Anamelechi Iteogu V. The Legal Practitioners Disciplinary Committee (2009)
LAWGLOBAL HUB Lead Judgment Report
W.S. N. ONNOGHEN, JSC
This is an appeal against the decision of the Legal Practitioners Disciplinary Committee delivered on the 7th day of June, 2006 in which the appellant, a Legal Practitioner, was found liable for misconduct in a professional respect contrary to Rules 24 and 49(a) and (b) of the Rule of Professional Conduct in the legal profession, punishable under section 12 of the Legal Practitioners Act, Cap. 207, Laws of the federation of Nigeria, 1990, as amended, and the appellant was therein ordered to pay the sum of N9,500,000.00 (Nine million, five hundred thousand naira) to the petitioner, Bishop Ndarake James Antigha in addition to the name of the appellant being directed to be struck off the Roll of Legal Practitioners. The complaints against the appellant are as follows:-
“1. That you Anamalechi Iteogu as counsel received the sum of N47,543, 754. 75 (Forty seven million, five hundred and forty three thousand, seven hundred and fifty four naira, seventy-five kobo) from the Ministry of Defence as compensation for land acquired by the Federal Government for the establishment of Naval Base of Akwa Ibom State but refused and neglected to pay over to Bishop Ndarake James Antigha (the complainant) his own share as one of the claimants shown in the schedule of claims, all contrary to Rules 24 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 by Decree 21 of 1994.
- That you Anamalechi Iteogu as counsel received the sum of N47,543,754.75 (Forty-seven million, five hundred and forty three thousand, seven hundred and fifty four naira, seventy five kobo) on behalf of your clients from the Ministry of Defence as compensation for land acquired by the Federal Government of Nigeria, but failed to properly account for the said sum to your clients all contrary to Rules 24 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 by Decree 21 of 1994.”
In reaction to the charge/complaint, the appellant denied acting for the petitioner in the transaction or collecting any money for the petitioner or receiving the sum of N47,543,754.75 for Ibaka Community from the Ministry of Defence but admitted collecting the sum of N23,646,974.52 for the said community, which sum, appellant contended he paid over to the community after deducting his professional fee.
At the conclusion of the hearing, the respondent found the appellant liable for infamous conduct and consequently directed that his name be struck off the roll of Legal Practitioners and ordered the appellant to pay the sum of N9,500,000.00 to the petitioner being his share of the compensation paid by the Federal Ministry of Defence. The appellant is dissatisfied with the decision/direction and has consequently appealed to this Court.
The Learned Senior Counsel for the appellant, I. N. UMEZURIKE, SAN, in the appellant’s brief filed on 12/2/07 and adopted and relied upon at the hearing of argument in the appeal, has formulated a single issue for the determination of the appeal.
The issue is as follows:-
“Whether, having regard to the material before the Committee and the Law, the Committee was right in coming to the conclusion that the Appellant was guilty of misconduct in a professional respect and directing that the Appellant’s name be struck off the Roll of Legal Practitioners in Nigeria as well as ordering the Appellant to pay to the petitioner the sum of N9,500,000.00 (Nine million, five hundred thousand naira).”
It is the submission of Learned Senior Counsel for the appellant that the respondent did not prove the charge levelled against the appellant, particularly as the respondent did not prove:-
(a) that the appellant acted for the petitioner in a professional respect; –
(b) that the appellant received from the Ministry of Defence a specific amount for the petitioner, and
(c) that the said sum so collected for the petitioner was converted by the appellant.
It is the contention of the Learned Senior Counsel that the respondent failed to establish the fact that the petitioner was appellant’s client as a result of which Learned Senior Counsel submitted that there was no privity of contract between the petitioner and the appellant, relying on the case of : Tweddle vs. Atkinson (1861) 18 & S, 393; Dunlop Pnematic Tyre & CO. Ltd vs. Selfridge & Co. Ltd (1915) AC 847; Ajayi vs R.T. Briscoe (Nig) Ltd (1964) 1ALR. Comm. 315; Philip Ebhota & ors vs Plateau Investment and Property Development Co. Ltd (2006) 5WRNI 31 – 33; Chuba Ikpeazu vs A.C.B. (1965) NMLR 374, 379.
It is the further submission of Learned Senior Counsel that the petitioner lacks locus standi to petition against the appellant as the petitioner was not a client of the appellant, nor does he have sufficient interest, relying on Adesanya vs President of the Federal Republic of Nigeria & anor. (1981) 1 ALLNLR (pt. 1) 1 at 35; Thomas vs The Most Rev. Olufosoye (1986) 1NWLR (pt. 18) 669 at 683 & 691.
It is the contention of Learned Senior Counsel that the second count/charge is vague as the clients are not named or the location of land in respect of which the compensation was paid described or named; that it was not proved that appellant received the sum of N47,543,754.75 from the Federal Ministry of Defence and that the appellant ought not to have been found liable by the respondent in the circumstances; that the documents tendered by the petitioner were not certified as prescribed by section 111of the Evidence Act and as such the respondent ought not to have relied on them even though the appellant never objected to their admissibility, relying on IBWA Ltd vs Imano Nig. Ltd & anOL (2001) 17 WRN 1, 19 – 20, Alade vs Olukade (1976) 2 S.C 183, 189.
It is the further submission of the Learned Senior Counsel that it was not proved that appellant collected the sum of N47,543,754.75 from the Ministry of Defence as the cheque with which the money was allegedly paid to the appellant was not tendered particularly as the appellant denied receiving such an amount; that it was not proved that the petitioner was entitled to |N9,500,000.00 which the respondent awarded to him particularly as the petitioner was not appellant’s client neither did the appellant receive any money on his behalf; that the charge against the appellant amounted to a criminal offence of conversion under section 383 of ‘the Criminal Code and therefore outside the jurisdiction of the respondent; that the respondent ought to have referred the matter to an appropriate court for prosecution after which it would have continued with proceedings if the appellant was convicted of the offence; that the respondent was in error in ordering the name of the appellant to be struck off the Roll when there was no finding of infamous conduct against the appellant as required under section 12 of the Legal Practitioners Act.
In conclusion, Learned Senior Counsel urged the court to allow the appeal and set aside the decision/direction of the respondent or in the alternative substitute a reduced punishment of admonition.
On his part, DR. GARBA TETENGI, Learned Counsel for the respondent, in the respondent’s brief of argument filed on the 14th day of March, 2008 adopted the single issue identified by Learned Senior Counsel for the appellant but submitted that the complaint against the appellant was proved to warrant the sanction meted out to the appellant; that contrary to the ingredients identified by Learned Senior Counsel for the appellant as needed to be established by evidence, the relevant material particulars of the first complaint against the appellant, which were in fact proved, are:
(a) whether the petitioner had locus to complain against the unprofessional conduct of the appellant;
(b) that the appellant had received the sum of N47,543,754.75 as compensation for the land acquired in Akwa Ibom to which the petitioner was entitled to some part, and
(c) that the appellant neglected/and or refused to pay over to the petitioner his own part of the compensation.
It is the submission of Learned Counsel for the respondent that the principle of privity of contract does not apply to the facts of this case as what is required of the petitioner is to show sufficient interest in the subject matter of compensation and that the appellant directly or indirectly owed him (petitioner) a professional duty, which was clearly done in this case; that there is evidence on record that the petitioner is a member of Ibaka Community and was entitled to receive compensation for his land which was acquired, as evidenced in exhibit 7, the list of claimants, which evidence was never challenged thereby demonstrating clearly that the petitioner has sufficient interest in the subject matter, relying on Adesanya vs President, Federal Republic of Nigeria, supra;. Fawehinmi vs NBA (NO.2) (1989) 3 S.C (pt.11) 1; Adewunmi vs A-G of Kaduna vs Hassan (1985) 2NWLR (pt. 8) 483; that by exhibit 3, a letter from the Federal Ministry of Defence to the petitioner, the complainant proved that the sum of N47,543,754.75 was paid to the appellant which thereby shifted the burden on the appellant to prove that that was not the amount he collected which appellant failed to discharge, as there is no documentary evidence to prove that appellant received only N23,646,974.53, relying on Arabambi vs Advance Beverages Ind. Ltd (2005) 12 S.C (pt. 1) 60; Durosara vs Ayorinde (2005) 3 – 4 S.C 14; Plateau State vs A-G Federation (2006) 1S.C (pt. 1); Ojo vs Gharoro (2006) 2-3 S.C 105 and Dagaci vs Dagaci (2006) 1 S.C (pt.1) 87; that it is not true that the documents were not certified as contended particularly as some of the documents from the Federal Ministry of Defence and of Works were official correspondence in their originals.
On the third ingredient of the complaint, learned Counsel submitted that the respondent established the fact that appellant refused and/or neglected to pay the petitioner his own part of the compensation; that the Power of Attorney under which appellant acted enjoined the appellant to pay all the claimants individually, which appellant failed to do.
On the second complaint, learned Counsel submitted that the respondent established the fact that appellant collected the sum of N47,543,754.75 on behalf of his clients as compensation and that appellant failed to properly account for the sum so collected to his clients; that even if it is held that appellant collected N23.6 million he never told the clients what happened to the balance.
On the award of N9.5 million to the petitioner, learned Counsel submitted that the claim was not challenged by the appellant; that the complaint against the appellant was not criminal in nature but purely on professional misconduct; that the respondent was not bound to use the word “infamous” in its findings under section 12 of the Legal Practitioners Act as the words used by the respondent sufficiently conveyed the fact that appellant was found liable for infamous conduct; relying on Okike vs LPDC (NO.2) (2005) 7 S.C (pt. 11) 75.
Finally learned Counsel urged the court to dismiss the appeal and affirm the decision/direction of the respondent.
From the record before this Court, the facts are straight forward, it is not disputed that the Federal Government acquired land from Ibaka Community, Akwa Ibom State for the building or establishment of a naval base; that the petitioner is a. member of Ibaka Community in Mbo Local Government Area of Akwa Ibom State and was one of those whose land was acquired for that purpose and therefore entitled to compensation; that after the acquisition, evaluation was carried out and a list of claimants drawn up – see exhibit 7; that by exhibit 7, the name of the petitioner appears as NO. 281; that the people of Ibaka Community consulted and retained the professional services of the appellant, a legal practitioner for the purpose of, inter alia, securing the release of the compensation money from the Government of the Federal Republic of Nigeria for the land acquired for the said naval base and for which the community, through their representatives donated a Power of Attorney to the appellant, exhibit D4; that by clause 5 of the said Power of Attorney, the appellant was to “pay compensation money so collected to us and all other claimants individually and accordingly to the schedule of payment”; that the petitioner was one of the claimants but was not paid; that appellant by virtue of the Power of Attorney collected the compensation money from the Federal Ministry of Defence; that the compensation money was N47,543,754.75 though appellant claimed he was only paid the sum of N23,646,974.53, while the respondent and the petitioner contend that the appellant was paid the whole of the compensation money – N47,543,754.75. However, whether the appellant was paid part of the whole amount, the fact remains that nothing was paid by the appellant from whatever sum he received as compensation for Ibaka Community to the petitioner for his own portion of land acquired by the government.
It should be borne in mind that appellant admits the fact that he did not pay any money out of the sum collected from the Federal Ministry of Defence by way of compensation to the petitioner. His reason, as has been argued in the appellant’s. brief include the contention that the petitioner was never his client in respect of the transaction and as such there is no privity of contract between the appellant and the petitioner. Secondly that the petitioner, not being a client of the appellant has no locus standi to complain about the non payment of his share of the compensation money since appellant did not collect any money on the petitioner’s behalf. The question to be answered is whether the contention of the appellant is borne out of the evidence on record.
To begin with, the Power of Attorney at page 50 of the record of appeal stated in its preamble, inter alia, as follows:-
“THIS Power of Attorney is made this Day of 3rd March 1998 by the undersigned whose names, addresses, and signatures appear below are the True representatives of IBAKA Community in Mba Local Government Area of Akwa Ibom State….. do hereby appoint messrs ANAMELECHI ITEOGU & CO……. to be our Lawful Attorney and to do all or any of the things specified herein..”
As stated earlier in this judgment both parties agree that the petitioner is a native of Ibaka Community and that his land was among those acquired by the Government and for which he was to be paid compensation like others in the same circumstance. The petitioner’s names also appeared as No. 281 in the list of claimants of the compensation – exhibit 7. It is therefore very clear and I agree with the finding by the respondent that the petitioner has sufficient interest in the compensation money collected by the appellant enough to sustain his complaint of non payment of same against the appellant. The issue of privity of contract is clearly not relevant to the facts of this case. It must be emphasised that by the Power of Attorney, appellant undertook by clause. 5 thereof “To pay compensation money so collected to us and all other claimants INDIVIDUALLY AND ACCORDING TO THE SCHEDULE OF PAYMENT.” It is on record that the petitioner’s name appeared as NO. 281 on the list of claimants but was never paid by the appellant. What the petitioner needs to sustain his complaint against the appellant is not privity of contract but locus standi which he has established by proving that he has sufficient interest in the subject matter – see Adesanya vs President of the Federal Republic of Nigeria supra and Fawehinmi vs NBA (NO.2) also supra.
On the question as to whether the petitioner was a client of the appellant or not, the contention is unfortunate in view of the established and undisputed relevant facts to wit; the Power of Attorney was donated by the representatives of Ibaka Community to the appellant in their representative capacity; the membership of Ibaka Community includes the petitioner who was also a claimant in
respect of the compensation and who was, by that Power of Attorney to have been paid his money or compensation individually but was not. I hold the considered view that by the terms of the Power of Attorney, the facts of the case which are not disputed, the petitioner was a client of the appellant just like the rest of the members of Ibaka Community for the purposes of the power donated by their representative to the appellant.
On the question of the amount actually received by the appellant as compensation for the acquired land, documents were tendered, admitted without objection, to show that what was paid to the appellant was N47,543,754.75. By exhibit 3, original letter from the Federal Ministry of Defence addressed to the petitioner to which were attached certified true copies of other documents, it is clear, and the respondent is correct in holding that it has been proved that appellant collected N47,543,754.75 by way of compensation on behalf of Ibaka Community. The petitioner have introduced evidence in proof of the payment of that sum of money, the burden shifted on the appellant to prove the fact that he only received N23,646,974.53 from the said Ministry of Defence which appellant failed or neglected to do. Appellant never tendered the cheque from his bank to confirm what he received from the Ministry if actually it was less than the amount claimed by the Ministry. Learned Senior Counsel for the appellant has submitted that the documents tendered by the petitioner were official documents which are public documents and were to have been certified. While it is correct to say that the only secondary evidence of a public document admissible in evidence is a certified true copy, the documents in question were duly certified while those not so certified were original correspondences addressed from the Ministries of Defence and Works to the petitioner in person and were tendered by the petitioner, see exhibit 3.
On the award of N9.5 million to the petitioner by the respondent, it is on record that the appellant never challenged the claim of the petitioner to that sum at the hearing, it is rather too late for him to raise that issue at this stage. Appellant had ample opportunity to cross examine the petitioner on that claim but failed to utilise same thereby rendering the evidence on the issue to be unchallenged. The respondent was in the circumstance right in acting on same in making the award.
It is also the case of appellant that the respondent did not find the appellant liable for “infamous conduct” and as such he ought not to have been punished under section 12 of the Legal Practitioners Act. It is true that the respondent did not use the word “infamous” in its findings; it found in the following terms:
“That the Respondent is liable of the most gracious act of misconduct in a professional respect as alleged against him in flagrant breach of Rules 24 and 49(a) and (b) of the Rules of Professional Conduct and Punishable under section 12 of the Legal Practitioners Act, Cap 207, LFN 1990 (as amended).”
It is clear from the above finding that the respondent intended to and in fact did find the appellant liable of infamous conduct and consequently metted out the appropriate punishment under the law.
The conduct of the appellant in this matter leaves much to be desired. It is, to put it mildly rather unfortunate. Here is a legal practitioner in whom much trust was reposed but who failed to live up
to expectation. Granted that appellant was unaware of the existence and claim of the petitioner in respect of the compensation, which is however not borne out of the evidence on record, why, for God’s sake did the appellant not take steps to meet the petitioner even half way upon becoming aware of the petitioner’s unsatisfied claims to compensation. What would it have caused the appellant to have given his law practice a human face Nothing, but his failure to do so has proven to be very expensive indeed. Is it not said that penny wise, pound foolish
From the evidence on record, it is very clear that from the onset, appellant had no intention of paying the claims of the petitioner despite the numerous petitions written by the petitioner in search of justice, including a report to the police. If after the appellant had become aware of the claims of the petitioner, he/appellant had taken steps to pay the petitioner, the petitioner would not have reported the matter to the Nigerian Bar Association for investigation and redress. It is on record that when the petitioner reported the matter to the police, the Ibaka Community duly identified the petitioner as one of them yet the appellant would not be moved. How true that those that the gods want destroyed they first make mad!!
In conclusion I find no merit whatsoever in this appeal which is accordingly dismissed. The judgment/decision/direction of the respondent in the matter is hereby affirmed.
Appeal dismissed.
SC.190/2006