Daniel O. Alalade v. Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria (1975) LLJR-SC
Daniel O. Alalade v. Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria (1975)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
This appeal is sequel to proceedings before the Accountants’ Disciplinary Tribunal (hereinafter referred to as the “Tribunal”) in respect of charges of professional misconduct brought against the appellant, Daniel Okunola Alalade. By the provisions of section 1 of the Institute of Chartered Accountants Act, 1965, an Institute by that name was so established and it seems to be common ground that the appellant was a member of such an Institute and therefore bound by its laws, rules and conventions.
Section 12 (1) of the Institute of Chartered Accountants Act, 1965 (hereinafter in this judgment to be referred to as the “Act”) provides as follows:
“12 (1) Where-
(a) A member is judged by the tribunal to be guilty of infamous conduct in any professional respect; or
(b) A member is convicted, by any court in Nigeria or elsewhere having power to award imprisonment, of an offence (whether or not punishable with imprisonment) which in the opinion of the tribunal is incompatible with the status of an accountant; or
(c) The tribunal is satisfied that the name of any person has been fraudulently registered, the tribunal may, if it thinks fit, give a direction reprimanding that person or ordering the registrar to strike his name off the relevant part of the register.”
Manifestly, the section creates three categories of cases which for purposes of clarity may be identified as follows:
(a) Cases in which a member of the Institute having been brought before the Tribunal is found guilty by that Tribunal of infamous conduct in respect of the profession of the Institute.
(b) Cases in which a member of the Institute is tried and convicted by any court having power to award punishment and which punishment the Institute deems to be incompatible with the reputation of the Institute; and
(c) Cases in which in the course of investigation, or after any such investigation, the Institute discovers that a person has been fraudulently registered as a member.
Section 11 (3) of the Act provides for the establishment of an Accountants’ Investigating Panel which first investigates the complaints against a defaulting member and only places the particular case before the Disciplinary Tribunal if there was material sufficient to be tantamount to a prima facie case against such a member. We point out here that the proceedings before us in this case suggest clearly that the appellant had been before the Accountants’ Investigating Panel and that that body has certified his case to the Disciplinary Tribunal from the decision of which he has now appealed to this Court.
Before the Tribunal, the charges against the appellant by the Institute are inaptly formulated but the charge sheet reads as follows:
“1. That you, Daniel Okunola Alalade, on 30th October, 1970, were instructed by West African Automobile & Engineering Company Limited to increase the authorised share capital of the Company from ‘8260,000 (N20,000) to ‘82300,000 (N600,000) and in respect of this instruction you were given on 2nd December, 1970, the sum of ‘821,850 (N3, 700) to cover the filing fee and stamp duty of the increase of share capital.
2. That you, Daniel Okunola Alalade, informed the West African Automobile & Engineering Company Limited that the share capital of the Company had been increased and the subsequent accounts prepared and audited by your firm of Daniel O. Alalade & Co., in particular, the Balance Sheet as at 31st December, 1970 showed the authorised share capital of the Company as 300,000 (N600,000).
3. That on 20th April, 1971, you Daniel Okunola Alalade having indicated in the Balance Sheet as at 31st December, 1970, that the authorised share capital of WAATECO had been increased to 300,000 (N600,000), the directors of the Company instructed you to increase the Authorised Share Capital further to the amount of 500,000 (N1,000,000) and that on 4th August, 1971, you received on behalf of Daniel O. Alalade & Co., the sum of 1,600 (N3,200) for this purpose.
4. That you, Daniel Okunola Alalade did not carry out the instructions to increase the Authorised Share Capital as required by your clients, WAATECO, and yet you, produced a Balance Sheet which purports that the Authorised Share Capital had been increased.
5. That the offences which you have committed are serious professional misconduct for which you are hereby called upon to defend yourself.”
The charges or complaints against the appellant show that the complainants in this case, that is to say the WAATECO, are a limited liability company carrying on business in Lagos and other parts of the Federation of Nigeria. The facts of the case against the appellant, as far as they could be gleaned from the complaints, are that he was the Accountant and Auditor to the company WAATECO and that he received filing and stamp duty fees of N3,700 (on 2nd December, 1970) and N3,200 (on 4th August, 1971) for the purposes of increasing the authorised share capital of the company but indeed failed so to effect the increases and yet reflected such Increases in the company’s balance sheet which was prepared by him. In the course of the investigation before the Tribunal, there was a large body of oral and documentary evidence but all these had come from the complainants, that is the WAATECO Ltd., as the appellant at the completion of the complainants’ case was no longer present at the Tribunal and counsel who had appeared for him had recklessly ensured his absence from the proceedings in purported ventilation of their desire for an adjournment of those proceedings.
The complainants gave evidence to the effect that the appellant was their Accountant and Auditor and that at a meeting of the Board of Directors of the company, held on the 14th April, 1970, it was decided to increase the share capital of the company from ‘8260,000 to N300,000 and that the appellant should implement the decision. The appellant then wrote to the company demanding the filing and stamp duty fees of 1,850 (or N3,700) which was duly paid to him. The appellant apparently thereafter took no steps whatsoever to effect the increase and yet later demanded his professional fees for so increasing the share capital a job which he did not in any case perform. The appellant later prepared the annual accounts of the complainants, i.e. Exhibit 2. In Exhibit 2, the appellant showed the share capital of the company to have been increased to ‘82300,000. Later, and in the course of the same year, the directors of the company decided to increase further their share capital from 600,000 to 1,000,000. On the demand of the appellant, so the complainants case goes, an amount of 1,600 (or N3,200) was given to him to cover the filing fees and the stamp duty fees on the necessary papers which would be submitted to the authorities for increasing the share capital. The appellant did not again effect any such increase and would not return or refund the amount of N3, 200 despite several demands.
As stated before, the appellant at his trial called no evidence; in fact he was not present either by himself or by his counsel during the final address of the learned counsel for the complainants. The proceedings of the Tribunal on the 18th June, 1974, were apparently long and later in the day the learned counsel for the complainants had announced the close of his own case and learned counsel for the appellant had called the Registrar of Companies or his representative who appeared and had been duly examined. At this stage, a member of the Tribunal announced that the proceedings would be adjourned to the following day at 5 p.m. Learned counsel for the appellant opposed the order for adjournment stating that he would be in another court on the following day and that his client, i.e. the appellant, was traveling out of town to appear in another matter. He was overruled by the Tribunal but on the following day neither the appellant nor his counsel appeared before the Tribunal and an announcement from the defence was by a counsel who gave his own name as Omoyinmi and then stated that he appeared for the respondent holding Mr Kolade’s brief’. The following dialogue then took place between Mr Omoyinmi and the Tribunal:
“(C-A) I appear for the respondent, holding Mr Kolade’s brief. I am Omoyinmi. I have information that certain matters are being conveyed to this Tribunal by the respondent and I am here out of courtesy to your Lordship to know the position of this matter in view of the developments.
(T) What can you tell us about the matter
(C-A) I have instructions that Mr Alalade is sick, that he will not of course be able to attend these proceedings and if I may remind your Lordship, you have taken notice yesterday that he was not feeling well.
(T) I am afraid the Tribunal will assume you appear for the respondent. Once a case is started the respondent needs not be in court.
(C-A) If you remember, Sirs, that he held the expression that he was not feeling well and this was conveyed to the Tribunal before the Tribunal rose. I don’t know the nature of his indisposition but from my personal experience I saw him yesterday and I thought that he had stress and needed medical attention.
(T) Are you speaking on instructions
(C-A) Yes.
(A) The Chairman will like to know the nature.
(C-A) This is a matter for a medical practitioner. He told me only
he was indisposed and I know from experience that he is not feeling fine.
(A) Is there any medical report
(C-A) I think there is no medical report duly sent to this Tribunal as at today but this will surely be sent later. I have no instructions to continue. I must be here in any case to inform this Honourable Tribunal. ”
Despite the ruling of the Tribunal against adjournment on the day before, Mr Omoyinmi continued to apply for an adjournment before the Tribunal and indeed to read a letter on apparently the same matter or issue addressed by Mr Kolade to the Chairman of the Tribunal. Still, the Tribunal refused the application for an adjournment and indeed at this stage learned counsel for the complainants opposed the application in language which could hardly be surpassed by stronger terms, thus:
“(C-W) I was going to say that a letter has just been passed to me requesting for an adjournment but about this yesterday it was indicated that there are many witnesses to be called if Mr Kolade is not here this is no reason why we cannot go on. His witnesses are here and his representative is here. I know there is provision in the law which says that the respondent need not be in court. He can even not be in the witness box. I think this is a calculated attempt to make a fool of us here. I am strongly opposed to his application for adjournment particularly since he is here.”
The Tribunal then asked Mr Omoyinmi to call his witnesses who had been subpoenaed and were in court. Still, counsel refused to do this and asked and persisted in asking for an adjournment. The Tribunal then rose for ten minutes as stated by the Tribunal ‘to enable you to consult with your witnesses”. After the break, the Tribunal resumed and asked Mr Omoyinmi to call his witnesses. His answer as recorded was-
“(T) Mr Omoyinmi call your witnesses.
(C-A) I am pressing your Honour for adjournment. This is the limit of my authority before this Honourable Tribunal for today.”
Mr Omoyinmi did not only refuse to co-operate with the Tribunal but he did remain thereat and made himself a dog in the manger and his answers to the several questions addressed by the Tribunal to him in order to effect a change of heart in him are clearly indicative of a determination to be impossible and so to foist upon the Tribunal an impasse. Indeed, the Tribunal ruled eventually on the issue of adjournment as follows:
“(T) At the resumed hearing this evening, Mr J. A. Omoyinmi, learned counsel for the respondent, Mr D. O. Alalade, applied for adjournment of the proceedings. He referred the Tribunal to a letter directed to the Chairman and members of the Tribunal. The respondent is not before the Tribunal, is not excused to be absent, and there is no medical certificate excusing his absence. In normal circumstances and in cases of this nature, letters are directed to the Secretary/Registrar and not to the Chairman. The Tribunal condemns this action and hopes that there will be no recurrence in the future.
The proceedings of the Tribunal were adjourned on May 14th, 1974, on the application of the respondent for more than one month to 18th of June, 1974. From the onset instead of co-operating with the Tribunal, Mr S. A. Kolade Leading counsel for the respondent, indulged in forestalling the continuance of the proceedings and also in abusing he processes of the Supreme Court subpoenas. Some of his actions may amount to contempt of the Tribunal and I intend to report the counsel to the AttorneyGeneral. Mr Kolade was warned before the close of proceedings on June 18, to avoid actions capable of putting him into serious trouble and he has chosen to ignore the advice. Mr S. B. Joseph, learned counsel for the complainant, opposed the application for adjournment and condemns this as an abuse of the processes of the Tribunal and also as an attempt to delay the hearing and proceedings of the Tribunal. Four witnesses, namely the Commissioner of Stamp Duties, Federal Inland Revenue Department, the Secretary/Registrar of the Institute of Chartered Accountants of Nigeria and Mr A. A. Ani, Chairman of the Investigating Panel of the Institute of Chartered Accountants of Nigeria, all on subpoena are at the Tribunal willing and ready to give evidence and also produce documents, yet Mr Omoyinmi will not like to go on.
Very reluctantly the proceedings are adjourned till tomorrow, Thursday, 20th June, 1974, and Mr Omoyinmi is warned that the case will certainly go on. No costs will be awarded at this stage.”
On the following day, that is Thursday the 20th June, 1974, despite all that the Tribunal said and did on the previous day, Mr Omoyinmi appeared before the Tribunal and the following dialogue took place between him and the Tribunal:
“(C-A) I announce myself, Omoyinmi, with an application to withdraw from this matter. May I take the leave of the Honourable Tribunal to do so
(T) Leave granted. (Counsel to Alalade, Omoyinmi, withdrew). (S/R) Mr D. O. Alalade is not in court.
(C-W) As far as I am concerned I have finished my case. My opinion about it is that at this stage it would appear that the respondent does not want to go further. Already he has called a witness and the other witnesses are here. His reason for not being here today, subject to correction, is not known”
At the end of the submissions of learned counsel for the complainants, the Tribunal rose for five minutes and then ruled as follows:
“(T) At the resumed hearing this evening, Mr Omoyinmi learned counsel for the respondent, applied for leave of the Tribunal to withdraw from the case. Leave was granted. The respondent chose not to appear and was nowhere to be found round the premises of the court. No reason was given for the absence of the respondent and at this stage Mr Joseph learned counsel for the complainant applied that the Tribunal continued of the proceedings and that his absence from the proceedings amounted to a contempt of the Tribunal. He contended the respondent had called at least one witness and the other witnesses are in court. The conduct of the respondent at this stage therefore amounts to his abandoning the case. Mr Joseph submitted that he had already finished his own case and that the Tribunal should close the case to enable him to address the Tribunal. In the circumstances since the respondent is nowhere to be found and is not willing to go further the Tribunal rules that the case be closed and Mr Joseph should now address the Tribunal.”
These are the circumstances in which it came to be that the appellant was neither present nor represented at the time that the judgment in this matter was reserved by the Tribunal. Needless to say, before that day, learned counsel for the complainants, Mr Joseph, ably and fully addressed the Tribunal and pinpointed in no uncertain terms the transgressions of the appellant.
In its judgement, the Tribunal found against the appellant and indeed directed the Secretary/Registrar of the Institute of Chartered Accountants to strike out the name of the appellant from the Register of his members. Earlier on, after receiving and commenting upon the facts of the case, the Tribunal had observed thus:
“We consider that these positive acts, omissions and deliberate falsehood on the part of the respondent to the complainant Company in course of the respondent’s duty constitute infamous conduct in a professional respect. These actions on the part of the respondent amount to a great betrayal of confidence and trust a client is expected to have in a chartered accountant.
We regard Mr Alalade’s conduct as a grave disservice to the interest of the accountancy profession in a young country like Nigeria. The Balance Sheet duly audited is a major document on which both the shareholders and other investors have to rely. If that document is false, then nothing exists upon which to base an accurate assessment of the true state of affairs. This is a most dreadful situation.
It was disclosed at the hearing of this complaint that the complainant company is the product of a joint venture arrangement between Nigerian and foreign interests.
The image of the profession must be protected. Moreover, the Tribunal will not allow innocent people to be deceived and injured by the actions of unscrupulous characters.
In view of the findings above, the Tribunal is of the opinion that Mr Daniel Okunola Alalade is not a fit and proper person to continue as a member of the Institute of Chartered Accountants of Nigeria. ”
This appeal is against the judgment and a large number of grounds indeed some thirty grounds-of appeals were filed on behalf of the appellant. Of those grounds, eleven were considered to be useless and were struck out, six were argued and the rest abandoned. It was argued for the appellant, for example, that the charge against the appellant was in reality a charge for a criminal offence and that the Tribunal was not competent to try it in view of the provisions of section 22 (2) of the Constitution of Nigeria. In support of the submission, learned counsel for the appellant referred us to the decision of this Court in the case of Dr E. O. A. Denloye v The Medical and Dental Practitioners Disciplinary Committee (1968) 1, N.L.R. 306, where this Court observed, inter alia, at page 312 as follows:
“We are however satisfied that the substance of the facts in each of counts 2, 3, 4 and 5 is covered by various sections of the Criminal Code and the charges could have been laid under the Code. Under the English Medical Act, 1956, charges of this nature which are covered by the criminal law are not dealt with under the Act in the first instance but are left to the courts. After convictions have been obtained in the courts disciplinary actions would follow. We have no doubt in our minds that this is the intention in this country as well. Section 13 (1) of our act envisaged three types of cases under which the Tribunal can inflict penalties for unprofessional conduct by practitioners. The section reads:
’13 (1) Where
(a) A registered person is judged by the tribunal to be guilty of infamous conduct in any professional respect; or
(b) A registered person is convicted, by any court in Nigeria or elsewhere having power to award imprisonment, of an offence (whether or not an offence punishable with imprisonment) which in the opinion of the tribunal is incompatible with the status of a medical or dental practitioner, as the case maybe; or
(c) The tribunal is satisfied that the name of any person has been fraudulently registered, the tribunal may, if it thinks fit, give a direction reprimanding that person or ordering the registrar to strike his name off the relevant register or registers.’
In effect where the unprofessional conduct of the practitioner amounts to a crime, it is a matter for the courts to deal with; and once the court has found a practitioner guilty of an offence, if it comes within the type of cases referred to in section (13) (1) (b), then the tribunal may proceed to deal with him under the Act.”
Undoubtedly, any person charged with a criminal offence is entitled under the laws of our country to a fair hearing by a court, which, by virtue of section 33, of the Constitution of Nigeria, is defined as “any court of law in Nigeria”. This definition clearly excludes a tribunal as the type in consideration and it was the submission of learned counsel for the appellant that the Tribunal should not have tried his client.
We advert to the observations in the case of Dr Denloye, supra, and point out that therein this Court dealt with charges the substance of which amounted to crimes under the Criminal Laws of this country. Clearly, that is what the judgment said. Earlier on in this judgment, we have set out the charges for which the present appellant went before the Tribunal. Although learned counsel made the submission to which we have referred, he did not, as was done in Dr Denloye’s case, refer us to any section of our Criminal Statutes to which any of the charge leveled against the appellant is referable. We are ourselves convinced that unlike Dr Denloye’s case the charges herein as framed do not amount to a criminal charge or criminal offence under our criminal jurisprudence. And, obviously, there is no basis for treating the charges herein in the same way as charges in Dr Denloye’s case.
Next, it was suggested in argument by learned counsel for the appellant, that he would not be deemed to be an accountant within the provisions of section 14 of the Institute of Chartered Accountants Act, 1965, as the record shows that the appellant was also employed as a secretary by the complainant. We do not accept this contention as the appellant clearly fell within the definition of an accountant in the Act. Section 14 of the Institute of Chartered Accountants Act provides as follows:
“14 (1) Subject to subsection (2) of this section, a person shall be deemed to practice as an accountant if, in consideration of remuneration received or to be received, and whether by himself or in partnership with any other person,
(a) He engaged himself in the practice of accountancy or holds himself out to the public as an accountant; or
(b) He offers to perform or performs any service involving the auditing or verification of financial transactions, books, accounts or records or the preparation, verification, or certification of financial, accounting and related statements;
(c) He renders professional service or assistance in or about mattters of principle or detail relating to accounting procedure or certification of financial facts or data; or
(d) He renders any other service which may by regulations made by the council with the approval of the Minister be designated as service constituting practice as an accountant.
(2) Nothing in this section shall be construed so as to apply to persons who, while in employ of any government or person, are required under the terms or in the course of such employ, to perform the duties of an accountant or any of them.”
If one looks at the charges, they without doubt postulate that the appellant was, apart from being a secretary of the complainant company, also a person who performed or had hands in the preparation and presentation of the complainants’ balance sheet and who as well advised with respect to the mode and the mechanics of increasing the share capital of the complainant company. In the course of his evidence, the Secretary to WAATECO testified, concerning the appellant, as follows:
“(S’ W) In October, 1970, the Board of Directors of my company on the recommendation of the firm of auditors of D.O. Alalade in his capacity as the external secretary to increase the authorised share capital of WAATECO Limited from 60,000 pounds (N120, 000) to 300,000 pounds (N600, 000).”
This piece of evidence as to the relationship of the appellant to the complainant company was not controverted and it is significant that the several letters written by the appellant to the complainants bore the letter-headings of the appellant and described him as accountant and auditor. The evidence shows that he was the person who prepared the balance sheets of the complainant company. These duties are what section 14 has characterised as decisive of the question whether or not a person should be deemed to be practicing as an accountant. We think that these duties ascribed to the appellant together with other evidence to which we have already alluded, established clearly that the appellant comes within the category of persons envisaged by section 14 of the Act.
There were some other inconsequential points feebly raised before us but it is unnecessary to refer to them in this judgment as we are satisfied that they are worthless and would not in any case have assisted the appeal. It was contended for example that the Tribunal should have granted an adjournment at the time when it was asked for by learned counsel. It is never in dispute that the granting or refusal of an application for adjournment rests completely with the Tribunal or the court before which, the counsel appears. In this case, having regard to the ignominious behaviour of counsel on the day in which they sought an adjournment, that is the 19th June, can one really blame the Tribunal for refusing to adjourn the matter any further We think not. The language employed by the learned counsel who defended the appellant before the Tribunal is only deceitfully polite because at the back of it all it was manifest through and through that he was playing fast and loose with the Tribunal. We think that the learned counsel who appeared for the appellant did not make much of the application for adjournment and at the very best they have only succeeded in disqualifying their client from obtaining the benefit of such an application. We do not see any substance in this line of argument.
It follows therefore that all the points raised on this appeal fail and with them the appeal itself must fail. We have in this judgment referred in some detail to the conduct of the learned counsel who was supposed to defend the appellant before the Tribunal. These young men had already been dealt with in other proceedings before this Court but we wish to point out clearly that their conduct and behaviour have not in any way whatsoever affected our consideration of the appellant’s case and our judgment.
The facts of the appellant’s case are fairly simple but they are obviously despicable as well. All the evidence is one way and there has not been a shred of evidence the other way to challenge let alone disparage the evidence of the complainants and their witnesses so graphically given, depicting the shameful way in which the appellant had purported to discharge the duties of his profession. It was established beyond doubt that he was requested by the complainants, against the payment to him of his professional fees and the appropriate stamp duties, to effect an increase in the share capital of the complainant company. He did not so increase the share capital and would not return or refund the stamp duties paid him.
In the course of his final address to the Tribunal, learned counsel for the complainants, in an answer to a question from the Tribunal as to what he thought about the balance sheet prepared by the appellant, gave a most vivid summary of the appellant’s performance as follows:
“It is a serious misrepresentation of the facts. That is why I have said earlier on that because of his position as Secretary as well as auditor knowing fully well that there would be no danger of cross check until he had left the post, he presented a position as Secretary and at the same time as auditor confirming that it is true. It is a pure misrepresentation. He had taken advantage that at the material time there was no outside auditor to cross-check. All along contrary to what he has made the company to believe he has not carried out anything. He received the money and used the money the way he pleased. There were witnesses who could have testified or adduced evidence on his behalf. He chose not to be here his reasons are best known to him what he has done is quite improper whether it is famous or infamous, it is for the Tribunal to decide.”
This able summary represents the pungent facts of the infamous performance of the appellant. The evidence establishing them was not challenged and if that evidence is accepted, as indeed it was, they surely call for some explanation. That however was not to come. Undoubtedly the trial before the Accountants’ Disciplinary Tribunal was tedious and at stages inflammatory: but it was transparently fair. It was for the defence to put its case, however unchackneyed that defence may be.
Throughout these proceedings the receipt of the amounts involved, i.e. N3,7000.00 and N3,200.00 (a total of N6,900.00) was never disputed and most surprisingly it was never suggested, let alone done, that the amount would be refunded. Furthermore, the appellant gave no explanation whatsoever for the inexplicable delay, let alone the failure, to perform the professional duties for which he was paid and although he was not specifically charged for that, it is incontrovertible that he prepared and published of and concerning the complainant company a balance sheet suggesting that he had already effected the necessary increase in the share capital of the company. We are not in any doubt that his performance was unmeritorious and constituted an infamous conduct in the professional respect in which he was supposed to act, within the purview of section 12 (1) of the Institute of Chartered Accountants Act, 1965.
There has been no appeal before us with respect to the punishment meted out to the appellant by the Tribunal and we do not consider it right for us to intervene in view of the provisions of section 12 (7) of the Act. At the stage when the Tribunal had concluded that the performance of the appellant was inglorious, there was no-one there, not even his lawyer, to put in a single word for clemency on his behalf and the appellant must now be fully aware that he was himself the architect of his own misfortunes, for whatever be the case, he could have in deference to the Tribunal and his own colleagues of the same profession on that bench been present. He chose not to come and therefore not to speak and the consequences of the law must follow.
As we pointed out before, the appeal fails and it is dismissed.
The conclusions of the Tribunal and the directions given by that Tribunal, pursuant to the provisions of section 12 of the Institute of Chartered Accountants Act 1965 are affirmed.
Other Citation: (1975) LCN/2049(SC)