ENOCK AWASABI GBERTEY v. E.A. ACCAM ESQUIRE & ANOR

ADINYIRA (MRS.) JSC:

The facts resulting in the present appeal are that the Defendant/respondent/appellant, (hereinafter Defendant) a legal practitioner, sued the Plaintiff/appellant/respondent, (hereinafter Plaintiff) in an earlier suit No. C48/2003 at the Koforidua High Court for his legal fees. He obtained judgment on 27th July 2005 in the sum of GH¢ 15,267.892.

The Defendant had a writ of Fifa issued on 10th December 2005 and the Deputy Sheriff, High Court, Koforidua seized the Plaintiff’s Toyota saloon car no. GW 757-T, on 8th December2005, and handed it over to an auctioneer. On 10th December 2005, i.e two days after his vehicle had been seized in execution of the judgment debt, the Plaintiff filed a notice of appeal. On 3rd February 2006, the Plaintiff applied for stay of execution at the High Court which was granted on terms on 17th March 2006 by Bentil J. The Plaintiff was ordered to deposit GH¢10, 000 in the court registry and then collect his vehicle. He failed to meet the terms of the order but rather repeated the application for stay of execution at the Court of Appeal. The Court of Appeal dismissed the application on 18th July 2006 for the reasons that on the affidavit evidence before the court, execution had already commenced by virtue of the issue of a writ of fifa and the handing over of the vehicle to the auctioneer by the deputy sheriff; and that the Court below erred in granting the application when execution had already commenced. The vehicle was auctioned on 9th November 2006 and the auctioneer deducted his expenses and paid the balance into court.

Subsequently the Court of Appeal, on 14th December 2007, determined the appeal in favour of the Plaintiff. The Court of Appeal set aside the writ No. C48/2003 together with the proceedings of the High Court Koforidua, on the grounds that the writ was a nullity as the Defendant did not comply with section 30 of the Legal Profession Act of 1960, Act 32 before commencing the action. Section 30 provides:

“A Lawyer shall not be entitled to commence any suit for the recovery of any fees for any business done by him as a Barrister or Solicitor until the expiration of one month after he has served on the party to be charged a bill of those fees.”

After the Court of Appeal’s decision, the Plaintiff, on 22nd February 2008 commenced this action, Suit No. BC 237/2008, at the Accra High Court against the Defendant for the recovery of his Toyota saloon car among other reliefs. The Defendant brought