J. OPOKU BOATENG & CO. VS RAOUL ABOU CHEDID & ORS
2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ.
Areas of Law
- Civil Procedure
- Contract Law
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The court determined whether a lawyer could recover legal fees from a former client using a writ of summons and whether suing multiple defendants in one claim for legal fees constitutes separate causes of action. The first defendant sought to dismiss the writ, arguing that it should be a motion and cited the Legal Profession Act and JONAH v KULENDI case. The court found no requirement mandating a motion for such an action and clarified that including multiple defendants does not create separate causes of action. The application to dismiss the writ was dismissed as frivolous and without basis, with a cost imposed on the applicant.
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.
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.
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.
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 & 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.
Section 41 of Act 32 states as follows: “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”. 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 wh