Odeku V. Dawodu & Ors. (1971)
LawGlobal-Hub Lead Judgment Report
Parties
ODEKU – Appellant(s)
AND
- 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:
- Excess of commission deducted 6,000 0 0
- Unauthorised money paid to the late Chief Ashogbon 5,000 0 0
- Unauthorised money paid to the fourth plaintiff 3,200 0 0
- Unauthorised loan to the late Chief Ashogbon 400 0 0
- Money lent to the fourth plaintiff for travel and deducted 4 10 0
- Loans by Fawehinmi to the second and fourth plaintiffs and deducted 25 0 0
- 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.
Item (iii) was a payment of 3,200 pounds to the second and fourth plaintiffs. This was paid by cheque made out in the name of the fourth plaintiff and from the defendant’s banking account. It was not paid from the Ashogbon family fund. The fourth plaintiff said it was paid to him by the defendant as part of the amount he was entitled to collect from the defendant as commission for introducing him to the family to act as their solicitor.
The defendant on the other hand stated that there was a secret arrangement, with the knowledge of the deceased Chief Ashogbon, that these two men (the second and fourth plaintiffs) should be compensated from the family fund because they ran all the errands and did the bulk of the work which led to the payment of the compensation. The amount, however, was paid without the (knowledge of the family. The learned Judge preferred the evidence of the fourth plaintiff in this respect and disallowed the amount.
We cannot say that we share the views of the learned Judge in this respect about the reason for payment of the amount, but in our view no solicitor should payout any part of his client’s money without authorisation. In this case the family was unaware of this secret bargain and it was immaterial whether or not Chief Ashogbon on his own agreed that these men should be compensated for their trouble. It was plainly a matter for the family, and if it was felt that their work for the family deserved to be compensated, there should be nothing secretive about it. We are unable to justify a solicitor paying out moneys from his client’s funds without proper authorisation. The defendant must refund the amount.
The remaining four items are various amounts the defendant stated he lent to various members of the family -to the late Chief Ashogbon 400 pounds, and other petty amounts to either the second or the fourth plaintiff. It is clear that these loans were not authorised. The defendant, a solicitor, is well aware that the family money, namely the compensation claimed for the Ashogbon family, when paid belonged to the family. Any money given out on loan or otherwise to any member of the family before the compensation was paid must be authorised and he must produce the family authority that the loan was authorised and was to be deducted from the family fund.
In the event, we support the findings of the learned trial Judge on each of the items (i) to (vii) totalling a sum of 14,656.18s.0d and for which judgment was entered in the court below against the defendant. His appeal therefore will be dismissed.
This case has portrayed vividly the indiscriminate and reckless way of handling of client’s accounts by some legal practitioners. With the inclusion of the sum of 14,656.18s.0d being judgment entered against the defendant in this matter, a total of about 54,000 pounds out of 100,000 pounds compensation money paid found its way into the hands of lawyers (about 14 legal practitioners in all seemed to have done something or the other in the matter) and of course another 11,000 pounds went into the hands of moneylenders who had probably staked their money in the litigation, whilst another 10,000 pounds to 11,000 pounds went to pay off the claim of the Chief Oloto Chieftaincy family. Thus, less than a quarter of the 100,000 pounds actually got into the hands of the Ashogbon Chieftaincy family since another sum of 1,500 pounds was refunded to another lawyer who had kindly made an advance of the amount to buy a car for the use of the Chief as well as other minor expenses apparently made with the consent of the family. All these have thrown a light on the irresponsible way Chieftaincy family funds in Lagos are filtered away. With further squabbles between members of the Chieftaincy family in which legal practitioners again play their parts, the family in the end become destitute and all their family land gone.
We are however here concerned with the disbursement of funds or client’s accounts which come to the hands of legal practitioners. We cannot however shut our eyes to the role counsel play in the matter in making themselves custodians of moneys coming to the Chieftaincy family and discrediting themselves by meddling with the funds.
This appeal is dismissed with 60 guineas costs to the plaintiffs.
Appeal dismissed.
SC.171/1971
