J. OPOKU BOATENG & C vs. RAOUL ABOU CHEDID, GOLD COAST SECURITIES LTD AND K. AMPONSAH DADZIE [2016]DLHC3513

J. OPOKU BOATENG & C vs. RAOUL ABOU CHEDID, GOLD COAST SECURITIES LTD AND K. AMP... [2016]DLHC3513

Date	2016-11-21
Suit No.	SUIT NO.CM/OCC/0734/2016
Citation No.	[2016]DLHC3513

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2016]DLHC3513
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">J.
OPOKU BOATENG &amp; C<o:p></o:p></a>vs.<o:p></o:p>RAOUL ABOU CHEDID, GOLD COAST SECURITIES LTD AND K. AMPONSAH
DADZIE<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT
NO.CM/OCC/0734/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 21ST NOVEMBER, 2016 <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>The court has been called upon in this application to make
a determination as to whether a lawyer who initiate an action for the recovery
of his legal fees from his former client can do so by the issuance of a writ of
summons or must come strictly be an application in the form of a motion.<o:p></o:p><o:p>&nbsp;</o:p>And two whether when a lawyer who sues more than one
defendant in his claim for recovery of his fees, such an action makes it
multiple causes of action or different causes of action and renders the action
incurable bad without the leave of the court having been first obtained.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>1st Defendant/Applicant has moved the court
to strike out or dismiss the writ filed by the plaintiff/respondent. In an
affidavit that accompanied the application and deposed to by the 3rd
Defendant, he claims that the writ of the plaintiff is incompetent, unfounded
in law and constituted an abuse of the judicial process.<o:p></o:p>Moving the application, 3rd defendant who
is also a legal practitioner relied on section 41 of the Legal Profession Act,
Act 32 and the case of JONAH v KULENDI
&amp; KULENDI [2013-2014] 1 SCGLR 272. The essence of his submission is
that Act 32 has spelt out a mode for a lawyer who intends to recover his fees
from a client to come by way of an application and nothing else and as long as
this suit is not by way of an application, plaintiff has miscalculated and
ought to be thrown out of the court.<o:p></o:p><o:p>&nbsp;</o:p>Section 41 of Act 32 states as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “All applications made
under this Part to refer any bill to be taxed and settled or for the delivery
up of deeds, documents, or things shall be by motion in the matter of the
lawyer concerned”.<o:p></o:p>I
find nothing in this provision that says that when a lawyer institutes an
action for the recovery of his fees for the performance of legal services, the
lawyer must approach the court by way of an application. The sections that
precede section 41 deals with the service on a client of a bill by lawyer at
least one month before the lawyer commences proceedings. And when this bill is
served, the client may apply to the court and the court may refer the bill to
be taxed. And where no such application is made the lawyer, suo moto, may refer
the bill to be taxed. Section 41 deals with matters regarding taxation of the
bill raised by a lawyer which the provision says any such matters regarding
taxation, delivery of any documents, deeds or writing demanded by a client from
a lawyer should be done by way of an application. The law however, does not say
that when a lawyer commences an action to recover his fees it should be by way
of application in the form of a motion.<o:p></o:p><o:p>&nbsp;</o:p>3rd
defendant relied on the case of JONAH v
KULENDI &amp; KULENDI supra as the authority in support of his claim that a
lawyer suing for his fees must do so by way of an application. In fact, JONAH v
KULENDI never ever decided that and the import of that decision has gravely
been misconstrued by 3rd defendant.<o:p></o:p><o:p>&nbsp;</o:p>In
that case the plaintiff had issued a writ against three different parties when
he claimed against the 1st defendant recovery of US$1.000.000.00
which he alleged he gave to 1st defendant when the latter instituted
an action against Investcom, Scancom and Grand View Management Ltd. And that
the monies advanced to 1st defendant was to be repaid from the
monies to be realised from the monies to be received from the Investcom suit.
As against 2nd and 3rd defendants, plaintiff claimed that
they were aware of that suit as lawyers and had received fees of up to
US$100.000 from plaintiff and that without recourse to him the defendants had
settled the claim for an amount of USD54,000.000.00 of the claim against
Investcom.<o:p></o:p>