Ayarna & Anor. v. Agyemang & Ors. [1976] 1 GLR 306.

AYARNA AND ANOTHER v. AGYEMANG AND OTHERS [1976] 1 GLR 306

COURT OF APPEAL

APALOO, ARCHER AND ANIN JJ.A.

STATUTORY REF.
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JUDGMENT OF APALOO J.

Apaloo J. delivered the judgment of the court. The respondents (hereafter called the plaintiffs) are all qualified lawyers and were enrolled under the Legal Profession Act, 1960 (Act 32), to practise their profession. The appellants, i.e. the defendants, are father and son and both seemed to be in business of some sort in or about 1973. Some time that year, the first defendant was charged with subversion and pending trial, was kept in custody. The offence was one which carried the death penalty. As was only to be expected, he was desirous of being defended by a lawyer of his own choice.

As he was himself in custody, he seems to have asked his wife to brief counsel on his behalf. The first plaintiff was accordingly instructed on behalf of the first defendant. It is only natural that there should be some discussion about professional fees but it is clear no sum was agreed between Mrs. Ayarna and the first plaintiff. At Mrs. Ayarna’s request, the first plaintiff interviewed the first defendant in custody and the latter was agreeable that the first plaintiff should represent him. He expressed completed confidence in him. Although they are now in serious disagreement on matters to be presently mentioned, the evidence suggests that the first plaintiff’s professional performance at the trial met with the first defendant’s complete satisfaction.

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It is obvious that a charge of this gravity required the services of more than one lawyer and it seems clear that the second plaintiff was also instructed by the first defendant’s wife to join in the defence. He agreed and the documents, exhibited in evidence, show that he was also formally approved by the first defendant.

Although two other lawyers joined in the defence of the first defendant, both the first and second plaintiffs seemed to have had the conduct of the case. Both are lawyers of recognised standing and experience. As we said, two other lawyers were announced as appearing for the first defendant. The latter said they were not briefed by him and were not instructed on his behalf by his wife. It was suggested that the third plaintiff came in to assist and did so merely on grounds of friendship. The fourth plaintiff is the younger brother of the first plaintiff and shared his chambers. It was suggested on behalf of the defendants that he entered into the team at the behest of his brother. The first defendant denied that he contracted with them and was legally liable to pay them fees.

In view of the course this case took and which we are soon to relate, these matters were not investigated.

As we said, the second defendant is the natural son of the first defendant. He was not charged with any offence and did not require legal professional services as such. He appears to have been brought into the picture to help secure funds to meet his father’s professional fees. He seems to have had the full authority of the first defendant to do this, and if need be, to dispose of the first defendant’s landed property which was acquired in his name. He met with no success. Mrs. Ayarna was more successful. She was able to raise ¢4,000.00; ¢3,000.00 of this was paid to the first plaintiff and ¢1,000.00 was handed to the second plaintiff. The evidence shows that the second defendant made attempts to dispose of the first defendant’s house at Kotobabi to meet the payment of counsel’s fees. Again he was unsuccessful.

On 5 November 1973, both defendants signed a promissory note to pay the sum of ¢50,000.00 to the plaintiffs within fourteen days. It is common ground that this note was drafted by the second plaintiff and presented first to the second defendant for signature. He seems to have evinced some reluctance in executing it. It was then submitted to the first defendant who signed it. This was during one of the many recesses during the course of the trial. Thereafter, the note was also signed by the second defendant. There was some question whether they did so as free agents or were under some sort of moral coercion to do this. For present purposes, this issue is unimportant. It seems clear, however, that the plaintiffs could not have believed that this promise could be met, at any rate during the time stipulated. The first defendant himself was in custody and his assets were frozen. The second defendant was not able to raise a pesewa towards the payment of the fees and it is unlikely that the plaintiffs would have believed he could raise ¢50,000.00 within a fortnight. That being so, one may well wonder why the plaintiffs suggested the preparation of this note and why they felt prepared to accept it. One redeeming feature of this case is that this note was not negotiated to any holder for value and the legal argument which turns on this bill of exchange, is not complicated

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by any third party rights. The reason why the plaintiffs took this promissory note in payment of their fees became apparent from the steps they took to enforce it.

On the same day that the promissory note was executed, the defendants also appended their signatures to a letter of that date prepared by the plaintiffs. By that letter, the defendants undertook to deposit the title deeds of three buildings owned by them with the plaintiffs. The last paragraph of that letter authorised the plaintiffs to dispose by way of sale of so much of such properties as would meet the obligation incurred by them on the promissory note in the event of it not being met on due date. The second defendant seems to have delivered the title deeds of his house at Kotobabi to the second plaintiff in pursuance of this agreement.

These securities were not the subject of any matter debated before the court below or before us. The plaintiffs did not apparently seek to enforce them. On 24 November 1973, the second defendant executed a power of attorney in favour of the first and second plaintiffs in which he empowered them to take possession, sell, mortgage or otherwise dispose of his house at North Nima. It seems clear that the amount realised therefrom was intended to be used in paying in whole or in part the defendants’ indebtedness to the plaintiffs on account of their professional charges. The latter seem to have instructed an auctioneer to dispose of this property. The second defendant’s reaction to this was to submit a complaint to the Judicial Secretary and the object of that complaint, if its heading is any index to the latter’s intention, is to secure the reduction and arrangement for payment of legal fees.

The second defendant in that letter alleged, in substance, that the first and second plaintiffs took unfair advantage of them and sought by pressure and victimisation to extract from them, by use of their expert legal knowledge, the sum of ¢50,000.00. He made other factual averments which threw discredit on the plaintiffs and touched on their professional integrity. These letters were copied to both plaintiffs and they both replied in great detail and related their version of the facts. They both denied that they had been guilty of any misconduct in a professional respect and were indignant at the apparent ingratitude of the second defendant. The second defendant’s complaint was referred to the disciplinary committee of the General Legal Council in accordance with section 18 of the Legal Profession Act, 1960 (Act 32). The evidence shows that that committee felt that an inquiry should be held into the complaint. It, however, did not hold one for reasons which are immaterial for present purposes.

On 8 August 1974, the plaintiffs caused to be issued against both defendants, a specially endorsed writ in which they claimed the sum of ¢50,000.00 due on the promissory note with interest. In due course, they moved for judgment under Order 14, r. 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), and in a supporting affidavit sworn to by the first plaintiff, the basis of the defendants’ indebtedness was rested solely on the promissory note of 5 November 1973. Both defendants resisted summary judgment and filed affidavits in opposition purporting to show reasons why they should be granted leave to defend. We will soon

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relate the grounds they urged in opposition to the plaintiff’s claim. This suit came before Andoh J. on 20 September 1974 and when he was apprised of the matter pending before the disciplinary committee, he ruled that the court proceedings be stayed indefinitely until that domestic tribunal disposed of the complaint before it. We think the course the learned judge took was unexceptionable and we are most impressed with the reasons he gave for his ruling. We think it a great pity that that committee did not investigate the complaint as it purposed to do and which section 18 of Act 32 obliged it to do. Had it done so, we would have been in a position to state the true facts of this case with greater precision than we are able to do at present.

As the disciplinary committee did not determine the second defendant’s complaint, the plaintiffs’ legal claim on the promissory note was returned to court. This time, the suit came before Aboagye J. The defendants acting by different lawyers, filed affidavits and relied on a number of matters and contended that those facts raised triable issues and that they be let in to defend. In sum, the defendants argued that notwithstanding the form of the plaint, it was in reality a claim for legal fees and that the plaintiffs were obliged by section 30 of the Legal Profession Act, 1960, to serve a bill on them for a period of one month as a condition for the institution of the proceedings and as this had not been done, the suit was irregularly commenced and ought to be dismissed in limine. Secondly, the defendants contended that the promissory note was secured under duress and undue influence.

The proceedings show that the plaintiffs’ answers to the contentions raised on behalf of the defendants were, firstly, that this was purely an action on the promissory note and since it was a sort of bill of exchange, the only legal defences open to the defendants were either a plea of illegality or total failure of consideration. They denied that the defendants could properly rely on section 30 of the Legal Profession Act, 1960, because, as they put it, “that Act applied only where there was no previous agreement to pay fees.” The defence of duress was answered by the contention that by the defendants’ own showing, the only threat alleged to have been uttered by the plaintiffs was their intention to withdraw from their defence and this was not duress in law neither did it amount to undue influence.

On the main plank on which the plaintiffs rested their case, namely, that this was an action pure and simple on a promissory note, the learned judge in his ruling reported sub nom. Agyemang v. Ayarna [1975] 1 GLR 149 found against them. He went behind the form and looked at the substance of the transaction and expressed his concurrence with the defendants’ contention on this point. Consistently with that view, he rejected a claim for interest which the plaintiffs would otherwise have been entitled to if it had been an action on a bill of exchange pure and simple. He also set off against the claim, the ¢4,000.00 which had been paid to the plaintiffs by the first defendant’s wife.

As to whether the plaintiffs were obliged to file a bill as a statutory pre-requisite to the institution of the suit, the judge found for the plaintiffs. In his view, the plaintiffs’ obligation to comply with section 30 of Act 32

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by delivering a bill of fees arose only in those cases, where “a legal practitioner has done some legal work for a client without a prior agreement as to the fees to be paid.” Since in this case fees were agreed between lawyers and clients, the former were entitled to commence an action in court for the recovery of the agreed fees. He also found against the defendants’ claim of duress and held that since the alleged threat only consisted in an announced intention to withdraw their professional services, none was shown inasmuch as the plaintiffs were entitled to so withdraw. The judge disposed of the defendants’ claim of undue influence in a few words. He dismissed it mainly on the ground that no particulars of it were given nor was it shown that the plaintiffs were aware of the facts on which this equitable defence was grounded.

Accordingly, the judge declined to grant leave to the defendants to defend the action on the merits and proceeded to enter judgment against them with costs.

The defendants asked us to vacate that judgment on the ground that the learned judge should have dismissed the suit in limine for the plaintiffs’ failure to comply with section 30 of the Legal Profession Act, 1960 (Act 32), or at any rate, he should have granted leave for the questions of undue influence and whether any contractual relationship exists as between the defendants and the third and fourth plaintiffs to be determined on the merits. On the question of the applicability of the Legal Profession Act, 1960, it was argued for the defendants that the true object of section 30 of Act 32 is to enable the court to oversee and supervise the charging of professional fees if a dispute arises between a lawyer and his client as to the quantum or propriety of the fees charged and that the judge’s construction of the section was unduly restrictive and frustrated the object of the statute.

This is a serious submission and deserves to be closely examined. The section whose construction was in question, i.e. section 30, provides in so far as material that:

“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 . . .”

(The emphasis is ours.) Section 31 entitles the person to be charged, within one month of the compliance with section 30, to apply to the court and the court may refer the bill and the demand of the lawyer to be taxed. Section 28 of the Act disables a lawyer from recovering more costs than is allowed on taxation and in deciding on this the court will have regard to the skill, labour and responsibility involved.

A consideration of Part IV of the Act dealing with the employment of lawyers and Part V which deals with the recovery of fees, seem to us to lend support to the defendants’ contention on the true legislative policy on this subject. Quite clearly, the section does not limit itself to fees that have not been agreed upon and there is no reason why only fees that have not been agreed can be the subject of the lawyer’s bill. Indeed if a lawyer’s bill its breakdown and on taxation, showed the lawyer claiming an

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amount for costs more than he was allowed by the court, then section 28 disables him from recovering the excess.

The fact that a court of justice always sets itself as an arbiter between lawyers who are its own officers and lay clients to ensure that the fees demanded of the latter by the former are fair and reasonable, has its basis in the common law. For instance, in Clare v. Joseph [1907] 2 K.B. 369 at p. 376, C.A., Fletcher Moulton L.J. observed that the courts view agreements fixing amount of fees with great jealousy and would be slow to enforce such agreement where it was favourable to the solicitor, unless satisfied that it had been made in circumstances precluding any suspicion of an improper attempt to gain a benefit at the client’s expense. In Saunderson v. Glass (1742) 2 Atk. 296, Lord Hardwicke L.C. expressed the same principle, perhaps with great clarity. He said at p. 298:

“It is truly said at the bar, that a security obtained by an attorney, whilst he is doing business for his client, or whilst a cause is depending, appears to this court in quite a different light than between two common persons; for if an attorney, pendente lite, prevails upon a client to agree to an exorbitant reward, the court will either set it aside entirely, or reduce it to the standard of those fees to which he is properly entitled; and this was the rule that weighed with me in Walmesley v. Booth . . . and if the court did not observe such a rule, it would expose clients very much to the artifices of attorneys . . .”

The solicitude shown by the English courts, in protecting lay clients from the payment of exorbitant fees, is shared by the courts of this country. In the local case entitled In re Allegation of Professional Misconduct against Obetsebi-Lamptey, Divisional Court, Accra, 13 January 1956, unreported where the respondent, a lawyer, who appeared for the Tema stool in the Tema Acquisition Enquiry, submitted a bill to the stool for £9,148 being twenty per cent of the sum of £45,743 awarded by government to the stool and its subjects, the Divisional Court of three judges presided by Wilson C.J. found him guilty of professional misconduct under section 65 of the Legal Practitioners Ordinance, Cap. 8 (1951 Rev.), and, inter alia, observed:

“In respect of our findings above that the charges made were grossly excessive and exorbitant, we would add that we think them so grossly excessive as to amount to fraud, especially having regard to the facts that the clients concerned were largely illiterate persons, ignorant of the law and their rights under it as regards taxation of costs in respect of fees claimed from them . . . we consider that it is the duty of legal practitioners in this country to safeguard the interests of their clients and not to exploit them.”

It seems therefore that the protection of clients by the courts from paying exorbitant fees to lawyers, quite apart from any legislative provisions, has its roots in the common law. The interpretation of section 30 which commends itself to the judge, introduces into the section, a qualification which is not there and involves the acceptance of an unexamined contention proffered on behalf of the plaintiffs. The judge cited no

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authority for the interpretation which he accepted, neither did he appear to have examined the policy objective of that section and the whole part of the Act dealing with employment of lawyers and the recovery of fees. It is not even a literal interpretation of the section. The judge’s view is that once the lawyer and the clients have agreed on the fees, compliance with the mandatory provision of section 30 of Act 32 is dispensed with. Accordingly, if in this case the agreement for fees had been say, ¢500,000.00 instead of ¢50,000.00, once the parties had agreed to this, the lawyers would have been within their rights to commence proceedings. Nothing could be more subversive of the true intention of the section. We think such a construction runs a pencil through a legislative enactment which has protection to the client as its main object. In our judgment, compliance with section 30 of the Legal Profession Act, 1960, is a mandatory pre-condition for the agitation in court of a suit for recovery of lawyer’s fees. We think the judge’s construction was wrong.

The view of this matter which appeals to us is supported by a number of cases decided on comparable legislation in England. The Attorney’s and Solicitors’ Act, 1843 (6 & 7 Vict., c. 73), seems to be the remote statutory predecessor of our Legal Profession Act, 1960 (Act 32). Section 37 of the English Act prohibits an “Attorney or Solicitor” from maintaining an action for “any fees, charges, or disbursements for any business done by such Attorney or Solicitor ... until he shall have delivered to the party to be charged a bill ... for one month ...” Other provisions of that legislation appear in the remaining sections of Part V of our Act. In Eicke v. Nokes (1834) 1 M. & Rob. 359, the plaintiff claimed on an assumpsit for work and labour as attorney, for money lent and an account stated. The plaintiff gave in evidence the last examination of the defendant under a commission of bankruptcy which had been issued against him in which a sum was stated to be due to the plaintiff for work done as attorney for the defendant. It was held that while the entry in the bankrupt’s last examination amounted to an admission of the debt, as the real cause of the action was the amount of the attorney’s bill of costs, the plaintiff could not recover without proof of having delivered his bill as required under the statute. The court observed perhaps significantly at p. 362 that “the protection intended to be given to clients under the statute would otherwise be perpetually evaded by loose evidence of admissions.”

An identity of reasoning informed a number of the other later decisions. In Scadding v. Eyles (1846) 9 Q.B. 858 and in Brooks v. Bockett (1847) 9 Q.B. 847, where actions were brought by solicitors for accounts stated, it was held to be a good defence that the account was stated solely of and concerning charges for work done as attorney and that no bill was delivered as statutorily required. In the first of the two cases, i.e. Scadding v. Eyles, counsel for the plaintiff sought to argue that where the account between attorney and client had been settled without taxation, that changed the nature of the debt and the requirement of a bill was no longer necessary. Patteson J.’s answer at p. 861 to this was that: “If it be held that, in an action for attorney’s charges, when the defendant takes issue on the account stated, the plaintiff may prove his case by admission, the rule as

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to taxation [under the statute] is defeated.” Lord Denman also added at pp. 861-862: “The Act, of Parliament, so far, becomes useless . . . I think there can be no doubt that the legislature intended to have these bills taxable and examinable in all cases.” In the Brooks v. Bockett case Lord Denman C.J. (arguendo) thought that if by the mere assent of a client to his attorney’s charges, the nature of the debt were altered, there would be very few declarations on attorney’s bills, for it would be easy to show that the client looked at the bill and assented and the action would be brought on the account stated. But the statute could not be so dispensed with.

There is no need to multiply case law on this point. We think the judge’s view at p. 151 that: “Part V of the Act 32 [comes] into play when a legal practitioner has done some legal work for a client without a prior agreement as to the fees to be paid,” is not warranted either on principle or authority. Inasmuch as the plaintiffs sought the coercive power of the court to recover fees for work done by them as lawyers, they must comply with the mandatory provisions of section 30 of the Legal Profession Act, 1960, antecedently to the commencement of litigation. It is conceded that they did not do so and were accordingly not entitled to the court’s assistance. In our opinion, the contention of the defendants on this point was right and ought to have been upheld.

This holding is sufficient to conclude this appeal in the defendants’ favour but the plaintiffs pressed before us a submission which they urged unsuccessfully in the court below. They argued that the claim was founded solely on the promissory note and that this being an action on a bill of exchange the provisions of the Legal Profession Act, 1960, were inapplicable. The judge disagreed. He held that the real substance of the action was a claim for the recovery of legal fees and had he put the correct interpretation on section 30 of that Act, he would have had no alternative but to dismiss the action in limine. It was because the judge regarded the suit in this light that he deducted from the amount claimed, the ¢4,000.00 which has already been paid to the plaintiffs on account of their fees and also denied them interest. If the plaintiffs had felt aggrieved about this they, more than anyone else, know the procedure by which they could have that holding reversed. Fully cognisant of the basis on which the judge entered judgment in their favour for ¢46,000.00 instead of the ¢53,906.00 they claimed, they were content and only appeared before us to support the judgment in their favour.

Notwithstanding this procedural inadequacy on the part of the plaintiffs, we propose to examine the argument they urged unsuccessfully on the nature of the action in the court below and which they again reiterated before us. There is justice to the lawyer as well as to the client and it would be wrong to deny examination of an argument on which they seemed to have believed especially as that contention appears to have found favour in some of the older English cases. That argument as Mr. Campbell, counsel for the plaintiffs, put forward in the court below, was simply this: Reliance on section 30 of the Legal Profession Act, 1960, was wrong and confused the basis of the action. It was based on a

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promissory note. This was a bill of exchange and no valid defence can be made to it save illegality and total failure of consideration.

The fact that this note was taken by the lawyers in satisfaction of their fees was not in dispute. Indeed it was taken when it became clear that the first defendant was facing difficulty in raising funds to meet the payment of the professional charges. When the latter sought to assure the lawyers that he meant well and was willing to make any document to assure them of this, accordingly to the statement of the first plaintiff: “Mr. Zwennes [i.e. the second plaintiff] then suggested a promissory note would be satisfactory.

Mr. Ayarna meaning the first defendant] said we should prepare one for them to sign.” The second plaintiff in fact prepared the promissory note which, as we said, was jointly signed by both defendants. Accordingly, this contention can be disposed of simply by holding that to accede to this argument would frustrate the real object of the Act. The court ought to look beyond the facade created by the promissory note. But some of the older cases decided in England seem to lend support to the contention that it is no answer to an action on a promissory note that it was given on account of a attorney’s bill not delivered pursuant to the Attorney’s and Solicitors’ Act, 1843. One such case is Jeffreys v. Evans (1845) 14 M. & W. 210. In that case the plaintiff, a solicitor, claimed on a promissory note given by the defendants payable to the plaintiff or his order with interest, three months after that date. The defendants’ plea was that part of the amount claimed was fees for work done by an attorney and that the Act of 1843 required the delivery of a bill before such fees could be claimed. The court found against that plea and gave judgment for the plaintiff. This case was decided in June 1845 and Parke B. and Pollock C.B. gave disparate reasons. When it was submitted that the suit was in reality for fees as envisaged by the statute, Pollock C.B. said: “No, he is suing on the security given him which must be considered as having been given in discharge of so much of his bill.” Parke B.’s reason seems to be that the statute does not prohibit a bill given by way of payment for such fees. So while Parke B. thought that a bill given in such circumstances amounted to payment and took the matter out of the statute, Pollock C. B. considered the bill had this result because it amounted to security for the payment. The latter judge’s view is at great variance with the former because while the latter envisages the defendant being able to apply to have the bill taxed, the former thinks giving the bill simply puts the matter beyond the purview of the statute.

This case seems to have been endorsed in the later case in Thomas v. Cross (1864) 11 L.T. 430. This was a suit by a solicitor for foreclosure against his client, the mortgagor, and subsequent encumbrancers. The mortgage had been granted in consideration of a debt and certain costs, charges and expenses owing from the defendant to the plaintiff. A decree was made in favour of the plaintiff directing an account of what was due under various heads save everything with respect to costs secured by the mortgage on the ground that there was no antecedent delivery of bills as required by the statute. On appeal, it was held that the statute did not

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apply inasmuch as the granting of the mortgage was the result of a separate contract. Lord Westbury L.C. observed, inter alia, at p. 432:

“But when a suit is brought upon another contract, into which the client has deliberately entered, and which he need not have entered into until he had ascertained the amount of costs and charge, ... due from him, there is nothing in the statute that was intended by the Legislature to apply, and nothing that fairly construed can be taken to apply to a prohibition of any suit or action to enforce that new contract, that distinct collateral agreement, arising, it is true, out of the original relation, but at the same time being a legal proceeding for the purpose of getting the benefit of an altogether different contract and engagement.”

The Lord Chancellor seems to have accepted Pollock C.B’s view as the principle in Jeffreys v. Evans (supra) as he insists that granting a mortgage was a separate contract. The statute, however, does not specify only the original contract to pay fees as the one which is unenforceable until a bill is delivered.

We should have thought the object of the Act would be better achieved by according protection once payment of fees is being sought to be enforced by the solicitor in situations other than those in which a balance of accounts has been struck and security given in relation to that balance. These cases seem to emphasise the form rather than the substance of the transaction and as both Jeffreys v. Evans and Thomas

    1. Cross involved amounts other than fees, the decisions can better be explained on those grounds.

In any case, even if granting of a mortgage is regarded as a separate transaction, would the signing of a promissory note be regarded as a distinct collateral agreement? We do not think so. The promissory note in this case was given when the only account between the parties was lawyer’s fees. If contrary to our view, the giving of the promissory note is to be taken as a distinct transaction from the original contract for fees, then since there is a relationship of lawyer and client, it must be established that the execution of such note does not operate to the advantage of the lawyer in a way that the client was unaware of.

Jeffreys v. Evans and Thomas v. Cross seem to be at odds with the other of the decisions which looked at the substance, once it became clear that the real claim was lawyer’s fees, and insisted on the prior delivery of a bill, no matter in which form the claim is couched: see Eicke v. Nokes (supra), Scadding v. Eyles (supra) and Brooks v. Bockett (supra). A much later decision which emphasised the substance rather than the form of the solicitor’s claim is the English Court of Appeal decision in Ray v. Newton [1913] I K.B. 249, C.A. It was there held (as stated in the headnote) that: “A solicitor cannot evade his obligation to deliver a bill of costs by taking a bill of exchange from his client for an agreed amount.” Farwell L.J. made observations particularly pertinent to this case. He said at pp. 255-256:

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“Under the statutory jurisdiction the solicitor is bound to render a bill of costs to his client, and his client is entitled to have the bill delivered under the common order to tax; no special circumstances are required. The solicitor may avoid the stringency of that liability in various ways; and one is by taking payment from his client. A bill of exchange is not payment; it is only conditional payment. The solicitor cannot in my opinion escape from the Act by taking a bill of exchange from his client. The bill of exchange is simply a means of giving him a summary remedy under the Bills of Exchange Act. But the substance underlying the bill of exchange is left untouched, and that in this case is the solicitor’s bill. Under the old procedure, if there was no defence at law, the circumstances of this case would undoubtedly have created an equity, by virtue of which the Court of Chancery would have restrained the action at law on the bill; or would have restrained the solicitor from so negotiating the bill as to give rights to a purchaser for value without notice, who might defeat the equity or the statutory right which the client had under the Act. I think it would be exceedingly wrong to give any encouragement to the idea that a solicitor can evade these Acts by taking a bill of exchange from his client.”

These observations were made under the Attorneys’ and Solicitors’ Act, 1870 (33 & 34 Vict., c. 28), legislation which is in pari materia with our Legal Profession Act, 1960. We think this is the substantial rather than the formal approach to the problem and accords with our own view of the legislative restraint on suits by lawyers who seek to invoke the exercise of judicial power to recover professional charges and costs. Although the judge below did not examine this aspect of the case in depth, inasmuch as he thought that he should go behind the promissory note and discover the real object of the suit, we share his conclusion.

Perhaps it would be well if we point out that the immediate statutory predecessor in this country of the Legal Profession Act, 1960, is the Legal Practitioners Ordinance, Cap. 8 (1951 Rev.). Subject to variations necessitated by local circumstances, that legislation was in the main, modelled on the 1843 English Act. The Ordinance became law in this country on 9 April 1931. Part III of the Ordinance regulates the employment of legal practitioners and Part IV deals with the recovery of fees by lawyers. With a few exceptions, the main provisions of that Ordinance were re-enacted in the 1960 Act. In particular, section 30 whose construction was in issue, merely reproduces section 22 of the Legal Practitioners Ordinance. This shows that at least since 1931 if not earlier, the legislature intended that the employment and remuneration of lawyers should be under the watchful eye of the courts and that in particular, any dispute about professional remuneration should be settled by or under the supervision of the court. It follows from this that this country is not bound by the traditions and practices prevailing in any foreign country.

We find against the contention that section 30 of Act 32 cannot be invoked because the action was professedly brought under the promissory

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note. Our judgment is that the action which culminated in this appeal, was instituted without complying with the mandatory provisions of section 30 of the Legal Profession Act, 1960, and was, on that account, incompetent.

The defendants also invited us to say that there was placed before the court, evidence which entitled them to have the issue of undue influence gone into, and the court was in error in refusing to grant them such leave. We see some force in this complaint. With regard to the first defendant, the relationship of solicitor and client was clearly established between him and the first and second plaintiffs. Although he required their services, he was not free to contract himself. He was in custody, and his wife acted as his agent for instructing the first and second plaintiffs. The making of the promissory note was suggested by the plaintiffs and prepared by them. It certainly was not explained to him that the plaintiffs themselves were under an obligation to serve him with a bill of costs which he could have had examined by taxation. The note itself was signed while the case was in progress and when it was said the plaintiffs would withdraw their services in default of his signing. He certainly did not have independent legal advice and it cannot be said that in signing the promissory note, the parties were at “arm’s length.” In considering this type of case, the principle is that where the circumstances show that one party is in a position to take advantage of his own knowledge and the other party’s ignorance, the burden falls on the stronger party to rebut the presumption of undue influence. We do not suggest that the plaintiffs may not be able to show that the transaction was scrupulously fair and that a court of equity, after examining all the circumstances, would exonerate them from any suspicion of unfairness. At the stage where the matter reached, there was evidence which if not answered, lent itself to the inference of undue influence and we think leave should not have been refused: see Allcard v. Skinner (1887) 36 Ch.D. 145, C.A. and McMaster v. Byrne [1952] 1 All E.R. 1362 at pp. 1368-1369, P.C.

Although no strict relationship of solicitor and client existed between the plaintiffs and the second defendant, his interest was so tied with that of the first defendant that the observations we made above, should apply to him. Apart from anything else, the second defendant said he signed the promissory note on pressure from his father. Voluntary transactions between parent and son are one of those that attract the presumption of undue influence. There is evidence that he exhibited a disinclination to execute the note and did so only after it was signed by his father. The plaintiffs were aware that the second defendant is the son of the first defendant and indeed that was the only reason why he got involved with them. They rendered him no services for which he became liable to pay them fees. Quite clearly, the ¢50,000.00 which he obliged himself to pay was in respect of services rendered to his father, the first defendant.

Again we accept that the very circumstances of this case raise the presumption of undue influence and an opportunity should have been given for the plea of undue influence to be investigated.

The defendants also complained that as there was no privity of contract between themselves and the third and fourth plaintiffs, they incurred no

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obligation to pay them professional fees and that they provided sufficient material to entitle them to have leave to defend on this score also. We think so. The evidence produced shows that the first defendant’s wife instructed on behalf of her husband, only the first and second plaintiffs. The third plaintiff was said to have come into the case as a friend of the family. He was not retained. The fourth plaintiff is a brother of the first plaintiff and was a junior in his chambers. Accordingly, the appearance of the third and fourth plaintiffs and their activities in connection with the trial were explainable on a basis other than a contract by the first defendant to hire them. There is also the fact that the power of attorney executed by the second defendant to enable the lawyers to dispose of the Nima house and thus realise their fees, was only given in favour of the first and second plaintiffs. The only real link between the defendants and the third and fourth plaintiffs is the promissory note in which their names appear jointly with those of the first and second plaintiffs as promisees. Neither the third nor fourth plaintiff deposed to any facts which suggest that the defendants had entered into any contract for rendering of professional services by them. We think on this question also, there was a triable issue entitling the defendants to be let in to defend. The learned judge made no pronouncement on the question and clearly overlooked it. Had we decided the issue of the legislative interpretation adversely to the defendants, we would still have ordered this suit returned to the court below for the issues of undue influence and privity of contract to be determined on the merits. It is not now necessary.

Before we part with this case, we cannot but express our disappointment at the fact that the disciplinary committee did not feel able to determine the second defendant’s complaint especially as it must have been informed that a court of justice stayed the hearing of the action until it concluded its intended hearing. In view of the imputations cast on their professional integrity, it would have been the more desirable course to deal with the disciplinary aspects of the case before pronouncing on the plaintiffs’ rights to fees. We feel no doubt that given a choice between their reputations as men of honour and that “sordid” thing called money, the plaintiffs would choose the former. That is why we are distressed at the turn of events both before the disciplinary committee and the court below. We can only hope that the plaintiffs would feel that their interests are best served by submitting to the jurisdiction of the disciplinary committee and refuting any charges of misconduct that may be levelled against them there.

Our conclusion is that as the plaintiffs did not set on foot a competent action, their claim ought to be dismissed on that ground. For that reason, we allow the appeal and set aside the judgment of the court below with costs here and below.

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