Odeku V. Dawodu & Ors. (1971)

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Parties

ODEKU – Appellant(s)

AND

1. DAWODU
   2. LAYENI
   3. BARRIN
   4. JOHN
   (for themselves and on behalf of other members of the ASHOGBON CHIEFTAINCYFAMILYOF LAGOS) – Respondent(s)

thousand pounds (100,000 pounds) which the defendants received in August 1961 from the Western Nigeria Government for and on behalf of the Ashogbon Chieftaincy family of Lagos, being part-payment of compensation for the Chieftancy family land acquired by the said Government. Early in the proceedings in the High Court at Ikeja the claim against the other legal practitioner was discontinued and he was dismissed from the suit.

It was not denied by the defendant that he received the said amount from the Government for and on behalf of the family. The defendant in his statement of defence filed an account which the plaintiffs surcharged.

After hearing evidence from both sides, Somolu, J. (as he then was) in the High Court entered judgment for the plaintiffs for a sum of 14,656.18s.0d., which is the amount claimed in the notice of surcharge and falsification, with 200 gns. costs. From that judgment and order the legal practitioner has appealed to this court.

The amount of 14,656.18s.0d represents seven items of claim which are as follows:

1. Excess of commission deducted 6,000 0 0
2. Unauthorised money paid to the late Chief Ashogbon 5,000 0 0
3. Unauthorised money paid to the fourth plaintiff 3,200 0 0
4. Unauthorised loan to the late Chief Ashogbon 400 0 0
5. Money lent to the fourth plaintiff for travel and deducted 4 10 0
6. Loans by Fawehinmi to the second and fourth plaintiffs and deducted 25 0 0
7. Loan by the defendant to fourth plaintiff and deducted 27 8 0

TOTAL 14.656. 8 0

There were five major heads of grounds of appeal, the first three dealing mainly with irregularity in procedure adopted by the Judge at the trial and an alleged error in law by the Judge who, at the beginning of the trial, without hearing arguments of counsel on both sides, asked the defendant to begin. It was submitted that this was an irregular procedure and contrary to law. Whilst we are of the opinion that the learned Judge erred by not asking for submissions of counsel on the point before taking a decision, we are of the view that no injustice has been caused. As counsel for the defendant made no protest at the material time, it appears to us that he accepted the position without any question.

Further, as the defendant from his defence admitted in the pleadings that the amount of 100,000 pounds was paid to him and he disposed of the amount, it seems clear that the onus is upon him to show that he disposed of the amount, or part thereof, in accordance with the instructions of the plaintiffs or their agents.

The other two main grounds of appeal deal with item (i) relating to the sum of 6,000 pounds and items (ii)-(vii) together totalling a sum of 8,500.18s.0d.

We deal first with the sum of 6,000. The defendant has pleaded and adduced evidence that he contracted with the plaintiffs for a fee of 16,000 pounds. For this he relied on Exhibit 3, an authority to counsel to disburse compensation, whilst the plaintiffs relied on Exhibit 9, which is a power of attorney to the defendant, and the agreement between them which covers the solicitor’s fee, clause 5 of which stipulated that the solicitor (the defendant) should deduct 10% of the amount collected as commission for his work.

The learned Judge, found, and we see no reason to disagree with him, that this is the real agreement between the parties. Exhibit 3 is a subsequent document stating different amounts to be paid out to individuals; the defendant included his name and stated that 16,000 pounds was to be paid to him. The total amount to be collected is 160,965 pounds and in so far as the defendant has collected only100,000 pounds we agree with the learned Judge that no more than 10,000 pounds is due to him. The 6,000 pounds therefore was, we hold, an overpayment by the defendant to himself.

We now consider item (ii) which is a sum of 5,000 pounds alleged paid to the late Chief Ashogbon. The only evidence supporting the payment to the late Chief was the evidence of the defendant himself. There is no receipt or document supporting the payment and indeed no authority produced for the payment. It cannot in our view be regarded as part of the family commitments and if this amount was paid out at all, which the learned Judge disbelieved, it was strictly a matter between the defendant and the late Chief. The payment itself was not supported by a cheque. We think the learned Judge was right in disallowing this amount and for debiting the defendant with it.