Daniel O. Alalade v. Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria (1975)

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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: