N. B. A. V. IZEVBUWA: On Need for a legal practitioner not to put himself forward as guarantor through questionable agreement and turn around to start prosecuting same person through law enforcement agencies

N. B. A. V. IZEVBUWA: On Need for a legal practitioner not to put himself forward as guarantor through questionable agreement and turn around to start prosecuting same person through law enforcement agencies -: Legal Practitioners Disciplinary Committee Of The Body Of Benchers (Holden at Abuja). CITATION: [2020] 17 NWLR PT.1754 AT 565. Courtesy: Moruff O. Balogun Esq.

Summary of Facts:

Sometime in 2011, the primary petitioner discussed with his friend and professional colleague, the respondent, how to source for loan to sponsor the publishing of a book he was writing. The respondent indicated that he had a friend who could advance the required financial help. The required loan was to be interest free for the sum of N2,300,000.00 (Two Million, Three Hundred Thousand Naira) only, but subject to the deposit of a postdated cheque to be cashed in 3 months’ time after the loan was advanced. Respondent was to guarantee same with his property.

The said loan was eventually advanced, but it turned out to be N1,400,000.00 (One Million, Four Hundred Thousand Naira) only to the surprise of the petitioner after he had already signed a Loan Agreement and had given the postdated cheque of 2,300,000.00 (Two Million, Three Hundred Thousand Naira) only. The cheque was postdated to 1st December, 2011.

This amount of N1,400,000.00 (One Million, Four Hundred Thousand Naira) only was not given directly to the petitioner, but through the respondent who gave the money by his own
cheque to the petitioner. The petitioner did not keep a copy of this loan agreement because it had to be taken to Warri where the moneylender resided for his signature, but the shortfall of N900,000.00 (Nine Hundred Thousand Naira) only was apparently an upfront interest deduction by the money-lender to cover three (3) months interest notwithstanding the understanding the petition claimed the petitioner had with the respondent and the agreement he had earlier signed.

According to the petition, trouble started when the petitioner received a call from one Inspector Alade inviting him to respond to a complaint of issuing a Dud Cheque. That was when the petitioner asked the respondent for a copy of the agreement he signed with the money-lender and the respondent. What he got was exhibit P.14, a single page document as opposed to the 2-page document he claimed he signed along with the cheque he issued. He claimed that exhibit P.14 which contained a 10% monthly interest demand was forged as he only signed for an interest free N2,300,000.00 (Two Million, Three Hundred Thousand Naira) only loan agreement prior to him collecting N1,400,000.00 (One Million, Four Hundred Thousand Naira) only out of desperation.

After visiting the police in Warri, petitioner claimed he instituted a suit at the Benin High Court, but, while the suit was on, the respondent (the guarantor) and the moneylender wrote another petition to the AlG, Zone 5, Benin City on the same issue about September, 2014. He was detained overnight on the insistence of the respondent. T he Petitioner stated that he was never given a copy of the petition that was written by the respondent and money-lender to the AlG.

In his defense, the respondent called the money-lender who testified as DW1. DWI never had any direct transaction with petitioner and admitted he was not a registered money-lender. He never indicated when he actually forwarded any money to respondent for onward transmission to the petitioner. According to DWI, he declined the collateral offered by the respondent contrary to the agreement and never demanded for collateral in the first place. He stated that the condition for the loan was 15% monthly interest on N2,000,000.00 Two Million Naira), not N2,300,000.00 (Two Million, Three Hundred Thousand Naira) interest free loan.

And that he reported the petitioner to the police in Warri in January, 2012 after the bank returned the cheque unpaid despite the fact that the Petitioner assured him that the account will be fully funded. He eventually asked the respondent who was the guarantor to the petitioner for the loan and whose collateral he had declined, to write a petition against the petitioner to the AIG, Zone 5, Benin City. The respondent actually did. This would be his second complaint to the police on the dud cheque issue. The DWI, in turn made a statement to the police in Benin as a result of the petition of respondent. He identified exhibit P.24 which contained 15% monthly interest, but, said nothing about up front interest payment. He confirmed the signatures on exhibit P.14.

Equally, DWI stated that the petitioner was arrested and detained as a result of the petition to AIG by the respondent. A photocopy of the cheque which he claimed he presented to the bank was eventually tendered as exhibit RI. It had no date on it indicating when it was presented. DWI also confirmed that the purpose of the petition by the respondent to the police was to recover the loan with interest and prosecute the petitioner.

In determining the petition, the Legal Practitioners Disciplinary Committee considered the provisions of rules I and 15(1) & (3) of Rules of Professional Conduct.

“Rule 1. A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.”

“15(1) In his representation of a client, a lawyer may refuse to aid or participate in conduct that he believes to be unlawful even though there is some support for an argument that the conduct is legal.

(3) In his representation of his client, a lawyer shall not
Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent, or
Knowingly engage in other illegal conduct or conduct contrary to any of the rules.

Held (Unanimously that;

The respondent was guilty of infamous conduct in the course of the performance of his duly as a legal practitioner.
The respondent Dr. Osaretin George lzevbuwa be suspended from carrying on the trade or business of legal practice or as a legal practitioner for a period of 2 (two) years from the date of this direction.
that the Petitioner Elaigwu E. Apeh be investigated and if necessary be charged for misconduct for treating the process of the Committee with levity and ignoring the subpoena served on him.

The following issues were raised and determined by the Committee:

On Need for a legal practitioner not to put himself forward as guarantor through questionable agreement and turn around to start prosecuting same person through law enforcement agencies-
Per EMMANUEL C. UKALA, SAN (CHAIRMAN):
“It is absolutely unethical and clearly dishonorable for a lawyer to put himself forward as a guarantor through his questionable agreements, but, confirmed in his testimonies under oath and then turn around without discharging himself of his self imposed obligation, to start prosecuting the person he guaranteed through law enforcement agencies for the same person to whom he now owes an obligation to discharge his liability arising from his guarantee. What the respondent was expected to do in the circumstance was to first discharge the obligation by paying of the creditor and thereafter proceed against the petitioner in a law suit to recover the sum paid on his behalf. This is even more so as there is no evidence that D.W.I ever asked the respondent to discharge his obligation as guarantor neither is there evidence that he discharged same before seeking to enforce the agreement.”

On what is forgery and whether LPDC appropriate venue to charge an accuse for such offence-
Forgery is an offence under the Criminal Code as applicable to Edo State. The Legal Practitioners Disciplinary Committee is not the appropriate venue to charge an accused for such an offence.

On Venue for trial where person is accused of criminal offence –
Any person accused of a criminal offence must be tried in a court of law recognized for that purpose in the Constitution. No other tribunal, investigation panel, or committee will do so. In the instant case, the misconduct subject matter of the complaint was the fabrication of an agreement (exhibit 14) and the super-imposition of the Petitioner’s purported signature on the fabricated agreement. This suggested that the agreement was forged. In the absence of admission of the allegations by the respondent, the allegations required to be proved beyond reasonable doubt. In the circumstance, the Legal Practitioners Disciplinary Committee was not the appropriate venue to charge the respondent for such an offence.

On Nature of jurisdiction of the Legal Practitioners Disciplinary Committee-
The Legal Practitioners Disciplinary Committee was set up by law to inquire into the aspect of the conduct of legal practitioners which constitutes infamous conduct.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.