S. K. HEYMAN v. C. W. BANNERMAN
December 16, 1916
SUPREME COURT
GHANA
CORAM
- HIS HONOUR SIR PHILIP CRAMPTON SMYLY, KNIGHT, CHIEF JUSTICE
Areas of Law
- Contract Law
- Civil Procedure
December 16, 1916
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Chief Justice, Sir Philip Crampton Smyly, considered a dispute arising from a retainer agreement between the Plaintiff and Mr. Woolhouse Bannerman for drafting a petition to the Government. The Plaintiff paid £27 towards an agreed fee of £147, but Bannerman performed no work. Bannerman challenged the High Court’s jurisdiction, invoking Yah for v. Sawyerr to argue that only the Chief Justice could entertain actions for the return of retainers. Mr. Renner, for the Plaintiff, argued the case was simply a failure of contract. The court held that authorities on barristers’ immunity were irrelevant because section 59 of the Supreme Court Ordinance No. 4 of 1876 allows barristers to sue for fees and subjects them to solicitors’ liabilities. Emphasizing local practice of lump-sum retainers as pure contracts, the court ruled the action lies in contract, allowed the appeal, and remitted the case to the District Court for a hearing on the merits.
The facts of this case are shortly according to the Plaintiff that he retained Mr. Woolhouse Bannerman to draft a Petition to the Government. The agreement was for £147, of which amount £27 was paid in advance, Mr. Woolhouse Bannerman having done nothing under the agreement, he is now sued for the amount of £27 paid, and pleads to that No Jurisdiction, on the authority of a case Yah for v. Sawyerr, in which he contends that the Court ruled that the return of retainers, can be brought before the Chief Justice, and that the High Court per se has no jurisdiction.
Mr. Renner for Plaintiff disputes this construction of the case, and submits that this case is merely one of failure to perform a contract, and that the case referred to supra does not apply.
A number of cases dealing with the liability of a barrister to be sued have been cited, which appear to me to be wholely irrelevant, in view of section 59 of the Supreme Court Ordinance No. 4 of 1876 which provides that a barrister, whether practising as a solicitor, or not, may sue for and recover his fees, subject to the Rule of Court in respect of services rendered, but further provides that he shall be subject to all such liabilities as attach by law to a solicitor or procter in whatever capacity his services may have been rendered
Having pointed this out the Defendant raised, a further point namely, that as a solicitor, Defendant was only liable to be sued for negligence, and damages must be proved, therefore as the present action is in contract, the Defendant is not liable, and cites the Encyclopedia of the Laws of England, under the heading breach of duty VIII Solicitor, in which it is laid down that if a solicitor be guilty of a breach of his duty to his client, the client has different remedies according to circumstances, and sets out five instances of what he may do, in which breach of contract is not included.
Now the position of a solicitor in England, and a solicitor or barrister out here is radically different-as far as I can gather it was originally intended to have a scale of charges similar to those in England drawn up, this has never been done, with the result that the practice has grown up for practitioners to charge a retainer, or lump sum for the work they do, these retainers or lump sums never appear in taxation, except as between solicitor anc elient.
In England the amount of a solicitors remuneration is not left to be determined by the ordinary principles of contract, and he has to g