Introduction
The Legal Profession Act of 1960 is the main statutory regime
regulating the legal profession in Ghana. The Act provides that a lawyer who
performs legal services for a client must issue a bill for the fees. The bill
must inform the client the amount owed and any other terms and conditions of
payment. The Act further states that the lawyer must allow a period of one
month to pass before suing to recover the fees. The courts have given several
judgments confirming the position of the law as set out in the Act. This article
seeks to examine the continuous relevance of the one month’s notice requirement
in the law in the light of the 1992 Constitution and other legislations that
have abandoned such requirements.
The Legal Profession
Act, 1960 and the mandatory requirement for a month’s notice to a client before
suing for legal fees.
It is provided in the Legal Profession Act[1] that a lawyer
who has done legal work for a client is not entitled to sue the client to
recover the fees until the lawyer has given the client a bill of the fees and
one month has passed. Therefore, before a lawyer who has done professional
legal work for a party can initiate proceedings to recover the legal fees
thereof, the lawyer needs to ensure that two important conditions precedent are
satisfied. First, the lawyer must serve a bill of those fees on the client and
second, the lawyer must ensure that, at least, one month passes after the
client receives the notice of the bill of fees before suing the client to
recover the fees. If a lawyer sues a client without ensuring that these two
conditions are met, the lawyer’s suit is bound to be thrown out by the court.
Decided cases upholding
the one month notice requirement in the Legal Profession Act.
The one month notice requirement was considered and applied
in a 1976 case[2] where the court dismissed the lawyers’ action for recovery of
their legal fees. The court noted that the lawyers had failed to allow the
statutory one month period to pass before they sued the clients.
Interestingly, since the 1992 Constitution came into force,
the courts have continued to hold that the statutory one month’s notice is a
necessary pre-condition for every lawyer’s action to recover their legal fees.
Where a lawyer fails to give a client the required notice, any action
instituted by the lawyer to recover the legal fees is declared a nullity.[3]
The constitutional and
statutory regimes that have abandoned mandatory notice requirements.
The Constitution[4] provides that all persons shall be equal
before the law. Therefore, the Constitution has, for example, abolished the
requirement for a person to obtain the Attorney-General’s fiat before suing the
Republic. The Constitution provides that
where a person has a claim against the Government, that claim may be enforced as
of right by proceedings taken against the Government for that purpose without
the grant of a fiat or the use of the process known as petition of right.[5]
Therefore, where a person has a claim against the Government, that claim may be
enforced as of right by proceedings taken against the Government for that
purpose. This principle and its historical antecedents were exhaustively
explained in a recent case.[6]
The State Proceedings Act[7] also provides that civil
proceedings by or against the Republic shall be instituted and proceeded with
in a court in accordance with the Rules of Court applicable to proceedings
between private persons. That notwithstanding, the same law states that a
person who intends to institute civil action against the Republic should give
the Attorney-General a written notice of that intention, at least, thirty days
before the commencement of the action. However, the law goes on to water down
the requirement of notice by providing that where a party fails to give the
Attorney-General the statutory thirty days’ notice before suing the Republic,
the court shall not dismiss the action but direct the person suing to give the
Attorney-General the requisite notice and adjourn the case accordingly. By this
provision, therefore, the Attorney-General’s fiat of old which was a mandatory
prerequisite for instituting an action against the Republic has been abolished.
A person’s action will not be dismissed by reason only that they failed to give
thirty days prior notice to the Attorney-General.[8]
Does the 1992
Constitution support the continued existence of the one month notice
requirement under Act 32?
In the light of the above, it is submitted that the one month
notice-before-action requirement still etched in Act 32 cannot be justified in
the light of the Constitution. It must be noted that the one month notice
provision in Act 32 has the same historical antecedents as the State
Proceedings Act of old.[9] Upon the coming into force of the 1992 Constitution,
the Parliament saw the need to make citizens’ right to sue the government more
realistic by removing the difficulties blocking such actions. It is rather
unfortunate that almost 30 years into the 4th Republic, lawyers are being
denied the right to sue as of right to recover their legitimate fees for legal
services they have rendered to their clients.
It has been observed that in all the cases that have been
argued before the courts thus far[10], the issue of the constitutionality of
the strict application of the notice requirement in its pristine form has not
been raised. Perhaps, when next a lawyer sues a client to recover legal fees
due and owing, the non-compliance with the one month notice condition will not
nullify the writ but the lawyer may be granted leave to give notice to the client
for the matter to be heard on its merit. Parliament can also act proactively by
passing a more progressive law in place of Act 32 as it did with regards to Act
51 to make equality before the law a real right enjoyed by all citizens,
including lawyers.
Conclusion
The one month’s notice to the Attorney-General regime in
suits against the Republic has been
whittled down and literally done away with under Act 555. It is, therefore,
unacceptable that the analogous provision in Act 32 is made to stand to frustrate
the efforts of lawyers who are fighting to recover their just fees from
absconding clients.
As was observed by a learned judge in a recent case, it
appears the law’s intention is to protect some seemingly supine client. It
bears noting, however, that now legal services are not rendered to only
seemingly illiterate and panicky rural folks but to highly resourced companies
and individuals alike. It is the latter who, when they get the results they
need from the lawyer’s services, adopt a “catch-me-if-you-can” attitude with
the sole aim of frustrating the lawyer from recovering their fees. Lawyers’
lives matter!
FOOTNOTES
[1] Section 30 of the Legal Profession Act, 1960. It
is one of the very first Acts passed by Parliament when Ghana first became a
Republic on 1st July, 1960. The Act was assented to on 12th January, 1961. The
Act, though approaching its 60th birthday, has its provisions remaining largely
intact, save for some minor amendments in 1963, 1964, 1966, 1967, 1969, 1972
and 1979.
[2]Ayarna & Another v. Agyemang
& Others (1976)
1 GLR 306
[3] See also: Nartey v. Gati [2012]
1 SCGLR 745; Gaisie Zwennes Hughes & Co. v Loders Crocklaan
BV [2012] 1 SCGLR 363 and Gbertey v Accam & Another [2013]
Civil Appeal No. J4/4/2011 dated 10th April, 2013 SC
(unreported). In the Gbertey case, the Supreme Court held,
stating the reason for its judgment as follows: “This decision by the Court of
Appeal follows the jurisprudence of the Supreme Court that the non-compliance
with a mandatory statutory requirement invalidates the writ of summons on which
proceedings in a matter were based. See Republic v. High Court, Accra,
Ex-parte Allgate Co. Ltd. [2007-8] SCGLR 1041. This Court has over
time enforced the requirement of section 30 of the Legal Profession Act in
cases such as Ayarna v. Agyemang [1976]1GLR 306, Nartey
v. Gati [2010] SCGLR 745 and more recently in Gaisie Zwennes
Hughes &Co v Loders Crocklaan BV, Civil Appeal 1/24/2011,
unreported dated 1st February, 2012. The Court of Appeal was therefore bound by
Article 129 of the 1992 Constitution to follow the decisions of the Supreme
Court on a question of law.”
[4] 1992 Constitution of the Republic of Ghana;
Article 17(1).
[5] Article 293.
[6]Republic v High Court, Accra ( Fast
Track Division) Accra; Ex parte Attorney-General (Maud Nongo Interested
Party) [2013-2014]
SCGLR 70, by the venerable Date-Bah, JSC in his usual insightful and thorough
style.
[7] Section 8 of the State Proceedings Act, 1998
(Act 555).
[8]It is for this reason that the Supreme Court’s
conclusion that the Garnishee Order Absolute obtained against Ghana National
Fire Service in the Maud Nongo case be quashed for the reason
that the Respondent as judgment-creditor had failed to obtain a Registrar’s
Certificate in accordance with section 15 of the State Proceedings Act, 1998
(Act 555) is problematic. Act 555 does not invalidate a writ issued by a
plaintiff without the statutory thirty days’ notice; it grants a court the
right to adjourn proceedings to enable the plaintiff serve the notice on the
Attorney-General. By the same token, the Supreme Court should not have quashed
the Garnishee Order Absolute; the Court should have stayed execution and
ordered the judgment-creditor to obtain the Registrar’s Certificate within a
stipulated time before proceeding with the execution. The final order quashing
the Garnishee Order Absolute made nonsense of the fine exposition of law made
by His Lordship and stating that the “purpose was to make the liability of the
Republic as near as possible to that of a private person.” Considering the
time, resources and industry that attend litigation practice, rulings such as
this are rather stifling and unprogressive.
[9] State Proceedings Act, 1961 (Act 51).
[10]See note 3 supra.
