Bar Law
Reports, 1029, Lamptey J
remarked that:
“Inconsistencies, though
colourless may cumulatively
discredit the claim of the
proponent of the evidence.”
I will find that Plaintiff has
not proved the claim that there
was an agreement between the
Parties that the Defendants
would pay 10% of the judgement
debt as legal fees, as demanded
by the Plaintiff in Exhibit “E”.
But, did the Plaintiff prove
that the agreement between the
parties was 5% of the judgement
debt as pleaded? As stated
above, the evidence of Professor
Ofosu – Amaah (P.W.3), who had
the meeting with the 1st
Defendant, was that the
agreement was for the 1st
Defendant to pay an initial
amount of ¢ 10,000,000.00
(GH¢1,000.00) and after the case
had been completed, 5% of the
judgement debt, and no more.
The 1st Defendant
denied this and testified that
he met with one of the lawyers
in the Plaintiff Firm, Shadrack
Arhin and after initial
discussions about the case with
him, 1st Defendant
was taken to P.W.3, Prof. Owusu
– Amaah. It was agreed that the
Plaintiff Firm would handle the
case together with the original
lawyer who had issued the writ.
Further discussions held were
between 1st
Defendant, P.W.3 and Shadrack
Arhin. Mr. Ohene, (P.W.1) was
never involved in the
discussions.
1st Defendant also
testified that in a previous
case handled by P.W.3 for him
and a certain Mr. Bucknor
against SSNIT, P.W.3 agreed that
they would agree on a reasonable
fee after the case had been
disposed of. And it was a
similar arrangement that the 1st
Defendant made with P.W.3 and
Shadrack Arhin.1st
Defendant’s further testimony
was that: “The person I
wanted to do this case was
Shadrack Arhin but for reasons
that I can never find out he
refused to do the case so
someone else had to do it”
Indeed, Exhibit “1A” is a
receipt of the payment of
¢5,000,000.00 which was received
by Shadrack Arhin. Surprisingly,
Shadrack Arhin who participated
in the said meeting and was
involved in the negotiations was
not called as a witness to
support the Plaintiff’s claim.
The Defendants informed the
Court of their intention to call
Shadrack Arhin to come and
testify, but for whatever
reason, he never came to
testify.
I have noticed that Exhibit “1A”
is the receipt of the 2nd
payment made by the 1st
Defendant to the Plaintiff,
bringing the total payment to
¢10,000,000.00. Exhibit “1A” is
dated 29th February
2003. An earlier payment of
¢5,000,000.00 was made on 29th
January 2003 (see Exhibit “1”).
And on Exhibit “1A” there is a
footnote which reads: “N.B.
We consider this deposit
insufficient and expect a
topping up in due course.” I
am wondering why this note if
indeed the agreement was that
the Defendants would make an
initial payment of ¢1,000,000.00
and pay an agreed percentage of
the judgment debt after
completion of the case.
1st Defendant denied
that it was because he said he
did not have money as a result
of the demolition of the hotel
that he requested Plaintiff to
pre-finance the litigation of
its case. He said he had paid an
amount of ¢357,000.000.00 for
filing of the writ in the
earlier suit. He had also given
various amounts of money to
Kwabena Kunadu Yiadom (P.W.2),
the lawyer who was representing
the Defendants at the trial, as
out of pocket payments.
It is the case that P.W.1’s
evidence was partially
corroborated by P.W.2 and P.W.3.
It is also a fact that the 1st
Defendant was the only person
who gave evidence on behalf of
the Defendants; Defendants did
not call any witness to
corroborate the 1st
Defendants evidence.
Nonetheless, in Ayiwah &
Another v Badu & Others (1963) 1
GLR, 86, it was stated that
there is no laid down
proposition that:
“In no instance or under no
circumstance whatsoever can the
court accept the evidence of a
sole or single witness, merely
because his testimony is
contradicted by the evidence of
another witness. It must
obviously depend on the
circumstances of each particular
case.”
As stated above, the evidence of
P.W.1 and that of P.W.3 are
conflicting. And as opined by
Wiredu J.A (as he then was) in
Atadi v Ladzekpo (supra),
a court will be entitled to
accept conflicting evidence if
it finds it justifiable to make
a finding in favour of the party
on whose behalf a conflict
exists having regard to the
particular fact in issue and the
circumstances surrounding the
case. In the circumstances of
the instant case however, I am
more swayed by the evidence of 1st
Defendant than that of
Plaintiff’s witnesses. I will
thus find that the Plaintiff has
not proved that it agreed with
the 1st Defendant
that Defendants would pay 5% or
any specific percentage of the
judgment debt as legal fees.
The case of the Defendants is
that they had not accepted the
Bill of Costs served on them
because the level of fees (10%)
being requested therein was not
agreed between them and
Plaintiff, and also because they
found the fees to be
unreasonable. This was his
evidence:
“Q. They have brought you to
court that the second one they
performed some services for you
but you have not paid them. What
do you have to tell the court?
A.
It is
not that I refused to pay them;
I told them from the beginning
that I will pay a reasonable
cost and because what they are
claiming is unreasonable I said
they should try to be reasonable
and we can settle it”.
In the case of Ayarna &
Another v Agyeman & Others
(1976) 1 GLR, 306, CA, it
was held thus:
“The fact that a court of
justice always sets itself as an
arbiter between lawyers who are
its own officers and lay clients
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,
C.A., 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 was favourable to the
solicitor, unless satisfied that
it had been made in
circumstances precluding any
suspicion of an improper attempt
to gain a benefit at the
client’s expense.”
In the said case, the court
relied on the principle as
expressed by Lord Hardwicke L.C
in Saunderson v. Glass (1742)
2 Atk. 296, as follows:
"It is truly said at the bar,
that a security obtained by an
attorney, whilst he is doing
business for his client, or
whilst a cause is pending,
appears to this court in quite a
different light than between two
common persons; for if an
attorney, pendente lite,
prevails upon a client to agree
to an exorbitant reward, the
court will either set it aside
entirely, or reduce it to the
standard of those fees to which
he is properly entitled; and
this was the rule that weighed
with me in Walmesley v. Booth
. . . and if the court did not
observe such a rule, it would
expose clients very much to the
artifices of attorneys . . ."
The unchallenged evidence before
the Court is that he negotiated
with Government and was paid the
amount of GH¢6,632,047.97 (being
equivalent of $5,107,075.29)
before the Terms of Settlement
were drawn up and Consent
Judgment entered by the Court.
The Plaintiff did not lead a
scintilla of evidence to
establish the basis of the claim
of 5% of the judgment debt. The
evidence before the Court is
that Government paid to the
Defendants, special damages
claimed by the Defendants in the
earlier case, and no more. In
the Terms of Settlement filed by
the parties (Exhibit “C”), it is
stated that the plaintiffs in
the earlier suit had agreed to
waive their claim for loss of
earnings, general damages and
costs against the defendants
therein.
It is common knowledge that the
cost of the time value of money
is that as time passes the value
of money shrinks. If the money
invested in the hotel project
had been invested elsewhere, it
would most likely have yielded
some returns. Therefore, the
Defendants certainly made some
loss when they were paid just
the amount lost at the time of
the demolition. There is also
the fact that the trial did not
go the whole hog. The evidence
before the Court suggests that
even though the trial was
protracted, it was not close to
being completed since the
defendants therein had not
opened their defence.
In my opinion, it is
unreasonable for the Plaintiff
to arbitrarily fix their fees at
5% of the judgment debt. I will
find that the Plaintiff has not
succeeded in justifying that its
claim for 5% as pleaded, is
reasonable.
In spite of the fact that the
Plaintiff did not succeed in
proving that it is entitled to
be paid 5% of the judgment debt,
I am of the view that this is a
proper case to apply the
principle of quantum meruit.
It is trite learning that
when there is the absence of
contractual terms of
remuneration for goods supplied
or services rendered, the court
will assess an amount which is
fair and reasonable on the basis
of quantum meruit. As
Abban J (as he then was) said in
Hammond v Ainooson [1974] 1
GLR 176 at 183,
“In any case, even if I had
found that there had been no
concluded and enforceable
agreement between the parties as
to the amount of allowance the
plaintiff was to receive for her
services during the time the
boat was under repairs, or for
the other consideration supplied
by her, I would still have held
that the plaintiff could recover
on quantum meruit basis for the
value of the benefit she
conferred on the defendant
and the defendant accepted.
The principle is that where a
person rendered services in
pursuance of a transaction,
supposed by him to be a
contract, but which in truth, is
without legal validity, he can
recover for the value of his
services in quantum meruit.”
In the circumstances of the
instant case, it is my opinion
that two and a half per cent (2
½ %) of the judgment debt is a
fair and reasonable level of
fees to be paid to the Plaintiff
by the Defendants, and I will so
hold.
In conclusion, I will declare
that the Plaintiff is entitled
to the payment for legal
services, and order the
Plaintiff pay 2 ½% of the
judgment debt ofUS$5107,075.29
or its cedi equivalent. In my
opinion, this is not a proper
case for the award of interest,
and I will so hold. The
Defendants shall pay 15% of the
amount payable to the Plaintiff
as VAT/NHL. Pursuant to my
earlier observation, I will
order that the Plaintiff should
go for an assessment of the
filing fees based on the instant
judgment debt. I will further
order that no execution process
should be commenced until the
Plaintiff has paid the
appropriate filing fees. The
Registrar is hereby ordered not
to proceed to execution until
the said payment is made.
I will not make any order as to
costs.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
KWABENA SAFO MENSAH
- PLAINTIFF
PETER EBO AMISSAH
- DEFENDANT
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