Kaa Law v Bank Of Ghana (H1/236/2025) [2026] GHACA 2 (24 July 2026)

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – AD 2026 CORAM: MENSAH-HOMIAH (MRS.) JA - PRESIDING MYERS AHMED (MRS.) JA DR. OSEI-HWERE JA SUIT NO. H1/236/2025 DATE: 24TH JULY, 2026 KAA LAW ……….. PLAINTIFF/APPELLANT VRS BANK OF GHANA ………. DEFENDANT/RESPONDENT ========================================================== JUDGMENT ========================================================== DR OSEI-HWERE JA INTRODUCTION This appeal is in respect of the judgment of the High Court (Commercial Division), Accra, delivered on 10th April, 2024. 2 The plaintiff/appellant (hereinafter called “Appellant”) is a firm of legal practitioners and consultants incorporate d under the laws of Ghana. Pursuant to its objects of incorporation, the plaintiff provides both legal and non -legal services. The defendant/respondent (hereinafter called “Respondent”) is the Central Bank of Ghana. This appeal turns on whether Law practices that offer non -legal services are subject to the Legal Profession Etiquette Rules when recovering fees for those services. It examines the circumstances in which an agency arises in real estate transactions. The discussion will also delve into the legal effect of dual agency, i.e., an agent who represents both the buyer and the seller. The discourse will ultimately answer the question of whether the judgment of the trial court occasioned a miscarriage of justice. FACTS On 16 March 2022, the Appellant filed an Amended Writ of Summons and Statement of Claim against the Respondent seeking the following reliefs: a. An order for the payment of an amount of US$1,244,000 being the commission due to the Appellant in respect of the transaction on the disputed land at Ridge, Accra, on quantum meruit basis. b. Interest on the amount stated in (a) at commercial bank rat with effect from January, 2019 till date of final payment. c. cost d. Any other relief. In the Alternative e. Special Damages of US$1,244,000 for the loss of commission/fees in respect of the land purchase transaction on the disputed land at Ridge, Accra. f. Interest on the amount determined in (a) above at commercial bank rate with effect from January, 2019 till date of final payment. 3 g. Cost. h. Any other relief. APPELLANT’S CASE It is Appellant’s case that in or about 2014, Respondent , through various officers of the Respondent Bank, requested Appellant to search for and recommend propert ies for acquisition by Respondent, stating that Respondent was interested in acquiring land in a prime location in Accra for the development of an ultramodern off ice building, and that Respondent also requested Appellant and other companies (not necessarily law firms) to search for and recommend such properties for acquisition by Respondent. Appellant stated that the engagement between the parties commenced in 2014 and continued until 2018, during which period Appellant's staff devoted time and resources to searching for, locating, identifying and conducting due diligence on various lands in different locations in Accra for possible acquisition by Respondent , including the following parcels of land: (i) 7-acre land at Airport (37 Hospital) Accra (ii) Total Petroleum land near 37 Military Hospital (iii) Land at North Legon, University of Ghana, Accra. (iv) GBC land, Kanda, Accra (v) 6.22-acre land at Ridge, Accra (vi) 10-acre land close to Kempinski Hotel, Accra. Appellant stated that as part of the work it did for the Respondent, its lawyers and other staff held various meetings with staff from different departments of the Respondent Bank, and several joint inspections of the various lands identified at different locations in 4 Accra were carried out to assess the suitability of the lands for the Respondent's purpose. Appellant stated that the Respondent kept changing and/or modifying its requirements and specifications, and each time Appellant was urged to continue searching for a new land for the Respondent. During the period, correspondence was exchanged between the Appellant's office and the Respondent's office in respect of the work. According to the Appellant, at one point a 7 -acre plot was identified for the Respondent in the 37 Military Hospital area, and the Respondent expressed interest in purchasing it. The Respondent then instructed the Appellant to explore acquiring adjoining land to be added to the 7 -acre plot. The Appellant tendered Exhibit "B", the letter the Respondent sent to it to that effect. That Exhibit can be found at page 106 of the Record of Appeal (ROA). Upon the Respondent's instructions, the Appellant wrote to Total Petroleum Ghana Limited, the owners of the adjoining land, with a view to securing that land for the Respondent. The Appellant also wrote a letter on 3 October 2014 to inform the Respondent of the terms of the Parties' engagement, and the Respondent wrote another letter to acknowledge receipt of the Appellant's proposed terms of engagement. However, Total Petroleum Ghana Limited refused to release the adjoining land to the Respondent. The Appellant tendered Exhibit "C", a copy of the letter sent to Total Petroleum Ghana Limited, and Exhibit "D", Total Petroleum Ghana Limited's response letter to the Appellant. Exhibit "E" is the Appellant's letter to the Respondent, and Exhibit "F" is the Respondent's acknowledgement letter. These Exhibits can be found from pages 107 to 110 of the ROA. Appellant’s case is that when Total Petroleum Ghana Limited refused to release the adjoining land to the Respondent, officers of both Appellant and Respondent held discussions, and Appellant was requested to seek other suita ble properties for the Respondent's consideration. Appellant and its officers worked persistently for about four 5 (4) years to secure suitable land for the Respondent and identified and introduced several properties to the Respondent, including those listed above. However, in December 2018, after a four (4)-year search for property for the Respondent, the Respondent unexpectedly wrote to inform Appellant that it was withdrawing its interest in the land ac quisition transaction. Appellant tendered the said letter as Exhibit "H". It is a letter of withdrawa l of interest from the Respondent's Management and appears on page 112 of the ROA. After the Respondent withdrew its interest, the Appellant subsequently discovered that the Respondent had passed behind the Appellant to acquire one of the parcels of land that the Appellant had identified and introduced to the Respondent, specifically the 6.22-acre parcel at Ridge in Accra, owned by State Insurance Company Limited, without the Appellant's involvement or even notice to the Appellant. The Appellant says that it introduced the Respondent to the Ridge property, and the Respondent's staff requested that the Appellant provide further information about the land. It held several meetings and joint inspections with the Respondent in respect of the property. Upon the Respondent's request, it obtained copies of the relevant sale correspondence in respect of the property and submitted all the relevant documents on the said land to the Respondent as proof that the property was indeed for sale and t o enable the Respondent to finalise its purchase decision. However, instead of concluding a purchase transaction through the Appellant, the Respondent feigned lack of interest in the property and subsequently went behind the Appellant to acquire the very land from SIC without involving the Appellant. The sale documents were tendered by the Appellant as the Exhibit "J" series, found at pages 114 to 116 of the ROA. According to the Appellant , upon learning tha t the Respondent had gone to acquire the property without its involvement, it wrote a letter requesting payment for services rendered in connection with that property. However, in its r esponse letter in August 2021, the Respondent stated that the disputed land had been compulsorily 6 acquired by an Execut ive Instrument for the Respondent , as a justification for the it s exclusion. Appellant’s case is that the p arties understood that Appellant would be paid fees/commission once suitable land was fo und or secured for the Respondent , and therefore it was entitled to fees for ser vices rendered for the Respondent's benefit. Respondent therefore prayed the Court to grant the r eliefs endorsed on the Appellant's writ. RESPONDENT'S CASE Respondent denied Appellant's claims. Respondent avers that it notified the Lands Commission and various land valuation firms that it was seeking to acquire land in a prime location in Accra to construct its head office building. Upon hearing this, Appellant, by various letters and claiming to act on the instructions of its Client(s), offered Respondent various plots of land situated at the 37 Military Hospital area, Independence Avenue, Kanda and Ridge for acquisition. With the exception of the land situated at the 37 Military Hospital area, which was offered to Respondent on behalf of Appellant's client in 2014, all other offers were made in 2018, and each offer was inspected by Respondent's officers. Appellant continued to offer land on behalf of its Clie nts to Respondent, but Respondent found none of the parcels suitable. Respondent further avers that prior to the Appellant's offer for the Ridge property on behalf of its Clients in 2018, Respondent had identified the parcel of land as far back as 2012 and was already engaged in negotiations with SIC, the owners of the land, with a view to acquiring it. Respondent contends that it never feigned a lack of interest in the property, as alleged, but lost interest due to the high purchase price demanded by SIC. Respondent further states that had it not been for the high purchase price demanded by SIC at the time, the transaction would have been concluded long ago. 7 Subsequently, however, the Ridge property was compulsorily acquire d by the State for the Respondent's use pursuant to an Executive Instrument (El 304). Respondent’s case is that after the State’s compulsory acquisition and allocation of the land to it, the Lands Commission informed Respondent that the Receiver of CDH had notified it of CH’s interest in the land at Ridge. Respondent further avers that it was brought to its attention that Ivory Finance Company Ltd (now CH in receivership) had obtained a Consent Judgment against SIC, and that the land had been attached in favour of CDH (in receivership). Respondent was thus directed by the Lands Commission to pay the approved compensation into an escrow account pending the resolution of all matters relating to the land, and it did so. Respondent further states that the High Court, coram Kyei Baffour J.A., subsequently released the land from attachment. Respondent further contends that it never engaged the Appellant to provide any such legal services, as alleged or at all, and that there has never been any Lawyer -Client or contractual relationship between the parties in relation to the land, the subject m atter of the suit. The Respondent's case is that, assuming, without admitting, that a Lawyer - Client relationship was ever established as alleged (w hich is denied), the Appellant lacked the capacity to p rosecute the suit, as the Appellant alleged that it was acti ng on behalf of its Clients. Thus, the action ought to have been instituted by or on behalf of the Appellant's Clients, not by the Appellant itself. Accordingly, Respondent concludes that the Appellant was not entitled to the claims alleged. DECISION OF THE HIGH COURT After a full trial, the High Court dismissed the Appellant’s claim in its entirety and awarded costs of GHC 50,000.00 in favour of the Respondent against the Appellant. The Court summarised its judgment at page 76 of the Record of Appeal as follows: 8 “The Plaintiff does not lack capacity as a legal person to sue. However, this claim for fees by the Plaintiff borne out of Solicitor -Client relationship imposes the burden of proof on the Plaintiff. As a Solicitor -Client claim, same is governed by the Legal Profession Act (Act 32). This act imposes on the Plaintiff the need to show an Engagement Letter containing the Scope of Work and Fees; proof of work actually performed and a bill raised for it for the payment of a specific sum in accordance with the term s of engagement. The Plaintiff was unable to discharge this burden as regards the nature of the relationship it had with the Defendant, the sum owed by the Defendant as per Invoice for Service (i.e. Bill) and who it was working for regarding the SIC plot m easuring 6.22 acres when he wrote to the Defendant regarding its claims against the Defendant to warrant judgment regarding the land.” GROUNDS OF APPEAL Aggrieved by the judgment o f the High Court, the Appellant caused a Notice of Appeal to be filed on its behalf on the following grounds: a. That the judgment is against the weight of the evidence b. The learned trial Judge failed to make critical appraisal of the evidence adduced at the trial before arriving at the conclusions in the judgment. c. The trial Judge's over reliance on the Legal Profession (Professional Conduct and Etiquette Rules, 2020 L.I 2423 to construe the parties ’ relationship resulted in substantial miscarriage of justice. d. The trial High Court Judge failed to recognize and give effect to the Agency Relationship entered into by the parties. e. The award of cost of GH50,000 against the Plaintiff is excessive. 9 f. The Learned trial Judge erred in law when she stated that the principle of "Quantum meruit" payment is only available to parties who have a contract that is partly performed TACKLING THE GROUNDS OF APPEAL The grounds of appeal can be grouped into four (4 ) for the purpose of this discussion. Grounds (a), (b) and (d) shall be discussed together, as they are intrinsically linked to whether the evidence on record supports the court's judgment. Ground (c), a question of law, is discussed separately. Ground (e), relating to costs, shall also be treated separately. Another question of law in Ground (f) will also be discussed. We begin with the question of whether the trial judge’s reliance on the Legal Profession (Professional Conduct and Etiquette Rules), 2020 (L.I. 2423), in construing the parties’ relationship resulted in a substantial miscarriage of justice. We will then examine the omnibus ground of appeal and the associated issues under grounds (a), (b) and (d). This will be followed by a discussion on Ground (f), the quantum meruit payment. Ground (e) shall conclude the discussion. The Legal Profession Ethical Rules and Non-Legal Services The primary goal of the Legal Profession Act, 1960 (Act 32) and its subsidiary regulation, the Legal Profession (Professional Conduct and Etiquette Rules), 2020 (L.I. 2423), is to uphold the integrity of the legal profession by setting out strict rules governing professional etiquette, confidentiality, and accountability. The preamble to the Legal Profession Act, 1960 (Act 32) states that it is “AN ACT to consolidate and amend the law relating to the legal profession”. The Legal Profession 10 (Professional Conduct and Etiquette Rules), 2020 (L.I. 2423) was enacted to give effect to Act 32. A careful reading of Act 32 and L.I. 2423 as a whole shows that they specifically regulate lawyers' conduct in the provision of legal services. Among other things, they establish a lawyer-client relationship, and, in accordance with the rules, this ought t o be clearly stated in an engagement letter, in line with Regulation 16(3) of L.I. 2423, which provides that: “A lawyer shall communicate in writing the scope of the representation and the basis or rate of the fees and expenses for which the client is responsible to the client, before or within a reasonable time after commencing the representation.” For recovery of legal fees, section 30 of Act 32 provides: “Section 30—Bill of Fees. 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 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.” The regulatory purview of Act 32 and L.I. 2423 primarily concerns the professional conduct of lawyers in their capacity as legal practitioners. It regulates the legal services lawyers provide. Unlike the regulatory regimes of some jurisdictions – for instance, Part IV of Pennsylvania’s Professional Ethical Code (Rules and Regulations), specifically 204 Pa. Code r. 5.7, which is devoted to “Responsibilities Regarding Nonlegal Services” – our legal profession's ethical regulatory regime does not set out speci fic rules for the performance of non-legal services by lawyers. Purely non-legal services – such as general 11 business consulting, real estate, or financial services – generally fall outside the core scope of the legal regulatory regime and its regulatory body, the General Legal Council, unless the lawyer blends the services. Appellant is a limited liability company incorporated under the laws of Ghana. By Exhibit A2, the company’s objects are set out in its profile as “GENERAL LEGAL CONSULTANCY, LEGAL ADVISING SERVICES AND ADVOCACY, COMPANY REPRESENTATION AND SECRETARIAL SERVI CES, PROPERTY SERVICES AND COMPANY ADMINISTRATION, NOTARY PUBLIC SERVICES”. It is clear from the object of incorporation that Appellant Firm provides both legal and non-legal services, including property services. The subject of the litigation is in the nature of property services. The dispute concerned the Respondent’s search for suitable land to construct a new office complex and the Appellant’s desire to secure that land. Consequently, the parties' purported relationship cannot be characterised as a lawyer - client relationship, as construed by the learned trial judge. In light of the non -legal nature of the service in question, it is our considered opinion that section 30 of Act 32 and Regulation 16(3) of L.I. 2423 do not apply to the Appellant's claim for the recovery of fees. This is because the relationship between t he parties may be construed as a real estate agency relationship. The real question in this dispute is whether an agency relationship existed between the parties and whether the Appellant is entitled to the fees claimed. To answer these questions, we need to examine the entire record on appeal. Does the evidence on record support the Court's decision? It is settled that an appeal is by way of rehearing, especially in the instant appeal, where the judgment is being challenged as not supported by the weight of the evidence. An appellant canvassing the so-called omnibus ground must show that the trial court 12 failed to consider relevant evidence, improperly evaluated it, or reached conclusions that are perverse and unsupported by the record. In Tuakwa v Bosom (2001 -2002) SCGLR 61 , the Supreme Court held that an appellate court will not interfere with findings of fact unless they are clearly wrong in light of the totality of the evidence. Also, in the case of DJIN V M USAH BAAKO [2007 -2008|SCGLR 686 , the Supreme Court, per Aninakwah JSC, at page 691, stated as follows: "It has been held in several decided cases that where an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against." This principle was reaffirmed by the Supreme Court, speaking through Appau JSC in the case of EVELYN ASIEDU OFFEI V YAW ASAMOAH & ODESHE KWAKU AGYAPONG, CIVIL APPEAL NO. J4/64/2016 (delivered on 25th APRIL, 2018) 1 thus: “The authorities are legion that an appeal is by way of rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court was against the weight of evidence. In such a case, it is the duty of the appellate cou rt to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence on record. And it is immaterial whether the appeal is a second one from the Court 13 of Appeal to the Supreme Court. See the cases of: 1. AKUFO -ADDO v CATHELINE [1992] 1 GLR 377; 2. TUAKWA v BOSOM [2001 -2002] SCGLR 61; 3. ARYEH & AKAKPO v AYAA IDDRISU [2010] SCGLR 891 @ 899; 4. ACKAH v PERGAH TRANSPORT LTD & Others [2010] SCGLR 728 and 5. KOGLEX LTD (No. 2) v FIELD [2000] SCGLR 175.” The creation of a real estate agency takes different forms. For the purpose of this discussion, we shall focus on agency by express agreement, agency by estoppel and dual agency. An agency is created by express appointment when the principal appoints the agent by express agreement. This express agreement may be oral or written between the principal and the agent. Agency by estoppel arises when A makes a representation to a third party, whether by words or conduct, that B is A's agent, and the third party subsequently deals with B as A's agent in reliance on that representation. A will be estopped from denying the existence of the agency if doing so would cause damage (usually financial loss) to that third party. In real estate transactions, the person who makes such a representation (either a buyer or a seller) is treated as having created an agency relationship between himself, as the principal, and the other party, as his agent, even if there is no agreement between the two parties to create that relationship. Agency by estoppel is sometimes called an implied appointment of an agent. Again, in the context of agency, the term estoppel refers to the practice of allowing another to believe that a particular state of affairs exists . The principal creates the impression that the agent has authority to act, and once that impression is formed, the 14 principal cannot assert that a different state of affairs exists. It may arise from words or conduct. This is codified in section 26 of the Evidence Act, 1975, as follows: “Except as otherwise provided by law, including a rule in equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively be presumed against that party or his successors in interest in any proceedings between that party or his successors interest and such relying person or his successors in interest’’ In State v Asantehene’s Divisional Court; Ex parte Kusada , Korsah CJ defined agency under the estoppel model as: ‘‘where one has so acted as from his conduct to lead another to believe that he has appointed someone to act as his agent, and knows that other person is about to act on that other person’s behalf, then unless he interposes, he will, in general be estopped from disputing the agency, though in fact no agency really existed.’’ The importance of this type of estoppel is that a person who, by his words or conduct, willfully or negligently causes another to believe in the existence of a certain state of affairs and thereby induces him to act on that belief or to alter his position is estopped from asserting against the other person that a different state of affairs existed at that time. Dual agency occurs when a single real estate agent represents both the buyer and the seller in a transaction. DOS v. Moore 2 DOS 99, p. 7 (1999) is a seminal 1999 New York Department of State (DOS) administrative decision that imposes strict limits on fiduciary duties and dual agency in real estate transactions. The case holds that brokers cannot represent both parties in a transaction with conflicting interests without explicit, informed consent. 15 In Anglo-African Merchants Ltd and another v. Bayley [1969] 2 All ER 421 at page 429 , Megaw J. cited with approval the clear and precise statement of the above proposition by Scrutton LJ in Fullwood v. Hurley ([1928] 1 KB 498 at p 502 [1927] All ER Rep 610 at p 611), as follows: “No agent who has accepted an employment from one principal can in law accept an engagement inconsistent with his duty to the first principal, from a second principal, unless he makes the fullest disclosure to each principal of his interest, and obtains the consent of each principal to the double employment.” See also Halsbury, 3rd Ed, Vol 1, para 442, citing Harolds v. Lemon [1931] 2 K.B. 157 CA.; again, see para 446 and the cases cited there – Baring v. Stanton [1876] 3 Ch. D. 502; Norreys v. Hodgson [1897] 13 TL.R. 421; Green v. Tughan [1913] 30 T.L.R. 64. In the present case, there is no written agency contract between the parties, so the court cannot apply a presumption of agency. Under section 25 (1) of NRCD 323, the facts set out in a written document are conclusively presumed to be true as between the parties to the instrument, or their successors in interest. Appellant, however, insists that there is an oral agreement – an assertion denied by the Respondent bank. From the record, there is no doubt that there were engagements between the parties in respect of Respondent’s desire to acquire suitable land for the construction of a new head office. Letters were exchanged, and there were meetings between officials of the Bank and Appellant’s officers. These events provide prima facie evidence of agency by estoppel. By Respondent’s conduct in its dealings with the Appellant on the subject matter, it would not be controversial for a third party to suggest that an agency relationship existed between Respondent and Appellant. The presumption of agency, however, can be rebutted by the Appellant’s conflicting position and the nature of the relationship. 16 We have not lost sight of the fact that, in its desire to establish an agency relationship between it and the Respondent Bank, Appellant led evidence to show its efforts to secure the following parcels of land for the Respondent Bank: 7 acres at Airport (37 Hospital), Accra; Total Petroleum land near 37 Military Hospital; land at North Legon, University of Ghana, Accra; GBC land, Kanda, Accra; 6.22 acres at Ridge, Accra; and 10 acres near Kempinski Hotel, Accra. The present suit, however, was fought on the clear and unmistakable basis that Appellant secured the 6.22 -acre Ridge land for the Respondent, and that Appellant is therefore entitled to an agency fee. The reliefs sought, together with the pleadings, center on the Ridge land. The focus of this discourse is to determine whether the trial judge’s conclusion that Appellant was not entitled to the reliefs sought has occasioned a miscarriage of justice. We would not enquire whether Appellant is entitled to fees or commission in relation to the other properties, as doing so would amount to a departure from the pleadings. In Mohammed Odartey Lamptey v. Lands Commission & 3 Ors, Civil Appeal No. J4/18/2015, dated 28th November 2018 , the Supreme Court, emphasising the importance of pleadings in civil trials, said through Yeboah JSC (as he then was): “It should be noted that in civil proceedings commenced by writ of summons, the parties file pleadings to guide the court to know before the trial their respective cases and the evidence that may be led. Parties are therefore confined to their respective pleadings in course of trials and would be permitted to lead evidence usually within the confines of their pleadings. See HAMMOND v ODOI [1982-83] 2GLR 1215 SC. Pleadings also assist the court to know the real issues and the applicable law to be applied to the facts. A judge is not permitted to suo motu raise a point of law and base his judgment on it. The court, like the parties, is also bound by the pleadings filed on record, and pleadings guide both the trial and appellate 17 courts, throughout the case. Before the often -quoted case of ESSO PETROLEUM CO. LTD v SOUTHPORT CORPORATION [1956] AC 218 HL was decided, SCRUTTON LJ had cautioned trial judges in the case of BLAY v POLLARD & MORRIS [1930] I KB 628 CA at 634 as follows: “Cases must be decided on the issues raised on the record; and if it is desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the judge decided was raised by himself without amending the pleading and in my opinion he was not entitled to take such a course.” Exhibit 6A is a letter signed by Appellant’s Managing Partner and addressed to the Respondent. It reads as follows: The Governor Bank of Ghana Accra Dear Sir, LAND FOR SALE 6 ACRE LAND AT RIDGE-ACCRA We wish to inform you that our client has a 6 acre leasehold land at Ridge Area, next to Ridge Towers Accra suitable for office development on offer for sale. The price is US $4 million per acre. We wish to respectfully inquire if the bank will be interested in the said land. The undersigned will be available to discuss further details on the offer if the bank is interested. 18 Kindly acknowledge receipt and indicate your response to enable us take further action on the matter. Yours sincerely, (SIGN) Managing Partner From the wording of the letter (Exhibit 6A), it is clear that Appellant was acting on behalf of its client. Appellant notified the Respondent that its client had 6 acres of land for sale at US $4 million per acre. Appellant essentially issued an invitation to treat on its client’s behalf. It was for the Respondent to make an offer to Appellant’s client. Counsel’s submission that Appellant did not state in the letter that it was representing its client, and therefore Appellant was not acting as its client’s agent, is intriguing. The words used in the letter are plain and unambiguous, so we cannot read them as having any secondary meaning. It can be inferred that there was an agency relationship between the Appellant and the client. The Appel lant was therefore acting on its client's behalf in relation to the sale. Appellant’s insistence that it acted as an agent of the Respondent, if accepted, may place the Appellant in the position of a dual agent, entitling it to an agency fee from both the said client and the Respondent. However, dual agency goes beyond representing two parties in the same transaction, particularly a buyer and a seller. To establish dual agency, evidence of consent from all parties is also required. In the present case, there is no evidence that Appellant had the consent of both parties to act as a dual agent. It must be emphasised that the requirement of consent is not a needless demand. An agent is a fiduciary of his principal; therefore, any situat ion that may place the agent in a potential or actual conflict of interest must be avoided. This 19 is because an agent must not act in a way that his duties conflict with his own interests or the interests of another. Conflict of interest is the nucleus around which the features of an agent's fiduciary duty revolve. The House of Lords’ view on conflicts of interest in agency relationships is set out in Aberdeen Railway Company v Blaikie Bros [1854] 1 Macq. 471 as follows: “… it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which may possibly conflict, with the interests of those he is bound to protect.” For the reasons set out above, the Appellant, acting as a real estate agent, was prohibited from acting as a dual agent in the same transaction where the parties had conflicting interests, without the informed consent of the principals. In light of this, t he Appellant cannot be a dual agent within the meaning of the law of agency. It is therefore concluded that no agency relationship exists between the Appellant and the Respondent; therefore, the Appellant is not entitled to an agency fee from the Respondent. Is the Appellant entitled to Quantum Meruit payment? Black’s Law Dictionary, 11th Edition 1498, defines Quantum Meruit as: “The reasonable value of services ; damages awarded in an amount considered reasonable to compensate a person who has rendered services in a quasi - contractual relationship.” In QUARCOOPOME VRS SANYO ELECTRIC TRADING CO.LTD. [2009] SCGLR 217 HOLDING 3, the Supreme Court stated as follows: "The principle was that where a person has rendered services in pursuance of a transaction supposed by him to be a contract, but which in truth was without legal 20 validity, he could recover for the value of his services in quantum meruit. The implied obligation to pay reasonable remuneration was an obligation imposed by law and not an inference of fact arising from the performance and acceptance of the services. That would certainly be strictly logical if the inference of a promise to pay on a quantum meruit basis were an inference of fact based on the acceptance of the services or of the goods delivered under what was supposed to be an existing contract; but the inference was not one of fact, but was an inference which a rule of law imposed on the parties where work had been done or goods had been delivered under what purported to be a binding contract but was not so in fact". See also HAMMOND v AINOOSON |1974) 1 GLR 176 at 183. It follows from the authorities cited above that quantum meruit is an equitable doctrine that enables a service provider to recover reasonable compensation for their work when valuable services are rendered but no formal or enforceable contract exists. Having concluded that there was no agency agreement between Appellant and Respondent and that the services Appellant provided in relation to the subject land were for the benefit of its client, Appellant is not entitled to a quantum meruit payment from Respondent. Was the cost awarded against Appellant reasonable? Order 74 rules 2(3) and 2(4) of the High Court (Civil Procedure) Rules 2004 (CI 47) regulate the assessment and award of costs and expenses. It provides as follows: Without prejudice to the powers and discretion of the Court, an award of costs shall be designed to (a) Compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made; and 21 (b) Provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer. (4) In assessing the amount of costs to be awarded to any party, the Court may have regard to (a) The amount of expenses, including travel expenses, reasonably incurred by the party or that party’s lawyer or both in relation to the proceeding; (b) The amount of court fees paid that party or that party’s lawyer in relation to the proceedings; (c) The length and complexity of the proceedings; (d) The conduct of the parties and their lawyers during the proceedings; and (e) Any previous order as to costs made in the proceedings. A plethora of authorities have discussed these rules and consistently urge due regard for factors such as the length of the case and the amount of work done. In Bank of Ghana v. Nyarko & Anor. [1973] 2 GLR 265, this court held that: “Although the award of costs was discretionary, it must not only reflect the result of the suit but must also bear a reasonable relation to the amount of work that the preparation and conduct of the suit must have involved.” The same principle was applied in the case of Tema Oil Refinery v. African Automobiles Ltd. (H1/213/2009) [2010] GHACA 1, as follows: “It is significant to point out that an award of costs is designed to compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made and provide reasonable remuneration for the lawyer of that party for work do ne by the lawyer. The court in assessing the amount of costs to be 22 awarded may have regard also to the amount of expenses, including traveling expenses reasonably incurred by the party or his lawyer or both in relation to the proceedings; the amount of court fees paid by the party or his lawyer in relation to the proceedings; the length and complexity of the of the proceeding; the conduct of the parties and their lawyers during the proceedings and any previous order as to costs made in the proceedings. (See Order 74 rule 2 of CI47). These provisions require that trial judg es put in some efforts in the assessment of costs by stating the factors they consider in fixing a sum deemed appropriate if they are not to be unsettled on appeal…” Also, in Amalgamated Bank v. Fraga Oil Ghana Ltd. & 5 Ors. Suit No. H1/66/2011, (14 June 2012) CA, thus: “Costs it is said, follows the event. Costs is also the discretion of the judge. However, costs must have reasonable bases. Cost must relate to effort and expense and time.” In light of the authorities and the circumstances of this case, was the quantum of the costs awarded against the Appellant reasonable? Indeed, the award of costs lies within the court's discretion and, like all discretionary powers, must be exercised judicially. An appeal against the exercise of discretion can succeed only if the discretion was exercised on wrong or inadequate materials, or if the court acted under a misapprehension of fact by considering irrelevant matters or omitting relevant considerations. See Crentsil v Crentsil [1962] 2 GLR 171 at 175. In the present case, the court below did not state the basis for awarding costs of GHC 50,000.00 against the Appellant. This court is therefore required to assess whether 23 the award was reasonable. In the absence of clear reasoning, this court can interfere with the trial court’s discretion to award costs. We have taken cognisance of Order 74 Rule 2 of CI 47 and are minded to vary the costs. Accordingly, the costs of GHC 50,000.00 awarded by the trial court are varied to GHC 10,000.00. Consequently, the appeal against the award of costs succeeds. CONCLUSION For the foregoing reasons, it is concluded that, aside from the variation in costs from GHC 50,000.00 to GHC 10,000.00, the appeal fails and the same is dismissed with different reasoning as indicated in the judgment. There is no order as to costs. SGD DR. RICHMOND OSEI-HWERE (JUSTICE OF APPEAL) SGD MENSAH-HOMIAH, JA, I AGREE ANGELINA MENSAH-HOMIAH, (MRS.) (JUSTICE OF APPEAL) 24 SGD MYERS AHMED, JA I ALSO AGREE JENNIFER MYERS AHMED, (MRS.) (JUSTICE OF APPEAL) COUNSEL ❖ K. AMOFA AGYEMANG WITH KINGSLEY YAW ANS AH FOR PLAINTIFF/APPELLANT ❖ FAISAL ZIBLIM FOR DEFENDANT/RESPONDENT WITH VANESSA OSEI BARIMA