HIGH COURT, ACCRA
Date: 20 JANUARY 1975
ABOAGYE J
CASES REFERRED TO
(1) Scott v. Sebright (1886) 12 P.D. 21; 56 L.J.P. 11; 57 L.T. 421; 35 W.R. 258.
(2) Hussein v. Hussein [1938] P. 159; [1938] 2 All E.R. 344; 107 LJ.P. 105; 54 T.L.R. 632; 82 S.J. 336.
(3) Board of Directors of Orthodox Secondary School of Peki v. Tawlma-Abels [1974] 1 G.L.R. 419, C.A.
(4) Hardie and Lane, Ltd. v. Chilton [1928] 2 K.B. 306; [1928] All E.R. Rep. 36; 97 L.J.K.B. 539; 139 L.T. 275; 44 T.L.R. 470, C.A.
(5) Biffin v. Bignell (1862) 7 H. & N. 877; 31 L.J.Ex. 189; 8 Jur. (n.s.) 647; 6 L.T. 248; 10 W.R. 322.
(6) Latter v. Braddell (1881) 50 L.J.C.P. 166; 44 L.T. 369; 45 J.P.520, C.A.
(7) Lancashire Loans, Ltd. v. Black [1934] 1 K.B. 380; [1933] All E.R. Rep. 201; 103 L.J.K.B. 129; 150 L.T. 304, C.A.
NATURE OF PROCEEDINGS
APPLICATION for leave to enter final judgment under Order 14, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A). The facts are fully set out in the judgment.
COUNSEL
U. V. Campbell for the plaintiffs.
F. A. Attoh for the first defendant.
R. I. Quansah for the second defendant.
JUDGMENT OF ABOAGYE J.
By their specially endorsed writ the plaintiffs herein claim against the defendants jointly and severally ¢50,000.00 on a promissory note made by the defendants on 5 November 1973, payable to bearer fourteen days after the date of the said promissory note. The plaintiffs also claim interest on the ¢50,000.00 from 1 December 1973 to 9 August 1974, the date on which the writ herein was issued, at the rate of twelve and a half per cent and further interest of twelve and a half per cent from the date of the issue of the writ up to the date of judgment. The plaintiffs have taken out summons for judgment for ¢53,906.00 under Order 14, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
The defendants have opposed the application for judgment. The opposition of the first defendant is based on two grounds, namely:
“(1) That what the plaintiffs are in fact claiming is their professional fee for legal services rendered to him at his trial for subversion before the military tribunal and therefore they should not have commenced the action without first complying with the provisions of Part V of the Legal Profession Act, 1960 (Act 32). Section 30 of the Legal Profession Act, 1960, says ‘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
[p.151] of [1975] 1 GLR 149
month after he has served on the party to be charged a bill of those fees, the bill either being signed by the lawyer (or in the case of a partnership by any of the partners, either in his own name or in the name of the partnership) or being enclosed in or accompanied by a letter signed in like manner referring to the bill.’
(2) That he executed the promissory note under duress.”
The opposition of the second defendant is based on three grounds namely:
(1) Non-compliance with the provisions of Part V of the Legal Profession Act, 1960;
(2) Duress from the plaintiffs; and
(3) Undue influence from his father, the first defendant.
I agree with the defendants that the real substance of the plaintiffs’ action is a claim for the recovery of legal fees since the allegations by the defendants in their affidavits that the ¢50,000.00 which they promised to pay to the plaintiffs by way of promissory note was legal fees demanded by the plaintiffs were not denied by the plaintiffs. I do not, however, agree with learned counsel for the defendants that the plaintiffs’ case fell within Part V of the Legal Profession Act, 1960. In my opinion the provisions of Part V of Act 32 come 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. It is only then that the lawyer is required to follow the procedure laid down under Part V of the Legal Profession Act, 1960, for the ascertainment of what fee is due to the lawyer from the client. Therefore, where as in this case, the lawyer and his client have agreed on the fees to be paid and the client fails to pay the fees, the lawyer is at liberty to commence an action in court to recover his fees.
The duress relied upon by both defendants is the alleged threat by the plaintiffs as counsel appearing for the first defendant at the subversion trial to withdraw from the case unless the defendants signed the promissory note, exhibit A. To avoid a promise on the ground of duress, the party seeking to avoid the promise must establish that the promise was extorted from him by some terror or violence, whether on the part of the person to whom the promise is made or his agent: see Scott v. Sebright (1886) 12 P.D. 21; Hussein v. Hussein [1938] P. 159 and Board of Directors of Orthodox Secondary School of Peki v. Tawlma-Abels [1974] 1 G.L.R. 419, C.A.
“No threats to exercise one’s legal rights can amount to a cause of action even if made for the purpose of intimidation or coercion and even if inspired by malicious motives”: see Salmond on Torts (10th ed.) at p. 602 — see also Hardie and Lane, Ltd. v. Chilton [1928] 2 K.B. 306, C.A., where it was held by the English Court of Appeal that a threat to place a firm on a trade stop list (which would have entailed a discontinuance of the supply of goods to it) for breach of the regulation of a trade association of which the firm in question was a member unless a certain sum of money was paid did not amount to duress and so the money paid under the said threat would not be recovered as paid under duress. In Board of Directors of Orthodox Secondary School of Peki v. Tawlma-Abels (supra) Anin J.A.,
[p.152] of [1975] 1 GLR 149
following the cases of Biffin v. Bignell (1862) 7 H. & N. 877 and Latter v. Braddell (1881) 50 L.J.C.P. 166, C.A., said at p. 423 that:
“It is not every type of duress or coercion which suffices at common law to nullify the consent of a party to a contract and thereby nullify the contract. It is only actual or threatened physical violence to, or unlawful constraint of, the person of the contracting party which will suffice for the purpose; and even then, what is threatened must be unlawful.”
In the case before me the alleged threat by the plaintiffs as I have already said was that they would withdraw from appearing for the first defendant unless both defendants signed a promissory note for ¢50,000.00 being their fees. A lawyer is entitled to be paid his fees before he goes to court and it is perfectly legitimate for him to withdraw from a case if his fees have not been paid. On the authorities, therefore, the defence of duress pleaded by the defendants cannot stand.
No particulars were given of the alleged undue influence exercised by the first defendant on the second defendant. Where one party seeks to avoid a contract on the ground of undue influence by a third party it must appear that the other party was aware of the facts constituting the undue influence: see Lancashire Loans, Ltd. v. Black [1934] 1 K.B. 380, C.A. As I have said before the second defendant did not give particulars of the undue influence alleged by him and there is no evidence that the plaintiffs were aware of the facts constituting the alleged undue influence. That being the case the second defendant cannot succeed against the plaintiffs on his defence of undue influence.
There is unchallenged evidence that an amount of ¢4,000.00 has been paid by the wife of the first defendant to the plaintiffs as part payment of the fees. I find the plaintiffs’ claim unassailed and I give judgment for them against the defendants jointly and severally for ¢46,000.00, that is, ¢50,000.00 less ¢4,000.00 with ¢1,000.00 costs.
I must state that the plaintiffs sued on exhibit A, a promissory note, which did not contain any clause or provision as regards interest. The promissory note was not issued in the course of a commercial transaction and I would not award any interest to the plaintiffs.
DECISION
Application for leave to enter final judgment granted.
S. Y. B. B.
