IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT NO. 28, IKEJA
TODAY THURSDAY THE 29TH DAY OF JUNE. 2006
BEFORE THE HONOURABLE JUSTICE M. OLOKOBA-JUDGE
SUIT NO. AP/12A/05
RT/K/3020/99
BETWEEN:
PATRICK OBELE } APPELLANT
AND
ONYEKWELU BROTHERS LTD. }RESPONDENT
JUDGMENT
This is an appeal from the judgment of the Rent Control and Recovery of Residential Premises Tribunal holding at the Oshodi/Isolo Local Government which Judgment was delivered on the 7th day of October, 1999; and by which judgment the appellant was ordered to vacate the two-bedroom flat and premises with the appurtenances situate at No. 16, Alhaja Adijat Lawal Close, Mafoluku, Oshodi, Lagos State.
By a plaint dated the 31st day of May, 1999 the respondent as plaintiff sued the appellant as defendant claiming possession of a 2-bedroom flat situate at No. 16, Alhaja Adijat Lawal Close, the town not being stated.
At the hearing, the plaintiff called only one witness while the defendant rested his case on that of the plaintiff.
The case of the plaintiff in the Tribunal as same appears in the records is that the plaintiff/respondent appointed the defendant (appellant herein) as caretaker of the houses situate at Nos. 10, 16, 18, 20, and 22 Adijatu Lawal Close Mafoluku, Lagos orally. As part of his remuneration for the performance of the office, the respondent allowed the appellant to occupy as a tenant a 2-bedroom flat at No. 16, i. e. one of the houses of which the appellant was appointed caretaker.
The appellant according to the respondent did not perform the office faithfully as he failed to render account to the respondent of all the rent collected in respect of the houses of which he was caretaker. This situation persisted up to the time of the death of the managing director of the respondent.
Thereafter several demands for accounts and the rendering of the moneys collected by the appellant were made but refused or neglected to comply and even went ahead to claim ownership of No. 16 and No. 20, According to the only witness called by the respondent, he, at a stage offered to give the ownership of No. 16 to the appellant free only if he would render an account on the other houses. The appellant made no answer but in stead went ahead to lay claim to the ownership of No. 16 and 20 aforesaid as he was paying tenement rate in respect of the premises in his own name. The offer of No. 16 to him was then withdrawn.
Upon the above activities of the appellant the respondent served a seven days notice on him which was admitted as exhibit H by the Tribunal. This was served on the appellant but he refused to vacate the premises.
In their judgment the learned Chairman and the other members of the Tribunal found that the appellant was the respondent's tenant at will in respect of the premises the subject matter of the action. The tribunal also held that the activities of the appellant summarised above were incompatible with the relationship of landlord and tenant and, citing the case of Francis Okagbue & Ors. vs. Janet Romaine (1982) 5 S. C. page 133, held that the appellant had engaged in activities constituting a challenge to the title of the landlord and had thereby determined the tenancy. It was therefore proper to serve him with only the seven (7) days notice exhibit H.
The learned Tribunal Chairman considered sections 13 and 14 of the Rent Control and Recovery of Residential Premises Edict 1997 and citing again the case of Okagbue vs. Romaine (Supra) decided to let the demands of justice override crude technicality as he saw it. It decided that under section 13 of the Edict aforesaid there are two ways by which a tenancy may be determined. One was where the statutory notice to quit has been issued and the other according to the tribunal is where the "term of interest of the tenant determines" and according to Okagbue vs. Romaine (Supra) a tenancy at will is determined when either party engages in activities incompatible with the continuance of the tenancy. The appellant according to the tribunal had by the above activities determined the tenancy and because of the obligation of the court to do justice and not be fettered by any technicality that may be engendered by the rules of procedure, the respondent had succeeded in proving his claim and was entitled to judgment. Judgment was entered for the respondent and the appellant was ordered to vacate the premises forthwith.
Dissatisfied with the judgment, the appellant appealed to this court. Four (4) grounds of Appeal were filed. There are no issues formulated from the 3rd and 4th grounds of appeal. They are deemed abandoned and are struck out. - See Ogun vs. Asemah (2002) 4 NWLR (Pt. 756) page 208; Atunrase vs. Philips (1996) 1 NWLR (Pt. 427) page 637.
The second ground of appeal which I take first for convenience reads as follows:-
2. The Tribunal erred in laws when it held:
"Even if the plaintiffs letter dated 4th day of September, 1998 exhibit C2 is an offer there is no acceptance of such an offer by the defendant. The plaintiff's letter dated 15th day of October, 1998 exhibit D stipulated conditions to be fulfilled this it could only amount to a counteroffer if EXHIBIT D is an offer from the plaintiff to the defendant. The defendant has not accepted the offer and the plaintiff the offeror reserved the right to –withdraw the offer".
Particulars of error:
(a) The Tribunal has no jurisdiction to entertain any matter which raises issue of jurisdiction to land;
(b) The effect of EXHIBITS D, E and F is that issue of title to land has been raised;
(c) By attempting to construe Exhibits D, E, and F the Tribunal is clearly deciding issues affecting title of land.
Again, I have carefully gone through the issue formulated for determination by the appellant. I cannot see any part of the issue which has arisen from the second ground of appeal. The ground of appeal is therefore also deemed abandoned and struck out. - See Ogun vs. Asemah (Supra) and Atunrase vs. Philips (Supra). There therefore remains only ground one of the grounds of appeal and I quote it verbatim:-
1. The learned Chairman and members of the Rent Control and Residential Premises Tribunal (sic) of Oshodi /Isolo Local Government (hereinafter referred to as "the Tribunal") erred in law when they held in their judgment as follows:-
“I have considered sections 13 and 14 of the Rent Edict together with the decision of Okagbue vs. Romaine (1982) 5 S. C. page 133. The Tribunal is a Court of Law as well as a court of equity. The Tribunal has a duty to do justice and justice must not be sacrificed on the alter of technicalities. "
Particulars of error.
(a) The plaintiff alleged in his plaint and in the evidence of the P.W. 1 that the defendant is a tenant at will.
Under Section 14 (1) of the Rent Control Law 1997, a tenant at will is entitled to be given a week's notice in form B or form C;
(b) The decision in Okagbue vs. Romaine is not germane to the case before the Tribunal being a decision based on the common law and not on the provision of the Rent Control Law;
(c) The relevant decision is that of Pan African Company Ltd. vs. National Insurance Corporation (Nig.) Ltd. (1982) 9 S. C. page 1 which was based on the construction of Section 15 of Law 9 of 1976 which section is in pari materia with section 13 of the 1997 Law;
(d) The Tribunal is set-up to administer the Rent Control and Recovery of Residential Premises Law 1997. The powers of the Tribunal are circumscribed within the four comers of that enabling law.
Consequently the Tribunal has no power to exercise vaguely described equitable jurisdiction in disregard of the clear provisions of the enabling law.
Clearly, in my view, this ground of appeal is a complaint directly against the finding of the Tribunal that the case of Okagbue vs. Romaine was relevant to the case before the court and that since by that case a tenancy is determined when either party engages in activities inconsistent with the tenancy, the tenancy in this case was determined by the activities of the defendant in the case, appellant herein which were inimical to the continued existence of tenancy. By this finding, complains the appellant, the Tribunal disregarded the provisions of sections 13 and 14 of the Rent Control and Recovery of Residential Premises Law No. 6 of 1997 which stipulates that a tenancy at will may only be determined by the issuance of a 7-days' notice. The complaint in summary is to the effect that the Tribunal has no power to set aside the provisions of the Rent Control and Recovery of Residential Premises Law No. 6 of 1997 (hereinafter referred to Law No. 6) and instead proceed to apply the principles of common law as stated in the case of Okagbue vs. Romaine (Supra) in the pursuit of what it regarded as justice.
The issues that are in this appeal according to the appellant's counsel are as follows:-
1. Whether the learned Chairman and members of the Rent Control and Recovery of Residential Premises (sic) were right in holding that a tenancy at will could be determined by means of only Notice of Owner's intention to apply to recover possession (7 days' notice) without the prerequisite of notice to quit;
2. Whether on the facts and the evidence before the Tribunal it came to a right conclusion in holding that the Appellation (sic) was a tenant-at-will.
On the first issue for determination, it seems to me proper to correct an error that appears in that issue. The judgment of the Tribunal as far as I can understand same does not seem to me to hold anywhere that the tenancy could be determined by means of a notice of owners intention to recover possession. What it seems to me to have held is that the inimical activities of the appellant had determined the tenancy (according to its application of the case of Okagbue vs. Romaine) making it only necessary to serve the 7 days notice on the appellant. Still, it is apparent from the issue as formulated that the appellant is, attacking the judgment of the tribunal on the ground that the latter was wrong to have discounted the service of the Notice to Quit as a prerequisite for the valid determination of the tenancy. The first issue therefore is whether or not the Tribunal was right to have held that the respondent had no need to determine the tenancy by means of a notice to quit.
The second issue as formulated does not appear to me to arise from the sole ground of appeal under consideration. I therefore have no intention of considering it. This leaves the only issue as the issue as to whether or not the Tribunal was right to have held that upon the evidence before the court and in the circumstances of this case the respondent needed to not serve the statutory notice to quit on the appellant as the tenancy had been otherwise validly determined.
The respondent's counsel formulated the issues in this appeal thus:-
"Whether the final Tribunal was right in entering judgment in favour of the plaintiff/respondent"
I do not think this issue that arises from the ground of appeal because it is a vague reference to the general complaint of the appellant concerning his dissatisfaction with the judgment. It does not arise directly from ground one of the grounds of appeal which complains specifically about a particular finding of the Rent Tribunal viz: - Failure to apply provision of the Rent Control and Recovery of Residential Premises Law and choosing to, in effect, apply the common law in the pursuit of what it sees as justice unfettered by technicalities. I therefore prefer the formulation of the issues
by the learned counsel for the appellant as amended by the court i. e. Whether or not the Tribunal was right to have held in effect that it was not necessary to determine the tenancy by means of a notice to quit, the tenancy having been otherwise validly determined by the alleged conduct of the appellant.
Arguing this issue learned counsel for the appellant submitted that on the face of the plaint, the plaintiff stated that the tenancy was determined by the service of a 7-days' notice and this was repeated in the evidence of the witness for the plaintiff in court. It is the contention of learned counsel that the 7 days' notice of intention to recover possession is in law insufficient to determine a tenancy at will.
Learned counsel referred to sections 13 and 14 of Law no 6 and submitted as a tenant at will, for a definition of which the learned counsel for the appellant referred to the case of Pan-Asian African Co. Ltd. vs. NICON (1982) 9 S. C. page 1, the appellants tenancy could only be determined by one week's notice which was not served on the appellant in this case.
Learned counsel attacked the Tribunal's finding that the tenancy could otherwise be determined and the reliance it placed on the case of Okagbue vs. Romaine (Supra) which case according learned counsel only stated the position of the common law as there was no rent control issue involved.
The case according to learned counsel was a suit for trespass and injunction and not recovery of residential premises. Learned counsel submitted that the tribunal was in error when it, after considering the provisions of sections 13 and 14 of Law No 6 dismissed them with the following words:-
"I have considered sections 13 and 14 of the Rent Edict together with the decision of Okagbue vs. Romaine (1992) 5 S. C. page 113. The Tribunal is a court of law as well as equity. The Tribunal has a duty to do justice and justice must not be sacrificed on the alter of technicalities" when it would only be doing justice according to law if it adhered to the provisions of Law No. 6.
It finally urged the court to resolve the issues in the appeal against the respondents to allow the appeal.
In his written reply briefs learned counsel for the respondent in so far as same is relevant to the issue submitted that in the case of Pan-Asian African Co. Ltd. vs. NICON Ltd. (1982) 9 S. C. page 1 the Supreme Court had interpreted a similar provision to section 13 of Laws No. 6 to mean that it was unnecessary to serve any notice on the appellant for the determination of the tenancy had been determined and all the respondent needed to do was to serve the appellant with the seven days' notice which was done in this case. He supported the decision of the Tribunal on the ground that the Tribunal heard the evidence and was entitled to believe what it heard since there was no evidence in contradiction. He reiterated the propriety of serving only a seven days' notice of intention to apply to recover possession as the tribunal held, citing the case Okagbue vs. Romaine (Supra).
Now sections 14 of Law No. 9 provides inter alia as follows:-
(1) Where there is no express stipulation as to the notice to be given by either party to determine the tenancy, the following periods of time shall be given -
(a) "in the case of a tenancy at will or a weekly tenancy, a week's notice"
Section 13 of the Law is clear. No action for possession may be brought except the statutory notices had been first served. - See International Polymera Systems Ltd. vs. Mr. Robert Glover & Anor. (2002) 7 NWLR (Pt. 765) page 124; Pan- Asian African Co. Ltd. vs. NICON Ltd. (1982) 5 S. C. page 1.
The law therefore is that for the landlord to commence ejectment proceedings against the tenant, he must have served him with statutory notices as stipulated by law. The law (Law No. 6) has stipulated the notices to be issued to each type of tenancy. It has stipulated, for a tenancy-at-will a week's notice. It follows therefore that failure to serve the notice or give evidence of its service translates to the tenancy not having been validly determined and any proceedings brought for the ejectment of the tenant upon determination of the tenancy is incompetent and must be dismissed.
I have read the case of Okagbue vs. Romaine (Supra) and I am in agreement with learned counsel for the appellant that it is wholly irrelevant to a case of landlord and tenant based on a Rent Control Statute such as this. That case only stated the position of the common law with regard to activities which at common law could determine a tenancy. The claim in that suit is for trespass, injunction and damages. It has nothing to do with the law of landlord and tenant as contemplated by the Rent Control Legislations. It is a grave error to apply the case to cases circumstanced the case in hand. This is a case that is founded upon and regulated by legislation. The Tribunal itself was set up by legislation which prescribes its powers. - See 7 of Law No. 6 which gives the Tribunal its jurisdiction. It would appear to me totally wrong to depart from the legislation setting up the Court of Tribunal as in this case in purported quest for justice.
The Tribunal remarked that it arrived at its decision in order to do justice unfettered by technicalities. One may ask: to whom has justice been done by delivering justice that is obviously not according to law in this case? Is the Rent Control and Recovery of Residential Premises Law No. 6 of 1997 a mere document containing technicalities? It is a notorious fact that the legislation was promulgated for the protection of the rights of tenants. If the law lays down conditions that the landlord must meet before ejecting a tenant, is the right of the tenant not infringed and injustice consequently done to him if the court cavalierly dismisses the failure of the landlord to meet the conditions as a mere technicality? Can that be justice done to the tenant?
To my mind justice delivered not according to law may in certain circumstances amount to an act of injustice since it encourages each judge (and every judge is human) to bring in their personal preferences and prejudices into the act of adjudication, particular paradigms not being followed. I do not regard the Law No. 6 and any other law as Just mere technicalities.
It is a legislation, a statutory, binding, substantive law, not an adjectival law which may contain what may in some circumstances, be regarded as technicalities. The laws are made to be obeyed and followed and not to be set aside by the court in the pursuit of any ideal, justice inconclusive, as to do so will reduce the ideal to a mere phantom invoked at the whim of the pursuer. The Law No. 6 was promulgated for the regulation of landlord and tenant relationships with reference to residential premises with a view to protecting the rights of tenants, any departure therefore from its provisions is an attempt to go contrary to the intendment of the legislation and to thwart its objectives which act naturally to translates to the infringement of the rights of tenants as protected by the statute. I do not think the court should engage in it. The duty of the court is to declare the law not to make it and in the determination of matters placed before it, it must be dispassionate. – See So Mat Sonka Nig. Ltd. vs. Adzege (2001) 9 NWLR (Pt. 718) page 312.
I hold in the final analysis that the tribunal fell into grave error in making an order of possession against the appellant without any statutory notice determining the tenancy being first served on him as required by law No. 6 of 1997. The appeal therefore succeeds and the judgment of the Rent Tribunal for the Oshodi/Isolo Local Government delivered on the 7th day of October, 1999 in Suit No. RT/K/3026/99 is hereby set aside. In its place an order dismissing the suit is substituted. Cost of N5,000.00 is awarded to the appellant.
OLOKOBA
JUDGE
19/06/2006
Monday, June 23, 2008
Wednesday, June 4, 2008
NBA V EDU LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE OF THE BODY OF BENCHERS
NIGERIAN BAR ASSOCIATION
V.
OLUWASESAN EDU
LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
OF THE BODY OF BENCHERS
(HOLDEN ATABUJA)
COMPLAINT NO. BB/DCNB/063
ALHAJI ABDULLAHI IBRAHIM, CON, OFR, SAN (Chairman) (Read the Judgment of the Committee)
HON. JUSTICE LAWAL HASSAN GUMMI, (Chief Judge of Federal Capital Territory) - Member
HON. JUSTICE UMARU ERI, OFR, (Chief Judge of Kogi Stale) - Member
HON. JUSTICE KULU ALIYU, (Chief Judge of Zamfara State) - Member
PROF. A. A- UTUAMA, SAN, (Attorney-General of Delta State) - Member
EMMANUEL TORO. SAN - Member
RICHARD N. YERIMAH, (Attorney-General of Adamawa State) - Member
CHIEF ADEGBOYEGA S. AWOMOLO, SAN - Member
CHIEF N. NWANODI, SAN - Member
TUESDAY 1st AUGUST, 2006
EVIDENCE-Proof-Charge of professional misconduct against legal practitioner-Burden of proof of-On whom lies.
LEGAL PRACTITIONER - Legal practitioner and his client -Relationship between - Duty owed by legal practitioner to his client - Nature of.
LEGAL PRACTITIONER - Professional etiquette - Duty on legal practitioner to avoid acts incompatible therewith.
LEGAL PRACTITIONER - Professional etiquette-Where legal practitioner issues dud cheque - Effect.
LEGAL PRACTITIONER-Professional misconduct in the legal profession-Dishonesty - What amounts to.
LEGAL PROFESSION-Charge of professional misconduct against legal practitioner-Burden of proof of-On whom lies.
LEGAL PROFESSION - Legal practitioner and his client-Relationship between-Duty owed by legal practitioner to his client-Nature of.
I.EGAL PROFESSION-Professional misconduct in the legal profession-Dishonesty-What amounts to.
PROFESSIONAL ETHICS-Professional etiquette-Duty on legal practitioner to avoid acts incompatible therewith.
PROFESSIONAL ETHICS-Professional misconduct in the legal profession-Dishonesty-What amounts to.
WORDS AND PHRASES-"Dishonesty" as a professional misconduct-What amounts to.
WORDS AND PHRASES-"Misconduct" as in professional misconduct in the legal profession - What amounts to.
Issue:
Whether a prima facie case of misconduct was made out against Mr. Oluwasesan Edu, the respondent, for dealing with the subject property at Oba Akran Avenue, Ikeja in a manner unbecoming of a legal practitioner in a professional respect.
Facts:
The Warehouse at No. 42, Oba Akran Avenue, Ikeja Lagos belonged to Chief J. A. Adeniyi, Managing Director of Poatson Nigeria Ltd. A Lagos-based company, by name Airline Management Support Ltd., paid the sum of N2,520,000.00 (Two million, Five hundred and Twenty thousand Naira) to the respondent, Oluwasesan Edu, a legal practitioner of Oluwasesan Edu and Associates, for a lease of the said warehouse for a period of three years.
It was agreed by the parties that possession of the warehouse would be delivered to Airline Management Support Ltd. seven days after the confirmation of payment and after the respondent had carried out repairs on the property.
The cheque paid to the respondent was confirmed cleared on 16th July, 2004. However, as at 13th September, 2004 the respondent had neither carried out the repairs nor handed over the property to Airline Management Support Ltd. Consequently, Airline Management Support Ltd approached the landlord to the property who revealed that the respondent had not delivered any money to him in the name of or on behalf of Airline Management Support Ltd. He further revealed that the respondent only paid to him the sum of N1,650,000.00 in the name of Oluwasesan & Associates with a promise to pay the balance of the three years lease of the property within a short period.
The landlord, having found out the true position on the matter, agreed to lease the warehouse to Airline Management Support Ltd., subject to payment by the company of the difference in its rental value, having taken into consideration the amount already paid to him by the respondent. The company accordingly paid the sum of N690,000 to the landlord who thereafter personally put Airline Management Support Ltd. in possession by cutting off the keys the respondent used to lock up the warehouse.
After making several fruitless efforts to recover the money paid to the respondent. Airline Management Support Ltd reported the matter to the Police at Panti, Yaba. Due to the intervention of the Police, the respondent issued a cheque of N2,520,000 in favour of Airline Management Support Ltd., which turned out to be a dud cheque. When the Police insisted on charging the matter to the court, the respondent begged for amicable settlement of the matter out of court, and made a written pledge to settle the outstanding indebtedness of N870,000.00. He immediately deposited the sum of twenty thousand Naira with the Police as part-payment of the balance of the money, with a promise to pay up on or before 14th October, 2004 which he failed to do. Consequently, Airline Management Support Ltd, petitioned the Nigerian Bar Association.
The Disciplinary Committee of the Nigerian Bar Association duly considered all available materials on the matter and, having been satisfied that a prima facie case of professional misconduct had been disclosed against the respondent, filed a two-count complaint against the respondent before the Legal Practitioners Disciplinary Committee as follows:
"1. That you, Oluwasesan Edu, Male, Legal Practitioner of No. 1 Archdeaton Ogunbiyi Close, behind Ayinke House, Ikeja, Lagos State, on or about the 9th day of
July, 2004 dealt with the property situate at No. 142, Akran Avenue, Ikeja, Lagos State in a manner unbecoming of a legal practitioner, to wit; by collecting as rent the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) from Airline Management Support Limited as counsel to the landlord and remitted only the sum of One million, six hundred and fifty thousand naira (N1,650,000,00) contrary to Rules 24. 28 and 49(a) and (b) of the Rules of Professional Conduct in the Legal Profession and section 12 of the Legal Practitioners Act 1990 as amended.
2. That you, Oluwasesan Edu, Male, Legal Practitioner of No. 1 Archdeacon Ogunbiyi Close, behind Ayinke House, Ikeja, Lagos State on or about the 14th day of
October, 2004, issued a dud cheque of eight hundred and fifty thousand naira to the complainant. Airline Management Support Ltd. contrary to Rules 21, 24, 28 and 49(a) and (b) of the Rules of Professional Conduct in the Legal Profession and section 12 of the Legal Practitioners Act 1990 as amended."
In determining the complaint of the Nigerian Bar Association, the Legal Practitioners Disciplinary Committee considered the provision of Rule 49(b) of the Rules of Professional Conduct in the Legal Profession which states:
49(b) Money of the client or collected for client or other trust property coming to the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him."
Held (Unanimously that -
(a) the respondent, Oluwasesan Edu, legal practitioner, was guilty of infamous conduct in a professional respect:
(b) the respondent, Oluwasesan Edu, legal practitioner , should refund the sum of N850,000.00 (Eight hundred and fifty thousand naira) to Airline Management Support Ltd.
(c) the name of the respondent. Oluwasesan Edu, legal practitioner, be struck off the Roll as a Iegal practitioner in Nigeria):
1. On Burden of proof of charge of professional misconduct against legal practitioner-
In a charge of professional misconduct, the burden is on the accused legal practitioner to prove or justify creditability to the satisfaction of the Legal Practitioners Disciplinary Committee. In this case, the respondent failed to discharge the burden in that he failed to appear before the Committee to adduce oral evidence and his written submission did not contain any evidence in his favour. (P. 839, paras. C-D)
2. On Nature of relationship between legal practitioner and his client and duty owed by legal practitioner to his client -
The relationship between a legal practitioner and his client is a Fiduciary one, and this implies that the legal practitioner must act with utmost honesty and fairness to his client. (P. 838, paras. A-B)
3. On What amounts to professional misconduct in the legal profession -
The following acts are examples of what will amount to misconduct in the legal profession:
(a) any form of dishonesty or fraud perpetrated against the client by the legal practitioner; or
(b) failure to deliver to the client money or property received on his behalf or to disclose the receipt of such money or property; or
(c) making use of any property of the client entrusted to him without the client's authority.
[Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414; N.B.A. v. Udeagha (2006) 12 NWLR (Pt.994) 438; M.D.P.D. T. v. Okonkwo (2001) 7 NWLR (Pt.711) 206 referred to.] (Pp. 838, paras. B-D: 840, paras. A'B)
4. On Effect where a legal practitioner issues a dud cheque-It is against professional etiquette for a legal practitioner to issue a dud cheque. (P. 839, paras. D-E) Per ABDULLAHl 1BRAHIM, SAN (CHAIRMAN) at page 839, paras. D-E:
"Another outrageous aspect of this matter is the issuing by the respondent Oluwasesan Edu of a dud cheque of eight hundred and fifty thousand naira (N850,000.00) to the complainant, Airline Management Support Ltd. For a legal practitioner to indulge m such despicable act is highly condemnable especially in the spirit of the national crusade to rid the country of the malaise of fraudulent individual who possesses no character of professional etiquette."
Nigerian Cases Referred to in the Judgment:
M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt.711) 206 N.B.A. v. Udeagha (2006) 12 NWLR (Pt. 994) 438 Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414
Nigerian Statute Referred to in the Judgment:
Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990, S. 12
Rules Referred to in the Judgment:
Rules of Professional Conduct in the Legal Profession, rr. 21, 24,28and49(a)&(b)
Book Referred to in the Judgment:
Conduct and Etiquette for Legal Practitioners by Ola Orojo, 1979 Edition, p. 83
Counsel:
Dr. Garba Tetengi - for the Nigerian Bar Association (NBA) -the Complainant on behalf of the Petitioner
Respondent, Oluwasesan Edu, absent and unrepresented
ABDULLAHI IBRAHIM, SAN, CHAIRMAN (Delivering the Judgment of the Committee): The facts of this complaint before us are as follows: A company by name Airline Management Support Limited of 142, Oba Akran Avenue, Ikeja, Lagos has through its Solicitor, complained to the Nigerian Bar Association about the infamous conduct of one Mr. Oluwasesan Edu, a Legal Practitioner of the Firm of Edu Oluwasesan and Associates, 4th floor, Poatson House, 142 Oba Akran Avenue, Ikeja, Lagos.
According to the Solicitor to the Airline Management Support Ltd., the company had paid the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) to Oluwasesan Edu for a lease of a warehouse at 142 Oba Akran Avenue, Ikeja, Lagos for a period of three years. The payment was acknowledged by
Oluwasesan Edu, vide his receipt number IK 0000210 dated 9th July, 2004.
Oluwasesan Edu, had agreed to deliver the possession of the warehouse to the company seven days after the payment confirmation vide First Bank of Nigeria Plc Cheque number 088109 dated 9th July, 2004 which was confirmed as cleared into Oluwasesan Edu's account on Friday 16th July, 2004. But prior to the presentation of
the aforesaid cheque, it was agreed, that the Oluwasesan Edu would repair the damaged part of the roof and reposition the toilet to an agreed convenient position, which said repairs, were expected to have been completed on or before 27th July 2004, when possession of the warehouse was to be handed over to the petitioner (Airline Management Support Ltd.).
However, as at 13th September, 2004 the respondent (Oluwasesan Edu) not only refused to hand over possession but made access to the warehouse and repairs thereto impossible through changing the keys to the warehouse. It was at this juncture, that Airline Management Support Limited, approached the landlord to the property, Chief J.A. Adeniyi, Managing Director of Poatson Nigerian Ltd., Ikeja, who revealed, that Oluwasesan Edu had not delivered any money to him in the name of or on behalf of Airline Management Support Ltd., as what Oluwasesan Edu had done, was to pay the sum of one million, six hundred and fifty thousand naira (N1,650,000.00) to him (Chief Adeniyi), in the name of Edu Oluwasesan and Associates and with a promise to pay the balance of three years lease of the warehouse within a short period.
The landlord having found out the true position on this matter, agreed to lease the warehouse to the Airline Management Support Ltd., subject to the payment by the company, of the difference in its rental value having taken into consideration, the sum of one million six hundred and fifty thousand naira (N1,650,000.00) already paid to him by Oluwasesan Edu. The sum of six hundred and ninety thousand naira (N690,000.00), was accordingly paid to the landlord, Chief Adeniyi as an additional money to secure the warehouse. Upon receipt of the aforesaid payment, the landlord followed the representative of the company to the warehouse and personally cut off all the keys affixed to the warehouse by Oluwasesan Edu and possession delivered to the company-
In an attempt to recover the money had and received by Oluwasesan Edu, series of fruitless visits were made to his office. Eventually, the matter was reported to the Nigeria Police, Pami, Yaba as a result of which Oluwasesan had to issue a dud cheque of two million, five hundred and twenty thousand naira (N2,520,000.00) on 29/9/2004 knowing, fully well, that he had no money in the account. But when the Police was bent on charging the matter to court, he pleaded with the Police to enable him settle amicably with the company (Airline Management Supply Ltd..) and consequently, made a written pledge to settle the sum of eight hundred and seventy thousand naira (N870,000.00) being the difference in the money he collected from the Airline Management Supply Ltd., in which he had already made a part payment of one million six hundred and fifty thousand naira (N 1,650,000.00) to the landlord. Chief Adeniyi. He deposited the sum of twenty thousand naira with the police officer
in charge of the matter as a part payment of the money had and received from Airline Management Supply Ltd., and pledged to pay the balance of eight hundred and fifty thousand naira on or before 14th October 2004 which he failed to do.
It was in the light of the above, that Airline Management Support Ltd., had to petition the Nigerian Bar Association and a copy of the petitioner's letter was forwarded to the counsel to Oluwasesan Edu for his comments.
The reaction of Oluwasesan Edu (through his counsel) was an extensive denial of the allegation against him as he claimed that there was a contractual relationship between Edu Oluwasesan and Associates and Poatson Nigeria Ltd., in respect of an office space at 142, ObaAkran Avenue, Ikeja and that they had entered into another oral lease contract in respect of the latter's mini warehouse and an office space also situated at the same location. Among other things it was agreed, that Edu Oluwasesan and Associates should have a right to sublease the said property and Poatson Limited had agreed that its Solicitors Messrs Wole Ajayi and Co. should later prepare a written contract agreement containing the terms and conditions as orally agreed with Edu Oluwasesan and Associates and upon the oral agreement, Edu Oluwasesan and Associates paid to Poatson Ltd., a sum of one million six hundred and fifty thousand naira (N1,650,000.00), being the rent for three years at the rate of five hundred and fifty thousand naira (N550,000.00). But when the lease agreement was handed over to them for signature, it was observed, that a different party was being introduced which was unknown to them as the landlord they had been dealing with, was Poatson Limited while the lease agreement was prepared in the name of Poatson Graphic Arts Trade Ltd.
By virtue of the right given to Edu Oluwasesan and Associates to sublease the property, Edu Oluwasesan and Associates subleased same to Airline Management Support Ltd., (petitioner) for two million, one hundred thousand naira (N2,100,000.00) being payment for 3 years, at the rate of seven hundred thousand naira (N700,000.00) and immediately Airline Management Support Ltd., took over possession. That after the Airline Management Support Ltd., had taken over possession, there was a misunderstanding between it and Edu Oluwasesan and Associates over the location of a toilet. Airline Management Support Ltd., they claimed, had breached the sublease contract with Edu Oluwasesan and Associates by offering to pay the difference between what Edu Oluwasesan and Associates paid to Poatson Ltd., (Chief Adeniyi) in respect of the lease property. Airline Management Support Ltd., they say had frustrated the contract between it and Poatson Ltd., thereby opening a direct fresh contract between Poatson Ltd., (chief Adeniyi) and Airline Management Support Ltd., with the petitioner (Airline Management Support Ltd.,) thus dealing directly with Poatson Ltd., (Chief Adeniyi) having paid the additional sum of four hundred and fifty thousand naira (N450,000.00). Consequently, the demand by Airline Management Support Ltd., from Oluwasesan Edu for the refund of the said sum and his not so making same necessitated his (Oluwasesan Edu) being arrested and detained at the instance of Airline Management Support Ltd., notwithstanding his (Oluwasesan Edu) not having committed any criminal offence. Before his release, he signed an undertaking to refund the said sum of eight hundred and seventy thousand naira (N870,000.00) to Airline Management Support Ltd., (the petitioner).
The Disciplinary Committee of the Nigerian Bar Association (complainant) duly considered all available materials,on the matter and felt satisfied that aprimafacie case of professional misconduct had been disclosed against Mr. Oluwasesan Edu and therefore proceeded to file a two count complaint against him before this committee, thus:-
"1. That you, Oluwasesan Edu, Male, Legal Practitioner of No- 1 Archideaton Ogunibiyi Close, behind Ayinka House, Ikeja, Lagos State, on or about the 9lh day of July, 2004 dealt with the property situate at No. 142, Akran Avenue, Ikeja, Lagos State in a manner unbecoming of a Legal Practitioner, to wit; by collecting as rent the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) from Airline Management Support Limited as counsel to the landlord and remitted only the sum of one million, six hundred and fifty thousand naira (N1,650,000.00) contrary to rules 24,28 and 49(a) and (b) of the rules of Professional Conduct in the Legal Profession and Section 12 of the Legal Practitioners Act 1990 as amended.
2. That you, Oluwasesan Edu, Male, Legal Practitioner of No. 1 Archdeaton Ogunbiyi Close, behind Ayinka House, Ikeja, Lagos State on or about the 14th day of October, 2004, issued a dud cheque of eight hundred and fifty thousand naira to the complainant, Airline Management Support Ltd., contrary to rules 21, 24, 28 and 49 (a) and (b) of the rules of Professional Conduct in the Legal Profession and Section 12 of the Legal Practitioners Act 1990 as amended."
When this complaint first came up for hearing before this committee Mr. Oluwasesan Edu (the respondent) was absent and not represented and service was said to have been effected on him through courier and this committee ordered, mat proper service be effected on him and the case adjourned to 7/6/2006. On the said date. Dr. Garba Tetengi who had appeared for the complainant (the Nigerian Bar
Association) informed this committee, that the respondent was served vide Newspaper publication of 5/5/2006 (TH1SDAY NEWSPAPER) and accordingly, application to proceed under rule 7 was granted and the two counts were read and a plea of not liable was entered on behalf of the respondent.
The complainant testified by first calling on PW1, Abubakar Umaru Maidama, Secretary to the Legal Practitioners Disciplinary Committee who informs the Committee, that his duties included receiving reports from the Nigerian Bar Association. According to him, he knows the respondent in this matter. A report dated 11/7/2005 of 68 pages he says, was received from the Nigerian Bar Association stating that the petition of Airline Management Support Ltd., against the respondent had been investigated and a prima facie case established against him and the said report was admitted in evidence as exhibit PI. This witness had copied the report including all the Anncxures to the respondent (Oluwasesan Edu) together with a hearing notice.
Next to testify was Christopher Okeragwe, a Sales Manager with Airline Management Support Ltd. This witness informed the committee of his knowing the respondent and the law firm of Alesinloye and Associates who is their Solicitor as they had instructed the law firm to write a petition on their behalf because of what had transpired between their company. Airline Management Support Ltd., and the respondent. He adopted the petition written by their said counsel as contained in exhibit PI, as he had identified the signature thereon as that of their Solicitor. The respondent, he informed the Committee, had not refunded the amount of eight hundred and fifty thousand naira (N850,000.00) owed to them.
We have carefully and painstakingly considered the oral and documentary evidence before this committee and we therefore ask whether a prima facie case of misconduct has been shown against Mr. Oluwasesan Edu, the respondent for dealing with the subject property at Oba Akran Avenue, Ikeja in a manner unbecoming of a legal practitioner in a professional respect?
Hon. Justice J. Ola Orojo in his book "CONDUCT AND ETIQUETTE FOR LEGAL PRACTITIONERS" 1979 edition at page 83) therein had this to say:-
"DUTY OF HONESTY
The relationship between a legal practitioner and his client is a fiduciary one and this implies that the legal practitioner must act with utmost honesty and fairness to his client. Any form of dishonesty or fraud perpetrated against the client by the legal practitioner will amount to misconduct. Failure to deliver to the client money or property received on his behalf or to disclose the receipt of such money or property or the making use of any property of the client entrusted to him without the clients authority are examples of misconduct. Rules 49 (b) provides that money of the client collected for the client or other trust property coming to the possession of the legal practitioners should be reported and accounted for promptly.
The Supreme Court not only emphasized this duty in the case of Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414 page 431 paragraphs C - C but that the propriety of Counsel's conduct in such circumstances, has to be justified by him.
In the light of the above, the committee observed that:-
(i) The legal practitioner (Oluwasesan Edu) received the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) from the complainant. Airline Management Support Ltd., as rent of the warehouse for the term of 3 years;
(ii) The said legal practitioner surreptitiously used part of the complainant's money in paying the sum of one million, six hundred and fifty, thousand naira (N 1,650,000.00) to the landlord (Chief Adeniyi of Poatson) in satisfaction of the legal practitioner's purported obligation to the landlord under a lease of the warehouse;
(iii) The purported agreement to lease the warehouse from the landlord by the legal practitioner, Oluwasesan Edu, the respondent was not concluded;
(v) When it became clear that the legal practitioner would not deliver possession of the warehouse to Airline Management Support Ltd., the said company had to pay additional sum of six hundred and ninety thousand naira (N690,000.00) to the landlord to secure the warehouse.
(v) The landlord by a letter dated 21st September, 2004 terminated his relationship with the legal practitioner upon discovery of illicit dealings by legal practitioner Oluwasesan Edu; and
(vi) The sum of eight hundred and fifty thousand naira (N850,000.00) being the balance of the money paid by the legal practitioner remains unpaid in spite of repeated demands and his Cheque in purported refund was returned unpaid.
The respondent upon whom the burden of proof lies of proving or justifying creditability to the satisfaction of this committee failed woefully to do so, considering, his absence before this committee to adduce oral evidence, no matter how scanty to exonerate himself from the charge of professional misconduct brought against him. And neither is there any scintilla of evidence in his written submission that can be urged in his favour.
Another outrageous aspect of this matter is the issuing by the respondent Oluwasesan Edu of a dud Cheque of eight hundred and fifty thousand naira (N850,000.00) to the complainant. Airline Management Support Ltd. For a legal practitioner to indulge in such despicable act is highly condemnable especially in the spirit of the national crusade to ride the country of the malaise of fraudulent individual who possesses no character of professional etiquette.
The Committee is therefore of the view, that the respondent, Olwasesan Edu was dishonest in his dealings with his client and by so doing, smeared the name of the profession. He has by his conduct, brought the profession into ridicule before the common man and should be sanctioned. Accordingly he is not a fit and proper person both in learning and in character, to remain a legal practitioner.
FINDING
Having considered and evaluated the oral and documentary evidence placed before this committee, as well as the applicable law in this matter as herein before discussed, the committee has arrived at the finding, and conclusion that the respondent, Oluwasesan Edu is liable of serious misconduct in a professional respect in his dealing with the subject property at Oba Akran Avenue, Ikeja, in a manner most unbecoming, of a legal practitioner in a professional respect; (See rule 24) and failing to account for the sum of eight hundred and fifty thousand naira (850,000.00) all punishable under Section 12 of the Legal practitioners Act., Cap. 207 LFN 1990 as amended.
Such conduct on the part of" the respondent, Oluwasesan Edu, qualifies as proven infamous conduct in a professional respect, warranting appropriate sanction by this committee. Sec the unreported case of NBA v. Uzor C. Udeagha in the Legal Practitioners Disciplinary Committee Complaint No. BB/DCNB/038 of 6th December 2005; (2006) 12 NWLR (Pt.994) 438, and the Supreme Court decision in the case of MDPDTv. Okonhvo (2001) 7 NWLR (Pt-711) 206 per Ayoola JSC (as he then was) at pages 238-239.
DIRECTION
(i) The sum of eight hundred and fifty thousand naira (850,000.00) be refunded to the Airline Management Support Ltd., by the respondent.
(ii) That the Chief Registrar of the Supreme Court, is hereby directed, to strike off the name of the respondent, Oluwusesan Edu from the Roll as a legal practitioner.
(iii) That notice of this direction, be given to the Chief Registrar of the Supreme Court, all Chief Judges, the Attorney General of the Federation and Attorneys-General of the various States, for their information.
Complaint upheld
V.
OLUWASESAN EDU
LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
OF THE BODY OF BENCHERS
(HOLDEN ATABUJA)
COMPLAINT NO. BB/DCNB/063
ALHAJI ABDULLAHI IBRAHIM, CON, OFR, SAN (Chairman) (Read the Judgment of the Committee)
HON. JUSTICE LAWAL HASSAN GUMMI, (Chief Judge of Federal Capital Territory) - Member
HON. JUSTICE UMARU ERI, OFR, (Chief Judge of Kogi Stale) - Member
HON. JUSTICE KULU ALIYU, (Chief Judge of Zamfara State) - Member
PROF. A. A- UTUAMA, SAN, (Attorney-General of Delta State) - Member
EMMANUEL TORO. SAN - Member
RICHARD N. YERIMAH, (Attorney-General of Adamawa State) - Member
CHIEF ADEGBOYEGA S. AWOMOLO, SAN - Member
CHIEF N. NWANODI, SAN - Member
TUESDAY 1st AUGUST, 2006
EVIDENCE-Proof-Charge of professional misconduct against legal practitioner-Burden of proof of-On whom lies.
LEGAL PRACTITIONER - Legal practitioner and his client -Relationship between - Duty owed by legal practitioner to his client - Nature of.
LEGAL PRACTITIONER - Professional etiquette - Duty on legal practitioner to avoid acts incompatible therewith.
LEGAL PRACTITIONER - Professional etiquette-Where legal practitioner issues dud cheque - Effect.
LEGAL PRACTITIONER-Professional misconduct in the legal profession-Dishonesty - What amounts to.
LEGAL PROFESSION-Charge of professional misconduct against legal practitioner-Burden of proof of-On whom lies.
LEGAL PROFESSION - Legal practitioner and his client-Relationship between-Duty owed by legal practitioner to his client-Nature of.
I.EGAL PROFESSION-Professional misconduct in the legal profession-Dishonesty-What amounts to.
PROFESSIONAL ETHICS-Professional etiquette-Duty on legal practitioner to avoid acts incompatible therewith.
PROFESSIONAL ETHICS-Professional misconduct in the legal profession-Dishonesty-What amounts to.
WORDS AND PHRASES-"Dishonesty" as a professional misconduct-What amounts to.
WORDS AND PHRASES-"Misconduct" as in professional misconduct in the legal profession - What amounts to.
Issue:
Whether a prima facie case of misconduct was made out against Mr. Oluwasesan Edu, the respondent, for dealing with the subject property at Oba Akran Avenue, Ikeja in a manner unbecoming of a legal practitioner in a professional respect.
Facts:
The Warehouse at No. 42, Oba Akran Avenue, Ikeja Lagos belonged to Chief J. A. Adeniyi, Managing Director of Poatson Nigeria Ltd. A Lagos-based company, by name Airline Management Support Ltd., paid the sum of N2,520,000.00 (Two million, Five hundred and Twenty thousand Naira) to the respondent, Oluwasesan Edu, a legal practitioner of Oluwasesan Edu and Associates, for a lease of the said warehouse for a period of three years.
It was agreed by the parties that possession of the warehouse would be delivered to Airline Management Support Ltd. seven days after the confirmation of payment and after the respondent had carried out repairs on the property.
The cheque paid to the respondent was confirmed cleared on 16th July, 2004. However, as at 13th September, 2004 the respondent had neither carried out the repairs nor handed over the property to Airline Management Support Ltd. Consequently, Airline Management Support Ltd approached the landlord to the property who revealed that the respondent had not delivered any money to him in the name of or on behalf of Airline Management Support Ltd. He further revealed that the respondent only paid to him the sum of N1,650,000.00 in the name of Oluwasesan & Associates with a promise to pay the balance of the three years lease of the property within a short period.
The landlord, having found out the true position on the matter, agreed to lease the warehouse to Airline Management Support Ltd., subject to payment by the company of the difference in its rental value, having taken into consideration the amount already paid to him by the respondent. The company accordingly paid the sum of N690,000 to the landlord who thereafter personally put Airline Management Support Ltd. in possession by cutting off the keys the respondent used to lock up the warehouse.
After making several fruitless efforts to recover the money paid to the respondent. Airline Management Support Ltd reported the matter to the Police at Panti, Yaba. Due to the intervention of the Police, the respondent issued a cheque of N2,520,000 in favour of Airline Management Support Ltd., which turned out to be a dud cheque. When the Police insisted on charging the matter to the court, the respondent begged for amicable settlement of the matter out of court, and made a written pledge to settle the outstanding indebtedness of N870,000.00. He immediately deposited the sum of twenty thousand Naira with the Police as part-payment of the balance of the money, with a promise to pay up on or before 14th October, 2004 which he failed to do. Consequently, Airline Management Support Ltd, petitioned the Nigerian Bar Association.
The Disciplinary Committee of the Nigerian Bar Association duly considered all available materials on the matter and, having been satisfied that a prima facie case of professional misconduct had been disclosed against the respondent, filed a two-count complaint against the respondent before the Legal Practitioners Disciplinary Committee as follows:
"1. That you, Oluwasesan Edu, Male, Legal Practitioner of No. 1 Archdeaton Ogunbiyi Close, behind Ayinke House, Ikeja, Lagos State, on or about the 9th day of
July, 2004 dealt with the property situate at No. 142, Akran Avenue, Ikeja, Lagos State in a manner unbecoming of a legal practitioner, to wit; by collecting as rent the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) from Airline Management Support Limited as counsel to the landlord and remitted only the sum of One million, six hundred and fifty thousand naira (N1,650,000,00) contrary to Rules 24. 28 and 49(a) and (b) of the Rules of Professional Conduct in the Legal Profession and section 12 of the Legal Practitioners Act 1990 as amended.
2. That you, Oluwasesan Edu, Male, Legal Practitioner of No. 1 Archdeacon Ogunbiyi Close, behind Ayinke House, Ikeja, Lagos State on or about the 14th day of
October, 2004, issued a dud cheque of eight hundred and fifty thousand naira to the complainant. Airline Management Support Ltd. contrary to Rules 21, 24, 28 and 49(a) and (b) of the Rules of Professional Conduct in the Legal Profession and section 12 of the Legal Practitioners Act 1990 as amended."
In determining the complaint of the Nigerian Bar Association, the Legal Practitioners Disciplinary Committee considered the provision of Rule 49(b) of the Rules of Professional Conduct in the Legal Profession which states:
49(b) Money of the client or collected for client or other trust property coming to the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him."
Held (Unanimously that -
(a) the respondent, Oluwasesan Edu, legal practitioner, was guilty of infamous conduct in a professional respect:
(b) the respondent, Oluwasesan Edu, legal practitioner , should refund the sum of N850,000.00 (Eight hundred and fifty thousand naira) to Airline Management Support Ltd.
(c) the name of the respondent. Oluwasesan Edu, legal practitioner, be struck off the Roll as a Iegal practitioner in Nigeria):
1. On Burden of proof of charge of professional misconduct against legal practitioner-
In a charge of professional misconduct, the burden is on the accused legal practitioner to prove or justify creditability to the satisfaction of the Legal Practitioners Disciplinary Committee. In this case, the respondent failed to discharge the burden in that he failed to appear before the Committee to adduce oral evidence and his written submission did not contain any evidence in his favour. (P. 839, paras. C-D)
2. On Nature of relationship between legal practitioner and his client and duty owed by legal practitioner to his client -
The relationship between a legal practitioner and his client is a Fiduciary one, and this implies that the legal practitioner must act with utmost honesty and fairness to his client. (P. 838, paras. A-B)
3. On What amounts to professional misconduct in the legal profession -
The following acts are examples of what will amount to misconduct in the legal profession:
(a) any form of dishonesty or fraud perpetrated against the client by the legal practitioner; or
(b) failure to deliver to the client money or property received on his behalf or to disclose the receipt of such money or property; or
(c) making use of any property of the client entrusted to him without the client's authority.
[Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414; N.B.A. v. Udeagha (2006) 12 NWLR (Pt.994) 438; M.D.P.D. T. v. Okonkwo (2001) 7 NWLR (Pt.711) 206 referred to.] (Pp. 838, paras. B-D: 840, paras. A'B)
4. On Effect where a legal practitioner issues a dud cheque-It is against professional etiquette for a legal practitioner to issue a dud cheque. (P. 839, paras. D-E) Per ABDULLAHl 1BRAHIM, SAN (CHAIRMAN) at page 839, paras. D-E:
"Another outrageous aspect of this matter is the issuing by the respondent Oluwasesan Edu of a dud cheque of eight hundred and fifty thousand naira (N850,000.00) to the complainant, Airline Management Support Ltd. For a legal practitioner to indulge m such despicable act is highly condemnable especially in the spirit of the national crusade to rid the country of the malaise of fraudulent individual who possesses no character of professional etiquette."
Nigerian Cases Referred to in the Judgment:
M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt.711) 206 N.B.A. v. Udeagha (2006) 12 NWLR (Pt. 994) 438 Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414
Nigerian Statute Referred to in the Judgment:
Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990, S. 12
Rules Referred to in the Judgment:
Rules of Professional Conduct in the Legal Profession, rr. 21, 24,28and49(a)&(b)
Book Referred to in the Judgment:
Conduct and Etiquette for Legal Practitioners by Ola Orojo, 1979 Edition, p. 83
Counsel:
Dr. Garba Tetengi - for the Nigerian Bar Association (NBA) -the Complainant on behalf of the Petitioner
Respondent, Oluwasesan Edu, absent and unrepresented
ABDULLAHI IBRAHIM, SAN, CHAIRMAN (Delivering the Judgment of the Committee): The facts of this complaint before us are as follows: A company by name Airline Management Support Limited of 142, Oba Akran Avenue, Ikeja, Lagos has through its Solicitor, complained to the Nigerian Bar Association about the infamous conduct of one Mr. Oluwasesan Edu, a Legal Practitioner of the Firm of Edu Oluwasesan and Associates, 4th floor, Poatson House, 142 Oba Akran Avenue, Ikeja, Lagos.
According to the Solicitor to the Airline Management Support Ltd., the company had paid the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) to Oluwasesan Edu for a lease of a warehouse at 142 Oba Akran Avenue, Ikeja, Lagos for a period of three years. The payment was acknowledged by
Oluwasesan Edu, vide his receipt number IK 0000210 dated 9th July, 2004.
Oluwasesan Edu, had agreed to deliver the possession of the warehouse to the company seven days after the payment confirmation vide First Bank of Nigeria Plc Cheque number 088109 dated 9th July, 2004 which was confirmed as cleared into Oluwasesan Edu's account on Friday 16th July, 2004. But prior to the presentation of
the aforesaid cheque, it was agreed, that the Oluwasesan Edu would repair the damaged part of the roof and reposition the toilet to an agreed convenient position, which said repairs, were expected to have been completed on or before 27th July 2004, when possession of the warehouse was to be handed over to the petitioner (Airline Management Support Ltd.).
However, as at 13th September, 2004 the respondent (Oluwasesan Edu) not only refused to hand over possession but made access to the warehouse and repairs thereto impossible through changing the keys to the warehouse. It was at this juncture, that Airline Management Support Limited, approached the landlord to the property, Chief J.A. Adeniyi, Managing Director of Poatson Nigerian Ltd., Ikeja, who revealed, that Oluwasesan Edu had not delivered any money to him in the name of or on behalf of Airline Management Support Ltd., as what Oluwasesan Edu had done, was to pay the sum of one million, six hundred and fifty thousand naira (N1,650,000.00) to him (Chief Adeniyi), in the name of Edu Oluwasesan and Associates and with a promise to pay the balance of three years lease of the warehouse within a short period.
The landlord having found out the true position on this matter, agreed to lease the warehouse to the Airline Management Support Ltd., subject to the payment by the company, of the difference in its rental value having taken into consideration, the sum of one million six hundred and fifty thousand naira (N1,650,000.00) already paid to him by Oluwasesan Edu. The sum of six hundred and ninety thousand naira (N690,000.00), was accordingly paid to the landlord, Chief Adeniyi as an additional money to secure the warehouse. Upon receipt of the aforesaid payment, the landlord followed the representative of the company to the warehouse and personally cut off all the keys affixed to the warehouse by Oluwasesan Edu and possession delivered to the company-
In an attempt to recover the money had and received by Oluwasesan Edu, series of fruitless visits were made to his office. Eventually, the matter was reported to the Nigeria Police, Pami, Yaba as a result of which Oluwasesan had to issue a dud cheque of two million, five hundred and twenty thousand naira (N2,520,000.00) on 29/9/2004 knowing, fully well, that he had no money in the account. But when the Police was bent on charging the matter to court, he pleaded with the Police to enable him settle amicably with the company (Airline Management Supply Ltd..) and consequently, made a written pledge to settle the sum of eight hundred and seventy thousand naira (N870,000.00) being the difference in the money he collected from the Airline Management Supply Ltd., in which he had already made a part payment of one million six hundred and fifty thousand naira (N 1,650,000.00) to the landlord. Chief Adeniyi. He deposited the sum of twenty thousand naira with the police officer
in charge of the matter as a part payment of the money had and received from Airline Management Supply Ltd., and pledged to pay the balance of eight hundred and fifty thousand naira on or before 14th October 2004 which he failed to do.
It was in the light of the above, that Airline Management Support Ltd., had to petition the Nigerian Bar Association and a copy of the petitioner's letter was forwarded to the counsel to Oluwasesan Edu for his comments.
The reaction of Oluwasesan Edu (through his counsel) was an extensive denial of the allegation against him as he claimed that there was a contractual relationship between Edu Oluwasesan and Associates and Poatson Nigeria Ltd., in respect of an office space at 142, ObaAkran Avenue, Ikeja and that they had entered into another oral lease contract in respect of the latter's mini warehouse and an office space also situated at the same location. Among other things it was agreed, that Edu Oluwasesan and Associates should have a right to sublease the said property and Poatson Limited had agreed that its Solicitors Messrs Wole Ajayi and Co. should later prepare a written contract agreement containing the terms and conditions as orally agreed with Edu Oluwasesan and Associates and upon the oral agreement, Edu Oluwasesan and Associates paid to Poatson Ltd., a sum of one million six hundred and fifty thousand naira (N1,650,000.00), being the rent for three years at the rate of five hundred and fifty thousand naira (N550,000.00). But when the lease agreement was handed over to them for signature, it was observed, that a different party was being introduced which was unknown to them as the landlord they had been dealing with, was Poatson Limited while the lease agreement was prepared in the name of Poatson Graphic Arts Trade Ltd.
By virtue of the right given to Edu Oluwasesan and Associates to sublease the property, Edu Oluwasesan and Associates subleased same to Airline Management Support Ltd., (petitioner) for two million, one hundred thousand naira (N2,100,000.00) being payment for 3 years, at the rate of seven hundred thousand naira (N700,000.00) and immediately Airline Management Support Ltd., took over possession. That after the Airline Management Support Ltd., had taken over possession, there was a misunderstanding between it and Edu Oluwasesan and Associates over the location of a toilet. Airline Management Support Ltd., they claimed, had breached the sublease contract with Edu Oluwasesan and Associates by offering to pay the difference between what Edu Oluwasesan and Associates paid to Poatson Ltd., (Chief Adeniyi) in respect of the lease property. Airline Management Support Ltd., they say had frustrated the contract between it and Poatson Ltd., thereby opening a direct fresh contract between Poatson Ltd., (chief Adeniyi) and Airline Management Support Ltd., with the petitioner (Airline Management Support Ltd.,) thus dealing directly with Poatson Ltd., (Chief Adeniyi) having paid the additional sum of four hundred and fifty thousand naira (N450,000.00). Consequently, the demand by Airline Management Support Ltd., from Oluwasesan Edu for the refund of the said sum and his not so making same necessitated his (Oluwasesan Edu) being arrested and detained at the instance of Airline Management Support Ltd., notwithstanding his (Oluwasesan Edu) not having committed any criminal offence. Before his release, he signed an undertaking to refund the said sum of eight hundred and seventy thousand naira (N870,000.00) to Airline Management Support Ltd., (the petitioner).
The Disciplinary Committee of the Nigerian Bar Association (complainant) duly considered all available materials,on the matter and felt satisfied that aprimafacie case of professional misconduct had been disclosed against Mr. Oluwasesan Edu and therefore proceeded to file a two count complaint against him before this committee, thus:-
"1. That you, Oluwasesan Edu, Male, Legal Practitioner of No- 1 Archideaton Ogunibiyi Close, behind Ayinka House, Ikeja, Lagos State, on or about the 9lh day of July, 2004 dealt with the property situate at No. 142, Akran Avenue, Ikeja, Lagos State in a manner unbecoming of a Legal Practitioner, to wit; by collecting as rent the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) from Airline Management Support Limited as counsel to the landlord and remitted only the sum of one million, six hundred and fifty thousand naira (N1,650,000.00) contrary to rules 24,28 and 49(a) and (b) of the rules of Professional Conduct in the Legal Profession and Section 12 of the Legal Practitioners Act 1990 as amended.
2. That you, Oluwasesan Edu, Male, Legal Practitioner of No. 1 Archdeaton Ogunbiyi Close, behind Ayinka House, Ikeja, Lagos State on or about the 14th day of October, 2004, issued a dud cheque of eight hundred and fifty thousand naira to the complainant, Airline Management Support Ltd., contrary to rules 21, 24, 28 and 49 (a) and (b) of the rules of Professional Conduct in the Legal Profession and Section 12 of the Legal Practitioners Act 1990 as amended."
When this complaint first came up for hearing before this committee Mr. Oluwasesan Edu (the respondent) was absent and not represented and service was said to have been effected on him through courier and this committee ordered, mat proper service be effected on him and the case adjourned to 7/6/2006. On the said date. Dr. Garba Tetengi who had appeared for the complainant (the Nigerian Bar
Association) informed this committee, that the respondent was served vide Newspaper publication of 5/5/2006 (TH1SDAY NEWSPAPER) and accordingly, application to proceed under rule 7 was granted and the two counts were read and a plea of not liable was entered on behalf of the respondent.
The complainant testified by first calling on PW1, Abubakar Umaru Maidama, Secretary to the Legal Practitioners Disciplinary Committee who informs the Committee, that his duties included receiving reports from the Nigerian Bar Association. According to him, he knows the respondent in this matter. A report dated 11/7/2005 of 68 pages he says, was received from the Nigerian Bar Association stating that the petition of Airline Management Support Ltd., against the respondent had been investigated and a prima facie case established against him and the said report was admitted in evidence as exhibit PI. This witness had copied the report including all the Anncxures to the respondent (Oluwasesan Edu) together with a hearing notice.
Next to testify was Christopher Okeragwe, a Sales Manager with Airline Management Support Ltd. This witness informed the committee of his knowing the respondent and the law firm of Alesinloye and Associates who is their Solicitor as they had instructed the law firm to write a petition on their behalf because of what had transpired between their company. Airline Management Support Ltd., and the respondent. He adopted the petition written by their said counsel as contained in exhibit PI, as he had identified the signature thereon as that of their Solicitor. The respondent, he informed the Committee, had not refunded the amount of eight hundred and fifty thousand naira (N850,000.00) owed to them.
We have carefully and painstakingly considered the oral and documentary evidence before this committee and we therefore ask whether a prima facie case of misconduct has been shown against Mr. Oluwasesan Edu, the respondent for dealing with the subject property at Oba Akran Avenue, Ikeja in a manner unbecoming of a legal practitioner in a professional respect?
Hon. Justice J. Ola Orojo in his book "CONDUCT AND ETIQUETTE FOR LEGAL PRACTITIONERS" 1979 edition at page 83) therein had this to say:-
"DUTY OF HONESTY
The relationship between a legal practitioner and his client is a fiduciary one and this implies that the legal practitioner must act with utmost honesty and fairness to his client. Any form of dishonesty or fraud perpetrated against the client by the legal practitioner will amount to misconduct. Failure to deliver to the client money or property received on his behalf or to disclose the receipt of such money or property or the making use of any property of the client entrusted to him without the clients authority are examples of misconduct. Rules 49 (b) provides that money of the client collected for the client or other trust property coming to the possession of the legal practitioners should be reported and accounted for promptly.
The Supreme Court not only emphasized this duty in the case of Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414 page 431 paragraphs C - C but that the propriety of Counsel's conduct in such circumstances, has to be justified by him.
In the light of the above, the committee observed that:-
(i) The legal practitioner (Oluwasesan Edu) received the sum of two million, five hundred and twenty thousand naira (N2,520,000.00) from the complainant. Airline Management Support Ltd., as rent of the warehouse for the term of 3 years;
(ii) The said legal practitioner surreptitiously used part of the complainant's money in paying the sum of one million, six hundred and fifty, thousand naira (N 1,650,000.00) to the landlord (Chief Adeniyi of Poatson) in satisfaction of the legal practitioner's purported obligation to the landlord under a lease of the warehouse;
(iii) The purported agreement to lease the warehouse from the landlord by the legal practitioner, Oluwasesan Edu, the respondent was not concluded;
(v) When it became clear that the legal practitioner would not deliver possession of the warehouse to Airline Management Support Ltd., the said company had to pay additional sum of six hundred and ninety thousand naira (N690,000.00) to the landlord to secure the warehouse.
(v) The landlord by a letter dated 21st September, 2004 terminated his relationship with the legal practitioner upon discovery of illicit dealings by legal practitioner Oluwasesan Edu; and
(vi) The sum of eight hundred and fifty thousand naira (N850,000.00) being the balance of the money paid by the legal practitioner remains unpaid in spite of repeated demands and his Cheque in purported refund was returned unpaid.
The respondent upon whom the burden of proof lies of proving or justifying creditability to the satisfaction of this committee failed woefully to do so, considering, his absence before this committee to adduce oral evidence, no matter how scanty to exonerate himself from the charge of professional misconduct brought against him. And neither is there any scintilla of evidence in his written submission that can be urged in his favour.
Another outrageous aspect of this matter is the issuing by the respondent Oluwasesan Edu of a dud Cheque of eight hundred and fifty thousand naira (N850,000.00) to the complainant. Airline Management Support Ltd. For a legal practitioner to indulge in such despicable act is highly condemnable especially in the spirit of the national crusade to ride the country of the malaise of fraudulent individual who possesses no character of professional etiquette.
The Committee is therefore of the view, that the respondent, Olwasesan Edu was dishonest in his dealings with his client and by so doing, smeared the name of the profession. He has by his conduct, brought the profession into ridicule before the common man and should be sanctioned. Accordingly he is not a fit and proper person both in learning and in character, to remain a legal practitioner.
FINDING
Having considered and evaluated the oral and documentary evidence placed before this committee, as well as the applicable law in this matter as herein before discussed, the committee has arrived at the finding, and conclusion that the respondent, Oluwasesan Edu is liable of serious misconduct in a professional respect in his dealing with the subject property at Oba Akran Avenue, Ikeja, in a manner most unbecoming, of a legal practitioner in a professional respect; (See rule 24) and failing to account for the sum of eight hundred and fifty thousand naira (850,000.00) all punishable under Section 12 of the Legal practitioners Act., Cap. 207 LFN 1990 as amended.
Such conduct on the part of" the respondent, Oluwasesan Edu, qualifies as proven infamous conduct in a professional respect, warranting appropriate sanction by this committee. Sec the unreported case of NBA v. Uzor C. Udeagha in the Legal Practitioners Disciplinary Committee Complaint No. BB/DCNB/038 of 6th December 2005; (2006) 12 NWLR (Pt.994) 438, and the Supreme Court decision in the case of MDPDTv. Okonhvo (2001) 7 NWLR (Pt-711) 206 per Ayoola JSC (as he then was) at pages 238-239.
DIRECTION
(i) The sum of eight hundred and fifty thousand naira (850,000.00) be refunded to the Airline Management Support Ltd., by the respondent.
(ii) That the Chief Registrar of the Supreme Court, is hereby directed, to strike off the name of the respondent, Oluwusesan Edu from the Roll as a legal practitioner.
(iii) That notice of this direction, be given to the Chief Registrar of the Supreme Court, all Chief Judges, the Attorney General of the Federation and Attorneys-General of the various States, for their information.
Complaint upheld
Subscribe to:
Posts (Atom)
